tm2521156-1_drsseq3 - none - 119.5094757s
As confidentially submitted to the Securities and Exchange Commission on December 19, 2025.
This draft registration statement has not been publicly filed with the Securities and Exchange Commission, and all information herein is strictly confidential.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Confidential Draft Submission No. 1
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ENZON PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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2836
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22-2372868
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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20 Commerce Drive, Suite 135
Cranford, New Jersey 07016
(732) 980-4500
(Address, including zip code and telephone number including area code, of registrant’s principal executive offices)
Richard L. Feinstein
Chief Executive Officer, Chief Financial Officer and Secretary
Enzon Pharmaceuticals, Inc.
20 Commerce Drive, Suite 135
Cranford, New Jersey 07016
(732) 980-4500
(Name, address, including zip code and telephone number including area code, of agent for service)
With copies to:
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Adam J. Agron
Evan J. Leitch
Brownstein Hyatt Farber
Schreck, LLP
675 15th Street, Suite 2900
Denver, Colorado 80202
(303) 223-1100
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Todd E. Mason
Corby J. Baumann
Benjamin M. Russell
Thompson Hine, LLP
300 Madison Avenue,
27th Floor
New York, New York 10017
(212) 344-5680
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Joseph D. King
Senior Vice President, General
Counsel and Secretary
Viskase Companies, Inc.
333 East Butterfield Road,
Suite 400
Lombard, Illinois 60148
(630) 874-0700
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Steven Khadavi
Joseph Walsh
Troutman Pepper Locke LLP
875 Third Avenue
New York, New York 10022
(212) 704-6000
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Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this Registration Statement is declared effective and upon the satisfaction or waiver of all other conditions to consummation of the transactions described herein.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
☒
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
The information in this prospectus/consent solicitation statement is not complete and may be changed. Enzon Pharmaceuticals, Inc. may not issue the securities offered by this prospectus/consent solicitation statement until the registration statement filed with the Securities and Exchange Commission, of which this prospectus/consent solicitation statement is a part, is declared effective. This preliminary prospectus/consent solicitation statement does not constitute an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale of these securities is not permitted.
PRELIMINARY PROSPECTUS/CONSENT SOLICITATION STATEMENT —
SUBJECT TO COMPLETION, DATED DECEMBER 19, 2025
CONSENT SOLICITATION
PROSPECTUS FOR ISSUANCE OF UP TO [•] SHARES OF COMMON STOCK IN THE MERGER
PROSPECTUS FOR OFFER TO EXCHANGE SHARES OF SERIES C PREFERRED STOCK
FOR
COMMON STOCK
Dear Enzon Stockholders:
On behalf of the board of directors (the “Enzon Board”) of Enzon Pharmaceuticals, Inc. (“Enzon”), we are pleased to provide this letter and enclose the prospectus/consent solicitation statement relating to the proposed merger of Enzon and Viskase Companies, Inc. (“Viskase”).
On June 20, 2025, Enzon, Viskase and EPSC Acquisition Corp. (“Merger Sub”) entered into an Agreement and Plan of Merger (the “Original Merger Agreement”), as amended by the First Amendment to the Agreement and Plan of Merger, dated October 24, 2025 (the “Merger Agreement Amendment,” and, together with the Original Merger Agreement, as it may be further amended, modified or supplemented from time to time in accordance with its terms, the “Merger Agreement”). Pursuant to the terms of, and subject to the conditions set forth in, the Merger Agreement, Merger Sub will merge with and into Viskase, with Viskase surviving the Merger as a wholly owned subsidiary of Enzon, and the separate corporate existence of Merger Sub will cease (the “Merger”), and promptly thereafter, Viskase will convert to a limited liability company under Delaware law. If the Merger is completed, the combined company will operate under the name “Viskase Holdings, Inc.” (the “Combined Company”) and its common stock will be quoted on the OTCQB tier of the OTC Markets Group, Inc. (the “Combined Company Common Stock”).
Upon consummation of the Merger, each share of Viskase’s common stock, par value $0.01 per share (the “Viskase Common Stock”) issued and outstanding immediately prior to the time at which the Merger becomes effective (the “Effective Time”) (other than shares of Viskase Common Stock (i) held by Viskase as treasury shares, (ii) owned by Enzon, Merger Sub or a wholly owned subsidiary of Viskase, Enzon or Merger Sub immediately prior to the Effective Time and (iii) dissenting shares) will be automatically converted into the right to receive a number of shares of Enzon’s common stock, par value $0.01 per share (the “Enzon Common Stock”) equal to the exchange ratio set forth in the Merger Agreement and described in the enclosed prospectus/consent solicitation statement.
No less than twenty-five (25) business days prior to the Effective Time, Enzon will commence an exchange offer pursuant to which Enzon will offer each holder of its Series C Non-Convertible Redeemable Preferred Stock, par value $0.01 per share (the “Enzon Series C Preferred Stock”) to exchange each share of Enzon Series C Preferred Stock held by such stockholder for a number of shares of Enzon Common Stock equal to (i) the aggregate liquidation preference of each share of Enzon Series C Preferred Stock, divided by (ii) the price equal to the average of the volume-weighted average price of Enzon Common Stock on the OTC market for the last twenty (20) trading days prior to (and including) October 24, 2025, rounded down to the nearest 1/100th of a penny (the “Series C Exchange Offer”). The accompanying prospectus/consent solicitation statement will also be used in connection with the Series C Exchange Offer. The Series C Exchange Offer will expire at [•] p.m., Eastern Time, on [•], 2026 unless extended or terminated in Enzon’s sole discretion or in accordance with applicable law.
Additionally, on June 20, 2025, concurrently with the execution of the Original Merger Agreement, Icahn Enterprises Holdings L.P. and certain of its affiliates (together, the “IEH Parties”) entered into a support agreement (as amended by the First Amendment to the Support Agreement, dated October 24, 2025, and as it may be further amended, modified or supplemented from time to time in accordance with its terms, the “IEH Support Agreement”) with Enzon and Viskase, pursuant to which the IEH Parties agreed to, among other things, not participate in the Series C Exchange Offer and, instead, convert their Enzon Series C Preferred Stock into Enzon Common Stock (the “IEH Share Exchange”).
As a result of the foregoing, and assuming that the Enzon Series C Preferred Stock is exchanged for Enzon Common Stock in full pursuant to the Series C Exchange Offer and the IEH Share Exchange, (a) holders of Enzon Common Stock immediately prior to the Effective Time are expected to own approximately 5% of the Combined Company Common Stock, (b) holders of Enzon Series C Preferred Stock are expected to own approximately 40% of the
Combined Company Common Stock and (c) holders of Viskase Common Stock are expected to own 55% of the Combined Company Common Stock. On June 20, 2025, the IEH Parties, as the holders of the majority of outstanding shares of Viskase Common Stock, executed and delivered the requisite action by written consent to Viskase consenting to the adoption of the Merger Agreement and the Merger by Viskase. Furthermore, on November 11, 2025, the IEH Parties, as the holders of the majority of the outstanding shares of Viskase Common Stock, executed and delivered the requisite action by written consent to Viskase consenting to the adoption of the Merger Agreement Amendment and the Merger by Viskase.
Under the Merger Agreement, prior to the Effective Time, Enzon intends to effect an amendment to the Enzon Amended and Restated Certificate of Incorporation (the “Enzon Charter,” and such amendment, the “Enzon Charter Amendment”) to effect the consolidation of the issued and outstanding shares of Enzon Common Stock at a ratio of 1 for 100 (the “Reverse Stock Split”).
Enzon is asking its stockholders to approve the Enzon Charter Amendment to effect the Reverse Stock Split, which will reduce the total number of shares of Enzon Common Stock outstanding, and to approve the adoption of the Merger Agreement.
The adoption of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Reverse Stock Split, requires an affirmative vote by written consent of the holders of a majority of the outstanding shares of Enzon Common Stock entitled to vote thereon. We are therefore sending the accompanying prospectus/consent solicitation statement to the holders of Enzon Common Stockto request that they consider and approve, via written consent, (i) the Reverse Stock Split (the “Reverse Stock Split Proposal”) and (ii) the adoption of the Merger Agreement (the “Merger Proposal” and, together with the Reverse Stock Split Proposal, the “Enzon Proposals”). Because Viskase stockholders have already approved the Merger by written consent, no meeting of Viskase stockholders will be held with respect to the Merger, and their approval of the Merger is not being sought.
Pursuant to the IEH Support Agreement, the IEH Parties agreed to, among other things and subject to certain exceptions, deliver written consents with respect to all of the issued and outstanding shares of Enzon Common Stock held by the IEH Parties approving the Enzon Proposals. As of [•], 2026 (the “Enzon Record Date”), the IEH Parties are entitled to vote [36,056,636] shares of Enzon Common Stock, or approximately [48.6]% of the issued and outstanding shares of Enzon Common Stock. Accordingly, assuming delivery of written consents from the IEH Parties pursuant to the terms of the IEH Support Agreement, written consents with respect to [1,050,666] shares of Enzon Common Stock will be needed to approve the Enzon Proposals.
More information about Enzon, Viskase and the Merger is contained in the accompanying prospectus/consent solicitation statement. Enzon urges you to read the accompanying prospectus/consent solicitation statement carefully and in its entirety. IN PARTICULAR, YOU SHOULD CAREFULLY CONSIDER THE MATTERS DISCUSSED IN THE SECTION TITLED “RISK FACTORS” BEGINNING ON PAGE 56 OF THE ACCOMPANYING PROSPECTUS/CONSENT SOLICITATION STATEMENT.
Enzon and Viskase are excited about the opportunities the Merger brings to both Enzon and Viskase stockholders and thank you for your consideration and continued support.
Richard L. Feinstein, Enzon Pharmaceuticals, Inc.
Chief Executive Officer, Chief Financial Officer
and Secretary
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED IN THE ACCOMPANYING PROSPECTUS/CONSENT SOLICITATION STATEMENT, PASSED UPON THE MERITS OR FAIRNESS OF THE MERGER OR RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS PROSPECTUS/CONSENT SOLICITATION STATEMENT. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
The accompanying prospectus/consent solicitation statement is dated [•], 2026, and is expected to be mailed to Enzon stockholders on or about [•], 2026.
ENZON PHARMACEUTICALS, INC.
20 Commerce Drive, Suite 135
Cranford, New Jersey 07016
NOTICE OF SOLICITATION OF WRITTEN CONSENT OF THE STOCKHOLDERS OF ENZON
Dear Enzon Stockholders:
Pursuant to an Agreement and Plan of Merger, dated as of June 20, 2025 (the “Original Merger Agreement”), by and among Enzon Pharmaceuticals, Inc. (“Enzon”), Viskase Companies, Inc. (“Viskase”) and EPSC Acquisition Corp. (“Merger Sub”), as amended by the First Amendment to the Agreement and Plan of Merger, dated October 24, 2025 (the “Merger Agreement Amendment,” and, together with the Original Merger Agreement, as it may be further amended, modified or supplemented from time to time in accordance with its terms, the “Merger Agreement”), Merger Sub will merge with and into Viskase, with Viskase surviving the merger as a wholly owned subsidiary of Enzon, on the terms and subject to the satisfaction of the conditions described in the Merger Agreement (the “Merger”), and promptly thereafter, Viskase will convert into a limited liability company under Delaware law.
The accompanying prospectus/consent solicitation statement is being delivered to you on behalf of the board of directors of Enzon (the “Enzon Board”) to request that holders of Enzon’s common stock, par value $0.001 per share (the “Enzon Common Stock”), as of the record date of [•], 2026 (the “Enzon Record Date”), execute and return written consents to approve proposals for (i) an amendment to the Enzon Amended and Restated Certificate of Incorporation (the “Enzon Charter,” and such amendment, the “Enzon Charter Amendment”) to effect the consolidation of the issued and outstanding shares of Enzon Common Stock at a ratio of 1 for 100 in connection with the Merger (the “Reverse Stock Split” and, such proposal, the “Reverse Stock Split Proposal”) and (ii) the adoption of the Merger Agreement (the “Merger Proposal” and, together with the Reverse Stock Split Proposal, the “Enzon Proposals”). Only holders of Enzon Common Stock as of the close of business on the Enzon Record Date are entitled to receive notice of solicitation of written consent.
As of the Enzon Record Date, [74,214,603] shares of Enzon Common Stock are issued and outstanding and the consent of [37,107,302] of the issued and outstanding shares of Enzon Common Stock is required to approve each of the Enzon Proposals, which represents a majority of the issued and outstanding shares of Enzon Common Stock as of the Enzon Record Date. As of the Enzon Record Date, Icahn Enterprises Holdings L.P. and its affiliates (together, the “IEH Parties”) are entitled to vote [36,056,636] shares of Enzon Common Stock, or approximately [48.6]% of the issued and outstanding shares of Enzon Common Stock. The IEH Parties entered into a support agreement with Enzon and Viskase (as amended by the First Amendment to the Support Agreement, dated October 24, 2025, by and among Enzon, Viskase and the IEH Parties), pursuant to which the IEH Parties agreed to, among other things, and subject to certain exceptions, deliver written consents with respect to all of the issued and outstanding shares of Enzon Common Stock held by the IEH Parties approving the Enzon Proposals. Accordingly, assuming delivery of written consents from the IEH Parties pursuant to the terms of the IEH Support Agreement, written consents with respect to [1,050,666] shares of Enzon Common Stock will be needed to approve the Enzon Proposals.
The accompanying prospectus/consent solicitation statement describes the Reverse Stock Split Proposal, the Merger Proposal and the actions to be taken in connection therewith and provides additional information about the parties involved. Please give this information your careful attention. A copy of the Merger Agreement is attached as Annex A to the accompanying prospectus/consent solicitation statement and a copy of the Merger Agreement Amendment is attached as Annex A-1 to the accompanying prospectus/consent solicitation statement.
A special committee of the Enzon Board consisting of only independent and disinterested directors (the “Enzon Special Committee”) and the Enzon Board considered the terms of the Merger Agreement. The Enzon Board, upon the unanimous recommendation of the Enzon Special Committee, unanimously recommends that the holders of Enzon common stock entitled to vote deliver a written consent “FOR” the approval of the Reverse Stock Split Proposal and the Merger Proposal by executing and returning the written consent, electronically or by mail, furnished with the prospectus/consent solicitation statement.
On June 20, 2025, the IEH Parties, as the holders of the majority of outstanding shares of Viskase, executed and delivered an action by written consent to Viskase consenting to the adoption of the Merger Agreement and the Merger by Viskase. On November 11, 2025, the IEH Parties, as the holders of the majority of the outstanding shares of Viskase, executed and delivered an action by written consent to Viskase consenting to the adoption of the Merger Agreement Amendment and approval of the Merger by Viskase. Such written consents constitute the requisite stockholder approval required for Viskase to consummate the Merger. Neither Enzon nor Viskase will hold a stockholders’ meeting to consider the Reverse Stock Split Proposal or the Merger Proposal.
The consent of the Enzon stockholders is very important. The Merger cannot be completed unless each of the Reverse Stock Split Proposal and the Merger Proposal is approved by the written consent of the holders of a majority of the issued and outstanding shares of Enzon Common Stock entitled to vote thereon. The enclosed prospectus/consent solicitation statement provides Enzon stockholders with detailed information about the Merger, the Reverse Stock Split Proposal and the Merger Proposal. We encourage you to review these materials carefully and provide your written consent as soon as possible by following the instructions in the accompanying prospectus/consent solicitation statement to make sure that your shares are properly represented. If your shares are held in “street name” by a brokerage firm, bank or other nominee, please follow the instructions furnished by such brokerage firm, bank or other nominee. If you do not execute and return your written consent, or otherwise withhold your written consent, it will have the same effect as voting against the Reverse Stock Split Proposal and the Merger Proposal.
The Enzon Board has set the Enzon Record Date for determining the holders of Enzon common stock entitled to execute and deliver written consents with respect to this solicitation. If you are a holder of Enzon common stock on the Enzon Record Date, you are urged to complete, date and sign the enclosed written consent and return it to Enzon. Please see the section titled “Enzon Solicitation of Written Consent” of the accompanying prospectus/consent solicitation statement for further information.
Please complete, date and sign the written consent furnished with the accompanying prospectus/consent solicitation statement and return it promptly to Enzon by one of the means described in the section titled “The Merger — Enzon Solicitation of Written Consents” as soon as possible. Once a sufficient number of consents to adopt the Enzon Proposals has been received, the consent solicitation will conclude.
The Enzon Board has set [•] [a.m./p.m.], Eastern Time, on [•], 2026, as the target date for the receipt of written consents.
By order of the Enzon Board of Directors of Enzon Pharmaceuticals, Inc.
Richard L. Feinstein
Chief Executive Officer, Chief Financial Officer and Secretary
Cranford, New Jersey
[•], 2026
ADDITIONAL INFORMATION
This document, which forms part of a registration statement on Form S-4 filed with the SEC by Enzon (File No. 333- ) (the “Registration Statement”), constitutes a prospectus of Enzon under Section 5 of the Securities Act, with respect to (i) the issuance of shares of Enzon Common Stock in the event that the merger described in this prospectus/consent solicitation statement is consummated and (ii) the issuance of Enzon Common Stock in connection with the Series C Exchange Offer. This document also constitutes a consent solicitation of Enzon stockholders pursuant to which Enzon stockholders are being asked to consider and consent to the merger, among other matters.
Enzon files periodic reports and other information with the SEC as required by the Exchange Act. You can obtain any of the documents delivered with this prospectus/consent solicitation statement from the SEC’s website at www.sec.gov, and they are available for you to review at the SEC’s Public Reference Room located at 100 F Street, N.E., Washington, D.C. 20549. This prospectus/consent solicitation statement also includes important business and financial information about Viskase. Additional copies are available to you without charge upon your request in writing, by email or by telephone from Enzon or Viskase at their respective addresses and telephone numbers listed below or by accessing such documents on the websites listed below. Any other information provided on the websites listed below is not a part of this prospectus/consent solicitation statement and should not be relied upon in connection with your evaluation of the Reverse Stock Split Proposal and the Merger Proposal described herein.
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For Enzon stockholders:
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For Viskase stockholders:
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Enzon Pharmaceuticals, Inc.
20 Commerce Drive, Suite 135
Cranford, New Jersey 07016
Phone: (732) 980-4500
investor@enzon.com
www.enzon.com
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Viskase Companies, Inc.
333 East Butterfield Road, Suite 400
Lombard, Illinois 60148
Phone: (630) 874-0700
joe.king@viskase.com
www.viskase.com
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In addition, if you have questions about the merger or the solicitation of Enzon written consents, or if you need to obtain copies of this prospectus/consent solicitation statement or other related documents, you may contact the consent solicitor of Enzon, whose contact information is as follows:
HKL & Co., LLC
3 Columbus Circle, 15FL
New York, New York 10019
Banks and Brokerage Firms Please Call Collect: (212) 468-5380
All Others Call Toll-Free: (800) 326-5997
Email: enzn@hklco.com
To ensure timely delivery, any request must be made no later than [•], 2026, which is five business days before the expiration date of the Series C Exchange Offer.
For additional details about where you can find information, please see the section titled “Where You Can Find More Information” in this prospectus/consent solicitation statement.
ABOUT THIS PROSPECTUS/CONSENT SOLICITATION STATEMENT
Enzon has filed with the SEC a registration statement on Form S-4 (File No. 333- ), of which this prospectus/consent solicitation statement forms a part.
You should rely on the information contained in this prospectus/consent solicitation statement, including the detailed information regarding Enzon.
Neither Enzon nor Viskase has authorized anyone to provide you with information different from that contained in this prospectus/consent solicitation statement. Enzon takes no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. You should not assume that the information in this prospectus/consent solicitation statement, any document incorporated herein by reference or any Annex or Exhibit is accurate as of any date other than the date on the front of those documents. You should not consider this prospectus/consent solicitation statement to be an offer or solicitation relating to the securities in any jurisdiction in which such an offer or solicitation relating to the securities is not authorized. Furthermore, you should not consider this prospectus/consent solicitation statement to be an offer or solicitation relating to the securities offered hereby if the Person making the offer or solicitation is not qualified to do so, or if it is unlawful for you to receive such an offer or solicitation.
Except where the context otherwise indicates, the information concerning Enzon contained in or incorporated by reference into this prospectus/consent solicitation statement has been provided by Enzon, and the information concerning Viskase contained in this prospectus/consent solicitation statement has been provided by Viskase. Enzon has relied on Viskase to provide such information and has not independently verified the information provided by Viskase. Enzon has also relied on Viskase’s representations and warranties related to such information in the Merger Agreement.
Prior to making any decision with respect to the proposals herein, you should read this prospectus/consent solicitation statement, together with the documents incorporated by reference herein and the Annexes and Exhibits thereto, and for additional information, please see the description in the section titled “Where You Can Find More Information” in this prospectus/consent solicitation statement.
TABLE OF CONTENTS
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ii
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88
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88
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88
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89
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89
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90
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91
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92
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92
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92
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93
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94
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94
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94
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110
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116
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122
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130
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136
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139
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140
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140
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148
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151
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152
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155
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163
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165
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167
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194
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217
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253
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F-1
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F-29
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| |
Annexes
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A-1
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A-1-1
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B-1
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B-1-1
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C-1
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D-1
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E-1
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F-1
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G-1
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II-1
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II-1
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|
FREQUENTLY USED TERMS
Unless otherwise indicated or as the context otherwise requires, all references in this prospectus/consent solicitation statement to:
“382 Rights Agreement” means that certain Section 382 Rights Agreement, dated as of August 14, 2020, as amended, by and between Enzon and Continental Stock Transfer & Trust Company.
“Acceptable Confidentiality Agreement” means a customary confidentiality agreement entered into by Enzon containing provisions (i) not less favorable to Enzon in any material respect than those set forth in the Confidentiality Agreement, (ii) that require any counterparty thereto (and any of its Affiliates and Representatives named therein) that receives non-public information of or with respect to Enzon and its Subsidiaries to keep such information confidential; provided that the provisions contained therein are no less restrictive in any material respect to such counterparty (and any of its Affiliates and Representatives named therein) than those set forth in the Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement need not include a standstill provision) and (iii) does not prohibit Enzon from providing any information to Viskase in accordance with, and otherwise complying with the Merger Agreement.
“Affiliate” means, with respect to any Person, any other Person that directly, or through one (1) or more intermediaries, controls or is controlled by or is under common control with such Person; provided, however, that with respect to (i) Viskase, “Affiliate” means any Person that is controlled, directly or indirectly, by Viskase and (ii) Enzon, “Affiliate” means any Person that is controlled, directly or indirectly, by Enzon. As used herein, the term “control” means: (A) the power to vote at least ten percent (10%) of the voting power of a Person or (B) the possession, directly or indirectly, of any other power to direct or cause the direction of the management and policies of such a Person, whether through ownership of voting securities, by contract or otherwise.
“Beneficially Own” means, with respect to any securities, having “beneficial ownership” of such securities for purposes of Rule 13d-3 or 13d-5 under the Exchange Act (or any successor statute or regulation).
“Cash on Hand” means all cash and cash equivalents of Enzon, in each case, determined in accordance with U.S. GAAP, and held in any account of Enzon, (i) excluding the amount of any issued but uncleared checks, wires or drafts and any cash overdrafts and restricted cash and (ii) including checks and drafts deposited for the account of Enzon or on hand at Enzon or available for deposit for the account of Enzon.
“Closing” means the Closing of the Merger.
“Closing Date” means date upon which the Closing occurs.
“Code” means the Internal Revenue Code of 1986, as amended.
“Combined Company” means Enzon, after giving effect to the Merger, which will be renamed “Viskase Holdings, Inc.” in connection with the Closing.
“Confidentiality Agreement” means that certain confidentiality agreement between Viskase and Enzon, dated as of January 3, 2025.
“Court” means the Delaware Court of Chancery.
“Delaware LLC Act” means the Limited Liability Company Act of the State of Delaware.
“DGCL” means the General Corporation Law of the State of Delaware.
“Dissenting Viskase Shares” means shares of Viskase Common Stock that are issued and outstanding immediately prior to the Effective Time and held by the stockholders of Viskase who have not voted in favor of the adoption of the Merger Agreement (or consented thereto in writing) and who shall have properly demanded appraisal of such shares of Viskase Common Stock in accordance with, and who have otherwise
complied in all respects with, Section 262 of the DGCL and, as of the Effective Time, have neither effectively withdrawn nor lost their rights to such appraisal under the DGCL.
“Effective Time” means the time at which the Merger shall become effective.
“EisnerAmper” means EisnerAmper LLP, an independent registered public accounting firm, serving as Enzon’s auditor.
“Enzon” means Enzon Pharmaceuticals, Inc., a Delaware corporation.
“Enzon 20-Day VWAP” means the price equal to the average of the volume-weighted average price of Enzon Common Stock on the “OTCQB” tier of the OTC (as reported by Bloomberg or, if not reported thereby, in another authoritative source mutually selected by Enzon, Viskase and IEH) for the last twenty (20) Trading Days prior to (and including) October 24, 2025, rounded down to the nearest 1/100th of a penny (as adjusted to take into account the Reverse Stock Split, to the extent the Reverse Stock Split is effectuated prior to the date of the relevant issuance of Enzon Common Stock). The Enzon 20-Day VWAP as calculated pursuant to the definition provided in the Merger Agreement is $0.08 per share of Enzon Common Stock, which after giving effect to the Reverse Stock Split of 1 for 100, will be adjusted to $7.83.
“Enzon Balance Sheet Date” means the date of the most recent consolidated balance sheet included, prior to the date of the Merger Agreement, in the material reports, schedules, forms, statements and other documents required to be filed or furnished by Enzon with or to the SEC pursuant to the Securities Act or the Exchange Act since January 1, 2023.
“Enzon Board” means the board of directors of Enzon.
“Enzon By-Laws” means the Second Amended and Restated By-Laws of Enzon, as amended and restated from time to time.
“Enzon Charter” means the Amended and Restated Certificate of Incorporation of Enzon, as amended and restated from time to time.
“Enzon Common Stock” means Enzon’s common stock, $0.01 par value per share.
“Enzon Organizational Documents” means the Enzon Charter and the Enzon By-Laws.
“Enzon Recommendation” means the recommendation by the Enzon Board (acting upon the unanimous recommendation of the Enzon Special Committee) that the stockholders of Enzon entitled to vote thereon (i) adopt the Merger Agreement and (ii) approve an amendment to the Enzon Charter in the form of Exhibit B to the Merger Agreement Amendment, which is attached as Annex A-1 to this prospectus/consent solicitation statement to, among other things, effect the Reverse Stock Split.
“Enzon Series C Preferred Stock” means Enzon’s Series C Non-Convertible Redeemable Preferred Stock, $0.01 par value per share.
“Enzon Special Committee” means a special committee of the Enzon Board consisting only of independent and disinterested directors that the Enzon Board determined to be disinterested directors within the meaning of the DGCL.
“Enzon Stock” means any and all classes of shares of Enzon, including Enzon Common Stock and Enzon Series C Preferred Stock.
“Enzon Stockholder Approval” means the affirmative vote (in Person, by proxy or by written consent) of the holders of a majority of the outstanding shares of Enzon Common Stock entitled to vote thereon to (i) adopt the Merger Agreement and (ii) approve an amendment to the Enzon Charter in the form of Exhibit B to the Merger Agreement Amendment, which is attached as Annex A-1 to this prospectus/consent solicitation statement to, among other things, effect the Reverse Stock Split.
“Enzon Transaction Litigation” means any stockholder litigation or claim against Enzon and/or its directors or officers relating to the Merger or the other transactions contemplated by the Merger Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“FASB” means the Financial Accounting Standards Board.
“Grant Thornton” means Grant Thornton LLP, an independent registered public accounting firm, serving as Viskase’s auditor.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“IEH” means Icahn Enterprises Holdings L.P., a Delaware limited partnership.
“IEH Parties” means, collectively, IEH, American Entertainment Properties Corp., a Delaware corporation (“AEP”), Icahn Partners LP, a Delaware limited partnership (“IPLP”), and Icahn Partners Master Fund LP, a Delaware limited partnership (“IPMF”).
“IEH Share Exchange” means the exchange of all shares of Enzon Series C Preferred Stock Beneficially Owned by each IEH Party for a number of shares of Enzon Common Stock equal to (i) (A) the aggregate Liquidation Preference of such shares of Enzon Series C Preferred Stock, divided by (ii) the Enzon 20-Day VWAP.
“IEH Support Agreement” means the Support Agreement, dated as of June 20, 2025, by and among Enzon, Viskase and the IEH Parties, a copy of which is attached as Annex B to this prospectus/consent solicitation statement, as amended by the IEH Support Agreement Amendment and as the same may be amended, modified or supplemented from time to time in accordance with its terms.
“IEH Support Agreement Amendment” means that certain First Amendment to the Support Agreement, dated October 24, 2025, by and among Enzon, Viskase and the IEH Parties, a copy of which is attached as Annex B-1 to this prospectus/consent solicitation statement.
“IRS” means the United States Internal Revenue Service.
“Intended Tax Treatment” means (i) the Merger and the conversion of Viskase into a limited liability company undertaken as part of the Merger Agreement will, taken together, qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the regulations promulgated thereunder, (ii) Enzon and Viskase will each be a party to the reorganization within the meaning of Section 368(b) of the Code and (iii) the Merger Agreement will constitute a “plan of reorganization” within the meaning of the Code.
“Lien” means any mortgage, pledge, security interest, encumbrance, title defect, lien (statutory or other), conditional sale agreement, claim, charge, adverse right, prior assignment, hypothecation, limitation or restriction.
“Liquidation Preference” has the meaning given to it in the Certificate of Designation of Series C Non-Convertible Redeemable Preferred Stock of Enzon, which, for the avoidance of doubt, includes accrued and unpaid dividends on the Enzon Series C Preferred Stock.
“Merger” means the Merger of Merger Sub with and into Viskase with Viskase continuing as the surviving corporation and as a wholly owned Subsidiary of Enzon following the Merger.
“Merger Agreement” means the Agreement and Plan of Merger, dated as of June 20, 2025, by and among Enzon, Merger Sub and Viskase, a copy of which is attached as Annex A to this prospectus/consent solicitation statement, as amended by the Merger Agreement Amendment and as the same may be amended, modified or supplemented from time to time in accordance with its terms.
“Merger Agreement Amendment” means that certain First Amendment to the Merger Agreement, dated October 24, 2025, by and among Enzon, Merger Sub and Viskase, a copy of which is attached as Annex A-1 to this prospectus/consent solicitation statement.
“Merger Sub” means EPSC Acquisition Corp., a Delaware corporation and wholly owned Subsidiary of Enzon.
“Minimum Cash Condition” means at the Closing, Enzon having Cash on Hand of an amount that is equal to or greater than $40,000,000.
“OTC Markets” means OTC Markets Group, Inc.
“Permitted Lien” means (i) Liens for taxes not yet due and payable or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP on the balance sheet of the applicable Person, (ii) mechanics’, carriers’, workers’, repairers’, materialmen’s, warehousemen’s, lessor’s, landlord’s and other similar Liens arising or incurred in the ordinary course of business, (iii) non-monetary Liens that would be disclosed on title policies, title commitments and/or surveys; provided that the same do not materially interfere with the business of Enzon or its Subsidiaries or Viskase or its Subsidiaries, as applicable, or the operation of the property as presently conducted to which they apply, (iv) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions or other social security or retirement benefits or similar legislation, (v) deposits securing liability to insurance carriers under insurance or self-insurance arrangements, (vi) deposits to secure the performance of bids, tenders, trade contracts (other than contracts for indebtedness for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business, (vii) easements, rights of way, zoning ordinances, variances, any set of facts that would be disclosed by an accurate up-to-date survey and other similar encumbrances affecting a Person’s properties, none of which materially interfere with the business of Enzon or its Subsidiaries or Viskase or its Subsidiaries, as applicable, or the operation of the property as presently conducted to which they apply, (viii) non-exclusive licenses of intellectual property rights granted in the ordinary course of business and (ix) Liens not created by any of Enzon or Viskase (or their Subsidiaries) that affect the underlying fee interest of any leased real property of Enzon or Viskase (or their Subsidiaries).
“Person” means an individual, corporation, limited liability company, partnership, association, trust, other entity or group (as defined in the Exchange Act).
“Proposed Charter Amendment” means the Amendment to the Enzon Charter, the form of which is attached to this prospectus/consent solicitation statement as Exhibit B to the Merger Agreement Amendment, which is attached as Annex A-1 to this prospectus/consent solicitation statement.
“Representative” means, with respect to any Person, such Person’s Affiliates and its and their respective officers, directors, managers, partners, employees, accountants, counsel, financial advisors, consultants and other advisors or Representatives.
“Reverse Stock Split” means the consolidation of the issued and outstanding shares of Enzon Common Stock at a ratio of 1 for 100 as contemplated by the Merger Agreement and the Proposed Charter Amendment.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Series C Exchange Offer” means the exchange offer pursuant to which Enzon will offer each holder of Enzon Series C Preferred Stock to exchange each such holder’s shares of Enzon Series C Preferred Stock for shares of Enzon Common Stock, pursuant to the terms and subject to the conditions set forth in the Merger Agreement.
“Subsidiary” means, when used with respect to any Person, (i) any corporation, partnership or other organization, whether incorporated or unincorporated, (A) of which such Person or any other Subsidiary of such Person is a general partner (excluding partnerships, the general partnership interests of which held by such Person or any Subsidiary of such Person do not have a majority of the voting interests in such partnership) or (B) at least a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one (1) or more of its Subsidiaries, or by such Person and one (1) or more of its Subsidiaries, or (ii) any partnership, limited liability company, association, joint venture or other business
entity, of which a majority of the partnership, joint venture or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one (1) or more Subsidiaries of that Person or a combination thereof.
“Surviving Company” means Viskase Companies, Inc., a Delaware corporation, after giving effect to the Merger of Viskase and Merger Sub, in connection with the Closing.
“Surviving Company Conversion” means the conversion of the Surviving Company into a limited liability company under Section 266 of the DGCL and Section 18-214 of the Delaware LLC Act.
“Takeover Law” means any law that restricts a “business combination,” “control share acquisition,” “fair price,” “moratorium” or other anti-takeover law.
“Total Closing Share Number” means the number equal to (i) the number of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time (after giving effect to the Reverse Stock Split, the IEH Share Exchange and the shares of Enzon Common Stock issued pursuant to the Series C Exchange Offer), divided by (ii) 0.45.
“Trading Day” means, with respect to Enzon Common Stock, a day on which shares of Enzon Common Stock are traded on OTC.
“U.S. GAAP” means generally accepted accounting principles in the United States.
“Viskase” means Viskase Companies, Inc., a Delaware corporation.
“Viskase Balance Sheet Date” means March 31, 2025.
“Viskase Board” means the board of directors of Viskase.
“Viskase Bylaws” means the Amended and Restated Bylaws of Viskase, as amended and restated from time to time.
“Viskase Charter” means the Amended and Restated Certificate of Incorporation of Viskase, as amended and restated from time to time.
“Viskase Common Stock” means Viskase’s common stock, $0.01 par value per share.
“Viskase Closing Share Number” means the number of shares of Enzon Common Stock equal to (i) the Total Closing Share Number, minus (ii) the number of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time (after giving effect to the Reverse Stock Split, the IEH Share Exchange and the shares of Enzon Common Stock issued pursuant to the Series C Exchange Offer).
“Viskase Credit Agreement” means that certain Credit Agreement, dated as of October 9, 2020, by and among Viskase, Bank of America, N.A., and other lenders, as amended by the First Amendment, dated August 13, 2021, as further amended by the Second Amendment, dated August 10, 2022, and as further amended by the Limited Waiver Third Amendment to Credit Agreement, dated February 14, 2025, the Fourth Amendment to Credit Agreement, dated July 25, 2025, the Fourth Amendment Fee Letter to Credit Agreement, dated July 25, 2025 and the Fifth Amendment to Credit Agreement, dated October 10, 2025.
“Viskase Material Adverse Effect” means any event, change, circumstance, effect, development or state of facts that, individually or in the aggregate, is or would reasonably be expected to (i) be materially adverse to the business, results of operations, assets or financial condition of Viskase and its Subsidiaries, taken as a whole, or (ii) materially delay, impede or prevent the transactions contemplated by the Merger Agreement on or before the Termination Date; provided, however, that for purposes of subclause (i), Viskase Material Adverse Effect shall not include the effect of any event, change, circumstance, effect, development or state of facts to the extent it results from or arises out of (A) general economic or political conditions or securities, credit, financial or other capital markets conditions, in each case in the United States or any foreign jurisdiction, (B) changes or conditions generally affecting the industries, businesses, or segments thereof, in which Viskase or its Subsidiaries operate, (C) any change after the date thereof in applicable law, regulation, GAAP or accounting standards (or authoritative interpretation of any of the foregoing), (D) the
announcement of the IEH Support Agreement or the transactions contemplated thereby or the terms thereof or the consummation of the transactions contemplated by the Merger Agreement, including the impact thereof on the relationships of Viskase or its Subsidiaries with customers, suppliers, distributors, partners, officers or employees, (E) pandemics, epidemics, COVID-19, acts of war (whether or not declared), armed hostilities, sabotage, terrorism or cyber-attack, or any escalation or worsening of any acts of war, armed hostilities, sabotage, terrorism or cyber-attack threatened or underway as of the date of the Merger Agreement (including requirements for business closures, restrictions on operations or “sheltering-in-place”), (F) earthquakes, hurricanes, floods, or other natural disasters or other weather-related or force majeure events, (G) any failure, in and of itself, by Viskase to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period, (H) any change in the market price or trading volume of Viskase’s securities or downgrade in Viskase’s credit rating, (I) tariffs, trade wars or similar matters, (J) any demands, litigation or similar actions brought by stockholders of Viskase in connection with the Merger Agreement and the transactions contemplated thereby or (K) the taking of any specific action expressly required by the Merger Agreement or taken with Enzon’s written consent or the failure to take any specific action expressly prohibited by the Merger Agreement and as for which Enzon declined to consent; except, in each case, with respect to the exceptions set forth in (A), (B), (C) or (E), to the extent materially disproportionately affecting Viskase and its Subsidiaries, taken as a whole, relative to other similarly situated companies in the industries in which Viskase operates, then the incremental material disproportionate impact of such event, change, circumstance, effect, development or state of facts shall be taken into account for the purpose of determining whether a Viskase Material Adverse Effect has occurred. Notwithstanding the foregoing, if Enzon, Merger Sub or any of their respective Representatives knew of the material facts of a matter prior to October 24, 2025 (including in connection with any request made pursuant to Section 5.1 of the Merger Agreement), then no effect, change, event or occurrence arising out of, or resulting from, such facts shall constitute a Viskase Material Adverse Effect for all purposes under the Merger Agreement; provided that, for the avoidance of doubt, a Viskase Material Adverse Effect may result from facts that Enzon, Merger Sub or any of their respective Representatives become aware of after October 24, 2025.
“Viskase Organizational Documents” means the Viskase Charter and the Viskase Bylaws.
“Viskase Preferred Stock” means Viskase’s preferred stock, par value $0.01 per share.
“Viskase Special Committee” means a special committee of the Viskase Board consisting only of independent and disinterested directors that the Viskase Board determined to be disinterested directors within the meaning of the DGCL.
“Viskase Stockholder Approval” means the affirmative vote (in person, by proxy or by written consent) of the holders of a majority of the outstanding shares of Viskase Common Stock to (i) adopt the Merger Agreement and (ii) approve the Merger.
“Viskase Transaction Litigation” means any stockholder litigation or claim against Viskase and/or its directors or officers relating to the Merger or the other transactions contemplated by the Merger Agreement.
QUESTIONS AND ANSWERS ABOUT THE MERGER AND THE CONSENT SOLICITATION
The following are answers to certain questions you may have regarding the Merger Agreement, the transactions contemplated thereby and the solicitation of Enzon written consents. You are encouraged to read this entire prospectus/consent solicitation statement carefully and in its entirety because the information in this section does not provide all of the information that might be important to you. Additional important information is also contained in the Annexes and exhibits to this prospectus/solicitation statement, as well as described in the section titled “Where You Can Find More Information” in this prospectus/consent solicitation statement.
Q:
What is the proposed transaction?
A:
Viskase has agreed to merge with a wholly owned Subsidiary of Enzon under the terms of the Merger Agreement, which is further described in this prospectus/consent solicitation statement. Subject to the satisfaction or waiver of the conditions set forth in the Merger Agreement, including the consummation of the Reverse Stock Split, the IEH Share Exchange, the Series C Exchange Offer and receipt of the requisite written consent of Enzon stockholders, Merger Sub will merge with and into Viskase, with Viskase surviving the Merger as a wholly owned Subsidiary of Enzon, and promptly thereafter, Viskase will convert into a limited liability company under Delaware law.
Q:
Why am I receiving this consent solicitation statement?
A:
Enzon is sending these materials to the holders of Enzon Common Stock at the close of business on the record date of [•], 2026 (the “Enzon Record Date”), to seek approval of the Reverse Stock Split Proposal and the Merger Proposal. This prospectus/consent solicitation statement provides important information about the Merger and the other transactions contemplated by the Merger Agreement, including the Reverse Stock Split, and is intended to help you make an informed decision on whether to provide your written consent.
Q:
What are the specific proposals to which Enzon stockholders are being asked to consent?
A:
Enzon stockholders are being asked to approve the following proposals:
1.
Reverse Stock Split Proposal — Enzon is soliciting stockholder approval for an amendment to the Enzon Charter to, among other things, effect a consolidation of the issued and outstanding shares of Enzon Common Stock, pursuant to which the shares of Enzon Common Stock would be combined and reclassified at a ratio of 1 to 100.
2.
Merger Proposal — Enzon is soliciting stockholder approval for the adoption of the Merger Agreement, including the Merger and the other transactions contemplated thereby.
Please see the sections titled “Enzon Proposal 1: Approval of the Reverse Stock Split” and “Enzon Proposal 2: Adoption of the Merger Agreement” in this prospectus/consent solicitation statement for further information regarding the Enzon Proposals.
Q:
Why is Enzon proposing the Merger?
A:
The Enzon Board, acting on the unanimous recommendation of the Enzon Special Committee, unanimously determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to, and in the best interests of, Enzon and the Enzon stockholders. Please see the section titled “The Merger — Enzon’s Reasons for the Merger; Recommendation of the Enzon Special Committee and the Enzon Board of Directors” in this prospectus/consent solicitation statement for further information regarding the reasons for the Merger. Please also see the section titled “Opinion of the Enzon Special Committee’s Financial Advisor” in this prospectus/consent solicitation statement for information regarding the opinion, dated October 21, 2025, of the Enzon Special Committee’s financial advisor which was provided to the Enzon Special Committee (in its capacity as such) for its information and assistance in connection with its consideration of the financial terms of the Merger.
Q:
What stockholder consent is required to approve the Enzon Proposals?
A:
Approval of each of the Reverse Stock Split Proposal and the Merger Proposal requires the affirmative vote of the holders of a majority of the outstanding shares of Enzon Common Stock entitled to vote thereon.
As of the Enzon Record Date, [74,214,603] shares of Enzon Common Stock are issued and outstanding and the consent of [37,107,302] shares of the issued and outstanding shares of Enzon Common Stock are required to approve each of the Enzon Proposals, which represents a majority of the issued and outstanding shares of Enzon Common Stock. As of the Enzon Record Date, the IEH Parties are entitled to vote [36,056,636] shares of Enzon Common Stock, or approximately [48.6]% of the issued and outstanding shares of Enzon Common Stock. Pursuant to the IEH Support Agreement, the IEH Parties agreed to, among other things, and subject to certain exceptions, deliver written consents with respect to all of the issued and outstanding shares of Enzon Common Stock held by the IEH Parties approving the Enzon Proposals. Accordingly, assuming delivery of written consents from the IEH Parties pursuant to the terms of the IEH Support Agreement, written consents with respect to [1,050,666] shares of Enzon Common Stock will be needed to approve the Enzon Proposals.
Q:
What is a consent, and why is Enzon requesting written consent in lieu of a meeting with stockholders?
A:
Enzon Stockholder Approval is a written consent/authorization approving the Enzon Proposals outlined within this prospectus/consent solicitation statement, without the need for a formal stockholders meeting. Under the terms of the Merger Agreement, the Enzon Organizational Documents and applicable law, Enzon is not required to call any meeting of its stockholders in connection with the Enzon Stockholder Approval and may obtain stockholder approvals by written consent in lieu of a meeting by receipt of the consent of a majority of the outstanding shares of Enzon Common Stock. This prospectus/consent solicitation statement includes the Enzon Special Committee Recommendation and the Enzon Recommendation.
Q:
Who is entitled to consent?
A:
The holders of Enzon Common Stock at the close of business on the Enzon Record Date.
Q:
Are any Enzon stockholders already committed to vote in favor of the Enzon Proposals?
A:
Concurrently with the execution of the Merger Agreement, the IEH Parties entered into the IEH Support Agreement, as amended by the IEH Support Agreement Amendment, with Enzon and Viskase, pursuant to which the IEH Parties agreed to, among other things, and subject to certain exceptions, deliver written consents approving (i) the Merger Proposal and (ii) the Reverse Stock Split Proposal. Please see the section titled “Support Agreement” in this prospectus/consent solicitation statement for further information regarding the IEH Support Agreement.
Q:
Under what circumstances are the IEH Parties not required to provide approval?
A:
The IEH Parties are not required to consent or vote in favor of any transaction, proposal or action if an Enzon Adverse Recommendation Change has occurred and has not been rescinded.
Q:
Are Enzon stockholders entitled to appraisal rights?
A:
No. Under the DGCL, Enzon stockholders are not entitled to exercise any dissenters’ or appraisal rights in connection with the Merger. However, Viskase stockholders are entitled to appraisal rights in connection with the Merger under the DGCL. Please see the section titled “Appraisal and Dissenters’ Rights” in this prospectus/consent solicitation statement for further information.
Q:
Are Viskase stockholders entitled to appraisal rights?
A:
Holders of Viskase Common Stock who: (i) timely submit to Viskase a proper written demand for appraisal of such shares; (ii) continuously remain the record holders or beneficial owners of such shares
through the Effective Time; and (iii) otherwise comply with the applicable procedures and requirements set forth in Section 262 of the DGCL will be entitled to have their shares appraised by the Court and receive payment in cash of the “fair value” of such shares (as determined by the Court, exclusive of any element of value arising from the accomplishment or expectation of the transaction) instead of the Merger Consideration. Any such Person awarded “fair value” for his, her or its shares by the Court would receive payment of that fair value in cash, together with interest, if any, to be paid upon the amount determined to be the “fair value” in lieu of the right to receive the Merger Consideration. It is possible that any such “fair value” as determined by the Court may be more or less than, or the same as, the Merger Consideration that such Person is entitled to receive pursuant to the Merger Agreement. Please see the section titled “Appraisal and Dissenters’ Rights” in this prospectus/consent solicitation statement for further information.
Q:
What happens if I do not return my written consent?
A:
If you are an Enzon stockholder and you do not return your written consent, it will have the same effect as delivering consents marked “WITHHOLD CONSENT” as to the Merger Proposal and the Reverse Stock Split Proposal. Because Viskase stockholders have already approved the Merger by written consent, the approval of Viskase stockholders is not being sought.
Q:
What if I am a Viskase stockholder, what do I need to do now?
A:
Viskase and Enzon urge you to read this prospectus/consent solicitation statement carefully, including its Annexes, and to consider how the Merger affects you. Because Viskase stockholders have already approved the Merger by written consent, the approval of Viskase stockholders is not being sought.
Q:
What is the value of the Merger consideration that Viskase stockholders will receive in the Merger?
A:
At the Effective Time, each share of Viskase Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Viskase Common Stock (i) held by Viskase as treasury shares, (ii) owned by Enzon, Merger Sub or a wholly owned Subsidiary of Viskase, Enzon or Merger Sub immediately prior to the Effective Time and (iii) Dissenting Viskase Shares) will be automatically converted into the right to receive a number of shares of Enzon Common Stock equal to the Exchange Ratio (such shares, the “Merger Consideration”). As a result of the foregoing, and assuming that the Enzon Series C Preferred Stock is exchanged for Enzon Common Stock in full pursuant to the Series C Exchange Offer and the IEH Share Exchange, (i) holders of Enzon common stock immediately prior to the Effective Time are expected to own approximately 5% of the Combined Company Common Stock, (ii) holders of Enzon’s Series C Preferred Stock are expected to own approximately 40% of the Combined Company Common Stock and (iii) holders of Viskase Common Stock are expected to own 55% of the Combined Company Common Stock.
The exact value of the Merger Consideration payable to the holders of Viskase Common Stock will depend on the price per share of Enzon Common Stock at the Effective Time, which may be greater than, less than or the same as the price per share of Enzon Common Stock at the time of the entry into the Merger Agreement or the date of this prospectus/consent solicitation statement. Based on the closing price of a share of Enzon Common Stock on the OTC Market on June 20, 2025, the last Trading Day prior to the date of the public announcement of the Merger, the value of Enzon Common Stock was approximately $0.08 per share. Based on the closing price of a share of Enzon Common Stock on the OTC Market on October 23, 2025, the last Trading Day prior to the public announcement of the Merger Agreement Amendment, the value of Enzon Common Stock was approximately $0.08 per share. As of [•], 2026, the last Trading Day prior to the date of this prospectus/consent solicitation statement, the value of Enzon Common Stock was approximately $[•] per share. However, as noted above, the prices at the Effective Time may be greater than, less than or the same as such price quotations.
Q:
What is the Exchange Ratio?
A:
Under the Exchange Ratio mechanics, the Exchanged Viskase Shares will be automatically converted into the right to receive a number of shares of Enzon Common Stock equal to (i) the number of shares
of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time (after giving effect to each of the Reverse Stock Split, the IEH Share Exchange and the shares of Enzon Common Stock issued pursuant to the Series C Exchange Offer) (such number of shares of Enzon Common Stock, the “Pre-Exchange Enzon Shares”), divided by 0.45, minus (ii) the Pre-Exchange Enzon Shares, divided by (iii) the number of Exchanged Viskase Shares (the “Exchange Ratio”).
Q:
What is the IEH Share Exchange?
A:
Pursuant to and subject to the terms of the IEH Support Agreement, prior to the Effective Time, the IEH Parties agreed to, among other things, deliver to Enzon each share of Enzon Series C Preferred Stock Beneficially Owned by the IEH Parties in exchange for a number of shares of Enzon Common Stock. Specifically, IEH has agreed to exchange its Enzon Series C Preferred Stock for a number of shares of Enzon Common Stock equal to (i) the aggregate Liquidation Preference of such shares of Enzon Series C Preferred Stock, divided by (ii) the Enzon 20-Day VWAP.
Q:
How does the Enzon Common Stock consideration compare to the market price of Viskase Common Stock?
A:
The value of Enzon Common Stock was approximately $0.08 per share on the OTC Market on June 20, 2025, the last Trading Day prior to the date of the public announcement of the Merger. On June 20, 2025, the closing price of a share of Viskase Common Stock on the OTC Market was $1.00 per share.
The value of Enzon Common Stock was approximately $0.08 per share on the OTC Market on October 23, 2025, the last Trading Day prior to the date of the public announcement of the Merger Agreement Amendment. On October 23, 2025, the closing price of a share of Viskase Common Stock on the OTC Market was $1.21 per share.
The value of Enzon Common Stock was approximately $[•] per share on the OTC Market on [•], 2026, the last Trading Day prior to the date of this prospectus/consent solicitation statement.
Changes in the market price of shares of Enzon Common Stock prior to the Closing of the Merger will affect the value of the stock consideration. Accordingly, we urge you to obtain the latest market quotations for shares of Enzon Common Stock prior to submitting your written consent. Shares of Enzon Stock are currently traded on the OTC Market under the symbol “ENZN,” and shares of Viskase Common Stock are currently traded on the OTC Market under the symbol “VKSC.”
Q:
Will any fractional shares of Enzon Common Stock be issued in connection with the Merger or Reverse Stock Split?
A:
No fractional shares of Enzon Common Stock will be issued upon the conversion of shares of Viskase Common Stock in connection with the Merger. Each holder of Viskase Common Stock that would have otherwise been entitled to receive a fraction of a share of Enzon Common Stock (after taking into account all shares of Viskase Common Stock evidenced by the certificates and book-entry shares delivered by such holder) will receive, in lieu thereof, cash (without interest) in an amount equal to such fractional amount multiplied by the volume weighted averages of the trading prices of Enzon Common Stock on the “OTCQB” tier of the OTC (as reported by Bloomberg or, if not reported thereby, in another authoritative source mutually selected by Enzon and Viskase) on the five (5) consecutive Trading Days ending on (and including) the Trading Day that is two (2) Trading Days prior to the date of the Effective Time, rounded down to the nearest penny.
Q:
How will the Reverse Stock Split be effected?
A:
The combination of, and reduction in, the number of shares of outstanding Enzon Common Stock as a result of the Reverse Stock Split will occur automatically and without any action on the part of Enzon stockholders at the date and time set forth in the amendment to the Enzon Charter to effect the Reverse Stock Split following filing with the Secretary of State of the State of Delaware. Enzon intends that such time will be immediately prior to the Effective Time. Please see the section titled “Reverse Stock Split” in this prospectus/consent solicitation statement for further information.
Q:
What impact will the Reverse Stock Split have?
A:
The Reverse Stock Split would be effected simultaneously for all outstanding shares of Enzon Common Stock. The Reverse Stock Split would affect all holders of Enzon Common Stock uniformly. No fractional shares will be issued in connection with the Reverse Stock Split. Instead, any holder of Enzon Common Stock who would have been entitled to receive a fractional share as a result of the Reverse Stock Split will have the right to receive, in lieu thereof, cash (without interest) in an amount equal to such fractional amount multiplied by the volume weighted averages of the trading prices of Enzon Common Stock on the “OTCQB” tier of the OTC (as reported by Bloomberg, or, if not reported thereby, in another authoritative source mutually selected by Enzon and Viskase) on the five (5) consecutive Trading Days ending on (and including) the Trading Day that is two (2) Trading Days prior to the date of the Effective Time, rounded down to the nearest penny. Please see section titled “Reverse Stock Split” in this prospectus/consent solicitation statement for further information.
Q:
When will the Merger and the Reverse Stock Split be consummated?
A:
The Merger and the Reverse Stock Split are expected to be consummated in the first quarter of 2026, subject to the receipt of the required approvals from Enzon stockholders and other customary closing conditions. However, neither Enzon nor Viskase can predict the actual date on which the Merger and the Reverse Stock Split will be consummated, or whether they will be consummated, because the Merger is subject to factors beyond each company’s control. Please see the section titled “The Merger Agreement — Conditions to Completion of the Merger” in this prospectus/consent solicitation statement for further information regarding the closing conditions to the Merger.
Q:
Did the Viskase stockholders already approve the Merger?
A:
Yes. On June 20, 2025, in connection with the execution of the Merger Agreement, the IEH Parties holding sufficient Viskase Common Stock to adopt the Merger Agreement and approve the Merger by written consent provided the Viskase Stockholder Approval under the Merger Agreement.
On November 11, 2025, in connection with the execution of the Merger Agreement Amendment, the IEH Parties holding sufficient Viskase Common Stock to provide the Viskase Stockholder Approval under the Merger Agreement adopted the Merger Agreement Amendment and approved the Merger, as amended, by written consent.
Q:
What are the conditions to the Closing?
A:
The Merger is subject to a number of closing conditions and, if these conditions are not satisfied or waived (to the extent permitted by law), the Merger will not be completed. The Closing is subject to the satisfaction or waiver of certain conditions, including, among others: (i) the required approvals by the parties’ stockholders (which approval, with respect to Viskase, was obtained on June 20, 2025 and subsequently on November 11, 2025) having been obtained; (ii) the accuracy of the parties’ representations and warranties, subject to certain “materiality” and “material adverse effect” qualifications; (iii) compliance by the parties in all material respects with their respective covenants; (iv) no law or order making the Merger illegal or otherwise prohibiting consummation of the Merger; (v) the shares of Enzon Common Stock to be issued in the Merger having been approved for listing (subject to official notice of issuance) on the OTC Market; (vi) this prospectus/consent solicitation statement having become effective in accordance with the provisions of the Securities Act; (vii) each of the IEH Share Exchange and the Series C Exchange Offer having been consummated and effective; (viii) the consummation of the Reverse Stock Split; (ix) dissenters’ rights not having been exercised by Viskase stockholders representing more than three percent (3%) of the outstanding shares of Viskase Common Stock; (x) Enzon satisfying the Minimum Cash Condition; and (xi) any waiting period applicable to the Merger under the HSR Act, having expired or been terminated. Please see the section titled “The Merger Agreement — Conditions to Completion of the Merger” in this prospectus/consent solicitation statement for further information regarding the closing conditions to the Merger.
Q:
What effect will the Merger have on Enzon, Viskase and Enzon Common Stock?
A
Following the consummation of the Merger, it is anticipated that the Combined Company will operate under the name “Viskase Holdings, Inc.” and will be quoted on the OTCQB tier of the OTC. Viskase has agreed to take all actions necessary to remove the Viskase Common Stock from quotation on OTC, effective as of the Effective Time. As such, if the Merger is completed, shares of Viskase Common Stock will no longer be publicly traded and will be removed from quotation on the OTC.
As a result of the Merger, and assuming that the Enzon Series C Preferred Stock is exchanged for Enzon Common Stock in full pursuant to the Series C Exchange Offer and the IEH Share Exchange, (i) holders of Enzon Common Stock immediately prior to the Effective Time are expected to own approximately 5% of the Combined Company Common Stock, (ii) holders of Enzon Series C Preferred Stock are expected to own approximately 40% of the Combined Company Common Stock and (iii) holders of Viskase Common Stock are expected to own 55% of the Combined Company Common Stock.
Q:
Will Viskase stockholders be able to trade Enzon Common Stock that they receive pursuant to the Merger?
A:
Yes. The Enzon Common Stock issued pursuant to the Merger will be registered under the Exchange Act and is expected to be quoted on the OTCQB tier of the OTC Market under the symbol “[•]”.
Q:
Who will serve as the directors and senior officers of the Combined Company following the Merger?
A:
The Chief Executive Officer of the Combined Company will be Thomas D. Davis, who is currently the Chief Executive Officer of Viskase. The Board of Directors of the Combined Company will consist of current Enzon directors, Jordan Bleznick and Randolph C. Read, together with [•].
Q:
Do any of Enzon’s or Viskase’s executive officers or directors have interests in the Merger that may be different from, or in addition to, those of the Enzon stockholders or the Viskase stockholders?
A:
Yes. Some of the executive officers and directors have interests in the Merger that may be different from, or in addition to, the interests of the Enzon stockholders and the Viskase stockholders, respectively. Please see the section titled “Interests of Executive Officers and Directors in the Merger” in this prospectus/consent solicitation statement for further information. The members of the Enzon Board and the Enzon Special Committee were aware of and considered these interests, among other matters, in evaluating the Merger Agreement and the Merger, and in unanimously recommending that Enzon stockholders approve the Merger Proposal.
Q:
Why did the Enzon Board establish the Enzon Special Committee?
A:
As of the Enzon Record Date, IEH — through its control of the IEH Parties — Beneficially Owns approximately (i) [48.6]% of the issued and outstanding shares of Enzon Common Stock, (ii) [98.2]% of the issued and outstanding shares of Enzon Series C Preferred Stock and (iii) [91.76]% of the issued and outstanding shares of Viskase Common Stock. Given the significant ownership of the IEH Parties in both Enzon and Viskase, and the potential for conflicts of interest, the Enzon Board established the Enzon Special Committee of independent and disinterested directors to, among other things, analyze, evaluate and oversee a potential transaction with Viskase. The Enzon Board determined that each member of the Enzon Special Committee satisfied the applicable criteria for being a “disinterested director” (as defined in Section 144(e)(4) of the DGCL).
Q:
What are the recommendations of the Enzon Special Committee and the Enzon Board of Directors?
A:
The Enzon Special Committee unanimously, among other things, (i) determined that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of, Enzon and its stockholders, without regard to the IEH Parties, and (ii) recommended that the Enzon Board (A) approve the Merger Agreement and the transactions contemplated thereby, including the Reverse Stock Split and (B) recommend that the Enzon stockholders entitled to vote thereon approve the
Reverse Stock Split Proposal and the Merger Proposal. Upon the unanimous recommendation of the Enzon Special Committee, the Enzon Board unanimously, among other things, (1) determined that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of, Enzon and its stockholders, (2) approved the Merger Agreement and the transactions contemplated thereby, including the Reverse Stock Split and (3) recommended that the holders of Enzon Common Stock entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal.
Q:
Did the Viskase Board establish an independent special committee?
A:
Yes, the Viskase Board established a special committee consisting only of independent and disinterested directors that the Viskase Board determined to be disinterested directors within the meaning of the DGCL. All directors on the Viskase Special Committee, with the exception of one director who was unable to attend the meeting at which such determinations took place, (i) determined that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of Viskase and its stockholders, without regard to the IEH Parties and (ii) declared it advisable that Viskase enter into the Merger Agreement and consummate the transactions contemplated thereby. Upon the unanimous recommendation of the Viskase Special Committee, the Viskase Board (A) determined that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of Viskase and Viskase’s stockholders, without regard to the IEH Parties, and declared it advisable, that Viskase enter into the Merger Agreement and consummate the transactions contemplated thereby, (B) adopted resolutions approving and declaring the advisability of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Merger, (C) adopted resolutions recommending that the stockholders of Viskase entitled to vote adopt the Merger Agreement and (D) directed that the Merger Agreement and the transactions contemplated thereby be submitted to the stockholders of Viskase entitled to vote for adoption.
Q:
What governmental/regulatory approvals are required for the Merger?
A:
Under the HSR Act, the Merger cannot be completed until Enzon and Viskase file a Notification and Report Form with the FTC and the DOJ and the applicable waiting period has expired or been terminated. The parties filed a Notification and Report Form with the FTC and the DOJ on June 30, 2025. The FTC granted early termination of the applicable waiting period to Enzon and Viskase on July 15, 2025. However, the DOJ, the FTC and others may still challenge the Merger on antitrust grounds after the termination of the waiting period. At any time before or after the completion of the Merger, any of the DOJ, the FTC or another Person could take action under the antitrust laws as it deems necessary or desirable in the public interest, including, without limitation, seeking to enjoin the consummation of the Merger, conditionally approve the Merger upon the divestiture of assets of Enzon or Viskase, subject the consummation of the Merger to regulatory conditions or seek other remedies. Enzon and Viskase cannot assure you that a challenge to the Merger will not be made or that, if a challenge is made, it will not succeed. Please see the section titled “HSR Act Filing” in this prospectus/consent solicitation statement for further information regarding the HSR Act filing.
Q:
Are there any risks that the Enzon stockholders should consider in deciding whether to vote on the Enzon Proposals?
A:
Yes. Before making any decision on whether and how to vote, Enzon stockholders are urged to read carefully and in its entirety the information contained in the section titled “Risk Factors” in this prospectus/consent solicitation statement.
Q
What are the material U.S. federal income tax consequences of the Merger to the Enzon stockholders?
A:
As no U.S. holder of Enzon Stock will transfer or exchange any Enzon Stock pursuant to the Merger, a U.S. Holder of Enzon Stock will not recognize any gain or loss pursuant to the Merger. Please see the section titled “Material U.S. Federal Income Tax Consequences — U.S Federal Income Tax Consequences of the Merger” in this prospectus/consent solicitation statement for further information regarding the U.S. federal income tax consequences of the Merger.
Q:
What are the material U.S. federal income tax consequences of the Merger to the Viskase stockholders?
A:
The parties intend that the Merger, together with the conversion of Viskase into a limited liability company, qualifies as a “reorganization” within the meaning of Section 368(a) of the Code. Assuming the Merger so qualifies, U.S. Holders (as defined in “Material U.S. Federal Income Tax Consequences” of this prospectus/consent solicitation) of Viskase Common Stock generally will not recognize gain or loss as a result of the Merger, which for U.S. federal income tax purposes would be treated as a deemed exchange of Viskase Common Stock for Enzon Common Stock. A U.S. Holder’s aggregate tax basis in the Enzon Common Stock received pursuant to the Merger will equal the U.S. Holder’s aggregate tax basis in the Viskase Common Stock exchanged therefor. However, U.S. Holders of Viskase Common Stock may recognize gain or loss on any cash received instead of a fractional share of Enzon Common Stock that such U.S. Holder would otherwise be entitled to receive.
For further information, see “Material U.S. Federal Income Tax Consequences — Material U.S. Federal Income Tax Consequences of the Merger” and “Material U.S. Federal Income Tax Consequences — Treatment of Cash in Lieu of Fractional Shares”.
The U.S. federal income tax consequences described above may not apply to all holders of Viskase Common Stock. The tax consequences to a holder of Viskase Common Stock will depend on such holder’s individual situation. Accordingly, we strongly urge each holder of Viskase Common Stock to consult their own tax advisor to determine the particular tax consequences of the Merger to them.
Q:
What are the material U.S. federal income tax consequences of the Reverse Stock Split?
A:
Enzon intends that the Reverse Stock Split qualifies as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Code and/or an exchange under Section 1036 of the Code. Assuming the Reverse Stock Split so qualifies, and subject to special rules that would apply to the receipt of cash in lieu of a fractional share of Enzon Common Stock, U.S. Holders (as defined in “Material U.S. Federal Income Tax Consequences” of this prospectus/consent solicitation) of Enzon Common Stock generally should not recognize gain or loss as a result of the Reverse Stock Split for U.S. federal income tax purposes. Please see the section titled “Material U.S. Federal Income Tax Consequences — U.S. Federal Income Tax Consequences of the Reverse Stock Split” in this prospectus/consent solicitation statement for further information regarding the U.S. federal income tax consequences of the Reverse Stock Split. Each holder of Enzon Common Stock should consult its own tax advisor as to the specific tax consequences to such Enzon stockholder in light of its personal facts and circumstances.
Q:
What happens if the Merger is not consummated?
A:
If the Merger is not consummated, the actions contemplated by the Reverse Stock Split Proposal will not be effected, the Series C Exchange Offer and the IEH Share Exchange will not be effected and the holders of Viskase Common Stock will not receive the Merger Consideration in exchange for their shares of Viskase Common Stock. Instead, Enzon and Viskase will remain separate companies and Enzon Common Stock and Viskase Common Stock will continue to be quoted and traded on the “OTCQB” tier of the OTC and the “Pink Limited” tier of the OTC, respectively.
Under the terms of the Merger Agreement, Enzon may be required to pay Viskase a termination fee if the Merger Agreement is terminated under certain circumstances, including if Enzon terminates the Merger Agreement to enter into a definitive agreement with respect to an Enzon Superior Proposal. Please see the section titled “The Merger Agreement — Effect of Termination; Termination Fee” in this prospectus/consent solicitation statement for further information regarding circumstances under which such a termination fee may be payable.
Q:
What do I need to do now?
A:
After carefully reading and considering the information contained in this prospectus/consent solicitation statement, please return your written consent as soon as possible in accordance with the instructions provided in this prospectus/consent solicitation statement or, if you hold your shares through a brokerage firm, bank or other nominee, on the instruction card provided by the brokerage firm, bank or nominee.
Q:
If my shares of Enzon Common Stock are held in “street name,” will my brokerage firm, bank or other nominee consent for me?
A:
No. If your shares of Enzon Common Stock are held in “street name,” you must instruct your brokerage firm, bank or other nominee whether you consent to or withhold consent from any particular proposal. You should follow the instructions provided by your brokerage firm, bank or other nominee.
Q:
What if I am a record holder of Enzon Common Stock and I return a signed written consent without indicating a decision with respect to the Enzon Proposals?
A:
If you are a holder of Enzon Common Stock at the close of business on the Enzon Record Date and you return a signed written consent without indicating a decision with respect to the Enzon Proposals, such written consent will be treated as an approval of the Enzon Proposals.
Q:
How do I return my written consent?
A:
If you are a holder of Enzon Common Stock at the close of business on the Enzon Record Date, and after carefully reading and considering the information contained in this prospectus/consent solicitation statement, you wish to return your written consent, please complete, date and sign the enclosed written consent and deliver your executed consent to Enzon c/o Continental Stock Transfer & Trust Company, 1 State Street Plaza, 30th Floor, New York, New York 10004. Enzon recommends that you also email a .pdf copy of your written consent to Enzon’s consent solicitor, HKL & Co., LLC (“HKL”), at enzn@hklco.com.
If you are a beneficial owner and hold your shares in “street name” through a brokerage firm, bank or other nominee, you will receive separate instructions from such brokerage firm, bank or other nominee describing how to submit your written consent. Please check with your brokerage firm, bank or other nominee and follow the consent instructions provided by your brokerage firm, bank or other nominee with these materials. Enzon will not be holding a stockholders’ meeting to consider the Merger Proposal or the Reverse Stock Split Proposal and therefore, you will be unable to vote in person by attending a stockholders’ meeting.
Q:
Should I send my stock certificate to Enzon now?
A:
No. As soon as practicable after the Reverse Stock Split Effective Time, Enzon’s transfer agent, Continental Stock Transfer & Trust Company, acting as Enzon’s “exchange agent” for purposes of implementing the exchange of stock certificates, will mail each holder of Enzon Common Stock of record a transmittal form accompanied by instructions specifying other details of the exchange. Upon receipt of the transmittal form, each stockholder should surrender the certificates representing Enzon Common Stock in accordance with the applicable instructions. Each holder who surrenders certificates will receive new certificates representing the whole number of shares of Enzon Common Stock that he, she or it holds as a result of the Reverse Stock Split. New certificates will not be issued to a stockholder until the stockholder has surrendered his, her or its outstanding certificate(s) and submitted with the properly completed and executed transmittal form to the exchange agent.
Q:
What is the deadline for Enzon stockholders to submit written consents?
A:
Enzon has set [•] [a.m./p.m.], Eastern Time, on [•], 2026, as the Enzon consent deadline. Enzon reserves the right to extend the Enzon consent deadline beyond [•], 2026. Any such extension may be made without notice to Enzon stockholders. Once a sufficient number of consents to adopt each of the Enzon Proposals has been received, the consent solicitation will conclude. Viskase stockholders are not being requested to return written consents.
Q:
What happens if I sell my shares of Enzon Common Stock after the Enzon Record Date but before submitting my written consent?
A:
If you sell or otherwise transfer your shares of Enzon Common Stock after the Enzon Record Date but before submitting your written consent, you will retain your right to execute the written consent with
respect to the Enzon Proposals. However, you will not have the right to participate in the Merger and the Reverse Stock Split. In order to participate in the Merger and the Reverse Stock Split, you must hold your Enzon Common Stock through the completion of the Merger.
Q:
Can I change or revoke my written consent?
A:
Yes. If you are a record holder on the record date of shares of Enzon Common Stock, you may change or revoke your consent to the Enzon Proposals at any time before the consents of a sufficient number of shares to approve and adopt such proposal have been filed with the Secretary of Enzon. If you wish to change or revoke your consent before that time, you may do so by sending in a new written consent with a later date by one of the means described in the section titled “Enzon Solicitation of Written Consent” in this prospectus/consent solicitation statement delivering a notice of revocation to the Secretary of Enzon.
Q:
Where can I find the results of the solicitation of Enzon written consents?
A:
In addition to any other notifications that may be required by applicable law, Enzon intends to file the final results of its solicitation of written consents with the SEC on a Current Report on Form 8-K.
Q:
Whom should I contact if I have any questions?
A:
If you have questions about the Merger or the solicitation of Enzon written consents, or if you need to obtain copies of this prospectus/consent solicitation statement or other documents incorporated by reference into this prospectus/consent solicitation statement, you may contact the consent solicitor of Enzon, whose contact information is as follows:
HKL & Co., LLC
3 Columbus Circle, 15FL
New York, New York 10019
Banks and Brokerage Firms Please Call Collect: (212) 468-5380
All Others Call Toll-Free: (800) 326-5997
Email: enzn@hklco.com
QUESTIONS AND ANSWERS ABOUT THE SERIES C EXCHANGE OFFER
The following are answers to certain questions that Enzon stockholders may have regarding the Series C Exchange Offer. The following description does not purport to be complete. You are encouraged to read this entire prospectus/consent solicitation statement carefully, including the annexes, and the Schedule TO, as each may be amended or supplemented from time to time, and other relevant documents filed by Enzon with the SEC, because the information in this section does not provide all of the information that might be important to you.
Q:
What is the Series C Exchange Offer?
A:
Under the terms of the Merger Agreement, Enzon is required to use commercially reasonable efforts to commence an exchange offer no less than twenty-five (25) business days prior to the Closing, pursuant to which Enzon will offer to each holder of Enzon Series C Preferred Stock the right to exchange a number of shares of Enzon Common Stock for each share of Enzon Series C Preferred Stock equal to (i) the aggregate Liquidation Preference of each share of Enzon Series C Preferred Stock, divided by (ii) the Enzon 20-Day VWAP. The consummation of the Merger is conditioned on the consummation of the Series C Exchange Offer. The IEH Parties have agreed not to participate in the Series C Exchange Offer and, instead, effectuate the IEH Share Exchange. Please see the section titled “Series C Exchange Offer” in this prospectus/consent solicitation statement for further information regarding the Series C Exchange Offer.
Q:
Why is Enzon making the Series C Exchange Offer?
A:
In connection with the proposed Merger, Enzon intends to convert outstanding shares of its Series C Preferred Stock into shares of Enzon Stock through the Series C Exchange Offer. The IEH Parties, who collectively hold 39,277 shares of Enzon Series C Preferred Stock — representing approximately [98.2]% of the total outstanding Enzon Series C Preferred Stock — have already committed not to participate in the Series C Exchange Offer, and instead to exchange their shares pursuant to the IEH Support Agreement. The Series C Exchange Offer will proceed even if other Series C holders do not participate. The Series C Exchange Offer is based on a formula that includes a volume-weighted average price of Enzon Common Stock, which may not reflect the fair market value of the Series C Preferred Stock or its Liquidation Preference. Under the terms of the Enzon Series C Preferred Stock, following the Merger, Enzon may, and at this time intends to, redeem any outstanding shares of Enzon Series C Preferred Stock for a cash amount equal to the aggregate Liquidation Preference of such shares.
Q:
Who is entitled to participate in the Series C Exchange Offer?
A:
Any U.S. holder of Enzon Series C Preferred Stock may participate in the Series C Exchange Offer. Non-U.S. stockholders should consult their advisors in considering whether they may participate in this Series C Exchange Offer in accordance with the laws of their home countries and, if they participate, whether there are any restrictions or limitations on transactions in the shares of Enzon Common Stock or Enzon Series C Preferred Stock that that may apply in their home countries.
An Enzon stockholder’s decision whether to participate in the Series C Exchange Offer and to exchange his, her or its shares of Enzon Series C Preferred Stock for shares of Enzon Common Stock, however, will involve risks, including, but not limited to, termination, cancellation or delay of the Series C Exchange Offer and waiver of conditions related to the Series C Exchange Offer. Please see the section titled “Risk Factors — Risk Factors Related to the Series C Exchange Offer,” in this prospectus/consent solicitation statement for further information regarding the risk factors as well as the other risk factors set forth in the section titled “Risk Factors,” in this prospectus/consent solicitation statement, along with all of the other information provided or referred to in this prospectus/consent solicitation statement, before deciding whether to participate in the Series C Exchange Offer.
Q:
What are the key terms of the Enzon Common Stock?
A:
The key terms of the Enzon Common Stock are set forth below:
Authorized Shares
There are currently 170,000,000 authorized shares of Enzon Common Stock.
Voting Rights
Each holder of Enzon Common Stock is entitled to one (1) vote per share on all matters submitted to a vote of stockholders. A matter submitted for stockholder action is approved if a majority of the votes cast at such meeting by the holders of Enzon Common Stock present in Person or represented by proxy and entitled to vote thereon are cast “for” the matter, unless a greater or different vote is required by any applicable law or regulation, the rights of any authorized series of preferred stock or the Enzon Organizational Documents. Subject to any rights of the holders of any series of preferred stock pursuant to applicable law or the certificate of designations creating that series, all voting rights are vested in the holders of shares of Enzon Common Stock.
Other than a contested election where directors are elected by a plurality vote, a director nominee is elected if the votes cast “for” such nominee’s election exceed the votes cast “against” such nominee’s election.
Quorum
The holders of one-third of the shares of stock entitled to vote at any meeting of the Enzon stockholders, present in Person or represented by proxy, constitutes a quorum at all meetings of the Enzon stockholders for the transaction of business.
Stockholder Action by Written Consent
Enzon allows any action which could be taken at any annual or special meeting of Enzon stockholders to be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding stock entitled to vote thereon having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
Special Meetings
Enzon allows special meetings of the Enzon stockholders to be called at any time by the Enzon Board, the President or the Secretary.
Please see the section titled “The Series C Exchange Offer — Comparison of Enzon Series C Preferred Stock and Enzon Common Stock” in this prospectus/consent solicitation statement for further information regarding the terms of the Enzon Common Stock relative to the Enzon Series C Preferred Stock.
Q:
What will the Enzon Series C Preferred stockholders receive in the Series C Exchange Offer? Will such stockholders have to pay any fees or commissions?
A:
In the Series C Exchange Offer, stockholders will have the right to exchange each of their shares of Enzon Series C Preferred Stock for shares of Enzon Common Stock.
If you are the record owner of your shares of Enzon Series C Preferred Stock and you tender your shares directly to Continental Stock Transfer & Trust Company, which we refer to as the “Exchange Agent,” you will not have to pay brokerage fees, commissions or similar expenses. If you own shares of Enzon Series C Preferred Stock through a brokerage firm, bank or other nominee and your brokerage firm, bank or other nominee tenders your shares of Enzon Series C Preferred Stock on your behalf, your brokerage firm, bank or other nominee may charge you a fee for doing so. You should consult your brokerage firm, bank or other nominee to determine whether any charges will apply. Enzon will only deliver whole shares of Enzon Common Stock in the Series C Exchange Offer.
Q:
How will shares of Enzon Series C Preferred Stock that are not tendered in the Series C Exchange Offer be affected after the Merger?
A:
Non-tendering holders of shares of Enzon Series C Preferred Stock will continue to hold shares of Enzon Series C Preferred Stock following the Closing. Under the terms of the Enzon Series C Preferred Stock, following the Merger, Enzon may, and at this time intends to, redeem any outstanding shares of Enzon Series C Preferred Stock for a cash amount equal to the aggregate Liquidation Preference of such shares. Accordingly, even if a holder of Series C Preferred Stock does not participate in the Series C Exchange Offer, Enzon may, and currently intends to, redeem such holder’s shares of Series C Preferred Stock after the consummation of the Merger.
Q:
Are there risks associated with the Series C Exchange Offer that I should consider?
A:
Yes. Please see the section titled “Risk Factors — Risk Factors Related to the Series C Exchange Offer” in this prospectus/consent solicitation statement for further information regarding the risks related to the Series C Exchange Offer, as well as the other risks included in the section titled “Risk Factors” in this prospectus/consent solicitation statement.
Q:
When is the Series C Exchange Offer expected to be completed?
A:
Enzon expects to complete the Series C Exchange Offer as soon as reasonably practicable before the completion of the Merger.
Q:
Will the Series C Exchange Offer be completed if the Merger is not consummated?
A:
No. The Series C Exchange Offer is not expected to be completed if the Merger is not consummated. In that case, the shares of Enzon Series C Preferred Stock will remain outstanding in accordance with their current terms.
Q:
What are the anticipated U.S. federal income tax consequences of the Series C Exchange Offer to holders of shares of Enzon Series C Preferred Stock?
A:
Enzon intends that an exchange of Series C Preferred Stock for Enzon Common Stock pursuant to the Series C Exchange Offer qualifies as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Code. Assuming the exchange so qualifies, for U.S. federal income tax purposes, a U.S. Holder (as defined in the section titled “Material U.S. Federal Income Tax Consequences” in this prospectus/consent solicitation statement) of the Series C Preferred Stock generally should not recognize gain or loss upon the exchange of its Series C Preferred Stock for Enzon Common Stock pursuant to the Series C Exchange Offer, provided that no part of the exchange consideration is attributable to accumulated but unpaid dividends on the Series C Preferred Stock. With respect to the portion of a U.S. Holder’s Series C Preferred Stock that is attributable to accumulated but unpaid distributions on the Series C Preferred Stock, the U.S. Holder should generally recognize income in an amount that is deemed to be a taxable stock distribution under Sections 305(b) and (c) of the Code. Please see the section titled “Material U.S. Federal Income Tax Consequences — U.S. Federal Income Tax Consequences of the Series C Exchange Offer” in this prospectus/consent solicitation statement for further information regarding the U.S. federal income tax consequences of the Series C Exchange Offer.
Q:
Are Enzon’s stockholders entitled to appraisal rights in connection with the Series C Exchange Offer?
A:
No. Enzon’s stockholders are not entitled to exercise appraisal rights in connection with the Series C Exchange Offer.
Q:
How long do Enzon stockholders have to decide whether to exchange their shares of Enzon Series C Preferred Stock for shares of Enzon Common Stock?
A:
You will have until 5:00 p.m., Eastern Time, on [•], 2026, unless the Series C Exchange Offer is extended in Enzon’s sole discretion (such time, or such later time to which the Series C Exchange Offer has been so extended, is referred to as the “Series C Exchange Time”). If Enzon makes a material change in the
terms of the Series C Exchange Offer or the information concerning the Series C Exchange Offer, or if it waives a material condition to the Series C Exchange Offer, Enzon will disseminate additional Series C Exchange Offer materials and extend the Series C Exchange Offer by five (5) or ten (10) business days, to the extent required by Rules 14d-4(d), 14d-6(c) and 14e-1 under the Exchange Act.
In all cases, Enzon will exchange shares validly tendered and accepted for exchange pursuant to the Series C Exchange Offer only after timely receipt by the Exchange Agent of shares (or timely confirmation of a book-entry transfer of such shares into the Exchange Agent’s account at DTC as described elsewhere in this prospectus/consent solicitation statement), a properly completed and duly executed letter of transmittal (or an “agent’s message” in connection with a book-entry transfer) and any other required documents.
Q:
What is the process for exchanging shares of Enzon Series C Preferred Stock?
A:
For you to validly tender your shares of Enzon Series C Preferred Stock pursuant to the Series C Exchange Offer, prior to the Series C Exchange Time:
•
If your shares are directly registered in your own name in Enzon’s stockholders register, including if you are a record holder and you hold shares in book-entry form on the books of Enzon’s transfer agent, the following must be received by the Exchange Agent at one of its addresses set forth in the letter of transmittal prior to the Series C Exchange Time: (i) the letter of transmittal, properly completed and duly executed and (ii) any other documents required by the letter of transmittal.
•
If your shares are held in “street” name and are being tendered by book-entry transfer into an account maintained at the DTC, the following must be received by the Exchange Agent in connection with the Series C Exchange Offer, at one of its addresses set forth in the letter of transmittal prior to the Series C Exchange Time: (i) the letter of transmittal, properly completed and duly executed, or an “agent’s message,” (ii) a book-entry confirmation from DTC and (iii) any other required documents.
•
If you hold your shares through a brokerage firm, bank or other nominee, you must contact your brokerage firm, bank or other nominee and give instructions that your shares be tendered.
Please see the section titled “The Series C Exchange Offer — Procedures for Tendering Shares of Enzon Series C Preferred Stock” in this prospectus/consent solicitation statement for further information.
Q:
Until what time can the shares of Enzon Series C Preferred Stock tendered pursuant to the Series C Exchange Offer be withdrawn and when do you expect the Series C Exchange Offer to be completed?
A:
An Enzon stockholder may properly withdraw shares of Enzon Series C Preferred Stock tendered pursuant to the Series C Exchange Offer at any time prior to the Series C Exchange Time. On and after the Series C Exchange Time, Enzon stockholders that have tendered their shares pursuant to the Series C Exchange Offer will no longer be able to withdraw their shares, and tenders of shares of Enzon Series C Preferred Stock made pursuant to the Series C Exchange Offer will be irrevocable; provided that, if Enzon has not yet accepted shares of Enzon Series C Preferred Stock tendered for exchange, any Enzon stockholder may withdraw its tendered shares after the 60th day following commencement of the Series C Exchange Offer pursuant to Section 14(d)(5) of the Exchange Act.
As promptly as practicable following the Series C Exchange Time, Enzon will accept for exchange and, at or as promptly as practicable thereafter (calculated as set forth in Rule 14e-1(c) under the Exchange Act), deliver the Series C Exchange Offer Consideration (by delivery by Enzon of shares of Enzon Common Stock to the exchange agent appointed by Enzon for the Series C Exchange Offer) for all shares of Enzon Series C Preferred Stock validly tendered and not properly withdrawn pursuant to the Series C Exchange Offer as of the Series C Exchange Time.
Q:
Who is entitled to make the final determination as to whether a share of Enzon Series C Preferred Stock is validly tendered?
A:
The determination of shares of Enzon Series C Preferred Stock validly tendered and not properly withdrawn pursuant to the Series C Exchange Offer shall be made in Enzon’s sole discretion.
Q:
What is the procedure to withdraw previously tendered shares of Enzon Series C Preferred Stock?
A:
To properly withdraw previously tendered shares, Enzon stockholders must instruct the Exchange Agent to arrange for the withdrawal of such shares by a written notice of withdrawal (which may be by email), which must be timely received by the Exchange Agent prior to the Series C Exchange Time at the appropriate address set forth in this prospectus/consent solicitation statement. Any notice of withdrawal must specify the name of the Person having tendered the shares of Enzon Series C Preferred Stock to be withdrawn, the number of tendered shares of Enzon Series C Preferred Stock to be withdrawn and the name of the holder of the tendered shares of Enzon Series C Preferred Stock to be withdrawn, if different from that of the Person who tendered such shares.
All questions as to the form and validity (including time of receipt) of any notice of withdrawal shall be determined by Enzon, in its sole discretion, which determination shall be final and binding, subject to any judgment of any court of competent jurisdiction. No withdrawal of tendered shares of Enzon Series C Preferred Stock shall be deemed to have been properly made until all defects and irregularities have been cured or waived. None of Enzon or any of its Affiliates or assignees, the Exchange Agent or any other Person shall be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give such notification. Withdrawals of tenders of shares of Enzon Series C Preferred Stock may not be rescinded, and any shares of Enzon Series C Preferred Stock properly withdrawn shall be deemed not to have been validly tendered for purposes of the Series C Exchange Offer. However, withdrawn shares of Enzon Series C Preferred Stock may be retendered by following one of the procedures for tendering described above.
Q:
Can the Series C Exchange Offer be extended and, if so, under what circumstances?
A:
Enzon may extend the Series C Exchange Offer to such other date and time in Enzon’s sole discretion, and Enzon will extend the Series C Exchange Offer for any minimum period as required by the SEC applicable to the Series C Exchange Offer.
Q:
How will Enzon stockholders be notified if the Series C Exchange Offer is extended?
A:
Any extension of the Series C Exchange Offer will be followed by a public announcement of the extension no later than 9:00 a.m., Eastern Time, on the next business day after the day on which the Series C Exchange Offer was otherwise scheduled to expire.
Without limiting the manner in which Enzon may choose to make any public announcement, Enzon currently intends to make announcements regarding the Series C Exchange Offer by issuing a press release and making an appropriate filing with the SEC.
Q:
Who can answer my questions?
A:
If you have any questions about the Series C Exchange Offer or need additional copies of this prospectus/consent solicitation statement you should contact:
HKL & Co., LLC
3 Columbus Circle, 15FL
New York, New York 10019
Banks and Brokerage Firms Please Call Collect: (212) 468-5380
All Others Call Toll-Free: (800) 326-5997
Email: enzn@hklco.com
Q:
Where can I find more information on Enzon relating to the Series C Exchange Offer?
A:
You can find more information on the Series C Exchange Offer in the Schedule TO, to be filed by Enzon with the SEC following effectiveness of the Registration Statement, of which this prospectus/consent solicitation statement is a part. Before making any decision with respect to the Series C Exchange Offer, Enzon stockholders are encouraged to read the Schedule TO (including the prospectus, related letter of transmittal and other offer documents), as it may be amended or supplemented from time to
time, and other relevant documents filed by Enzon with the SEC carefully when they become available because they will contain important information about the proposed transactions. Investors will be able to obtain free copies of the Schedule TO, as it may be amended from time to time in accordance with its terms, and other relevant documents filed by Enzon with the SEC (when they become available) at http://www.sec.gov, the SEC’s website, or free of charge by contacting Enzon at:
Enzon Pharmaceuticals, Inc.
20 Commerce Drive, Suite 135
Cranford, New Jersey 07016
Phone: (732) 980-4500
investor@enzon.com
SUMMARY OF THE MATERIAL TERMS OF THE MERGER AND THE CONSENT SOLICITATION
Parties
Enzon
Enzon Pharmaceuticals, Inc.
20 Commerce Drive, Suite 135
Cranford, New Jersey 07016
Phone: (732) 980-4500
Enzon Pharmaceuticals, Inc. was incorporated in Delaware in May 1993 and is positioned as a public company acquisition vehicle that has sought to become an acquisition platform.
Enzon Common Stock is currently quoted on the “OTCQB” tier of the OTC Markets under the symbol “ENZN.”
Merger Sub
EPSC Acquisition Corp.
c/o Enzon Pharmaceuticals, Inc.
20 Commerce Drive, Suite 135
Cranford, New Jersey 07016
Phone: (732) 980-4500
EPSC Acquisition Corp. is a wholly owned Subsidiary of Enzon, incorporated in Delaware solely for the purpose of consummating the Merger. Merger Sub has not carried on any activities to date, except for activities incidental to its formation and activities undertaken in connection with the Merger.
At the Effective Time, Merger Sub will merge with and into Viskase, with Viskase surviving the Merger as a wholly owned Subsidiary of Enzon, and the separate corporate existence of Merger Sub will cease.
Viskase
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400
Lombard, Illinois 60148
Phone: (630) 874-0700
Viskase Companies, Inc. was incorporated in Delaware and, together with its Subsidiaries, operates in the casing product segment of the food industry. Viskase is a worldwide leader in the production and sale of cellulosic, fibrous and plastic casings for the processed meat and poultry industry. Viskase operates eight significant manufacturing facilities in North America, Europe, South America and Asia. Viskase provides value-added support services relating to these products for some of the world’s largest global consumer products companies. Viskase is one of the two largest worldwide producers of non-edible cellulosic casings for processed meats and one of the three largest manufacturers of non-edible fibrous casings.
Viskase stock is currently quoted on the “OTC Pink” tier of the OTC Markets under the symbol “VKSC.”
Proposals
Enzon Proposal 1: Approval of the Reverse Stock Split
Enzon is asking the holders of Enzon Common Stock to approve the Proposed Charter Amendment of Enzon to effect a consolidation of the issued and outstanding shares of Enzon Common Stock, pursuant to which the shares of Enzon Common Stock would be combined and reclassified at a ratio of 1 for 100 (such proposal, the “Reverse Stock Split Proposal”). If the Reverse Stock Split Proposal is approved by Enzon stockholders, Enzon intends to take all actions necessary to effectuate the Reverse Stock Split immediately prior to the Effective Time.
The Reverse Stock Split, if approved by the holders of Enzon Common Stock, would become effective at the time and date set forth in a certificate of amendment to the Enzon Charter to be filed with the Secretary of State of the State of Delaware.
Please see the section titled “Enzon Proposal 1: Approval of the Reverse Stock Split” in this prospectus/consent solicitation statement for further information.
Enzon Proposal 2: Adoption of the Merger Agreement
Enzon is asking the holders of Enzon Common Stock to adopt the Merger Agreement (the “Merger Proposal”). Under the terms of the Merger Agreement, Merger Sub will be merged with and into Viskase, with Viskase surviving the Merger as a wholly owned Subsidiary of Enzon.
At the Effective Time, each share of Viskase Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Viskase Common Stock (i) held by Viskase as treasury shares, (ii) owned by Enzon, Merger Sub or a wholly owned Subsidiary of Viskase, Enzon or Merger Sub immediately prior to the Effective Time and (iii) Dissenting Viskase Shares) will be automatically converted into the right to receive a number of shares of Enzon Common Stock equal to the Exchange Ratio (such shares, the “Merger Consideration”). From and after the Effective Time, all shares of Viskase Common Stock converted into the right to receive the Merger Consideration will no longer be outstanding and will automatically be cancelled and will cease to exist.
Please see the section titled “Enzon Proposal 2: Adoption of the Merger Agreement” in this prospectus/consent solicitation statement for further information.
The Merger
Under the terms of the Merger Agreement, at the Effective Time, Merger Sub will be merged with and into Viskase, with Viskase surviving the Merger as a wholly owned Subsidiary of Enzon. Viskase will then be converted into a limited liability company, with the result such that Viskase will be a disregarded entity for tax purposes, and its profits and losses will flow up to Enzon.
HSR Act Filing
Under the HSR Act, the Merger cannot be completed until Enzon and Viskase file a Notification and Report Form with the FTC and the DOJ and the applicable waiting period has expired or been terminated. The parties filed a Notification and Report Form with the FTC and the DOJ on June 30, 2025. The FTC granted early termination of the applicable HSR Act waiting period to the parties on July 15, 2025. However, the DOJ, the FTC and others may still challenge the Merger on antitrust grounds after the termination of the waiting period. At any time before or after the completion of the Merger, any of the DOJ, the FTC or another Person could take action under the antitrust laws as it deems necessary or desirable in the public interest, including, without limitation, seeking to enjoin the consummation of the Merger, conditionally approve the Merger upon the divestiture of assets of Enzon or Viskase, subject the consummation of the Merger to regulatory conditions or seek other remedies. Enzon and Viskase cannot assure you that a challenge to the Merger will not be made or that, if a challenge is made, it will not succeed. Neither Enzon, nor Viskase believes that any foreign antitrust approvals are required for the Merger. Please see the section titled “HSR Act Filing” in this prospectus/consent solicitation statement for further information regarding the HSR Act filing.
The Merger Agreement
Consideration
At the Effective Time, by virtue of the Merger and without any action on the part of Enzon, Viskase or the holder of any capital stock of Enzon or Viskase, each share of Viskase Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Viskase Common Stock (i) held by Viskase as treasury shares, (ii) owned by Enzon, Merger Sub or a wholly owned Subsidiary of Viskase, Enzon or Merger Sub immediately prior to the Effective Time and (iii) Dissenting Viskase Shares) (the
“Exchanged Viskase Shares”) will be automatically converted into the right to receive a number of shares of Enzon Common Stock equal to the Exchange Ratio.
Under the Exchange Ratio mechanics, the Exchanged Viskase Shares will be automatically converted into the right to receive a number of shares of Enzon Common Stock equal to (i) the number of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time (after giving effect to each of the Reverse Stock Split, the IEH Share Exchange and the shares of Enzon Common Stock issued pursuant to the Series C Exchange Offer, and such number of shares of Enzon Common Stock, the “Pre-Exchange Enzon Shares”), divided by 0.45, (ii) minus the Pre-Exchange Enzon Shares, (iii) divided by the number of Exchanged Viskase Shares.
As a result of the Exchange Ratio mechanics described above, it is anticipated that, upon completion of the Merger and assuming that the Enzon Series C Preferred Stock is exchanged for Enzon Common Stock in full, (i) the holders of Enzon Common Stock immediately prior to the Closing are expected to own approximately 5% of the Enzon Common Stock, (ii) the holders of Enzon Series C Preferred Stock are expected to own approximately 40% of the Enzon Common Stock and (iii) Viskase stockholders are expected to own 55% of the Enzon Common Stock, subject to certain adjustments based upon the number of shares of Enzon Series C Preferred Stock exchanged for Enzon Common Stock by non-Affiliates of IEH, and depending on the liquidation value of the Series C Preferred Stock at the Closing. If the actual facts differ from any of the foregoing assumptions (which they may), the percentage ownership retained by current Enzon stockholders in the Combined Company will differ. Certain of these adjustments are described in further detail in the section titled “IEH Support Agreement” in this prospectus/consent solicitation statement.
No fractional shares of Enzon Common stock will be issued in the Merger, and Viskase stockholders will receive cash in lieu of any such fractional shares as described in the section titled “The Merger Agreement — Merger Consideration.”
The IEH Parties and their Affiliates will receive the same amount of Enzon Common Stock per share of Viskase Common Stock in the Merger as all other Viskase stockholders.
Conditions
As more fully described in this prospectus/consent solicitation statement and as set forth in the Merger Agreement, the respective obligations of Enzon and Viskase to effect the Merger are subject to the satisfaction, or (to the extent permitted by law) waiver by Enzon and Viskase (as applicable), at or prior to the Effective Time, of the following conditions of both Enzon and Viskase (which are described in further detail in the section titled “The Merger Agreement — Conditions to Completion of the Merger” in this prospectus/consent solicitation statement):
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Viskase Stockholder Approval. Viskase having obtained the Viskase Stockholder Approval (which was satisfied on June 20, 2025 and subsequently on November 11, 2025).
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Enzon Stockholder Approval. Enzon having obtained the Enzon Stockholder Approval.
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Series C Exchange Offer. The Series C Exchange Offer will have been consummated.
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Absence of Legal Restraint. The absence of any applicable law or order being in effect restraining, enjoining, prohibiting or making illegal the consummation of the Merger.
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Exchange Listing. The shares of Enzon Common Stock to be issued in the Merger having been approved for listing on the OTC, subject to official notice of issuance.
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Effectiveness of Registration Statement. The registration statement on Form S-4, of which this prospectus/consent solicitation statement forms a part, having become effective under the Securities Act and not being subject of any stop order.
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Antitrust Approval. Any waiting period applicable to the Merger under the HSR Act having expired or having been terminated, which early termination was granted by the FTC on July 15, 2025.
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IEH Share Exchange. The IEH Share Exchange having been consummated in accordance with the terms of the IEH Support Agreement.
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Accuracy of Representations and Warranties. The accuracy of each party’s representations and warranties in the Merger Agreement (generally subject to a material adverse effect, materiality or de minimis standard) as of the date of the Merger Agreement and as of the Closing Date and the receipt by each of Enzon and Viskase of a certificate from an executive officer of the other party certifying that this condition has been satisfied; provided, however, that pursuant to the Merger Agreement Amendment, each of Enzon and Merger Sub has waived, consented to and released any inaccuracy in, breach of, or failure to comply with any representation, warranty, covenant or agreement of Viskase to the extent known to Enzon or Merger Sub as of the date of the Merger Agreement Amendment, and occurring or existing on or prior to that date.
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Performance of Covenants. The performance in all material respects by each of Enzon and Viskase of the covenants and agreements required to be performed by it under the Merger Agreement and the receipt by each party of a certificate from an executive officer of the other party certifying that this condition has been satisfied.
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Series C Preferred Actions. Each of the IEH Share Exchange and the Series C Exchange Offer having been consummated and effective.
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Reverse Stock Split. The Reverse Stock Split having been consummated and effective.
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Dissenting Viskase Stockholders. The period during which holders of Viskase Common Stock may exercise dissenters’ rights under Section 262 of the DGCL having expired, and holders representing not more than three percent (3%) of the issued and outstanding Viskase Common Stock having exercised (and not withdrawn or waived) such rights.
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Enzon’s Minimum Cash Condition. At the Closing, Enzon having Cash on Hand equal to or greater than $40,000,000.
No party may rely on the failure of any condition to be satisfied if such failure was caused by such party’s willful and material breach of the Merger Agreement.
Termination
Termination by Enzon or Viskase
The Merger Agreement may be terminated at any time prior to the Effective Time by either Enzon or Viskase in any of the following ways (which are described in further detail in the section titled “The Merger Agreement — Termination of the Merger Agreement” in this prospectus/consent solicitation statement):
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By mutual written consent of Enzon and Viskase
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By either Enzon or Viskase if:
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the Merger has not been consummated on or before 11:59 p.m., Eastern Time, on March 31, 2026 (the “Termination Date”); provided that the terminating party has not breached the Merger Agreement and caused the failure of one of the closing conditions to occur; or
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any legal restraint permanently restraining, enjoining or otherwise prohibiting or making illegal the Merger or otherwise prohibiting the consummation of the Merger has become final and nonappealable; provided that the terminating party has not materially breached any obligation under the Merger Agreement that has been the primary cause of the imposition of such legal restraint or the failure of such legal restraint to be resisted, resolved or lifted;
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By Enzon, if:
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prior to the receipt of the Enzon Stockholder Approval, each of the following conditions are met: (i) the Enzon Board or Enzon Special Committee authorizes Enzon to enter into a definitive agreement providing for an Enzon Superior Proposal; (ii) none of Enzon, the Enzon Board or the Enzon Special Committee breached in any material respect its obligations under the Merger Agreement with respect to such Enzon Superior Proposal; (iii) concurrently with such termination, Enzon enters into a definitive agreement providing for an Enzon Superior Proposal; and (iv) prior to or concurrently with such termination, Enzon pays the Enzon Termination
Fee to Viskase, as further described in the section titled “— Effect of Termination; Termination Fees” in this prospectus/consent solicitation statement;
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Viskase has breached or failed to perform any of its representations, warranties, covenants or agreements under the Merger Agreement, or if any representation or warranty of Viskase has become untrue, in a way that results in the failure to satisfy a closing condition of the Merger, and such breach is not reasonably capable of being cured prior to (i) the Termination Date or, (ii) if such breach is reasonably capable of being cured prior to the Termination Date, such breach is not cured prior to the earlier of (a) 30 days after written notice of such breach or (b) the Termination Date (provided that Enzon is not then in material breach of any of its representations, warranties, covenants or agreements under the Merger Agreement, which breach would result in the failure to satisfy a closing condition of the Merger); or
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By Viskase, if:
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prior to the receipt of the Enzon Stockholder Approval, there has been an Enzon Adverse Recommendation Change; or
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Enzon has breached or failed to perform any of its representations, warranties, covenants or agreements under the Merger Agreement, or if any representation or warranty of Enzon has become untrue, in a way that results in the failure to satisfy a closing condition of the Merger, and such breach is not reasonably capable of being cured prior to (i) the Termination Date or, (ii) if such breach is reasonably capable of being cured prior to the Termination Date, such breach is not cured prior to the earlier of (a) 30 days after written notice of such breach or (b) the Termination Date (provided that Viskase is not then in material breach of any of its representations, warranties, covenants or agreements under the Merger Agreement, which breach would result in the failure to satisfy a closing condition of the Merger).
Termination Fees
Enzon is required to pay Viskase a termination fee of $1,000,000 (the “Enzon Termination Fee”) if the Merger Agreement is terminated under any of the following circumstances (which are described in further detail in the section titled “The Merger Agreement — Effect of Termination; Termination Fees” in this prospectus/consent solicitation statement):
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if terminated by Viskase following an Enzon Adverse Recommendation Change;
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if terminated by Enzon in order to enter into a definitive agreement with respect to an Enzon Superior Proposal (as discussed in the section titled “— Adverse Recommendation Change; Enzon Superior Proposal Termination” in this prospectus/consent solicitation statement); and
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if terminated (i) by either party because the Merger has not been completed by the Termination Date; and (ii) after the execution of the Merger Agreement, an Enzon Acquisition Proposal has been publicly disclosed or announced or has become publicly (a) prior to the Termination Date (if the Merger Agreement is terminated as a result of the foregoing clause (i)) or (b) prior to termination of the Merger Agreement, if such termination is by Viskase because Enzon has breached or failed to perform any of its representations, warranties, covenants or agreements under the Merger Agreement, or if any representation or warranty of Enzon has become untrue, in a way that results in the failure to satisfy a closing condition of the Merger, which breach or failure is uncured or uncurable; and (iii) within 12 months following such termination, (a) an Enzon Acquisition Proposal is consummated or a definitive agreement providing for an Enzon Acquisition Proposal is entered into and is subsequently consummated (whether or not consummated within such 12 month period) or (b) any Person commences a tender or exchange offer in respect of an Enzon Acquisition Proposal that is thereafter consummated (whether during or after such 12 month period).
Viskase is required to pay Enzon a termination fee of $1,000,000 if the Merger Agreement is terminated by Enzon due to the failure of the Viskase Board to deliver the Viskase Stockholder Approval within 24 hours following the execution of the Merger Agreement. The Viskase Stockholder Approval was delivered to Enzon by Viskase on June 20, 2025 and subsequently on November 11, 2025, satisfying the requirement under the Merger Agreement.
No Solicitation by Enzon
As described in further detail in the section titled “The Merger Agreement — Covenants of the Parties — No Solicitation by Enzon” in this prospectus/consent solicitation statement, from the date of the Merger Agreement until the earlier of the Effective Time or the termination of the Merger Agreement in accordance with its terms, Enzon has agreed not to, and to cause its Subsidiaries not to, and to instruct (and cause) its and its Subsidiaries’ respective Representatives not to, directly or indirectly:
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solicit, initiate or knowingly facilitate or encourage (including by furnishing non-public information) the submission of any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an Enzon Acquisition Proposal;
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engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection with an actual or potential Enzon Acquisition Proposal; or
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enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement constituting an Enzon Acquisition Proposal.
Notwithstanding anything contained in the Merger Agreement to the contrary, prior to obtaining the Enzon Stockholder Approval, if Enzon receives an Enzon Acquisition Proposal that did not result from a breach of the no solicitation provisions of the Merger Agreement, and the Enzon Board (acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee determines in good faith, after consulting its financial advisor and legal counsel, that such Enzon Acquisition Proposal constitutes or is reasonably likely to lead to an Enzon Superior Proposal, then Enzon (acting at the direction of the Enzon Special Committee) may:
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enter into an Acceptable Confidentiality Agreement with the Person or group making such Enzon Acquisition Proposal and furnish pursuant to such Acceptable Confidentiality Agreement information (including non-public information) with respect to Enzon and its Subsidiaries to such Person or group; provided that Enzon must promptly provide to Viskase any material non-public information concerning Enzon or its Subsidiaries that is provided to such Person and was not previously provided to Viskase; and
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engage in or otherwise participate in discussions or negotiations with such Person or group and otherwise facilitate or assist with such Enzon Acquisition Proposal, if requested by such Person.
Enzon has also agreed to notify Viskase within two (2) business days of receiving any Enzon Acquisition Proposal and, subject to applicable law, disclose the material terms and the identity of the proposing party. Upon request, Enzon must keep Viskase reasonably informed of material developments, and may not enter into any confidentiality agreement that would prevent it from sharing such information with Viskase.
Series C Exchange Offer
Enzon is offering to exchange, upon the terms and subject to the conditions set forth in this prospectus/consent solicitation statement and the accompanying letter of transmittal, any and all shares of Enzon Series C Preferred Stock validly tendered in the Series C Exchange Offer for newly issued shares of Enzon Common Stock (the “Series C Exchange Offer Consideration”).
The Series C Exchange Offer will expire at the Series C Exchange Time, unless extended or earlier terminated by us in Enzon’s discretion. Tendered shares of Enzon Series C Preferred Stock may be withdrawn at any time prior to the Series C Exchange Time. In addition, Enzon stockholders may withdraw any tendered shares of Enzon Series C Preferred Stock if Enzon has not accepted them for exchange within 60 days from the commencement of the Series C Exchange Offer on [•], 2026.
Enzon will issue shares of Enzon Common Stock in exchange for properly tendered (and not validly withdrawn) shares of Enzon Series C Preferred Stock that are accepted for exchange promptly after the Series C Exchange Time.
Any shares of Enzon Series C Preferred Stock that are accepted for exchange in the Series C Exchange Offer will be retired. Shares of Enzon Series C Preferred Stock tendered but not accepted because they were not properly tendered shall remain outstanding upon completion of the Series C Exchange Offer. If any tendered shares of Enzon Series C Preferred Stock are not accepted for exchange because of an invalid tender, the occurrence of other events set forth in this prospectus/consent solicitation statement or otherwise, all unaccepted shares of Enzon Series C Preferred Stock will be returned, without expense, to the tendering holder promptly after the Series C Exchange Time.
Please see the section titled “Series C Exchange Offer” in this prospectus/consent solicitation statement for further information.
Reverse Stock Split
Enzon is asking the holders of Enzon Common Stock to approve the Proposed Charter Amendment of Enzon to effect a consolidation of the issued and outstanding shares of Enzon Common Stock, pursuant to which the shares of Enzon Common Stock would be combined and reclassified at a ratio of 1 for 100 (such proposal, the “Reverse Stock Split Proposal”). If the Reverse Stock Split Proposal is approved by Enzon stockholders, Enzon intends to take all actions necessary to effectuate the Reverse Stock Split immediately prior to the Effective Time.
Concurrently with the execution of the Merger Agreement, the IEH Parties, which hold approximately [48.6]% of the issued and outstanding Enzon Common Stock as of [•], 2026, entered into the IEH Support Agreement with Enzon and Viskase, pursuant to which the IEH Parties agreed to, among other things, deliver written consents with respect to all of the issued and outstanding shares of Enzon Common Stock held by the IEH Parties approving the Reverse Stock Split, subject to certain exceptions.
Enzon stockholders should carefully read this prospectus/consent solicitation statement in its entirety, including the Annexes and Exhibits, for more detailed information concerning the Reverse Stock Split. In particular, Enzon stockholders are directed to the copy of the proposed form of certificate of amendment to the Enzon Charter, which is attached as Exhibit B to the Merger Agreement Amendment, which is attached as Annex A-1 to this prospectus/consent solicitation statement.
Governance of the Combined Company
As of the Effective Time, the board of directors of the Combined Company shall be comprised of individuals designated by the Viskase Board prior to the Effective Time and will consist of two current Enzon directors, Jordan Bleznick and Randolph C. Read, together with [•]. Each such director shall hold office until his or her respective successor is duly elected or appointed and qualified or until his or her earlier death, resignation or removal in accordance with the Enzon Organizational Documents and applicable law. As of the Effective Time, the officers of Viskase immediately prior to the Effective Time shall be the officers of the Combined Company until his or her respective successor is duly elected or appointed and qualified or until his or her earlier death, resignation or removal in accordance with the Enzon Organizational Documents and applicable law.
Please see the section titled “Directors and Executive Officers of the Combined Company” in this prospectus/consent solicitation statement for further information.
IEH Support Agreement
Concurrently with the execution of the Merger Agreement, Enzon, Viskase and the IEH Parties entered into the IEH Support Agreement, pursuant to which the IEH Parties agreed to, among other things, and subject to certain exceptions, (i) deliver written consents approving the Merger Proposal, (ii) deliver written consents with respect to all of the issued and outstanding shares of Enzon Common Stock held by the IEH Parties approving the Reverse Stock Split Proposal, (iii) vote against any Enzon Acquisition Proposal or other action that would reasonably be expected to impede or adversely affect the Merger or the other transactions contemplated by the Merger Agreement and (iv) immediately prior to the Closing, effectuate the conversion of each issued and outstanding share of Enzon Series C Preferred Stock into shares of Enzon Common Stock. As of the Enzon Record Date, the IEH Parties beneficially own approximately
[48.6]% of the Enzon Series C Preferred Stock and the shares of Enzon Common Stock owned by the IEH Parties represent approximately [48.6]% of the outstanding voting power of Enzon stock.
Each IEH Party is obligated to vote or cause to be voted all shares of Enzon Common Stock and Enzon Series C Preferred Stock, as applicable, Beneficially Owned by such IEH Party against any (i) Enzon Acquisition Proposal, (ii) amendment to the Enzon Organizational Documents that would impede or adversely affect the Merger or other transactions contemplated by the Merger Agreement (except as otherwise contemplated by the Merger Agreement) and (iii) other action or transaction involving Enzon that is intended or reasonably expected to impede or adversely affect the Merger, the Reverse Stock Split or other transactions contemplated by the Merger Agreement; provided that the foregoing clauses (i)-(iii) will not apply to any transaction, proposal or action that is the subject of an Enzon Adverse Recommendation Change made in accordance with the Merger Agreement that has not been rescinded.
Please see the section titled “IEH Support Agreement” in this prospectus/consent solicitation statement for further information on the IEH Support Agreement.
Interests of Certain Persons in the Merger
Certain of Enzon’s and Viskase’s executive officers and directors have interests in the Merger that may be different from, or in addition to, the interests of the Enzon stockholders and the Viskase stockholders, respectively. Please see the section titled “Interests of Executive Officers and Directors in the Merger” in this prospectus/consent solicitation statement for further information. The members of the Enzon Board and the Enzon Special Committee were aware of and considered these interests, among other matters, in evaluating the Merger Agreement and the Merger, and in unanimously recommending that the Enzon stockholders approve the Merger Proposal.
Accounting Treatment
Notwithstanding the legal form, the Merger will be accounted for as a reverse recapitalization and not a business combination under ASC 805. Under this method of accounting, Enzon will be treated as the acquired company for accounting purposes, whereas Viskase will be treated as the accounting acquirer. In accordance with this method of accounting, the Merger will be treated as the equivalent of Viskase issuing shares for the net assets of Enzon, accompanied by a recapitalization. The net assets of Enzon will be stated at historical cost, with no goodwill or other intangible assets recorded, and operations prior to the Merger will be those of Viskase.
Material U.S. Federal Income Tax Consequences
As no U.S. holder of Enzon Stock will transfer or exchange any Enzon Stock pursuant to the Merger, a U.S. Holder of Enzon Stock will not recognize any gain or loss pursuant to the Merger.
Subject to special rules that would apply to the receipt of cash in lieu of a fractional share of Enzon, a U.S. Holder of Enzon Common Stock generally should not recognize gain or loss as a result of the Reverse Stock Split for U.S. federal income tax purposes.
Please see the section titled “Material U.S. Federal Income Tax Consequences” in this prospectus/consent solicitation statement for further information regarding the U.S. federal income tax consequences of the Merger and the Reverse Stock Split.
Summary of Risk Factors
In deciding how to vote your shares of Enzon Common Stock, you should read carefully this entire prospectus/consent solicitation statement, including the Annexes and exhibits hereto, and in particular, please see the section titled “Risk Factors” in this prospectus/consent solicitation statement. Some of these risks include:
Risks Related to Viskase’s Business
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Viskase’s failure to efficiently respond to industry changes in casings technology could jeopardize Viskase’s ability to retain its customers and maintain its revenues, operating results, and market share.
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Viskase receives its raw materials from a limited number of suppliers, and problems with their supply could impair Viskase’s ability to meet its customers’ product demands.
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Viskase’s facilities are capital intensive, and Viskase may not be able to obtain financing to fund necessary capital expenditures.
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Product liability claims or regulatory actions could adversely affect Viskase’s financial results or harm Viskase’s reputation or the value of Viskase’s products.
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Risks related to security breaches of company, customer, employee and vendor information, as well as the technology that manages Viskase’s operations and other business processes, could adversely affect Viskase’s business.
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Viskase’s intellectual property rights may be inadequate or violated and Viskase may be subject to claims of infringement, either or both of which could negatively affect Viskase’s financial condition.
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Viskase is subject to significant minimum contribution requirements and market exposure with respect to its defined benefit plan, both of which could adversely affect Viskase’s cash flow.
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Viskase’s substantial level of indebtedness could adversely affect Viskase’s results of operations, cash flows and ability to compete in Viskase’s industry, which could, among other things, prevent Viskase from fulfilling its obligations under its debt agreements.
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Deterioration in Viskase’s business and financial condition has resulted in the Merger Agreement Amendment and additional adverse changes in Viskase’s business and financial condition could further affect the terms, timing or completion of the Merger.
Risks Related to the Combined Company
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Past performance by Enzon or Viskase may not be indicative of future performance of an investment in the Combined Company.
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The opinions of the Enzon Special Committee’s and the Viskase Special Committee’s respective financial advisors delivered prior to the signing of the Merger Agreement Amendment do not reflect changes in circumstances that may have occurred or that may occur since the respective dates on which such opinions were delivered.
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The Combined Company may experience business, operational and financial challenges, which could have an adverse impact on the value of the Combined Company Common Stock following the Closing.
Risks Related to the Merger
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Holders of Viskase Common Stock have appraisal or dissenters’ rights, which could increase transaction uncertainty.
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Carl C. Icahn and the IEH Parties will exert significant influence, and will ultimately control, the Combined Company after the Merger and non-IEH stockholders will have limited governance rights.
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Litigation relating to the Merger may be filed against the Enzon Board, the Enzon Special Committee, the Viskase Board and/or Viskase Special Committee that could prevent or delay the Closing and/or result in the payment of damages following the Closing.
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Enzon may not be able to utilize its NOLs, certain credits and other tax attributes.
Risks Related to the Series C Exchange Offer
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Enzon has not obtained a third-party determination that the Series C Exchange Offer is fair to holders of Enzon Series C Preferred Stock.
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Enzon is not required to, but it currently intends to, redeem the shares of Enzon Series C Preferred Stock that are not exchanged in the Series C Exchange Offer following the Closing.
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In the future, assuming that Enzon does not redeem any remaining shares of the Enzon Series C Preferred Stock, Enzon will have the ability, and may decide to, acquire shares of Enzon Series C
Preferred Stock that are not accepted in the Series C Exchange Offer for consideration different than that in the Series C Exchange Offer.
Risks Related to Enzon’s Business
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Enzon may not be able to utilize its NOLs, certain credits and other tax attributes.
Risks Related to Enzon’s Common Stock
•
The market price of Enzon Common Stock has historically been volatile and may decline significantly if the Combined Company is unable to execute its strategic objectives.
•
Enzon Common Stock is quoted on the OTCQB tier of the OTC, which has limited trading volume and liquidity, and stockholders may have difficulty selling their shares.
•
The declaration of dividends on Enzon Common Stock is at the discretion of the Enzon Board and is subject to limitations under Delaware law and the rights of holders of Series C Preferred Stock.
Risks Related to the Series C Preferred Stock
•
In the event of a dissolution, liquidation or winding up of Enzon, Enzon may not be able to satisfy its obligations to holders of Series C Preferred Stock.
•
Dividends on the Series C Preferred Stock may be paid either in cash or be paid in kind by increasing the liquidation value of the shares of Series C Preferred Stock.
•
The Series C Preferred Stock is equity and is subordinate to Enzon’s existing and future indebtedness and other liabilities and holders’ interests may be diluted by future preferred stock issuances.
•
There is no public market for the Series C Preferred Stock.
Comparison of Stockholder Rights
As a result of the Merger and from and after the Effective Time, all shares of Viskase Common Stock converted into the right to receive the Merger Consideration will no longer be outstanding and will automatically be cancelled and will cease to exist and the rights of the holders of Viskase Common Stock will be governed by the Enzon Organizational Documents. Please see the section titled “Comparison of Stockholder Rights” in this prospectus/consent solicitation statement for a discussion of the material differences between the current rights of Enzon stockholders and the current rights of Viskase stockholders.
Appraisal and Dissenters’ Rights
Holders of Viskase Common Stock who: (i) submit to Viskase a proper written demand for appraisal of such shares; (ii) continuously remain the record holders or beneficial owners of such shares through the Effective Time; and (iii) otherwise comply with the applicable procedures and requirements set forth in Section 262 of the DGCL will be entitled to have their shares appraised by the Court and receive payment in cash of the “fair value” of such shares (as determined by the Court, exclusive of any element of value arising from the accomplishment or expectation of the transaction) instead of the Merger Consideration. Any such Person awarded “fair value” for his, her or its shares by the Court would receive payment of that fair value in cash, together with interest, if any, to be paid upon the amount determined to be the “fair value” in lieu of the right to receive the Merger Consideration. It is possible that any such “fair value” as determined by the Court may be more or less than, or the same as, the Merger Consideration that such Person is entitled to receive pursuant to the Merger Agreement. Please see the section titled “Appraisal and Dissenters’ Rights” in this prospectus/consent solicitation statement for further information.
Under the DGCL, Enzon stockholders are not entitled to exercise appraisal rights in connection with the Merger or the Series C Exchange Offer.
SUMMARY OF THE MATERIAL TERMS OF THE SERIES C EXCHANGE OFFER
This summary highlights certain information set forth elsewhere in this prospectus/consent solicitation statement and does not purport to contain all of the information that may be important to you. The material terms of the Series C Exchange Offer are summarized below. Please see the section titled “The Series C Exchange Offer” in this prospectus/consent solicitation statement for further information.
Enzon Pharmaceuticals, Inc.
Enzon Series C Preferred Stock Subject to the Series C Exchange Offer
All outstanding shares of Enzon Series C Preferred Stock.
Holders Eligible to Participate in the Series C Exchange Offer
Each holder of Enzon Series C Preferred Stock (“Eligible Stockholders”) will be eligible to participate in the Series C Exchange Offer. Please see the section titled “The Series C Exchange Offer — Terms of the Series C Exchange Offer” in this prospectus/consent solicitation statement for further information.
We are offering to exchange, upon the terms and subject to the conditions set forth in this prospectus/consent solicitation statement and the accompanying letter of transmittal, shares of Enzon Series C Preferred Stock validly tendered in the Series C Exchange Offer for newly issued shares of Enzon Common Stock. The Series C Exchange Offer will be available only to Eligible Stockholders. In exchange for each share of Enzon Series C Preferred Stock properly tendered (and not validly withdrawn) prior to the Series C Exchange Time and accepted by us, Eligible Stockholders will receive a number of shares of Enzon Common Stock equal to (i) the aggregate Liquidation Preference of each share of Enzon Series C Preferred Stock divided by (ii) the Enzon 20-Day VWAP. The Enzon 20-Day VWAP is $0.08 per share of Enzon Common Stock, which after giving effect to the Reverse Stock Split of 1 for 100, will be adjusted to $7.83.
The Series C Exchange Offer will expire at the Series C Exchange Time, which is 5:00 p.m., Eastern Time, on [•], 2026, unless extended or earlier terminated by Enzon in Enzon’s sole discretion or in accordance with applicable law. Please see the section titled “The Series C Exchange Offer — Series C Exchange Time; Extension; Termination; Amendment” in this prospectus/consent solicitation statement for further information about the Series C Exchange Time.
Withdrawal; Non-Acceptance
You may withdraw shares of Enzon Series C Preferred Stock validly tendered in the Series C Exchange Offer at any time prior to the Series C Exchange Time. In addition, if not previously returned, you may withdraw any shares of Enzon Series C Preferred Stock validly tendered in the Series C Exchange Offer that are not accepted by Enzon for exchange after the expiration of 60 days after the commencement of the Series C Exchange Offer. To withdraw previously tendered shares of Enzon Series C Preferred Stock, you are required to submit a notice of withdrawal to the Exchange Agent in accordance with the procedures described herein and in the letter of transmittal.
If Enzon decides for any reason not to accept any shares of Enzon Series C Preferred Stock validly tendered for exchange, the shares will be returned to the tendering holder at Enzon’s expense promptly after the expiration or termination of the Series C Exchange Offer.
Any withdrawn or unaccepted shares of Enzon Series C Preferred Stock that were tendered through DTC’s Automated Tender Offer Program (“ATOP”) will be credited to the tendering holder’s account at DTC.
Please see the section titled “The Series C Exchange Offer — Withdrawal Rights” in this prospectus/consent solicitation statement for further information regarding the withdrawal of tendered shares of Enzon Series C Preferred Stock.
Enzon will issue Enzon Common Stock in exchange for properly tendered (and not validly withdrawn) shares of Enzon Series C Preferred Stock that are accepted for exchange promptly after the Series C Exchange Time.
Exchange Offer Consideration
In exchange for each share of Enzon Series C Preferred Stock properly tendered (and not validly withdrawn) by the Series C Exchange Time and accepted by Enzon, participating holders of Enzon Series C Preferred Stock will receive shares of Enzon Common Stock equal to (i) the aggregate Liquidation Preference of each share of Enzon Series C Preferred Stock divided by (ii) the Enzon 20-Day VWAP (the “Exchange Offer Consideration”).
The following sets forth the pro forma ownership of the Combined Company after giving effect to the Merger, the Reverse Stock Split, the IEH Share Exchange and the Series C Exchange Offer and assumes all shares of the Series C Preferred Stock held by non-IEH Parties are exchanged for shares of Enzon Common Stock:
| |
|
|
Shares of Enzon
Common Stock
|
|
|
Pro Forma
Percentage
Ownership
|
|
|
Shares held by legacy Viskase common stockholders
|
|
|
|
|
7,915,136 |
|
|
|
|
|
55.0% |
|
|
|
Shares held by IEH Parties underlying Enzon Series C Preferred Stock subsequent to IEH Share Exchange
|
|
|
|
|
5,630,234 |
|
|
|
|
|
39.1% |
|
|
|
Shares held by legacy Enzon common stockholders
|
|
|
|
|
742,146 |
|
|
|
|
|
5.2% |
|
|
|
Shares held by non-IEH Parties
underlying Enzon Series C Preferred
Stock subsequent to Series C Exchange
Offer
|
|
|
|
|
103,640 |
|
|
|
|
|
0.7% |
|
|
|
Total shares of Combined Company Common Stock
|
|
|
|
|
14,391,156 |
|
|
|
|
|
100.0% |
|
|
Trading and Related Matters
The issuance of the shares of Enzon Common Stock pursuant to the Series C Exchange Offer is being registered under the Securities Act and will be freely tradable, except by Enzon Affiliates. Enzon Common Stock is quoted on the “OTCQB” tier of the OTC.
Differences in Rights of Enzon Series C Preferred Stock and Enzon Common Stock
Holders of Enzon Series C Preferred Stock who do not elect to exchange or redeem their shares of Enzon Series C Preferred Stock will continue to hold shares of Enzon Series C Preferred Stock following the Closing. The Enzon Series C Preferred Stock and Enzon Common Stock have different rights. Please see the section
titled “The Series C Exchange Offer — Comparison of Enzon Series C Preferred Stock and Enzon Common Stock” in this prospectus/consent solicitation statement for further information regarding these differences.
Conditions of the Series C Exchange Offer
The Series C Exchange Offer is subject to the satisfaction of certain conditions. Please see the section titled “The Series C Exchange Offer — Conditions of the Series C Exchange Offer” in this prospectus/consent solicitation statement for further information regarding the conditions of the Series C Exchange Offer.
Procedures for Tendering Shares of Enzon Series C Preferred Stock
If your shares of Enzon Series C Preferred Stock are registered in the name of a brokerage firm, bank or other nominee and you wish to participate in the Series C Exchange Offer, you should contact that registered holder promptly and instruct such holder to tender your shares of Enzon Series C Preferred Stock on your behalf. If you are a DTC participant, you may electronically transmit your acceptance through DTC’s ATOP. Please see the sections titled “The Series C Exchange Offer — Procedures for Tendering Shares of Enzon Series C Preferred Stock” and “The Series C Exchange Offer — The Depository Trust Company Book-Entry Transfer Procedures” in this prospectus/consent solicitation statement for further information.
For further information on how to tender shares of Enzon Series C Preferred Stock, contact the Information Agent at the telephone number set forth in the response to “Who can answer my questions” in the section titled “Questions and Answers About the Series C Exchange Offer” in this prospectus/consent solicitation or consult your brokerage firm, bank or other nominee for assistance.
Amendment and Termination
Enzon has the right to terminate or withdraw, in our reasonable discretion, the Series C Exchange Offer at any time and for any reason if the conditions to the Series C Exchange Offer are not met by the Series C Exchange Time, regardless of the circumstances giving rise to such condition (other than any action or failure to act by us). Enzon reserves the right, subject to applicable law, to (i) waive certain of the conditions of the Series C Exchange Offer on or prior to the Series C Exchange Time and (ii) amend the terms of the Series C Exchange Offer. If Enzon makes a material change in the terms of the Series C Exchange Offer or the information concerning the Series C Exchange Offer, or waives a material condition of the Series C Exchange Offer, Enzon will promptly disseminate disclosure regarding the changes to the Series C Exchange Offer as required by law. In addition, Enzon will take steps to ensure that the Series C Exchange Offer remains open for the minimum number of days, as required by law, following the date Enzon disseminates disclosure regarding the changes. In the event that the Series C Exchange Offer is terminated, validly withdrawn or otherwise not consummated on or prior to the Series C Exchange Time, no consideration will be paid or become payable to holders who have properly tendered their shares of Enzon Series C Preferred Stock pursuant to the Series C Exchange Offer. In any such event, the shares previously tendered pursuant to the Series C Exchange
Offer will be promptly returned to the tendering holders. Please see the section titled “The Series C Exchange Offer — Series C Exchange Time; Extension; Termination; Amendment” in this prospectus/consent solicitation statement for further information.
Consequences of Failure to Exchange Enzon Series C Preferred Stock
Shares of Enzon Series C Preferred Stock not accepted for exchange in the Series Exchange Offer will remain outstanding after consummation of the Series C Exchange Offer and the Merger. Under the terms of the Enzon Series C Preferred Stock, following the Merger, Enzon may, and at this time intends to, redeem any outstanding shares of Enzon Series C Preferred Stock for a cash amount equal to the aggregate Liquidation Preference of such shares.
Material U.S. Federal Income Tax Considerations of the Series C Exchange Offer
Please see the sections titled “Material U.S. Federal Income Tax Considerations — U.S. Federal Income Tax Consequences of the Series C Exchange Offer” and “Material U.S. Federal Income Tax Considerations — U.S. Federal Income Tax Consequences of the Ownership and Disposition of the Enzon Common Stock received pursuant to the Series C Exchange Offer” in this prospectus/consent solicitation statement for further information. You are urged to consult your own tax advisors for a full understanding of the tax considerations of participating in the Series C Exchange Offer in light of your own particular circumstances.
No brokerage commissions are payable by the holders of Enzon Series C Preferred Stock to the Exchange Agent or us. If your shares of Enzon Series C Preferred Stock are held through a brokerage firm, bank or other nominee who tenders the shares on your behalf, your brokerage firm, bank or other nominee may charge you a commission for doing so. You should consult with your broker or nominee to determine whether any charges will apply.
Enzon will not receive any cash proceeds from the Series C Exchange Offer.
No Appraisal Rights in Connection with the Series C Exchange Offer
Holders of Enzon Series C Preferred Stock will not have appraisal rights, or any contract right to petition for fair value, with respect to the Series C Exchange Offer. Enzon will not independently provide such a right.
Your decision whether to participate in the Series C Exchange Offer and to exchange your shares of Enzon Series C Preferred Stock for Enzon Common Stock will involve risk. You should be aware of and carefully consider the risk factors set forth in the section titled “Risk Factors — Risks Related to the Series C Exchange Offer,” as well as the other risk factors set forth in the section titled “Risk Factors,” in this prospectus/consent solicitation statement, along with all of the other information provided or referred to in this prospectus/consent solicitation statement, before deciding whether to participate in the Series C Exchange Offer.
Enzon is not aware of any other material regulatory approvals necessary to complete the Series C Exchange Offer, other than
effectiveness of the Registration Statement (of which this prospectus/consent solicitation statement forms a part) and Enzon’s obligation to file a Schedule TO with the SEC and to otherwise comply with applicable securities laws.
The depository and exchange agent for the offer and the tabulation agent for the consent solicitation is:
Continental Stock Transfer & Trust Company
1 State Street Plaza, 30th Floor
New York, New York 10004
Phone: 800-509-5586
Attention: Corporate Actions
You should direct questions about the exchange offer and requests for additional copies of this prospectus/offer to exchange or notice of guaranteed delivery to the information agent at the below address and phone number:
HKL & Co., LLC
3 Columbus Circle, 15FL
New York, New York 10019
Banks And Brokerage Firms Please Call Collect: (212) 468-5380
All Others Call Toll-Free: (800) 326-5997
Email: enzn@hklco.com
If you have questions about the terms of the Series C Exchange Offer or the procedures for tendering shares of Enzon Series C Preferred Stock in the Series C Exchange Offer or require assistance in tendering your shares of Enzon Series C Preferred Stock, please contact the Information Agent or the Exchange Agent. The contact information for the Information Agent and the Exchange Agent is set forth in the response to “Who can answer my questions” in the section titled “Questions and Answers About the Series C Exchange Offer” in this prospectus/consent solicitation statement. If you would like additional copies of this prospectus/consent solicitation statement, our annual, quarterly and current reports and other information referenced in this prospectus/consent solicitation statement, please contact the Information Agent, Exchange Agent or Enzon.
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
Introduction
The following unaudited pro forma condensed combined financial information and accompanying notes are provided to aid you in your analysis of the financial aspects of the Merger, and adjustments for other material events (described in the “Other Material Events” section below). The pro forma adjustments for events described below in the section “Other Material Events” are referred to herein as “Adjustments for Other Material Events.” The following information is also relevant to understanding the unaudited pro forma condensed combined financial information contained herein.
On June 20, 2025, Enzon, Merger Sub and Viskase entered into the initial Merger Agreement which was subsequently amended on October 24, 2025. Both the initial and amended Merger Agreement are collectively referred to herein as the Merger Agreement. The Merger Agreement and related agreements provide for the following:
Prior to the Effective Time the following will occur:
•
Concurrently with the execution of the initial Merger Agreement, the IEH Parties entered into the initial IEH Support Agreement with Enzon and Viskase which was subsequently amended on October 24, 2025, pursuant to which the IEH Parties agreed to, among other things, and subject to certain exceptions, deliver to Enzon each share of Enzon Series C Preferred Stock beneficially owned by the IEH Parties in exchange for a number of shares of Enzon Common Stock equal to (i) the aggregate Liquidation Preference of such shares of Enzon Series C Preferred Stock divided by (ii) the Enzon 20-Day VWAP of Enzon Common Stock. The Merger Agreement also requires that Enzon use commercially reasonable efforts to commence an exchange offer no less than twenty-five (25) business days prior to the Effective Time, pursuant to which Enzon will offer to each holder of Enzon Series C Preferred Stock to exchange a number of shares of Enzon Common Stock for each share of Enzon Series C Preferred Stock equal to (i) the aggregate Liquidation Preference of each share of Enzon Series C Preferred Stock, divided by (ii) the Enzon 20-Day VWAP as calculated pursuant to the terms of the Merger Agreement;
•
Enzon has agreed to file the Proposed Charter Amendment to effect the Reverse Stock Split and to change the name of Enzon from “Enzon Pharmaceuticals, Inc.” to “Viskase Holdings, Inc.” in connection with the Closing;
•
Effect the Reverse Stock Split of the issued and outstanding shares of Enzon Common Stock at a ratio of 1-for-100;
•
Consummate the Series C Exchange Offer in accordance with the terms of the Merger Agreement. Under the Series C Exchange Offer, each holder of Enzon Series C Preferred Stock, other than the IEH Parties, will be offered to exchange their shares of Enzon Series C Preferred Stock for shares of Enzon Common Stock. Holders of such shares who elect not to participate in the Series C Exchange Offer may have their shares redeemed for cash.
•
Enzon will use its commercially reasonable efforts to cause the shares of Combined Company Common Stock to be issued in connection with the Merger to be quoted on the OTC, subject to official notice of issuance.
At the Effective Time, the following will occur:
•
Merger Sub will merge with and into Viskase, with Viskase surviving the Merger as a wholly owned subsidiary of Enzon and the separate corporate existence of Merger Sub shall cease.
•
Each share of Viskase Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Viskase Common Stock (i) held by Viskase as treasury shares, (ii) owned by Enzon, Merger Sub or a wholly owned Subsidiary of Viskase, Enzon or Merger Sub immediately prior to the Effective Time and (iii) Dissenting Viskase Shares) will be automatically converted into the right to receive the Merger Consideration, which is comprised of Enzon Common Stock equal to the Exchange Ratio.
•
Viskase shall take all actions necessary to remove the Viskase Common Stock from quotation on the “Pink Limited” tier of the OTC.
Promptly after the Effective Time, the following will occur:
•
Enzon will cause Viskase, as the Surviving Company following the Merger, to be converted from a Delaware corporation into a Delaware limited liability company through a statutory conversion permitted under Delaware law, which will be renamed Viskase Companies, LLC. The corporate existence of the Surviving Company will continue unaffected and unimpaired by the conversion, except that, upon the consummation of the conversion, all of the outstanding shares of Viskase Common Stock will be converted to limited liability company interests. Because the Surviving Company will be a wholly owned Subsidiary of the Combined Company at the Effective Time, the Combined Company will be the sole member of the Surviving Company following the conversion.
•
The Combined Company refers to Enzon, which will be renamed Viskase Holdings, Inc. in connection with the Closing. The Combined Company remains the same legal entity as Enzon, with no changes to its authorized shares, par value or issued and outstanding shares. The designation as the Combined Company reflects the post-Merger structure, but the underlying corporate entity and share structure remain unchanged from Enzon prior to the Effective Time.
Exchange Ratio:
At the Effective Time, each outstanding share of Viskase Common Stock (other than shares of Viskase Common Stock (i) held by Viskase as treasury shares, (ii) owned by Enzon, Merger Sub or a wholly owned Subsidiary of Viskase, Enzon or Merger Sub immediately prior to the Effective Time and (iii) Dissenting Viskase Shares) will be automatically converted into the right to receive a number of shares of Enzon Common Stock equal to the Exchange Ratio. The Exchange Ratio is calculated as (i) the Viskase Closing Share Number divided by (ii) the number of issued and outstanding shares of Viskase Common Stock immediately prior to the Effective Time.
The tables below present the calculation of the Exchange Ratio and related calculations:
| |
|
|
Shares
|
|
|
Viskase Closing Share Number(1)
|
|
|
|
|
7,915,136 |
|
|
|
Number of issued and outstanding shares of Viskase Common Stock immediately prior to the Effective Time
|
|
|
|
|
117,375,777 |
|
|
|
Exchange Ratio
|
|
|
|
|
0.0674 |
|
|
(1)
The Viskase Closing Share Number is calculated as follows, pursuant to the terms of the Merger Agreement:
| |
|
|
Shares
|
|
|
Enzon Common Stock outstanding subsequent to the Reverse Stock Split(1)
|
|
|
|
|
742,146 |
|
|
|
Enzon Common Stock issued in IEH Share Exchange(2)
|
|
|
|
|
5,630,234 |
|
|
|
Enzon Common Stock issued in Series C Exchange Offer(2)
|
|
|
|
|
103,640 |
|
|
|
Shares of Enzon Common Stock issued and outstanding immediately prior to the Effective Time
|
|
|
|
|
6,476,020 |
|
|
|
Divided by: 0.45
|
|
|
|
|
0.4500 |
|
|
|
Total Closing Share Number
|
|
|
|
|
14,391,156 |
|
|
|
Minus: Number of shares of Enzon Common Stock issued and outstanding immediately prior to the Effective Time
|
|
|
|
|
(6,476,020) |
|
|
|
Viskase Closing Share Number
|
|
|
|
|
7,915,136 |
|
|
(1)
Consists of 742,146 shares of Enzon Common Stock issued to the current holders of Enzon Common Stock following the Reverse Stock Split. The 74,214,603 shares of Enzon Common Stock outstanding immediately prior to the Closing are assumed to be adjusted using a 1 for 100 Reverse Stock Split ratio, resulting in 742,146 shares of Enzon Common Stock.
(2)
The Enzon Common Stock issued in the IEH Share Exchange and the Series C Exchange Offer is determined as follows, pursuant to the Merger Agreement and IEH Support Agreement:
| |
Aggregate Liquidation Preference of Enzon Series C Preferred Stock held by IEH
Parties(1)
|
|
|
|
$ |
44,067,840 |
|
|
| |
Enzon 20-Day VWAP(2)
|
|
|
|
$ |
7.83 |
|
|
| |
Enzon Common Stock issued in IEH Share Exchange
|
|
|
|
|
5,630,234 |
|
|
(1)
The aggregate Liquidation Preference of Enzon Series C Preferred Stock held by IEH Parties immediately prior to the Closing Date is calculated as (A) (i) the historical Liquidation Preference of $1,102 per share as of September 30, 2025, plus (ii) the prorated 5% annual increase in the Liquidation Preference per share from October 1, 2025 through the estimated Closing Date of $20 per share (resulting in a Liquidation Preference per share of $1,122 as of the estimated Closing Date) pursuant to the Certificate of Designation of Series C Non-Convertible Redeemable Preferred Stock of Enzon, multiplied by (B) the number of shares of Enzon Series C Preferred Stock beneficially owned by non-IEH Parties.
(2)
Refer to Note 3(i) for the calculation of the Enzon 20-Day VWAP for the 1 for 100 Reverse Stock Split.
| |
Aggregate Liquidation Preference of Enzon Series C Preferred Stock held by non-IEH
Parties(1)
|
|
|
|
$ |
811,188 |
|
|
| |
Enzon 20-Day VWAP(2)
|
|
|
|
$ |
7.83 |
|
|
| |
Enzon Common Stock issued in Series C Exchange Offer
|
|
|
|
|
103,640 |
|
|
(1)
The aggregate Liquidation Preference of Enzon Series C Preferred Stock held by IEH Parties immediately prior to the Closing Date is calculated as (A) (i) the historical Liquidation Preference of $1,102 per share as of September 30, 2025, plus (ii) the prorated 5% annual increase in the Liquidation Preference per share from October 1, 2025 through the estimated Closing Date of $20 per share (resulting in a Liquidation Preference per share of $1,122 as of the estimated Closing Date) pursuant to the Certificate of Designation of Series C Non-Convertible Redeemable Preferred Stock of Enzon, multiplied by (B) the number of shares of Enzon Series C Preferred Stock beneficially owned by non-IEH Parties.
(2)
Refer to Note 3(i) for the calculation of the Enzon 20-Day VWAP 1 for 100 Reverse Stock Split.
Other Material Events
•
Under the terms of the Merger Agreement, Enzon is required to have Cash on Hand at the Closing of an amount that is equal to the Minimum Cash Condition, which is defined as an amount equal or greater than $40,000,000.
In order to determine whether the Minimum Cash Condition will be satisfied at Closing, Enzon must adjust its Cash on Hand as of September 30, 2025 to reflect its estimated Cash on Hand as of the estimated Closing Date of February 10, 2026. These adjustments include:
•
Actual and estimated interest and dividend income to be earned on Enzon’s invested cash and cash equivalents from October 1, 2025 through the estimated Closing on February 10, 2026 of $0.5 million.
•
Actual and estimated cash disbursements for Enzon’s general and administrative costs from October 1, 2025 through the assumed Closing on February 10, 2026 of $0.5 million plus transaction costs of $1.3 million.
As of the estimated Closing on February 10, 2026, Enzon estimates it will have $42.0 million of Cash on Hand, which will satisfy the Minimum Cash Condition.
•
On March 26, 2025, Viskase announced a plan to cease production in its plant in Osceola, Arkansas, with the operations ceasing effective April 30, 2025 (the “Plant Closure”) with winddown activities
continuing through June 2025. In connection with the Plant Closure, Viskase moved the equipment and personnel from the Osceola plant to existing sites to maintain a materially similar company-wide productive capacity after the Plant Closure. Viskase expects to settle the remaining $0.6 million of accrued plant restructuring costs prior to the Closing.
Additional Information Related to the Unaudited Pro Forma Condensed Combined Financial Information
The unaudited pro forma condensed combined financial information has been prepared based on Enzon’s and Viskase’s historical financial statements as adjusted to give effect to the Closing, and the events described above in the section “Other Material Events.” The unaudited pro forma condensed combined balance sheet as of September 30, 2025 gives pro forma effect to the Closing as if it had occurred on September 30, 2025. The unaudited pro forma condensed combined statement of operations for the year ended December 31, 2024 reflects adjustments assuming that any adjustments that were made to the unaudited pro forma condensed combined balance sheet as of September 30, 2025 are assumed to have been made on January 1, 2024 for the purpose of adjusting the unaudited pro forma condensed combined statement of operations. The unaudited pro forma condensed combined statement of operations for the nine months ended September 30, 2025 reflects adjustments assuming that any adjustments that were made to the unaudited pro forma condensed combined balance sheet as of September 30, 2025 are assumed to have been made on January 1, 2024 for the purpose of adjusting the unaudited pro forma condensed combined statement of operations.
The unaudited pro forma condensed combined financial information has been derived from and should be read in conjunction with:
•
the accompanying notes to the unaudited pro forma condensed combined financial information;
•
the historical unaudited financial statements of Enzon as of and for the nine months ended September 30, 2025 and the related notes included elsewhere in this prospectus/consent solicitation statement;
•
the historical audited financial statements of Enzon as of and for the year ended December 31, 2024 and the related notes included elsewhere in this prospectus/consent solicitation statement;
•
the historical unaudited financial statements of Viskase as of and for the nine months ended September 30, 2025 and the related notes included elsewhere in this prospectus/consent solicitation statement;
•
the historical audited financial statements of Viskase as of and for the year ended December 31, 2024 and the related notes included elsewhere in this prospectus/consent solicitation statement;
•
other information relating to Enzon and Viskase contained in this prospectus/consent solicitation statement, including in the sections entitled “Enzon’s Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Viskase’s Management’s Discussion and Analysis of Financial Condition and Results of Operations,” the Annexes and other financial information relating to each of Enzon and Viskase included elsewhere in this prospectus/consent solicitation statement.
The unaudited pro forma condensed combined financial information is provided for illustrative purposes only and is not necessarily indicative of what the actual results of operations and financial position would have been had the Closing and the events described above in the section “Other Material Events” taken place on the dates indicated, nor are they indicative of the future consolidated results of operations or financial position of Enzon. The unaudited pro forma adjustments are based on information currently available, and assumptions and estimates underlying the unaudited pro forma adjustments are described in the accompanying notes to the unaudited pro forma condensed combined financial information. If the actual facts are different than these assumptions, the amounts and shares outstanding in the unaudited pro forma condensed combined financial information that follows will be different, and those changes could be material.
Except where the context otherwise indicates, the information concerning Enzon contained in or incorporated by reference into this unaudited pro forma condensed combined financial information has been provided by Enzon, and the information concerning Viskase contained in this unaudited pro forma condensed combined financial information has been provided by Viskase.
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET
AS OF SEPTEMBER 30, 2025
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Transaction Accounting Adjustments
|
|
|
|
|
|
|
|
|
(In thousands, except for share data)
|
|
|
Enzon
Pharmaceuticals,
Inc.
Historical
|
|
|
Viskase
Companies,
Inc.
Historical
|
|
|
Adjustments
for
Other Material
Events
|
|
|
Notes
|
|
|
Other
Transaction
Accounting
Adjustments
|
|
|
Notes
|
|
|
Pro Forma
Balance
Sheet
|
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
$ |
43,256 |
|
|
|
|
$ |
7,692 |
|
|
|
|
$ |
540 |
|
|
|
3(aa)
|
|
|
|
$ |
(1,000) |
|
|
|
3(a)
|
|
|
|
$ |
7,441 |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(450) |
|
|
|
3(bb)
|
|
|
|
|
(246) |
|
|
|
3(d)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(555) |
|
|
|
3(cc)
|
|
|
|
|
(350) |
|
|
|
3(e)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(1,446) |
|
|
|
3(b)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(40,000) |
|
|
|
3(k)
|
|
|
|
|
— |
|
|
|
Receivables, net
|
|
|
|
|
— |
|
|
|
|
|
67,540 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
67,540 |
|
|
|
Inventories, net
|
|
|
|
|
— |
|
|
|
|
|
91,776 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
91,776 |
|
|
|
Other current assets
|
|
|
|
|
411 |
|
|
|
|
|
46,995 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
246 |
|
|
|
3(d)
|
|
|
|
|
47,652 |
|
|
|
Total current assets
|
|
|
|
|
43,667 |
|
|
|
|
|
214,003 |
|
|
|
|
|
(465) |
|
|
|
|
|
|
|
|
(42,796) |
|
|
|
|
|
|
|
|
214,409 |
|
|
|
Property, plant and equipment
|
|
|
|
|
— |
|
|
|
|
|
471,975 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
471,975 |
|
|
|
Less accumulated depreciation
|
|
|
|
|
— |
|
|
|
|
|
(338,160) |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(338,160) |
|
|
|
Property, plant and equipment, net
|
|
|
|
|
— |
|
|
|
|
|
133,815 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
133,815 |
|
|
|
Operating right of use assets,
net
|
|
|
|
|
— |
|
|
|
|
|
19,416 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
19,416 |
|
|
|
Other assets, net
|
|
|
|
|
— |
|
|
|
|
|
11,155 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
11,155 |
|
|
|
Intangible assets, net
|
|
|
|
|
— |
|
|
|
|
|
13,909 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
13,909 |
|
|
|
Goodwill
|
|
|
|
|
— |
|
|
|
|
|
3,129 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
3,129 |
|
|
|
Deferred income taxes
|
|
|
|
|
26 |
|
|
|
|
|
4,409 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(26) |
|
|
|
3(h)
|
|
|
|
|
4,409 |
|
|
|
Total assets
|
|
|
|
|
43,693 |
|
|
|
|
|
399,836 |
|
|
|
|
|
(465) |
|
|
|
|
|
|
|
|
(42,822) |
|
|
|
|
|
|
|
|
400,242 |
|
|
|
Liabilities and stockholders’ (deficit)/equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Short-term debt
|
|
|
|
|
— |
|
|
|
|
|
140,464 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(39,746) |
|
|
|
3(k)
|
|
|
|
|
100,718 |
|
|
|
Accounts payable
|
|
|
|
|
331 |
|
|
|
|
|
34,001 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(730) |
|
|
|
3(b)
|
|
|
|
|
33,602 |
|
|
|
Accrued liabilities
|
|
|
|
|
209 |
|
|
|
|
|
24,907 |
|
|
|
|
|
(555) |
|
|
|
3(cc)
|
|
|
|
|
(128) |
|
|
|
3(a)
|
|
|
|
|
24,183 |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(250) |
|
|
|
3(b)
|
|
|
|
|
— |
|
|
|
Short-term portion operating lease liabilities
|
|
|
|
|
— |
|
|
|
|
|
4,519 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
4,519 |
|
|
|
Total current liabilities
|
|
|
|
|
540 |
|
|
|
|
|
203,891 |
|
|
|
|
|
(555) |
|
|
|
|
|
|
|
|
(40,854) |
|
|
|
|
|
|
|
|
163,022 |
|
|
|
Accrued employee benefits
|
|
|
|
|
— |
|
|
|
|
|
25,820 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
25,820 |
|
|
|
Deferred income taxes
|
|
|
|
|
— |
|
|
|
|
|
3,476 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
3,476 |
|
|
|
Long-term operating lease liabilities
|
|
|
|
|
— |
|
|
|
|
|
17,334 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
17,334 |
|
|
|
Total liabilities
|
|
|
|
|
540 |
|
|
|
|
|
250,521 |
|
|
|
|
|
(555) |
|
|
|
|
|
|
|
|
(40,854) |
|
|
|
|
|
|
|
|
209,652 |
|
|
|
Mezzanine equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Enzon Series C Preferred Stock,
$0.01 par value; 40,000 shares
authorized; 40,000 shares
issued and outstanding
(liquidation value $1,102)
|
|
|
|
|
44,076 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(44,879) |
|
|
|
3(i)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
803 |
|
|
|
3(g)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Transaction Accounting Adjustments
|
|
|
|
|
|
|
|
|
(In thousands, except for share data)
|
|
|
Enzon
Pharmaceuticals,
Inc.
Historical
|
|
|
Viskase
Companies,
Inc.
Historical
|
|
|
Adjustments
for
Other Material
Events
|
|
|
Notes
|
|
|
Other
Transaction
Accounting
Adjustments
|
|
|
Notes
|
|
|
Pro Forma
Balance
Sheet
|
|
|
Stockholders’ equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Viskase Common stock, $0.01
par value; 150,000,000 shares
authorized, 118,181,047 shares
issued and 117,375,777
outstanding at September 30,
2025 and 150,000,000 shares
authorized 103,995,935 shares
issued and 103,190,665
outstanding at December 31,
2024
|
|
|
|
|
— |
|
|
|
|
|
1,183 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(1,183) |
|
|
|
3(j)
|
|
|
|
|
— |
|
|
|
Enzon Common Stock, $0.01
par value; 170,000,000 shares
authorized; 74,214,603 shares
issued and outstanding
|
|
|
|
|
742 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(734) |
|
|
|
3(f)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
57 |
|
|
|
3(i)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(65) |
|
|
|
3(c)
|
|
|
|
|
— |
|
|
|
Combined Company Common Stock, $0.01 par value
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
79 |
|
|
|
3(j)
|
|
|
|
|
144 |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
65 |
|
|
|
3(c)
|
|
|
|
|
— |
|
|
|
Additional paid-in capital
|
|
|
|
|
70,565 |
|
|
|
|
|
202,199 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
44,822 |
|
|
|
3(i)
|
|
|
|
|
244,946 |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(72,556) |
|
|
|
3(j)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
734 |
|
|
|
3(f)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(15) |
|
|
|
3(b)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(803) |
|
|
|
3(g)
|
|
|
|
|
— |
|
|
|
(Accumulated deficit) retained earnings
|
|
|
|
|
(72,230) |
|
|
|
|
|
6,797 |
|
|
|
|
|
540 |
|
|
|
3(aa)
|
|
|
|
|
(872) |
|
|
|
3(a)
|
|
|
|
|
6,066 |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(450) |
|
|
|
3(bb)
|
|
|
|
|
(350) |
|
|
|
3(e)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
(451) |
|
|
|
3(b)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
73,362 |
|
|
|
3(j)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(26) |
|
|
|
3(h)
|
|
|
|
|
— |
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(254) |
|
|
|
3(k)
|
|
|
|
|
— |
|
|
|
Treasury Stock, at cost (805,270
treasury shares)
|
|
|
|
|
— |
|
|
|
|
|
(298) |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
298 |
|
|
|
3(j)
|
|
|
|
|
— |
|
|
|
Accumulated other comprehensive loss
|
|
|
|
|
— |
|
|
|
|
|
(59,212) |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(59,212) |
|
|
|
Total stockholders’ equity attributable to controlling interests
|
|
|
|
|
(923) |
|
|
|
|
|
150,669 |
|
|
|
|
|
90 |
|
|
|
|
|
|
|
|
42,108 |
|
|
|
|
|
|
|
|
191,944 |
|
|
|
Deficit attributable to non-controlling interest
|
|
|
|
|
— |
|
|
|
|
|
(1,354) |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(1,354) |
|
|
|
Total stockholders’ equity
|
|
|
|
|
(923) |
|
|
|
|
|
149,315 |
|
|
|
|
|
90 |
|
|
|
|
|
|
|
|
42,108 |
|
|
|
|
|
|
|
|
190,590 |
|
|
|
Total liabilities, mezzanine equity,
and stockholders’ equity
|
|
|
|
|
43,693 |
|
|
|
|
|
399,836 |
|
|
|
|
|
(465) |
|
|
|
|
|
|
|
|
(42,822) |
|
|
|
|
|
|
|
|
400,242 |
|
|
| |
See accompanying notes to the unaudited pro forma condensed combined financial information.
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2025
| |
|
|
Nine Months Ended
September 30, 2025
|
|
|
Nine Months Ended
September 30, 2025
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(In thousands, except for share data)
|
|
|
Enzon
Pharmaceuticals,
Inc.
Historical
|
|
|
Viskase
Companies,
Inc.
Historical
|
|
|
Other
Transaction
Accounting
Adjustments
|
|
|
Notes
|
|
|
Pro Forma
Statement of
Operations
|
|
|
Notes
|
|
|
Net sales
|
|
|
|
$ |
— |
|
|
|
|
$ |
282,629 |
|
|
|
|
$ |
— |
|
|
|
|
|
|
|
$ |
282,629 |
|
|
|
|
|
|
Cost of sales
|
|
|
|
|
— |
|
|
|
|
|
(250,724) |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(250,724) |
|
|
|
|
|
|
Gross margin
|
|
|
|
|
— |
|
|
|
|
|
31,905 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
31,905 |
|
|
|
|
|
|
Selling, general and administrative
|
|
|
|
|
— |
|
|
|
|
|
38,146 |
|
|
|
|
|
185 |
|
|
|
4(e)
|
|
|
|
|
42,170 |
|
|
|
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
3,839 |
|
|
|
5(a)
|
|
|
|
|
— |
|
|
|
|
|
|
General and administrative
|
|
|
|
|
1,038 |
|
|
|
|
|
— |
|
|
|
|
|
(1,038) |
|
|
|
5(a)
|
|
|
|
|
— |
|
|
|
|
|
|
Transaction expenses
|
|
|
|
|
2,801 |
|
|
|
|
|
— |
|
|
|
|
|
(2,801) |
|
|
|
5(a)
|
|
|
|
|
— |
|
|
|
|
|
|
Amortization of intangibles
|
|
|
|
|
— |
|
|
|
|
|
1,148 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
1,148 |
|
|
|
|
|
|
Asset impairment expense
|
|
|
|
|
— |
|
|
|
|
|
12,100 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
12,100 |
|
|
|
|
|
|
Restructuring and related expense
|
|
|
|
|
— |
|
|
|
|
|
6,606 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
6,606 |
|
|
|
|
|
|
Operating loss
|
|
|
|
|
(3,839) |
|
|
|
|
|
(26,095) |
|
|
|
|
|
(185) |
|
|
|
|
|
|
|
|
(30,119) |
|
|
|
|
|
|
Interest expense, net
|
|
|
|
|
— |
|
|
|
|
|
(8,545) |
|
|
|
|
|
2,220 |
|
|
|
4(h)
|
|
|
|
|
(6,325) |
|
|
|
|
|
|
Interest and dividend income
|
|
|
|
|
1,494 |
|
|
|
|
|
— |
|
|
|
|
|
(1,494) |
|
|
|
4(a)
|
|
|
|
|
— |
|
|
|
|
|
|
Other income, net
|
|
|
|
|
— |
|
|
|
|
|
2,682 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
2,682 |
|
|
|
|
|
|
Loss before income taxes
|
|
|
|
|
(2,345) |
|
|
|
|
|
(31,958) |
|
|
|
|
|
541 |
|
|
|
|
|
|
|
|
(33,762) |
|
|
|
|
|
|
Income tax benefit (expense)
|
|
|
|
|
7 |
|
|
|
|
|
(14,890) |
|
|
|
|
|
88 |
|
|
|
4(g)
|
|
|
|
|
(14,795) |
|
|
|
|
|
|
Net loss
|
|
|
|
|
(2,338) |
|
|
|
|
|
(46,848) |
|
|
|
|
|
629 |
|
|
|
|
|
|
|
|
(48,557) |
|
|
|
|
|
|
Less: net loss attributable to noncontrolling interests
|
|
|
|
|
— |
|
|
|
|
|
(33) |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(33) |
|
|
|
|
|
|
Net loss attributable to controlling interests
|
|
|
|
|
(2,338) |
|
|
|
|
|
(46,815) |
|
|
|
|
|
629 |
|
|
|
|
|
|
|
|
(48,524) |
|
|
|
|
|
|
Dividends on Series C Preferred Stock
|
|
|
|
|
(1,593) |
|
|
|
|
|
— |
|
|
|
|
|
1,593 |
|
|
|
4(c)
|
|
|
|
|
— |
|
|
|
|
|
|
Net loss available to common stockholders
|
|
|
|
$ |
(3,931) |
|
|
|
|
$ |
(46,815) |
|
|
|
|
$ |
2,222 |
|
|
|
|
|
|
|
$ |
(48,524) |
|
|
|
|
|
|
Enzon Pharmaceuticals, Inc. basic and diluted weighted average common shares outstanding
|
|
|
|
|
74,214,603 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
Enzon Pharmaceuticals, Inc. basic and diluted net loss per share
|
|
|
|
$ |
(0.05) |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
|
|
|
$ |
— |
|
|
|
|
|
|
Viskase Companies, Inc. basic and
diluted weighted average common
shares outstanding
|
|
|
|
|
— |
|
|
|
|
|
108,795,514 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
Viskase Companies, Inc. basic and diluted net loss per share
|
|
|
|
$ |
— |
|
|
|
|
$ |
(0.43) |
|
|
|
|
$ |
— |
|
|
|
|
|
|
|
$ |
— |
|
|
|
|
|
|
Combined Company basic and
diluted weighted average common
shares outstanding
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
14,391,156 |
|
|
|
4(i)
|
|
|
Combined Company basic and diluted net loss per share
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
|
|
|
$ |
(3.37) |
|
|
|
4(i)
|
|
See accompanying notes to the unaudited pro forma condensed combined financial information.
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 2024
| |
|
|
Year Ended
December 31, 2024
|
|
|
Year Ended
December 31, 2024
|
|
|
Transaction Accounting Adjustments
|
|
|
|
|
|
|
|
|
|
|
(In thousands, except for
share data)
|
|
|
Enzon
Pharmaceuticals,
Inc.
Historical
|
|
|
Viskase
Companies,
Inc.
Historical
|
|
|
Adjustments
for Other
Material
Events
|
|
|
Notes
|
|
|
Other
Transaction
Accounting
Adjustments
|
|
|
Notes
|
|
|
Pro Forma
Statement
of
Operations
|
|
|
Notes
|
|
|
Net sales
|
|
|
|
|
— |
|
|
|
|
$ |
403,775 |
|
|
|
|
$ |
— |
|
|
|
|
|
|
|
$ |
— |
|
|
|
|
|
|
|
$ |
403,775 |
|
|
|
|
|
|
Cost of sales
|
|
|
|
|
— |
|
|
|
|
|
(335,945) |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(335,945) |
|
|
|
|
|
|
Royalties and milestones, net
|
|
|
|
|
26 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
26 |
|
|
|
|
|
|
Gross margin
|
|
|
|
|
26 |
|
|
|
|
|
67,830 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
67,856 |
|
|
|
|
|
|
Selling, general and administrative
|
|
|
|
|
— |
|
|
|
|
|
48,421 |
|
|
|
|
|
450 |
|
|
|
4(aa)
|
|
|
|
|
872 |
|
|
|
4(b)
|
|
|
|
|
52,143 |
|
|
|
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
350 |
|
|
|
4(d)
|
|
|
|
|
— |
|
|
|
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
246 |
|
|
|
4(e)
|
|
|
|
|
— |
|
|
|
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
451 |
|
|
|
4(f)
|
|
|
|
|
— |
|
|
|
|
|
| |
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
1,353 |
|
|
|
5(a)
|
|
|
|
|
— |
|
|
|
|
|
|
General and administrative
|
|
|
|
|
1,353 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(1,353) |
|
|
|
5(a)
|
|
|
|
|
— |
|
|
|
|
|
|
Amortization of intangibles
|
|
|
|
|
— |
|
|
|
|
|
1,609 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
1,609 |
|
|
|
|
|
|
Asset impairment charge
|
|
|
|
|
— |
|
|
|
|
|
448 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
448 |
|
|
|
|
|
|
Restructuring
expense
|
|
|
|
|
— |
|
|
|
|
|
1,917 |
|
|
|
|
|
— |
|
|
|
—
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
1,917 |
|
|
|
|
|
|
Operating income
|
|
|
|
|
(1,327) |
|
|
|
|
|
15,435 |
|
|
|
|
|
(450) |
|
|
|
|
|
|
|
|
(1,919) |
|
|
|
|
|
|
|
|
11,739 |
|
|
|
|
|
|
Interest expense, net
|
|
|
|
|
— |
|
|
|
|
|
(11,032) |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
2,960 |
|
|
|
4(h)
|
|
|
|
|
(8,072) |
|
|
|
|
|
|
Interest and dividend income
|
|
|
|
|
2,452 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(2,452) |
|
|
|
4(a)
|
|
|
|
|
— |
|
|
|
|
|
|
Loss on extinguishment
of debt
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(254) |
|
|
|
4(h)
|
|
|
|
|
(254) |
|
|
|
|
|
|
Other expense, net
|
|
|
|
|
— |
|
|
|
|
|
(10,532) |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(10,532) |
|
|
|
|
|
|
Income (loss) before income taxes
|
|
|
|
|
1,125 |
|
|
|
|
|
(6,129) |
|
|
|
|
|
(450) |
|
|
|
|
|
|
|
|
(1,665) |
|
|
|
|
|
|
|
|
(7,119) |
|
|
|
|
|
|
Income tax (expense) benefit
|
|
|
|
|
(347) |
|
|
|
|
|
670 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(48) |
|
|
|
4(g)
|
|
|
|
|
275 |
|
|
|
|
|
|
Net income (loss)
|
|
|
|
|
778 |
|
|
|
|
|
(5,459) |
|
|
|
|
|
(450) |
|
|
|
|
|
|
|
|
(1,713) |
|
|
|
|
|
|
|
|
(6,844) |
|
|
|
|
|
|
Less: net loss attributable to noncontrolling interests
|
|
|
|
|
— |
|
|
|
|
|
(99) |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
(99) |
|
|
|
|
|
|
Net income (loss) attributable to controlling interests
|
|
|
|
$ |
778 |
|
|
|
|
$ |
(5,360) |
|
|
|
|
$ |
(450) |
|
|
|
|
|
|
|
$ |
(1,713) |
|
|
|
|
|
|
|
$ |
(6,745) |
|
|
|
|
|
|
Dividends on Series C Preferred Stock
|
|
|
|
|
(1,275) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
1,275 |
|
|
|
4(c)
|
|
|
|
|
— |
|
|
|
|
|
|
Net loss available to common
stockholders
|
|
|
|
$ |
(497) |
|
|
|
|
$ |
(5,360) |
|
|
|
|
$ |
(450) |
|
|
|
|
|
|
|
$ |
(438) |
|
|
|
|
|
|
|
$ |
(6,745) |
|
|
|
|
|
| |
|
|
Year Ended
December 31, 2024
|
|
|
Year Ended
December 31, 2024
|
|
|
Transaction Accounting Adjustments
|
|
|
|
|
|
|
|
|
|
|
(In thousands, except for
share data)
|
|
|
Enzon
Pharmaceuticals,
Inc.
Historical
|
|
|
Viskase
Companies,
Inc.
Historical
|
|
|
Adjustments
for Other
Material
Events
|
|
|
Notes
|
|
|
Other
Transaction
Accounting
Adjustments
|
|
|
Notes
|
|
|
Pro Forma
Statement
of
Operations
|
|
|
Notes
|
|
|
Enzon Pharmaceuticals,
Inc. basic and diluted
weighted average
common shares
outstanding
|
|
|
|
|
74,214,603 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
Enzon Pharmaceuticals,
Inc. basic and diluted
net loss per share
|
|
|
|
$ |
(0.01) |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
|
|
|
$ |
— |
|
|
|
|
|
|
|
$ |
— |
|
|
|
|
|
|
Viskase Companies, Inc.
basic and diluted
weighted average
common shares
outstanding
|
|
|
|
|
— |
|
|
|
|
|
103,190,665 |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
Viskase Companies, Inc.
basic and diluted net
loss per share
|
|
|
|
$ |
— |
|
|
|
|
$ |
(0.05) |
|
|
|
|
$ |
— |
|
|
|
|
|
|
|
$ |
— |
|
|
|
|
|
|
|
$ |
— |
|
|
|
|
|
|
Combined Company basic and diluted weighted average common shares outstanding
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
14,391,156 |
|
|
|
4(i)
|
|
|
Combined Company basic and diluted net loss per share
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
|
|
|
$ |
— |
|
|
|
|
|
|
|
$ |
(0.47) |
|
|
|
4(i)
|
|
See accompanying notes to the unaudited pro forma condensed combined financial information.
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
1. Basis of Pro Forma Presentation
The unaudited pro forma condensed combined financial information was prepared in accordance with Article 11 of SEC Regulation S-X, as amended by Release No. 33-10786, “Amendments to Financial Disclosures about Acquired and Disposed Businesses”. Release No. 33-10786 replaces the historical pro forma adjustments criteria with simplified requirements to depict the accounting for the transaction (“Transaction Accounting Adjustments”) and presents the reasonably estimable synergies and other transaction effects that have occurred or are reasonably expected to occur (“Management’s Adjustments”). Enzon and Viskase management have elected not to present Management’s Adjustments and will only be presenting Transaction Accounting Adjustments in the unaudited pro forma condensed combined financial information. The adjustments presented in the unaudited pro forma condensed combined financial information have been identified and presented to provide relevant information necessary for an understanding of Enzon at the Closing inclusive of the events described above in the section “Other Material Events”. The unaudited pro forma condensed combined financial information does not give effect to any anticipated synergies, operating efficiencies, tax savings, or cost savings that may be associated with the Merger. Enzon and Viskase had no historical transaction with each other prior to entering into the Merger Agreement. Accordingly, no pro forma adjustments were required to eliminate activities between the companies.
The pro forma adjustments reflecting the Closing and the events described above in the section “Other Material Events” are based on certain currently available information and certain assumptions and methodologies that both Enzon and Viskase believe are reasonable under the circumstances. The pro forma adjustments, which are described in the accompanying notes, may be revised as additional information becomes available and is evaluated. Therefore, it is likely that the actual adjustments will differ from the pro forma adjustments, and it is possible the differences may be material. Both Enzon and Viskase believe that the assumptions and methodologies provide a reasonable basis for presenting all the significant effects of the Closing and the events described above in the section “Other Material Events” based on information available to management at this time and that the pro forma adjustments give appropriate effect to those assumptions and are properly applied in the unaudited pro forma condensed combined financial information.
Included in the shares outstanding and weighted average shares outstanding (for the calculation of pro forma basic net loss per share and diluted net loss per share) as presented in the unaudited pro forma condensed combined financial information are shares of Enzon Common Stock to be issued to holders of Viskase Common Stock, shares of Enzon Common Stock expected to be outstanding following the completion of the agreed upon 1 to 100 Reverse Stock Split, and shares of Enzon Common Stock that will be issued following the completion of the IEH Share Exchange and Series C Exchange Offer.
The table directly below presents ownership based on the shares expected to be outstanding on the estimated Closing as of February 10, 2026 as depicted in the unaudited pro forma condensed combined financial information.
| |
|
|
Shares
|
|
|
% Ownership
|
|
|
Shares held by legacy Viskase common stockholders
|
|
|
|
|
7,915,136 |
|
|
|
|
|
55.0% |
|
|
|
Shares held by IEH Parties underlying Enzon Series C Preferred Stock subsequent to IEH Share Exchange
|
|
|
|
|
5,630,234 |
|
|
|
|
|
39.1% |
|
|
|
Shares held by legacy Enzon common stockholders
|
|
|
|
|
742,146(1) |
|
|
|
|
|
5.2% |
|
|
|
Shares held by non-IEH Parties underlying Enzon Series C Preferred Stock subsequent to Series C Exchange Offer
|
|
|
|
|
103,640 |
|
|
|
|
|
0.7% |
|
|
|
Total shares of Combined Company Common Stock
|
|
|
|
|
14,391,156 |
|
|
|
|
|
100.0% |
|
|
(1)
Consists of 742,146 shares of Enzon Common Stock issued to the current holders of Enzon Common Stock following the Reverse Stock Split. The 74,214,603 shares of Enzon Common Stock outstanding immediately prior to the Closing are assumed to be adjusted using a 1 for 100 Reverse Stock Split ratio, resulting in 742,146 shares of Enzon Common Stock.
2. Accounting Treatment for the Transaction
Notwithstanding the legal form, the Merger will be accounted for as a reverse recapitalization and not a business combination under ASC 805. Under this method of accounting, Enzon will be treated as the acquired company for accounting purposes, whereas Viskase will be treated as the accounting acquirer. In accordance with this method of accounting, the Merger will be treated as the equivalent of Viskase issuing shares for the net assets of Enzon, accompanied by a recapitalization. The net assets of Enzon will be stated at historical cost, with no goodwill or other intangible assets recorded, and operations prior to the Merger will be those of Viskase. Viskase has been determined to be the accounting acquirer for purposes of the Merger based on an evaluation of the following facts and circumstances:
•
Legacy Viskase stockholders will have a majority of the voting interest in the Combined Company, with 55.0% of the voting power held by legacy Viskase stockholders;
•
All of the senior management of the Combined Company will come from the senior management of Viskase;
•
Viskase will appoint a majority of the directors to the board of directors of the Combined Company as the Merger Agreement provides that only two current directors of Enzon (Mr. Jordan Bleznick and Mr. Randolph C. Read) will be directors of the Combined Company; and
•
The intended strategy of the Combined Company will be to focus on Viskase’s core service offerings.
3. Adjustments to the Unaudited Pro Forma Condensed Combined Balance Sheet as of September 30, 2025
The pro forma notes and adjustments, based on preliminary estimates that could change materially as additional information is obtained, are as follows:
Pro Forma Adjustments for Other Material Events:
(aa)
To reflect actual and expected interest and dividend income on Enzon’s invested cash and cash equivalents from October 1, 2025 through the estimated Closing of February 10, 2026.
(bb)
To reflect actual and expected cash disbursements for Enzon’s general and administrative costs from October 1, 2025 through the estimated Closing of February 10, 2026.
(cc)
To reflect, as a result of the Plant Closure, an estimated $0.6 million in remaining accrued restructuring costs paid from September 30, 2025 through the estimated Closing Date. This results in a $0.6 million decrease to accrued liabilities for remaining restructuring expenses accrued as of September 30, 2025 on the Viskase historical balance sheet and a reduction in cash and cash equivalents of $0.6 million.
Pro Forma Other Transaction Accounting Adjustments:
(a)
To reflect (i) estimated transaction costs expected to be incurred and expensed by Enzon subsequent to September 30, 2025 in the amount of $0.9 million, (ii) payment of $1.0 million for total preliminary estimated transaction costs for Enzon, which includes the $0.9 million in transaction costs expected to be incurred subsequent to September 30, 2025 and paid upon the Closing above, and payment of $0.1 million of transaction costs that were incurred prior to September 30, 2025 that were recorded in accrued liabilities in the historical Enzon balance sheet. The $0.9 million of transaction costs expected to be incurred subsequent to September 30, 2025 are not deemed specific incremental costs directly attributable to the offering of securities associated with the Closing, as such, these costs of $0.9 million are recorded as an increase to accumulated deficit on the unaudited pro forma condensed combined balance sheet as of September 30, 2025.
(b)
To reflect payment of $1.4 million for total preliminary estimated transaction costs for Viskase, which includes (i) the payment of $1.0 million of transaction costs that were incurred prior to September 30, 2025 and that were recorded as accounts payable and accrued liabilities of $0.7 million and $0.3 million, respectively, in the Viskase historical financial statements and (ii) the payment of $0.4 million of transaction costs that are anticipated to be incurred subsequent to
September 30, 2025 but prior to the Closing. The adjustment reflects professional fees of $15 thousand that are deemed specific incremental costs directly attributable to the offering of securities associated with the Closing. These costs of $15 thousand are recorded as a reduction to additional paid-in capital. The remaining $0.4 million of transaction costs expected to be incurred subsequent to September 30, 2025 but prior to the Closing that are not deemed specific incremental costs directly attributable to the offering of securities have been recorded as an increase to accumulated deficit.
(c)
To reflect the reclassification of shares of Enzon Common Stock that were issued and outstanding immediately prior to the Effective Time of the Merger following the Reverse Stock Split. These, shares, originally presented within the line item Enzon Common Stock, $0.01 par value are reclassified to the line item Combined Company Common Stock, $0.01 par value on the face of the pro forma unaudited condensed combined balance sheet. This reclassification is made as Enzon is referred to as the Combined Company following the Effective Time of the Merger.
Following the 1 for 100 Reverse Stock Split (see Note 3(f)), 742,146 shares of Enzon Common Stock are outstanding immediately prior to the Closing and are presented within the Enzon Common Stock, $0.01 par value line item (74,214,603 issued and outstanding shares of Enzon Common Stock divided by 100 results in 742,146 shares) are reclassified to the line item Combined Company Common Stock, $0.01 par value. In addition, 5,733,874 shares of Enzon Common Stock issued in connection with the IEH Share Exchange and Series C Exchange Offer (see Note 3(i)) and presented within the Enzon Common Stock, $0.01 par value line item are similarly reclassified to the line item Combined Company Common Stock, $0.01 par value.
After adjustment 3(c) and adjustment 3(j), the unaudited pro forma condensed combined balance sheet reflects $0.1 million in Combined Company Common Stock, $0.01 par value.
(d)
To reflect the estimated payment on the Closing of a $0.2 million premium for a prepaid directors’ and officers’ insurance policy for the Combined Company’s directors and officers subsequent to the Merger.
(e)
To reflect the estimated payment on the Closing of the $0.4 million premium for Enzon’s directors’ and officers’ tail insurance policy.
(f)
To reflect the 1 for 100 Reverse Stock Split. Following the 1 for 100 Reverse Stock Split, 74,214,603 shares of Enzon Common Stock are reduced to 742,146 shares. As the Reverse Stock Split is effected without a change in the par value per share, Enzon Common Stock, $0.01 par value was reduced by $0.7 million. This amount reflects (i) a decrease of $0.7 million in Enzon Common Stock, $0.01 par value to remove the par value associated with the 74,214,603 shares outstanding prior to the Reverse Stock Split, offset by (ii) an increase of $7 thousand in Enzon Common Stock, $0.01 par value to record the par value of the 742,146 shares of Enzon Common Stock following the 1 for 100 Reverse Stock Split. The resulting net reduction of $0.7 million in Enzon Common Stock, $0.01 par value and net increase of $0.7 million in additional paid-in-capital reflects the impact of the $0.7 million reduction to Enzon Common Stock, $0.01 par value in the 1 for 100 Reverse Stock Split.
(g)
To reflect the prorated 5% increase in the aggregate Liquidation Preference (see Note 3(i)) of the Enzon Series C Preferred Stock from October 1, 2025 through the estimated Closing on February 10, 2026, which provides for a 5% annual increase in Liquidation Preference, prorated for partial years, when a cash dividend is not paid.
(h)
To reduce deferred income tax asset by $26 thousand to reflect the estimated deferred income tax asset balance for the Combined Company as a result of the tax impact of certain pro forma adjustments. See Note 4(g).
(i)
To reflect the exchange of Series C Preferred Stock for Enzon Common Stock through the (1) IEH Share Exchange and (2) Series C Exchange Offer.
(1) The number of shares of Enzon Common Stock to be issued to IEH Parties in the IEH Share Exchange is determined as (A) the $44.1 million aggregate Liquidation Preference of the
shares of Enzon Series C Preferred Stock beneficially owned by such IEH Party on the Closing divided by (B) the volume-weighted average price of Enzon Common Stock for the last 20 trading days prior to and including October 24, 2025 of $7.83, adjusted from $0.08 per share to take into account the Reverse Stock Split of 1 for 100. This resulted in the exchange of 39,277 shares of Enzon Series C Preferred Stock for 5,630,234 shares of Enzon Common Stock. This exchange results in a reduction of $44.1 million to Enzon Series C Preferred Stock, $0.01 par value, an increase of $0.1 million to Enzon Common Stock, $0.01 par value, and an increase of $44.0 million to additional paid-in capital.
(2) The number of shares of Enzon Common Stock to be issued to non-IEH Parties in the Series C Exchange Offer is determined as (A) the $0.8 million aggregate Liquidation Preference of each share of Enzon Series C Preferred Stock divided by (B) the volume-weighted average price of Enzon Common Stock for the last 20 trading days prior to and including October 24, 2025 of $7.83, adjusted from $0.08 per share to take into account the Reverse Stock Split of 1 for 100. This resulted in the exchange of 723 shares of Enzon Series C Preferred Stock for 103,640 shares of Enzon Common Stock. This exchange results in a reduction of $0.8 million to Enzon Series C Preferred Stock, $0.01 par value, an increase of $1 thousand to Enzon Common Stock, $0.01 par value, and an increase of $0.8 million to additional paid-in capital.
(j)
To reflect the recapitalization of Viskase through the exchange of 117,375,777 shares of Viskase Common Stock for the right to receive 7,915,136 shares of Enzon Common Stock, based on the Exchange Ratio calculation of 0.0674. Further to reflect the elimination of Enzon’s historical accumulated deficit and Viskase’s treasury stock as part of the recapitalization.
The reverse recapitalization adjustment is determined as follows (in thousands):
| |
Derecognition of Enzon Common Stock
|
|
|
|
$ |
(1,183) |
|
|
| |
Derecognition of Enzon treasury stock
|
|
|
|
$ |
298 |
|
|
| |
Derecognition of Enzon’s accumulated deficit(1)
|
|
|
|
$ |
73,362 |
|
|
| |
Issuance of Merger Consideration through the issuance of Enzon Common Stock in accordance with the Exchange Ratio
|
|
|
|
$ |
79 |
|
|
| |
Net reduction of additional paid-in capital due to derecognition of Enzon’s accumulated deficit and Enzon’s historical equity and issuance of Enzon Common Stock
|
|
|
|
$ |
(72,556) |
|
|
(1)
The derecognition of Enzon’s accumulated deficit of $73.4 million is determined as follows (in thousands):
| |
Historical accumulated deficit of Enzon as of September 30, 2025
|
|
|
|
$ |
(72,230) |
|
|
| |
Estimated transaction costs of Enzon through the estimated Closing Date, see 3(a) and 3(e)
|
|
|
|
$ |
(1,222) |
|
|
| |
Interest and dividend income to be earned from September 30, 2025 through
the Closing 3(aa)
|
|
|
|
$ |
540 |
|
|
| |
Estimated general and administration expenses from September 30, 2025 through the Closing 3(bb)
|
|
|
|
$ |
(450) |
|
|
| |
Total adjustment to derecognize Enzon’s accumulated deficit
|
|
|
|
$ |
(73,362) |
|
|
(k)
To reflect Viskase’s repayment of $40 million of debt expected to occur upon Closing. Enzon’s cash and cash equivalents will be used to repay the aforementioned amount. Further, to reflect the loss on extinguishment of debt of $0.3 million under ASC 470, calculated as the excess of the cash paid on extinguishment of $40 million over the net carrying amount of the debt being repaid. The net carrying amount of $39.7 million is calculated as principal of $40 million, adjusted for the unamortized deferred financing costs associated with the debt of $0.3 million. The reacquisition price is the amount paid upon extinguishment of $40 million.
4. Adjustments to Unaudited Pro Forma Condensed Combined Statement of Operations for the Nine Months Ended September 30, 2025 and for the Year Ended December 31, 2024
The pro forma notes and adjustments, based on preliminary estimates that could change materially as additional information is obtained, are as follows:
Pro Forma Adjustments for Other Material Events:
(aa)
To reflect Enzon general and administrative costs from cash disbursements from October 1, 2025 through the Closing (see Note 3(bb)).
Pro Forma Transaction Accounting Adjustments:
(a)
To reflect the removal of historical interest and dividend income attributable to Enzon’s invested cash and cash equivalents. The Enzon invested cash and cash equivalents will be used at the Closing to repay short-term debt issued by Viskase (see Note 3(k)). For the purposes of making adjustments to the unaudited pro forma condensed combined statement of operations, any adjustments that are made to the unaudited pro forma condensed combined balance sheet are assumed to have been made on January 1, 2024. As the Closing is assumed to occur on January 1, 2024, no interest and dividend income will be earned for pro forma purposes for the year ended December 31, 2024 and nine months ended September 30, 2025. This is a non-recurring item.
(b)
To reflect the estimated transaction costs of Enzon for certain accounting, auditing and other professional fees expected to be incurred in connection with the Merger that are not deemed directly attributable to the offering of securities. This is a non-recurring item.
(c)
To reflect the removal of historical dividends on Enzon Series C Preferred Stock as it is assumed the Enzon Series C Preferred Stock was exchanged for Enzon Common Stock on January 1, 2024 for purposes of adjusting the unaudited pro forma condensed combined statement of operations. This is a non-recurring item.
(d)
To reflect expense recognized for the directors’ and officers’ tail insurance policy recorded in Note 3(e).
(e)
To reflect nine months and one year of amortization expense for the Combined Company’s directors’ and officers’ insurance policy recorded in Note 3(d) for the nine months ended September 30, 2025 and for the year ended December 31, 2024, respectively.
(f)
To reflect the estimated transaction costs of Viskase for certain professional fees expected to be incurred in connection with the Merger that are not deemed directly attributable to the offering of securities. This is a non-recurring item.
(g)
To reflect an adjustment to income taxes as a result of the tax impact of certain pro forma adjustments using the effective tax rate for the Combined Company for the nine months ended September 30, 2025 and the year ended December 31, 2024.
(h)
To reflect the reversal of historical interest expense and amortization of deferred financing costs for the nine months ended September 30, 2025 and year ended December 31, 2024 resulting from the repayment of certain Viskase debt obligations on the Closing. Additionally, to account for the loss on extinguishment of debt recognized in connection with this repayment. See Note 3(k) for further information. This is a non-recurring item.
(i)
The pro forma basic and diluted net loss per share attributable to controlling interests for the nine months ended September 30, 2025 and for the year ended December 31, 2024, respectively, presented in the unaudited pro forma condensed combined statement of operations are based upon the number of shares of Enzon Common Stock that would be outstanding at Closing, assuming the Closing occurred on January 1, 2024.
Pro forma basic and diluted net loss per share attributable to controlling interests of the Combined Company is calculated as follows for the nine months ended September 30, 2025:
| |
|
|
Nine Months Ended
September 30, 2025
|
|
|
Numerator:
|
|
|
|
|
|
|
|
|
Pro forma net loss
|
|
|
|
$ |
(48,557,000) |
|
|
|
Less: net loss attributable to noncontrolling interests
|
|
|
|
|
(33,000) |
|
|
|
Pro forma net loss attributable to common stockholders of Combined Company
|
|
|
|
$ |
(48,524,000) |
|
|
|
Denominator:
|
|
|
|
|
|
|
|
|
Assume exchange of Enzon Series C Preferred Stock for Enzon Common Stock and
the conversion of Enzon Common Stock into Combined Company Common Stock
effective January 1, 2024 as a result of assuming Closing of the Merger on
January 1, 2024
|
|
|
|
|
5,733,874 |
|
|
|
Assume conversion of legacy Enzon Common Stock into Combined Company Common Stock effective January 1, 2024 as a result of assuming Closing of the Merger on January 1, 2024
|
|
|
|
|
742,146 |
|
|
|
Assume conversion of Viskase Common Stock into the right to receive Enzon Common Stock and the conversion of Enzon Common Stock into Combined Company Common Stock effective January 1, 2024 as a result of assuming Closing of the Merger on January 1, 2024
|
|
|
|
|
7,915,136 |
|
|
|
Pro forma weighted-average shares outstanding – basic and diluted
|
|
|
|
|
14,391,156 |
|
|
|
Pro forma net loss per share attributable to common stockholders of Combined Company – basic and diluted
|
|
|
|
$
|
(3.37)
|
|
|
There were no antidilutive shares of Enzon Common Stock at the Combined Company for the nine months ended September 30, 2025.
Pro forma basic and diluted net loss per share attributable to controlling interests of the Combined Company is calculated as follows for the year ended December 31, 2024:
| |
|
|
Year Ended
December 31, 2024
|
|
|
Numerator:
|
|
|
|
|
|
|
|
|
Pro forma net loss
|
|
|
|
$ |
(6,844,000) |
|
|
|
Less: net loss attributable to noncontrolling interests
|
|
|
|
|
(99,000) |
|
|
|
Pro forma net loss attributable to common stockholders of Combined Company
|
|
|
|
$ |
(6,745,000) |
|
|
|
Denominator:
|
|
|
|
|
|
|
|
|
Assume exchange of Enzon Series C Preferred Stock for Enzon Common Stock and
the conversion of Enzon Common Stock into Combined Company Common Stock
effective January 1, 2024 as a result of assuming Closing of the Merger on January 1,
2024
|
|
|
|
|
5,733,874 |
|
|
|
Assume conversion of legacy Enzon Common Stock into Combined Company Common Stock effective January 1, 2024 as a result of assuming Closing of the Merger on January 1, 2024
|
|
|
|
|
742,146 |
|
|
|
Assume conversion of Viskase Common Stock into the right to receive Enzon Common Stock and the conversion of Enzon Common Stock into Combined Company Common Stock effective January 1, 2024 as a result of assuming Closing of the Merger on January 1, 2024
|
|
|
|
|
7,915,136 |
|
|
|
Pro forma weighted-average shares outstanding – basic and diluted
|
|
|
|
|
14,391,156 |
|
|
|
Pro forma net loss per share attributable to common stockholders of Combined Company – basic and diluted
|
|
|
|
$
|
(0.47)
|
|
|
There were no antidilutive shares of Enzon Common Stock at the Combined Company for the year ended December 31, 2024.
5. Conforming Accounting Policies and Reclassification Adjustments
During the preparation of this unaudited pro forma condensed combined financial information, Viskase performed a preliminary analysis of Enzon’s financial information to identify differences in financial statement presentation as compared to the presentation of Viskase. Certain reclassification adjustments have been made to conform Enzon’s historical financial statement presentation to Viskase’s historical financial statement presentation. Following the completion of the Merger, or as more information becomes available, Viskase will finalize the review of financial statement presentation, which could differ from the presentation set forth in the unaudited pro forma condensed combined financial information presented herein.
The following items represent certain reclassification adjustments to conform the presentation of Enzon’s historical statement of operations for the nine months ended September 30, 2025 and for the year ended December 31, 2024 to the presentation of Viskase’s historical consolidated statement of operations for the nine months ended September 30, 2025 and for the year ended December 31, 2024, respectively. These reclassification adjustments have no impact on net loss for the nine months ended September 30, 2025 or for the year ended December 31, 2024, respectively, and are summarized below:
(a)
To reclassify Enzon’s historical general and administrative and transaction expenses into the selling, general and administrative line item.
COMPARATIVE HISTORICAL AND UNAUDITED PRO FORMA PER SHARE DATA
|
Enzon Pharmaceuticals, Inc. – Historical
|
|
|
Nine Months Ended
September 30, 2025
|
|
|
Year Ended
December 31, 2024
|
|
|
Basic and diluted net loss per share
|
|
|
|
$ |
(0.05) |
|
|
|
|
$ |
(0.01) |
|
|
|
Book value per share available to common shareholders
|
|
|
|
$ |
(0.01) |
|
|
|
|
$ |
0.04 |
|
|
|
Viskase Companies, Inc. – Historical
|
|
|
Nine Months Ended
September 30, 2025
|
|
|
Year Ended
December 31, 2024
|
|
|
Basic and diluted net loss per share
|
|
|
|
$ |
(0.43) |
|
|
|
|
$ |
(0.05) |
|
|
|
Book value per share attributable to Viskase Companies, Inc.
|
|
|
|
$ |
1.28 |
|
|
|
|
$ |
1.66 |
|
|
|
Combined Company
|
|
|
Nine Months Ended
September 30, 2025
|
|
|
Year Ended
December 31, 2024
|
|
|
Pro forma basic and diluted net loss per share
|
|
|
|
$ |
(3.37) |
|
|
|
|
$ |
(0.47) |
|
|
|
Pro forma book value per share attributable to common
stockholders(1)
|
|
|
|
$ |
13.34 |
|
|
|
|
|
N/A |
|
|
(1)
Pro forma book value per share data of Combined Company was not provided for the year ended December 31, 2024, as no unaudited pro forma condensed combined balance sheet is included within this prospectus pursuant to Regulation S-X, Rule 11-02(c)(1).
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Viskase Companies, Inc. unaudited pro forma condensed combined equivalent amounts(1)
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Nine Months Ended
September 30, 2025
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Year Ended
December 31, 2024
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Basic and diluted net loss per share
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$ |
(6.38) |
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$ |
(0.77) |
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Pro forma book value per share attributable to Viskase Companies, Inc.
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$ |
19.04 |
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$ |
24.62 |
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(1)
The Viskase Companies, Inc. unaudited pro forma equivalent data is calculated as the quotient of Viskase’s historical per share amounts and the Exchange Ratio of 0.0674.
MARKET PRICE AND DIVIDEND INFORMATION
Enzon Common Stock and Viskase Common Stock
Enzon Common Stock is quoted for trading on the “OTCQB” tier of the OTC under the trading symbol “ENZN”. Viskase Common Stock is quoted for trading on the “Pink Limited” tier of the OTC under the trading symbol “VKSC.”
The following table shows the closing price of shares of each of Enzon Common Stock and Viskase Common Stock on June 20, 2025, the Trading Day which closed prior to the public announcement of the Merger, on October 23, 2025, the Trading Day which closed prior to the public announcement of the Merger Agreement Amendment and on [•], 2026, the Trading Day immediately prior to the date of this prospectus/consent solicitation statement, in each case as reported on the OTC.
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ENZN
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VKSC
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June 20, 2025
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$ |
0.0811 |
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$ |
1.00 |
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October 23, 2025
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$ |
0.0761 |
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$ |
1.21 |
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[•], 2026
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$ |
[•] |
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$ |
[•] |
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Over-the-counter market quotations reflect inter-dealer prices, without retail mark-up, markdown or commission and may not represent actual transactions. The market prices of the Enzon Common Stock and the Viskase Common Stock have fluctuated since the date of the announcement of the execution of the Merger Agreement and will continue to fluctuate prior to the completion of the Merger. No assurance can be given concerning the market prices of either of Enzon Common Stock or Viskase Common Stock before completion of the Merger. We urge you to obtain current market quotations for the Enzon Common Stock and the Viskase Common Stock and to review carefully the other information contained in this prospectus/consent solicitation statement.
As of [•], 2026, there were [•] holders of record of Enzon Common Stock and [•] holders of record of Viskase Common Stock, which does not reflect Persons or entities that hold either Enzon Common Stock or Viskase Common Stock in “street” name by a brokerage firm, bank or other nominee.
Dividends
The declaration of dividends by Enzon is within the discretion of the Enzon Board, subject to any applicable limitations under Delaware corporate law, and therefore the Enzon Board could decide in the future not to declare dividends. Enzon did not pay any cash dividends to its common stockholders in 2024 and can provide no assurance that the Enzon Board will declare any cash dividends payable to Enzon’s common stockholders in the future. In addition, as the Enzon Common Stock ranks junior to the Enzon Series C Preferred Stock, unless full dividends have been (i) paid, (ii) redeemed in an amount in excess of the initial liquidation value of $1,102 per share of Enzon Series C Preferred Stock or (iii) set aside for payment on all such outstanding Enzon Series C Preferred Stock for all dividends or increases in the liquidation value in excess of the initial liquidation amount of $1,102 of such Enzon Series C Preferred Stock, no cash dividends may be declared or paid on Enzon Common Stock. On an annual basis, the Enzon Board may, at its sole discretion, cause a dividend with respect to the Enzon Series C Preferred Stock to be paid in cash to the holders in an amount equal to three percent (3%) of the Liquidation Preference as in effect at such time. If the dividend is not so paid in cash, the Liquidation Preference will be adjusted and increased annually by an amount equal to five percent (5%) of the Liquidation Preference per share as in effect at such time, that is not paid in cash to the holders on such date. Also, Enzon’s ability to pay dividends in the future depends on, among other things, Enzon’s future revenues from existing royalties and/or milestone payments, Enzon’s ability to acquire other revenue sources and Enzon’s ability to manage expenses, including costs relating to Enzon’s ongoing operations.
On December 18, 2024, the Enzon Board declared a cash dividend of three percent (3%) of the Liquidation Preference at December 31, 2023 ($42,483,286) of the Enzon Series C Preferred Stock, aggregating approximately $1,275,000 ($31.86 per share). Such dividend was paid on January 9, 2025 to the holders of record of Enzon Series C Preferred Stock as of January 2, 2025.
The declaration of dividends by Viskase is within the discretion of the Viskase Board, subject to any applicable limitations under Delaware corporate law and the Amended Senior Credit Facility, specifically, the Amended Senior Credit Facility restricts Viskase’s ability to, among other things, pay dividends. Viskase has never declared or paid any cash dividends on its capital stock. Viskase currently intends to retain all available funds and future earnings, if any, for the operation and expansion of its business and does not anticipate declaring or paying any dividends in the foreseeable future. Following the Merger, the payment of dividends, if any, will be at the discretion of the Combined Company’s board of directors and will depend on a number of factors, including the Combined Company’s, financial condition, available cash, future revenues (including any royalties or milestone payments), the successful execution of its business strategy and its ability to manage expenses, and other factors that the board of directors of the Combined Company may deem relevant.
The Merger Agreement prohibits each of Enzon and Viskase from paying dividends (provided that dividends will continue to accrue on the Enzon Series C Preferred Stock).
RISK FACTORS
You should consider carefully the following risk factors, as well as the other information set forth in this prospectus/consent solicitation statement, before making any decision on each of the Reverse Stock Split Proposal and the Merger Proposal. Risks related to Enzon, including risks related to Enzon’s business, financial condition and capital requirements, development, regulatory approval and commercialization, dependence on third parties, intellectual property and taxation, will continue to be applicable to the Combined Company after the Closing. You should also consider the other information in this prospectus/consent solicitation statement and the other documents incorporated by reference into this prospectus/consent solicitation statement. Please see the sections titled “Incorporation of Certain Documents by Reference” and “Where You Can Find More Information” in this prospectus/consent solicitation statement for further information regarding the documents incorporated into this document by reference.
Risk Factors Relating to Viskase’s Business
Strategic Risks
Viskase’s failure to efficiently respond to industry changes in casings technology could jeopardize Viskase’s ability to retain its customers and maintain its revenues, operating results and market share.
Viskase and other participants in its industry have considered alternatives to cellulosic casings for many years. As resin technology improves or other technologies develop, alternative casings or other manufacturing methods have been developed and may continue to be improved that threaten the long-term sustainability and profitability of cellulosic casings, Viskase’s core product and Viskase’s fibrous casings. Viskase’s failure to anticipate, develop or efficiently and timely integrate new technologies that provide viable alternatives to cellulosic casings, including collagen, plastics and film alternatives, may cause Viskase to lose customers and market share to competitors integrating such technologies, which, in turn, would negatively impact Viskase’s revenues and operating results.
Sales of Viskase’s products could be negatively affected by problems or concerns with the safety and quality of certain food products.
Viskase could be adversely affected if consumers in the food markets were to lose confidence in the safety and quality of meat products, particularly with respect to processed meat products for which casings are used, such as hot dogs and sausages. Outbreaks of, or even adverse publicity about the possibility of, diseases such as avian influenza and “mad cow disease,” food-borne pathogens such as E. coli and listeria and any other food safety problems or concerns relating to meat products may discourage consumers from buying meat products. These risks could also result in additional governmental regulations and/or cause production and delivery disruptions or product recalls. Each of these risks could adversely affect the demand for Viskase’s products and consequently Viskase’s sales volumes and revenues.
Viskase faces industry competitors that are better capitalized, and the continuous-flow nature of the casings manufacturing process forces competitors to compete based on price in order to maintain volume, which could adversely affect Viskase’s revenues and results.
Viskase faces competition in the U.S. and internationally from competitors that may have substantially greater financial resources than Viskase. Currently, Viskase’s primary competitors include Viscofan, S.A., Kalle GmbH, Visko Teepak and Vicel. Additionally, Viskase faces regional competition from local suppliers, predominantly with respect to plastic casing, as the cost of entry and expertise required in that field is relatively low compared to Cellulosic extrusion. The continuous-flow nature of the casings manufacturing process has historically provided an incentive to competitors in Viskase’s industry to compete based on price in order to maintain volume, which could result in lower industry-wide pricing. Viskase believes the current and planned cellulose production capacity in its industry exceeds global demand and will continue to do so in the near term. Viskase strives to differentiate its products on the basis of product quality and performance, product innovation and development, service, sales and distribution, but these efforts may not be sufficient to offset price competition. A decline in prices may materially adversely affect Viskase’s profitability, whereas certain of Viskase’s competitors who are better capitalized may be positioned to absorb
such price declines. Any of these factors could result in a material reduction of Viskase’s revenue, gross profit margins and operating results.
Viskase receives its raw materials from a limited number of suppliers, and problems with their supply could impair Viskase’s ability to meet its customers’ product demands.
Viskase’s principal raw materials, including paper, pulp, polyamide resins and key chemicals, namely sodium hydroxide, carbon disulfide and sulfuric acid, constitute an important aspect and cost factor of Viskase’s operations. Viskase generally purchases its paper and pulp from a single source or a small number of suppliers, and purchases sodium hydroxide and carbon disulfide from a few sources. Any inability of Viskase’s suppliers to timely deliver raw materials or any unanticipated adverse change in Viskase’s suppliers could be disruptive and costly to Viskase. Viskase’s inability to obtain raw materials from its suppliers would require Viskase to seek alternative sources. These alternative sources may not be adequate for all of Viskase’s raw material needs nor may adequate raw material substitutes exist in a form that Viskase’s processes could be modified to use. These risks could materially and adversely impact Viskase’s sales volume, revenues, costs of goods sold and, ultimately, profit margins.
Changing dietary trends and consumer preferences could weaken the demand for Viskase’s products.
Various medical studies detailing the health-related attributes of particular foods, including processed meat products, affect the purchase patterns, dietary trends and consumption preferences of consumers. These patterns, trends and preferences are routinely changing. For example, general dietary concerns about processed meat products, such as the cholesterol, calorie, sodium and fat content of such products, could result in reduced demand for such products, which could, in turn, cause a reduction in the demand for Viskase’s products and a decrease in Viskase’s sales volume and revenue.
Viskase’s facilities are capital intensive, and Viskase may not be able to obtain financing to fund necessary capital expenditures.
Viskase’s business is capital intensive. Viskase operates nine (9) manufacturing facilities and six (6) distribution centers as part of its business. Viskase is required to make substantial capital expenditures and substantial repair and maintenance expenditures to maintain, repair, upgrade and expand existing equipment and facilities to keep pace with competitive developments. In addition, Viskase is required to invest in technological advances to maintain compliance with safety standards and environmental laws and regulations. If Viskase needs to obtain additional funds to finance such capital expenditures, Viskase may not be able to do so on terms favorable to it, or at all, which would ultimately negatively affect Viskase’s production and operating results.
Business interruptions at any of Viskase’s production facilities could increase Viskase’s operating costs, decrease Viskase’s sales or cause Viskase to lose customers.
The reliability of Viskase’s production facilities is critical to the success of Viskase’s business. In recent years, Viskase has streamlined its production capacity to be better aligned with its sale volumes. Viskase generally seeks to operate its facilities at levels that leave little or no excess production capacity for certain products. If the operations of any of Viskase’s manufacturing facilities were interrupted or significantly delayed for any reason, including labor stoppages, Viskase may be unable to shift production to another facility without incurring a significant drop in production. Any of Viskase’s manufacturing facilities, or any of Viskase’s machines within such facilities, could cease operations unexpectedly for a significant period of time due to a number of events, including:
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unscheduled maintenance outages;
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prolonged power failures;
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equipment or information system breakdowns or failures;
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disruption in the supply of raw materials;
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closure or curtailment related to environmental concerns;
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labor difficulties;
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terrorism or threats of terrorism;
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changes in local or global economic conditions (including, without limitation, changes related to trade wars or tariffs);
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the effect of a pandemic or other health event; and
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other operational problems.
Such a drop in production could negatively affect Viskase’s sales and Viskase’s relationships with its customers.
Viskase’s facilities are susceptible to extreme weather events, which could disrupt Viskase’s business.
Extreme weather events could cause disruptions to Viskase’s business both directly and indirectly. Climate change may increase the frequency and intensity of these extreme weather events. Certain weather events may cause damage to Viskase’s facilities and require Viskase to temporarily halt operations. If Viskase’s strategic facilities (including Viskase’s eight (8) significant manufacturing facilities throughout North America, Europe, South America and Asia) were to experience a natural disaster, such as a hurricane, tornado, earthquake or other severe weather event, casualty loss from an event such as a fire or flood or other adverse impacts, such as plant shutdowns, Viskase’s supply chain may be negatively impacted. These factors could lead to increased prices for Viskase’s raw materials, curtailment of supplies, allocation of raw materials and other force majeure events of Viskase’s suppliers and harm relations with Viskase’s customers which could have a material adverse effect on Viskase’s consolidated financial condition, results of operations and cash flows. Damage to Viskase’s facilities may also cause insurance premiums to increase and also require Viskase to incur additional costs to mitigate future risks.
Strategic transactions may be difficult to implement, disrupt our business or change our business profile significantly.
Viskase has completed two (2) acquisitions and may in the future engage in additional strategic transactions, including acquisitions or dispositions of assets or businesses. These transactions involve numerous risks, including: (i) potential disruption of Viskase’s ongoing business and distraction of management; (ii) difficulty integrating the acquired business or segregating assets and operations to be disposed of; (iii) exposure to unknown, contingent or other liabilities, including litigation arising in connection with the acquisition or disposition or against any businesses Viskase may acquire; (iv) changes to Viskase’s business profile that could have unintended negative consequences; and (v) the failure to achieve desired synergies. If Viskase enters into significant strategic transactions, the related accounting charges may affect Viskase’s financial condition and results of operations, particularly in the case of an acquisition. The financing of any significant acquisition may result in changes in Viskase’s capital structure, including the incurrence of additional indebtedness. If Viskase is unable to realize desired benefits from its acquisitions, Viskase may be required to spend additional time or money on integration efforts that could have been otherwise spent on development and expansion of Viskase’s core business. A material disposition could require the amendment or refinancing of Viskase’s outstanding indebtedness or a portion thereof.
Political and economic instability and risk of government actions affecting Viskase’s business and its customers or suppliers may adversely impact Viskase’s business, consolidated financial condition, results of operations and cash flows.
Viskase is exposed to risks inherent in doing business in each of the countries or territories in which Viskase or its customers or suppliers operate including: geopolitical, social, economic and other events and conditions (including natural disasters, pandemics, acts of terrorism, hostilities or the perception that hostilities may be imminent, military conflicts or acts of war (such as the ongoing war in Ukraine), and related responses, including sanctions or other restrictive actions and associated changes in monetary policy or potential economic recession, commodity prices, legislative and regulatory changes, supply chain issues, labor shortages, foreign currency fluctuations, uncertainty surrounding tariffs and inflationary pressures), the deprivation of contract rights, the inability to obtain or retain licenses required by Viskase to operate its
plants or import or export its goods or raw materials, the expropriation or nationalization of Viskase’s assets, and restrictions on travel, payments or the movement of funds.
While Viskase’s industry is not currently the primary target of sanctions or export controls, the evolution and potential escalation of ongoing conflicts and actions taken by governments in response to such conflicts, and the consequences, economic or otherwise, are unpredictable. Geopolitical events, including the ongoing conflict between Russia and Ukraine, the existing or potential increased hostilities in the Middle East, the increasing tensions between China and Taiwan, and the imposition of tariffs by the U.S. and reciprocal tariffs by its trading partners have had and may continue to have a negative impact on the global industrial macro-economic environment and could materially adversely impact Viskase’s consolidated financial condition, results of operations and cash flows.
A deterioration in general economic conditions may harm Viskase’s business, results of operations, cash flows and financial position.
General global and domestic economic conditions directly affect the levels of demand and production of consumer goods, levels of employment, the availability and cost of credit, and ultimately, the demand for Viskase’s products and the profitability of our business. The U.S. economy has experienced persistent inflation, and Viskase has experienced, and continues to experience, cost inflation across its business. Inflation has resulted in, and may continue to result in, higher production and transportation costs, which Viskase may not be able to recover through higher prices charged to its customers or otherwise. If global or domestic economic conditions deteriorate, economies could experience a recession, which may result in higher unemployment rates, lower disposable income, lower earnings and investment and lower consumer spending. These factors could result in lower demand for Viskase’s products and negatively affect Viskase’s business, results of operations and cash flows.
In addition, tariffs imposed by the U.S. or foreign governments or a global trade war has increased and may in the future continue to increase the cost of Viskase’s products, which could have a material adverse effect on Viskase’s business, financial condition and results of operations. An example of a material adverse effect includes, but is not limited to, customers of Viskase seeking alternative sources of supply if tariffs impact the cost of Viskase’s products. Further changes in U.S. trade policy, including renegotiating or potentially terminating existing bilateral or multilateral agreements as well as the imposition of tariffs or retaliatory tariffs from other nations, could continue to impact global markets and demand for Viskase’s and its customers’ products and the costs associated with certain of Viskase’s capital investments and expenditures. Further changes in tax laws or tax rates may have a material impact on Viskase’s future cash taxes, effective tax rate or deferred tax assets and liabilities. These conditions are beyond Viskase’s control and may have a material impact on Viskase’s business, results of operations, liquidity and financial position.
Deterioration in Viskase’s business and financial condition has resulted in the Merger Agreement Amendment and additional adverse changes in Viskase’s business and financial condition could further affect the terms, timing or completion of the Merger.
Viskase’s operating performance and financial condition have deteriorated materially as a result of, among other things, underperformance of the Viskase business in the second half of 2025 and Viskase pausing capital investment into one of its product lines. In light of these developments, Enzon and Viskase entered into the Merger Agreement Amendment to revise certain terms of the Merger Agreement, including the Exchange Ratio, and reflect the changed circumstances. There can be no assurance that these adjustments will be sufficient to address the effects of Viskase’s deteriorated performance or that Viskase’s business will not further decline before the completion of the Merger.
The interests of Viskase’s controlling stockholder may not be aligned with those of Viskase or its other stockholders.
As of [•], 2026, IEH — through its control of the IEH Parties — Beneficially Owns approximately [91.76]% of the outstanding shares of Viskase’s Common Stock. Carl C. Icahn is the controlling stockholder and chairman of the board of the general partner of IEH. Because of their substantial ownership and voting power, Mr. Icahn and the IEH Parties presently have and will continue to have voting power sufficient to control the election of the Viskase Board and stockholder voting on decisions relating to fundamental
corporate actions, including the potential Merger, consolidations or sales of all or substantially all of Viskase assets. It is possible that the interests of Mr. Icahn and the IEH Parties may not always align with the interests of Viskase or its other stockholders.
Operational Risks
Viskase may fail to attract and retain qualified personnel, including key management personnel.
Viskase’s ability to operate and grow its business depends on its ability to attract and retain employees with the skills necessary to operate and maintain Viskase’s facilities, produce its products and serve its customers. The increasing demand for qualified personnel may make it more difficult for Viskase to attract and retain qualified employees. Changing demographics and labor work force trends may make it difficult for Viskase to replace retiring employees at Viskase’s manufacturing and other facilities. U.S. labor market conditions remain stringent, and Viskase has, at times, experienced labor shortages and/or higher than historical employee turnover in certain of its facilities. If Viskase fails to attract and retain qualified personnel, or if Viskase experiences labor shortages, Viskase may experience higher costs and other difficulties, and its business may be adversely impacted.
In addition, Viskase relies on key executive and management personnel to manage its business efficiently and effectively. Viskase has recently undergone changes at its most senior levels, including recent changes to its Chief Executive Officer and its Chief Financial Officer, which integration and retention of such individuals will be instrumental to the success of Viskase. As Viskase’s business has grown in size and geographic scope, Viskase has relied, and will rely in the future, on these individuals to manage increasingly complex operations. The loss of any of Viskase’s key personnel could adversely affect Viskase’s business.
If Viskase experiences strikes, other work stoppages or difficulties in negotiating various collective bargaining agreements, its business will be harmed.
Viskase’s workforce is largely unionized and operates under various collective bargaining agreements in different countries. Viskase must negotiate to renew or extend any union contracts as they expire or near expiration. While Viskase believes that it has satisfactory labor relations, Viskase may not be able to successfully negotiate new agreements without work stoppages or labor difficulties in the future or renegotiate them on favorable terms. If Viskase is unable to successfully renegotiate the terms of any of these agreements or if it experiences any extended interruption of operations at any of its facilities as a result of strikes or other work stoppages, Viskase’s business, results of operations and financial condition may be harmed.
Viskase is subject to risk of loss of a significant contract or unfavorable changes in Viskase’s relationships with significant customers.
Viskase is a party to several supply, distribution, contract packaging and other significant contracts. The loss of a significant contract or failure to obtain new significant contracts could adversely affect Viskase’s business, results of operations and financial condition.
Sales to Viskase’s largest customer accounted for approximately six percent (6%) of consolidated gross sales during the year ended December 31, 2024. Viskase’s top five (5) customers collectively represented approximately 18% percent of consolidated gross sales during the year ended December 31, 2024. The loss of one (1) or more of Viskase’s top customers could have a material adverse effect on Viskase’s business, results of operations and financial condition.
Legal, Regulatory, Compliance and Cybersecurity Risks
Viskase’s operations are subject to the general risks of litigation.
Viskase is subject to litigation arising in the ordinary course of business. Trends in litigation may include class actions involving employees, consumers, competitors, suppliers, stockholders or others, and claims relating to product liability, contract disputes, antitrust regulations, intellectual property, advertising, labeling, wage and hour laws, employment practices or environmental matters. Neither litigation trends
nor the outcomes of litigation can be predicted with certainty, and adverse litigation trends and outcomes could negatively affect Viskase’s business, results of operations and financial condition.
Product liability claims or regulatory actions could adversely affect Viskase’s financial results or harm Viskase’s reputation or the value of Viskase’s products.
Claims for losses or injuries purportedly caused by some of Viskase’s products may arise in the ordinary course of Viskase’s business. In addition to the risk of substantial monetary judgments, product liability claims or regulatory actions could result in negative publicity that could harm Viskase’s reputation in the marketplace or adversely impact the value of Viskase’s brands and Viskase’s ability to sell its products in certain jurisdictions. Viskase could also be required to recall possibly defective products, or voluntarily do so, which could result in adverse publicity and significant expenses. Although Viskase maintains product liability insurance coverage, certain potential product liability claims could be excluded or exceed coverage limits under the terms of Viskase’s insurance policies or could result in increased costs for such coverage.
Risks related to security breaches of company, customer, employee and vendor information, as well as the technology that manages Viskase’s operations and other business processes, could adversely affect Viskase’s business.
Viskase relies on various information technology and process control systems to capture, process, store and report data, operate its manufacturing and converting facilities, and interact with customers, vendors and employees. Despite careful security and controls design, implementation, updating and internal and independent third-party assessments, Viskase’s information technology and process control systems, and those of Viskase’s third-party providers, could become subject to cyber-attacks or security breaches. Network, system and data breaches could result in misappropriation of sensitive data or operational disruptions, including interruption to systems availability, denial of access to and misuse of applications required by Viskase’s customers and vendors to conduct business with Viskase. Misuse of internal applications, theft of intellectual property, trade secrets or other corporate assets and inappropriate disclosure of confidential information could stem from such incidents. Delayed shipments, slowed production or other issues resulting from these disruptions could result in lost sales, business delays and negative publicity and could have a material adverse effect on business, results of operations and financial condition.
Viskase’s intellectual property rights may be inadequate or violated and Viskase may be subject to claims of infringement, either or both of which could negatively affect Viskase’s financial condition.
Viskase relies on a combination of trademarks, patents, trade secret rights and other rights to protect its intellectual property. Viskase’s trademark or patent applications may not be approved, and Viskase’s existing or future trademarks or patents may be challenged by third parties. Viskase cannot be certain that the steps it has taken will prevent the misappropriation of its intellectual property, particularly in foreign countries where applicable laws may not protect Viskase’s rights as fully as the applicable laws of the U.S. From time to time, it has been necessary for Viskase to enforce its intellectual property rights against infringements by third parties, and Viskase expects to continue to do so in the ordinary course of its business. Viskase also may be subjected to claims by others that Viskase has violated their intellectual property rights. Even if Viskase prevails, third party-initiated or Viskase-initiated claims may be time consuming and expensive to resolve and may result in a diversion of Viskase’s time and resources. The occurrence of any of these factors could diminish the value of Viskase’s trademark, patent and intellectual property portfolio, subject Viskase to greater competitive pressure and negatively impact Viskase’s sales volume and revenues.
The misuse or theft of information Viskase possesses, including as a result of cyber security breaches, could harm Viskase’s brand, reputation or competitive position and give rise to material liabilities.
Viskase regularly possesses, stores and handles certain non-public information about its customers and employees. Despite the security measures Viskase currently has in place, Viskase’s facilities and systems and those of its third-party service providers may be susceptible to unauthorized access. In addition, unauthorized parties may attempt to gain access to Viskase’s systems or facilities, or those of third parties with whom Viskase does business, through fraud, trickery or other forms of deception of Viskase’s employees or contractors. Many of the techniques used to obtain unauthorized access, including viruses, worms and
other malicious software programs, are difficult to anticipate until launched against a target and Viskase may be unable to implement adequate preventative measures. Viskase’s failure to maintain the security of that data, whether as the result of Viskase’s own error or the malfeasance or errors of others, could harm Viskase’s reputation, interrupt Viskase’s operations, result in governmental investigations and give rise to civil or criminal liabilities. Any such failure could lead to lower revenues, increased remediation, prevention and other costs and other material adverse effects on Viskase’s results of operations, financial condition, liquidity and cash flows.
Continued compliance with environmental, social and governance (“ESG”) regulations may result in significant costs, which could negatively affect Viskase’s financial condition.
Investors, customers, governmental authorities and other stakeholders have an interest in ESG regulations and matters, including with respect to climate change, greenhouse gas emissions and sustainable business practices. As a result, Viskase anticipates a continued interest in reporting on ESG metrics, more prescriptive reporting requirements with respect to ESG metrics and expectations that companies establish goals and commitments regarding ESG metrics and take actions to achieve those goals and commitments. Additionally, Viskase’s operations are subject to extensive environmental, health and safety laws and regulations pertaining to the discharge of substances into the environment, the handling and disposition of wastes and land reclamation and remediation of hazardous substance substances. Present and future environmental laws and regulations applicable to Viskase’s operations may require substantial capital expenditures and may have a material adverse effect on Viskase’s business, financial condition and results of operations.
Failure to comply with environmental laws and regulations can have serious consequences for Viskase, including criminal as well as civil and administrative penalties and negative publicity. Liability under these laws and regulations involves inherent uncertainties. In addition, continued government and public emphasis on environmental issues could necessitate increased future investments for environmental controls at ongoing operations, which will be charged against income from future operations and distract management efforts from other operational matters. As the nature of these potential future charges is unknown, management is not able to estimate the magnitude of any future costs and Viskase has not accrued any reserve for any potential future costs. If Viskase is unable to meet any goals and targets related to the environmental laws and regulations, Viskase’s reputation with investors, customers and other stakeholders and businesses may be harmed.
International Risks
Viskase’s foreign operations expose Viskase to risks that may materially adversely affect Viskase’s financial condition, results of operations, liquidity and cash flows.
Viskase currently has manufacturing facilities, distribution centers and service centers in seven (7) foreign countries, including Brazil, France, Germany, Italy, Mexico, the Philippines and Poland. A significant portion of Viskase’s annual revenues are generated outside the U.S. Operating in many different countries exposes Viskase to varying risks, which include: (i) multiple, and sometimes conflicting, foreign regulatory requirements and laws that are subject to change and are often much different than the domestic laws in the U.S., including laws relating to taxes, consumer privacy, data security, employment matters, import and export controls and the protection of Viskase’s trademarks and other intellectual property; (ii) the effect of foreign currency translation risk, as well as limitations on Viskase’s ability to repatriate income; (iii) varying tax regimes, including consequences from changes in applicable tax laws and Viskase’s ability to repatriate cash from non-U.S. Affiliates without adverse tax consequences; (iv) local ownership or investment requirements, as well as difficulties in obtaining financing in foreign countries for local operations; (v) political and economic instability, natural calamities, war and terrorism; and (vi) tariffs.
Viskase’s sales to customers located outside the U.S. are generally subject to taxes on the repatriation of funds. In addition, international operations in certain parts of the world may be subject to international balance of payment difficulties that may raise the possibility of delay or loss in the collection of accounts receivable from sales to customers in those countries. Net sales to customers located outside the U.S.
represented approximately 68% of Viskase’s total net sales in the year ended on December 31, 2024, and approximately 70% of Viskase’s total net sales in the year ended on December 31, 2023.
Increases in tariffs on certain goods imported into the U.S., and substantial changes to U.S. trade agreements, have adversely affected, and in the future could further adversely affect, Viskase’s business, results of operations and financial condition. Furthermore, retaliatory tariffs or other trade restrictions on products and materials that Viskase or its customers and suppliers export or import could affect demand for Viskase’s products. Direct or indirect consequences of tariffs, retaliatory tariffs or other trade restrictions may also alter the competitive landscape of Viskase’s products in one (1) or more regions of the world. Trade tensions or other governmental action related to tariffs or international trade agreements or policies have the potential to negatively impact Viskase’s business, financial condition and results of operations.
Additionally, operating in many different countries also increases the risk of a violation, or alleged violation, of the United States Foreign Corrupt Practices Act and other applicable anti-corruption laws and regulations, the economic sanction programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control and the anti-boycott regulations administered by the U.S. Department of Commerce’s Office of Anti-boycott Compliance. Any failure to comply with these laws, even if inadvertent, could result in significant penalties or otherwise harm Viskase’s reputation and business. There can be no assurance that all of Viskase’s employees, contractors and agents will comply with Viskase’s policies that mandate compliance with these laws. Violations of these laws could be costly and disrupt Viskase’s business, which could have a material adverse effect on Viskase’s business, financial condition, results of operations, liquidity and cash flows.
Should any of these risks occur, it could impair Viskase’s ability to export its products or conduct sales to customers located outside of the U.S. and result in a loss of sales and profits from Viskase’s international operations.
A substantial portion of Viskase’s business is conducted through foreign subsidiaries, and Viskase’s failure to generate sufficient cash flow from these subsidiaries, or otherwise repatriate or receive cash from these subsidiaries, could result in Viskase’s inability to repay its indebtedness.
Viskase’s sales to customers located outside the U.S. are conducted primarily through subsidiaries organized under the laws of jurisdictions outside of the U.S. For the year ended December 31, 2024, Viskase’s foreign restricted subsidiaries contributed approximately 68% of Viskase’s consolidated revenues. As of December 31, 2024, approximately 58% of Viskase’s consolidated assets, based on book value, were held by Viskase’s foreign subsidiaries. Viskase’s ability to meet its debt service obligations with cash from foreign subsidiaries will depend upon the results of operations of these subsidiaries and may be subject to contractual or other restrictions and other business considerations. In addition, dividend and interest payments to Viskase from its foreign subsidiaries may be subject to foreign withholding taxes, which would reduce the amount of funds Viskase receives from such foreign subsidiaries. Dividends and other distributions from Viskase’s foreign subsidiaries may also be subject to fluctuations in currency exchange rates and restrictions on repatriation, which could further reduce the amount of funds Viskase receives from such foreign subsidiaries.
Financial Risks
Prior to August 2026, Viskase must amend and/or refinance the Amended Senior Credit Facility, or obtain sufficient additional funds to repay borrowings under the Amended Senior Credit Facility as Viskase does not currently have sufficient cash on hand to repay such borrowings at their scheduled maturity. As a result, there is substantial doubt about Viskase’s ability to continue as a going concern.
Viskase’s financial statements are prepared using accounting principles generally accepted in the United States of America applicable to a going concern which contemplates the realization of assets and liquidation of liabilities in the normal course of business. The ability of Viskase to continue as a going concern is dependent on Viskase successfully amending and/or refinancing of the Amended Senior Credit Facility, or obtaining sufficient additional funds to repay borrowings under the Amended Senior Credit Facility, before its maturity in August 2026.
Viskase intends to adequately amend and/or refinance the Amended Senior Credit Facility, or obtain sufficient additional funds to repay borrowings under the Amended Senior Credit Facility, after completion of the Merger but before the scheduled maturity of the Amended Senior Credit Facility to continue as a going concern. However, there is no assurance that Viskase will be able to adequately amend and/or refinance the Amended Senior Credit Facility, or obtain sufficient additional funds to repay borrowings under the Amended Senior Credit Facility, scheduled to mature within twelve (12) months of the date of the issuance of Viskase’s financial statements for the six (6) and nine (9) months ended September 30, 2025, or that such funds, if available, will be obtainable on terms satisfactory to Viskase, and therefore substantial doubt exists about Viskase’s ability to continue as a going concern. The condensed consolidated financial statements do not include any adjustments that might result from Viskase being unable to continue as a going concern.
Raising additional capital would cause dilution to Viskase’s existing stockholders and may adversely affect the rights of existing stockholders.
Viskase may seek additional capital through a combination of private and public equity offerings, debt financings and collaborations, and strategic and licensing arrangements. To the extent that Viskase raises additional capital through the issuance of equity or otherwise, including through additional preferred stock or convertible debt securities, the ownership interest of Viskase’s stockholders will be diluted, and the terms may include liquidation or other preferences that adversely affect such stockholders’ rights as Viskase stockholders. Future sales of Viskase Common Stock or of securities convertible into Viskase Common Stock, or the perception that such sales may occur, could cause immediate dilution and adversely affect the value of Viskase Common Stock.
Viskase is subject to significant minimum contribution requirements and market exposure with respect to its defined benefit plan, both of which could adversely affect Viskase’s cash flow.
While Viskase has frozen participation in its defined benefit plan, Viskase is subject to substantial minimum contribution requirements with respect to its pension plan. Although the amount fluctuates, Viskase’s aggregate minimum funding contribution requirement from 2025 through 2029 is approximately $11.4 million. This amount could increase or decrease due to market factors, including expected returns on plan assets and the discount rate used to measure accounting liabilities, among other factors. Viskase’s unfunded pension plan liabilities with respect to Viskase’s U.S. employees was $2.4 million as of December 31, 2024. The funds in Viskase’s defined benefit plan are subject to market risks, including fluctuating discount rates, interest rates and asset returns. Changes in assumptions regarding expected long-term rate of return on plan assets, Viskase’s discount rate, expected compensation levels, or mortality will also increase or decrease pension costs.
Viskase’s substantial level of indebtedness could adversely affect Viskase’s results of operations, cash flows and ability to compete in Viskase’s industry, which could, among other things, prevent Viskase from fulfilling its obligations under its debt agreements.
Viskase has substantial indebtedness. In addition, subject to restrictions in the agreements governing Viskase’s revolving credit facility and term loan, Viskase may incur additional indebtedness. As of September 30, 2025, Viskase had approximately $141.4 million in aggregate principal amount of total debt, exclusive of additional indebtedness that Viskase may borrower under its revolving credit facility.
Viskase’s high level of indebtedness has important implications, including the following:
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if Viskase fails to satisfy its obligations under Viskase’s indebtedness, or fails to comply with the restrictive covenants contained in the agreements governing Viskase’s revolving credit facility and term loan, an event of default may result, all of Viskase’s indebtedness could become immediately due and payable and Viskase’s lenders could foreclose on Viskase’s assets securing such indebtedness following the occurrence and during the continuance of an event of default;
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a default under the revolving credit facility or the term loan could trigger cross-defaults; and
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repayment of Viskase’s indebtedness may require Viskase to dedicate a substantial portion of its cash flow from its business operations, thereby reducing the availability of cash flow to fund working capital, capital expenditures, development projects, general operational requirements and other purposes.
Viskase expects to obtain the funds to pay its expenses and to repay its indebtedness primarily from Viskase’s operations and, in the case of Viskase’s indebtedness, from refinancings thereof. Viskase’s ability to meet its expenses and make these payments thus depends on Viskase’s future performance, which will be affected by financial, business, economic and other factors, many of which Viskase cannot control. Viskase’s business may not generate sufficient cash flow from operations in the future and Viskase’s currently anticipated growth in revenue and cash flow may not be realized, either or both of which could result in Viskase being unable to repay indebtedness or to fund other liquidity needs. If Viskase does not have enough funds, Viskase may be required to refinance all or part of its then existing debt, reduce or delay capital expenditures, sell assets or borrow more funds, which Viskase may not be able to accomplish on terms favorable to Viskase, or at all. In addition, the terms of existing or future debt agreements may restrict Viskase from pursuing any of these alternatives.
Despite current indebtedness levels, Viskase may still incur substantially more debt, which could decrease cash or other collateral available to pay Viskase’s current debt.
Viskase may incur substantial additional indebtedness in the future. Although the agreements governing Viskase’s revolving credit facility and term loan contain restrictions on the incurrence of additional indebtedness, these restrictions are subject to a number of qualifications and exceptions, and the indebtedness incurred in compliance with these restrictions could be substantial and may decrease cash or other collateral available to pay Viskase’s current debt.
The instruments governing Viskase’s indebtedness impose significant operating and financial restrictions, and a breach of any such restriction may result in a default, which could result in the possible acceleration of repayment obligations and Viskase’s secured creditors receiving certain rights against Viskase’s collateral.
The agreements governing Viskase’s revolving credit facility and term loan impose significant operating and financial restrictions on Viskase. These restrictions may restrict Viskase’s ability to take advantage of potential business opportunities as they arise and may adversely affect the conduct of Viskase’s current business. More specifically, they restrict Viskase’s ability to, among other things: (i) incur additional indebtedness or issue disqualified capital stock; (ii) pay dividends, redeem subordinated debt or make other restricted payments; (iii) make certain investments or acquisitions; (iv) grant Liens on Viskase’s assets; (v) merge, consolidate or transfer substantially all of Viskase’s assets; and (vi) transfer, sell or acquire assets, including capital stock of Viskase’s Subsidiaries.
Viskase’s ability to comply with the provisions governing its indebtedness may be adversely affected by Viskase’s operations and by changes in economic or business conditions or other events beyond Viskase’s control. Viskase’s failure to comply with its debt-related obligations could result in an event of default under Viskase’s indebtedness, resulting in accelerated repayment obligations and giving Viskase’s secured creditors certain rights against Viskase’s collateral.
A decline in expected profitability of Viskase or individual reporting units of Viskase could result in the impairment of assets, including goodwill and other long-lived assets.
Viskase performs an annual impairment assessment for goodwill and its indefinite-lived intangible assets. As necessary, Viskase also performs an annual impairment assessment for other long-lived assets. If the results of such assessments were to show that the fair value of these assets were less than the carrying values, Viskase could be required to recognize a charge for impairment of goodwill or long-lived assets, which could be material.
The future occurrence of a potential indicator of impairment that would require a change in Viskase’s assumptions or strategic decisions made in response to economic or competitive conditions, such as a significant adverse change in the business climate, could require Viskase to perform an assessment prior to the next required assessment date of December 31, 2025.
Viskase’s financial position and future cash flows could be adversely affected if it is unable to fully realize its deferred tax assets.
As of December 31, 2024, Viskase has gross U.S. federal net operating loss carryforwards of $40.327 million with amounts beginning to expire in 2025. As of December 31, 2024, Viskase had deferred
income tax assets of $31.21 million, of which $16.36 million are related to net operating loss carryforwards for income taxes in the U.S. and in certain other taxing jurisdictions. Viskase provides a valuation allowance when it is more likely than not that some portion or all of the net deferred tax assets will not be realized. The use of Viskase’s deferred tax assets enables it to satisfy current and future tax liabilities without the use of Viskase’s cash resources. While it is not expected that the Merger would constitute a change of control for Viskase under Section 382 of the Code, if, for any reason, Viskase is unable to generate sufficient taxable income to fully realize its deferred tax assets, or if the use of its net operating loss carryforwards is limited in the future by Section 382 of the Code or similar statutes as a result of subsequent transactions, Viskase’s financial position and future cash flows could be adversely affected.
Viskase will be subject to business uncertainties and contractual restrictions while the Merger is pending.
The pursuit of the Merger and the preparation for its integration may place a significant burden on Viskase’s management and internal resources. Any significant diversion of management attention away from ongoing business and any difficulties encountered in the transition and integration process could affect Viskase’s financial results. In addition, the Merger Agreement requires that Viskase operate in the usual, regular and ordinary course of business and restricts Viskase from taking certain actions prior to the Effective Time of the Merger or termination of the Merger Agreement without Enzon’s prior consent. These restrictions may prevent Viskase from pursuing attractive business opportunities that may arise prior to the completion of the Merger.
Risk Factors Relating to the Combined Company
Because the principal trading markets for the Combined Company’s shares will be the OTC Market, the corporate governance rules of the national securities exchanges will not apply to the Combined Company. As a result, our governance practices may differ from those of a company listed on such U.S. exchanges.
As a company quoted on the OTCQB tier of the OTC, the Combined Company will be subject to different governance standards than companies whose shares are listed on a national securities exchange such as the New York Stock Exchange and Nasdaq. As a result, the Combined Company will not be required to comply with such requirements, including the requirement that a majority of the Combined Company’s board of directors consists of independent directors and the requirement that the Combined Company has audit and compensation committees that are composed entirely of independent directors. Although the OTCQB has its own set of listing standards, including corporate governance requirements, such requirements are less strict than those promulgated by the national securities exchanges. There can be no assurance that the Combined Company will voluntarily comply with any corporate governance requirements beyond what is required by the OTCQB, and accordingly you may not have the same protections afforded to stockholders of companies that are subject to such requirements.
Past performance by Enzon or Viskase may not be indicative of future performance of an investment in the Combined Company.
Past performance by Enzon or Viskase is not a guarantee of success with respect to the Combined Company. You should not rely on the historical record of Enzon’s or Viskase’s performance as indicative of the future performance of an investment in the Combined Company or the returns the Combined Company will, or is likely to, generate going forward.
The opinions of the Enzon Special Committee’s and the Viskase Special Committee’s respective financial advisors delivered prior to the signing of the Merger Agreement Amendment do not reflect changes in circumstances that may have occurred or that may occur since the dates on which such opinions were delivered.
The opinion obtained by the Enzon Special Committee from its financial advisor was delivered on and dated October 21, 2025 and the opinion obtained by the Viskase Special Committee was delivered on and dated October 22, 2025. The opinions were based upon information available to the financial advisors as of the date of each respective opinion.. Changes in the operations and prospects of either business of Enzon or Viskase, general market and economic conditions and other factors that may be beyond the control of Enzon or Viskase may significantly alter the value of Enzon or Viskase or the share prices of Enzon Common
Stock or Viskase Common Stock by the time the Merger is completed. The opinions do not speak as of the time the Merger will be completed or as of any date other than the date of such opinions. Please see the sections titled “The Merger — Opinion of the Enzon Special Committee’s Financial Advisor” and “The Merger — Opinion of the Viskase Special Committee’s Financial Advisor” in this prospectus/consent solicitation statement for further information regarding the opinions that the Enzon Special Committee and Viskase Special Committee received from their respective financial advisors.
The Combined Company may be unable to successfully integrate Viskase’s operations and may not realize the anticipated benefits of the Merger.
Until the completion of the Merger, Enzon and Viskase will continue to operate as separate companies. The success of the Merger will depend, in part, on the Combined Company’s ability to successfully integrate Viskase’s operations, personnel, systems and business relationships. This integration process may be complex, time-consuming and subject to significant challenges, many of which may be beyond the control of the Combined Company’s management. Potential difficulties that the Combined Company may encounter in connection with the integration include:
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the inability to integrate Viskase’s business in a manner that permits the Combined Company to achieve the full benefits anticipated from the Merger;
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the loss of key employees of Viskase, which could adversely affect the Combined Company’s operations;
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disruption of ongoing business activities, which may adversely affect relationships with customers, suppliers, regulators and other business partners;
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unanticipated changes in applicable laws, regulations or market conditions; and
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unforeseen liabilities, expenses or regulatory conditions associated with the Merger.
Unfavorable global economic conditions could adversely affect the Combined Company’s business, financial condition or results of operations.
The Combined Company’s results of operations could be adversely affected by general conditions in the global economy and in the global financial markets. The global financial crisis caused extreme volatility and disruptions in the capital and credit markets. Factors such as geopolitical, social, economic and other events and conditions (including natural disasters, pandemics, acts of terrorism, hostilities or the perception that hostilities may be imminent, military conflicts or acts of war (such as the ongoing war in Ukraine), and related responses, including sanctions or other restrictive actions and associated changes in monetary policy or potential economic recession, commodity prices, legislative and regulatory changes, supply chain issues, labor shortages, foreign currency fluctuations, uncertainty surrounding tariffs and inflationary pressures) have contributed to this volatility. Recently, among other effects, volatile economic conditions have caused rising levels of inflation, increases in interest rates by central banks with the intent of slowing inflation and a reduction of available capital following increased interest rates. These global economic conditions could result in a variety of risks to the Combined Company’s business, including difficulty in raising funding from capital markets and increased interest rates on loans used to finance our business. Additionally, these developments have resulted in an increase in labor costs in the Combined Company’s markets. If labor costs in the Combined Company’s markets continue to rise, the Combined Company may need to increase its employee compensation levels. There may also be an increase in pricing from third-party vendors such as advisors, attorneys and consultants. Supply chain pricing may also increase, and, in many instances, without advanced warning. These events and increases in expenses could materially and adversely affect the Combined Company’s financial condition, liquidity and the trading price of its securities.
There is a risk that the Combined Company will fail to maintain an effective system of internal controls and its ability to produce timely and accurate financial statements or comply with applicable regulations could be adversely affected. The Combined Company may identify material weaknesses in its internal controls over financial reporting which it may not be able to remedy in a timely manner.
As a public company, the Combined Company will operate in an increasingly demanding regulatory environment, which requires it to comply with the Sarbanes-Oxley Act, the regulations of the OTC Markets,
the rules and regulations of the SEC, expanded disclosure statements, accelerated reporting requirements, and more complex accounting rules. Responsibilities required by the Sarbanes-Oxley Act include establishing corporate oversight and adequate internal control over financial reporting and disclosure controls and procedures. Effective internal controls will be necessary for the Combined Company to produce reliable financial reports and are important to help prevent financial fraud. However, various factors, including that Enzon has outsourced all corporate functions and that Viskase was not an SEC-reporting company prior to the Merger, could make implementation of effective internal controls more difficult. Prior to the Closing, the Combined Company will have never been required to test internal controls within a specified period and, as a result, it may experience difficulty in meeting these reporting requirements in a timely manner.
The process of building the Combined Company’s accounting and financial functions and infrastructure will require significant additional professional fees, internal costs and management efforts. The Combined Company may need to enhance and/or implement a new internal system to combine and streamline the management of its financial, accounting, human resources and other functions. However, the enhancement and/or implementation of a system may result in substantial costs. Any disruptions or difficulties in implementing or using such a system could adversely affect the Combined Company’s controls and harm its business. Moreover, such disruption or difficulties could result in unanticipated costs and diversion of management’s attention. In addition, the Combined Company may discover additional weaknesses in its system of internal financial and accounting controls and procedures that could result in a material misstatement of its financial statements. The Combined Company’s internal control over financial reporting will not prevent or detect all errors and all fraud. A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud will be detected. If the Combined Company is not able to comply with the requirements of Section 404 of the Sarbanes-Oxley in a timely manner, or if it is unable to maintain proper and effective internal controls, the Combined Company may not be able to produce timely and accurate financial statements. If the Combined Company cannot provide reliable financial reports or prevent fraud, its business and results of operations could be harmed, investors could lose confidence in the Combined Company’s reported financial information, and the Combined Company could be subject to sanctions or investigations by the SEC or other regulatory authorities.
Risk Factors Relating to the Merger
The Merger is subject to a number of closing conditions and, if these conditions are not satisfied, the Merger Agreement may be terminated in accordance with its terms and the Merger may not be completed. In addition, the parties have the right to terminate the Merger Agreement under other specified circumstances, in which case the Merger would not be completed.
The Merger is subject to a number of closing conditions and, if these conditions are not satisfied or waived (to the extent permitted by law), the Merger will not be completed. The Closing is subject to the satisfaction or waiver of certain conditions, including, among others, (i) the required approvals by the parties’ stockholders (which approval, with respect to Viskase, was obtained on June 20, 2025 and subsequently on November 11, 2025) having been obtained; (ii) the completion of the Series C Exchange Offer, (iii) the accuracy of the parties’ representations and warranties, subject to certain “materiality” and “material adverse effect” qualifications; (iv) compliance by the parties in all material respects with their respective covenants; (v) no law or order making the Merger illegal or otherwise prohibiting consummation of the Merger; (vi) the shares of Combined Company Common Stock to be issued in the Merger having been approved for listing (subject to official notice of issuance) on the OTC Markets; (vii) the effectiveness of the registration statement of which this prospectus/consent solicitation statement forms a part; (viii) the consummation of the Reverse Stock Split; (viii) dissenters’ rights not having been exercised by Viskase stockholders representing more than three percent (3%) of the outstanding shares of Viskase Common Stock; (ix) Enzon satisfying the Minimum Cash Condition; and (x) any waiting period applicable to the Merger under the HSR Act having expired or been terminated.
Additionally, pursuant to the Merger Agreement Amendment, each of Enzon and Merger Sub has unconditionally and irrevocably waived, consented to and released any inaccuracy in, breach of, or failure
to comply with any representation, warranty, covenant or agreement of Viskase to the extent known to Enzon or Merger Sub as of October 24, 2025 and occurring or existing on or prior to October 24, 2025. Accordingly, any such matters will be disregarded for purposes of determining whether the closing conditions relating to (a) the accuracy of Viskase’s representations and warranties or (b) compliance with its covenants have been satisfied, and neither Enzon nor Merger Sub may terminate, delay or refuse to consummate the Merger by reason of any such matters. For the avoidance of doubt, this waiver does not affect any claim for fraud or intentional breach with respect to facts first arising or becoming known to Enzon or Merger Sub after October 24, 2025. Please see the section titled “The Merger Agreement — Conditions to Completion of the Merger” in this prospectus/consent solicitation statement for further information regarding closing conditions to the Merger.
In addition, Enzon and Viskase can agree at any time to terminate the Merger Agreement, even if Enzon and Viskase stockholders have already voted to approve the Merger Agreement. Enzon and Viskase can also terminate the Merger Agreement under other specified circumstances.
The Merger is subject to a Minimum Cash Condition, and failure to satisfy this requirement could delay or prevent the Closing.
Under the terms of the Merger Agreement, Enzon is required to have Cash on Hand of an amount that is equal to the Minimum Cash Condition. Enzon’s failure to meet the Minimum Cash Condition may delay or prevent the Closing. Please see the section titled “The Merger Agreement — Additional Conditions to Completion for the Benefit of Viskase — Enzon’s Minimum Cash Condition” in this prospectus/consent solicitation statement for further information regarding the Minimum Cash Condition.
Enzon stockholders will not be entitled to appraisal or dissenters’ rights in the Merger.
Under the DGCL, stockholders of a Delaware corporation may, in certain circumstances, have the right to dissent from a Merger and demand payment of the fair value of their shares as determined by a court in a judicial proceeding. These are known as appraisal rights. However, appraisal rights are not available in all circumstances, and exceptions apply under the DGCL.
In connection with the Merger, Enzon stockholders are not entitled to appraisal or dissent rights under the DGCL. This is because the Merger Consideration consists solely of shares of Enzon Common Stock, which is quoted on the OTCQB tier of the OTC Markets, and cash in lieu of fractional shares, if any. As a result, the Merger falls within the exceptions to appraisal rights under Section 262 of the DGCL.
Holders of Viskase Common Stock have appraisal or dissenters’ rights, which could increase transaction uncertainty.
Holders of Viskase Common Stock have appraisal or dissent rights in connection with the Merger under Section 262 of the DGCL. As a condition to the Closing, holders of no more than three percent (3%) of the outstanding shares of Viskase Common Stock shall have exercised (and not subsequently withdrawn or waived) their statutory appraisal rights under Section 262 of the DGCL. The exercise and maintenance of such appraisal rights by holders of more than three percent (3%) of the outstanding shares of Viskase Common Stock may delay or prevent the Closing. Please see the section titled “The Merger Agreement — Conditions to Completion of the Merger” in this prospectus/consent solicitation statement for further information regarding the conditions to Closing.
Holders of Viskase Common Stock who: (i) submit to Viskase a proper written demand for appraisal of such shares; (ii) continuously remain the record holders or beneficial owners of such shares through the Effective Time; and (iii) otherwise comply with the applicable procedures and requirements set forth in Section 262 of the DGCL will be entitled to have their shares appraised by the Court and receive payment in cash of the “fair value” of such shares (as determined by the Court, exclusive of any element of value arising from the accomplishment or expectation of the transaction) instead of the Merger Consideration. Any such Person awarded “fair value” for his, her or its shares by the Court would receive payment of that fair value in cash, together with interest, if any, to be paid upon the amount determined to be the “fair value” in lieu of the right to receive the Merger Consideration. It is possible that any such “fair value” as determined
by the Court may be more or less than, or the same as, the Merger Consideration that such Person is entitled to receive pursuant to the Merger Agreement.
The Enzon Series C Exchange Offer may not be accepted by all holders of Series C Preferred Stock.
Enzon will commence the Series C Exchange Offer, pursuant to the terms of the Merger Agreement, where each share of Series C Preferred Stock held by non-Affiliates of IEH will have the right to be exchanged for shares of Enzon Common Stock at its liquidation value based upon the Enzon 20-day VWAP prior to the execution of the Merger Agreement Amendment. Although Enzon will seek maximum participation of the holders of Series C Preferred Stock in the Series C Exchange Offer, the Series C Exchange Offer may not be accepted by all holders of Series C Preferred Stock. If few or no such holders elect to participate in the Series C Exchange Offer, the aggregate Liquidation Preference of the remaining Series C Preferred Stock could materially impact the satisfaction of the Minimum Cash Condition, which is a condition to Closing. In such a case, Enzon may be required to retain additional Cash on Hand at Closing, which may reduce the amount of cash available for other purposes or delay or prevent the Closing. Please see the section titled “Risk Factors — Risk Factors Relating to the Series C Exchange Offer” in this prospectus/consent solicitation statement for further information.
The market value of the Merger Consideration to be received by Viskase stockholders is uncertain and will depend on the market price of Enzon Common Stock at the Effective Time.
The number of shares of Enzon Common Stock to be issued in the Merger is fixed pursuant to the Exchange Ratio, but the market value of the Merger Consideration that holders of Viskase Common Stock will receive will depend on the trading price of Enzon Common Stock at the Effective Time. This price may be greater than, less than, or the same as the price per share of Enzon Common Stock at the time the Merger Agreement, including the Merger Agreement Amendment, was executed or on the date of this prospectus/consent solicitation statement. Please see the section titled “Market Price and Dividend Information” in this prospectus/consent solicitation statement. The market values of Enzon Common Stock and Viskase Common Stock have varied since Enzon and Viskase entered into the Merger Agreement and will continue to vary in the future due to changes in the business, operations or prospects of Enzon and Viskase, market assessments of the Merger, regulatory considerations, market and economic considerations, and other factors, most of which are beyond Viskase’s control. Accordingly, as of the date of this prospectus/consent solicitation statement, Viskase stockholders will not necessarily know or be able to calculate the value of the stock consideration they would be entitled to receive upon completion of the Merger. Because the market price of Enzon Common Stock is subject to fluctuation, the value of the Merger Consideration that Viskase stockholders ultimately receive may vary significantly from the value as of earlier dates.
The market price of shares of Enzon Common Stock will continue to fluctuate after the Merger.
Upon completion of the Merger, holders of Viskase Common Stock will receive shares of Enzon Common Stock as Merger Consideration. As a result, such holders will become stockholders of the Combined Company and will be subject to the risks associated with ownership of Combined Company Common Stock. The market price of Combined Company Common Stock may fluctuate significantly following the completion of the Merger due to a variety of factors, including changes in the Combined Company’s financial performance, market sentiment, industry developments, general economic conditions and other factors beyond the control of the Combined Company. As a result, stockholders of both Enzon and Viskase could lose some or all of the value of their investment in Combined Company Common Stock.
Although the Merger is intended to qualify as a tax-free reorganization for U.S. federal income tax purposes, the IRS could disagree with this treatment.
The parties intend that the Merger, together with the conversion of Viskase into a limited liability company, will qualify as a “reorganization” within the meaning of Section 368(a) of the Code, and that Enzon and Viskase will each be a party to the reorganization within the meaning of Section 368(b) of the Code. Although this treatment is intended, it is possible that the IRS could disagree. If the IRS were to successfully challenge the tax treatment of the Merger, it is possible that Viskase would recognize taxable income as a result of the Merger and that Enzon, as a successor to Viskase for U.S. federal income tax
purposes, could be liable for any taxes on such income. In addition, each Viskase stockholder would be required to recognize taxable gain or loss with respect to the Viskase Common Stock surrendered in the Merger.
Certain Persons in the Merger may have interests in the Merger Proposal that are different than the interests of Enzon’s stockholders
Certain of Enzon’s executive officers and directors have interests in the Merger Proposal that are different from, or in addition to, the interest of Enzon’s stockholders generally. These interests include the continued service of Jordan Bleznick and Randolph C. Read as members of the board of directors of the Combined Company and the continued provision of indemnification for current and former executive officers and directors of Enzon in accordance with the Merger Agreement. In addition, Mr. Bleznick, a member of the Enzon Board, owns 100,000 shares of Enzon Common Stock, Mr. Read, a member of the Enzon Board, owns 200,000 shares of Enzon Common Stock. Each of Messrs. Bleznick and Read will continue to serve as a member of the board of directors of the Combined Company and will receive the Merger Consideration in connection with the consummation of the Merger. Please see the section titled “Interests of Executive Officers and Directors in the Merger” in this prospectus/consent solicitation statement for further information regarding potential conflicts of interest.
Enzon’s stockholders will experience immediate dilution as a consequence of the issuance of Enzon Common Stock in connection with the Merger. Having a minority share position may reduce the influence that Enzon’s current stockholders have on the management of the Combined Company.
It is anticipated that, upon completion of the Merger and assuming that the Enzon Series C Preferred Stock is exchanged for Enzon Common Stock in full, (i) the holders of Enzon Common Stock immediately prior to the Closing are expected to own approximately 5% of the Enzon Common Stock, (ii) the holders of Enzon Series C Preferred Stock are expected to own approximately 40% of the Enzon Common Stock and (iii) Viskase stockholders are expected to own 55% of the Enzon Common Stock, subject to certain adjustments based upon the number of shares of Enzon Series C Preferred Stock exchanged for Enzon Common Stock by non-Affiliates of the IEH Parties, and depending on the liquidation value of the Enzon Series C Preferred Stock at the Closing. If the actual facts differ from any of the foregoing assumptions (which they may), the percentage ownership retained by current Enzon stockholders in the Combined Company will differ.
Upon completion of the Merger, the issuance of Enzon Common Stock in connection with the Merger, the IEH Share Exchange and the Series C Exchange Offer will result in significant dilution of the ownership and voting interests of current Enzon stockholders, as described above. As a result, current Enzon stockholders (other than the IEH Parties) will experience a significant reduction in their relative influence over Enzon following the Merger.
In addition, each holder of Viskase Common Stock will receive shares of Enzon Common Stock as Merger Consideration and will become a stockholder of Enzon. As a result, such former Viskase stockholders will hold a percentage ownership interest in Enzon that is smaller than their current ownership interest in Viskase. Accordingly, former Viskase stockholders (other than the IEH Parties) will have less influence over the management and policies of Enzon than they currently have over Viskase.
Enzon Stockholders’ percentage ownership in the Combined Company may be diluted in the future.
Following the Merger, stockholders of Enzon will hold 45% of the common stock of the Combined Company. The percentage ownership of Combined Company Common Stock held by current Enzon and Viskase stockholders may be diluted in the future due to additional issuances of equity securities by the Combined Company, including in connection with capital markets transactions, strategic acquisitions or equity compensation arrangements. The Combined Company may adopt one (1) or more equity incentive plans, pursuant to which it may issue equity awards to directors, officers, employees and consultants. Any such issuances could dilute the economic and voting rights of existing stockholders and may have a dilutive effect on earnings per share, which could adversely affect the market price of Combined Company Common Stock.
In addition, the Combined Company may from time to time evaluate and pursue acquisition opportunities, including transactions in which the consideration consists partially or entirely of newly issued shares of Combined Company Common Stock. Any such transactions, if consummated, would further dilute the ownership interests of existing stockholders and could reduce the market value of their shares.
The issuance of additional shares of Combined Company Common Stock, preferred stock or other equity-linked securities could dilute the voting power and economic interests of existing stockholders. If the Combined Company issues debt securities that are convertible into equity, the conversion terms may include adjustments that increase the number of shares issuable upon conversion, further diluting existing stockholders. Any preferred stock issued by the Combined Company could have rights senior to those of the holders of Combined Company Common Stock, including with respect to dividends or Liquidation Preferences, which could limit the Combined Company’s ability to pay dividends or make distributions to common stockholders.
The Combined Company’s decision to issue additional securities will depend on market conditions and other factors beyond its control, and any such issuance could adversely affect the market price of Combined Company Common Stock and dilute the ownership interests of existing stockholders.
Carl C. Icahn and the IEH Parties will exert significant influence on the Combined Company after the Merger and non-IEH stockholders will have limited governance rights.
Upon completion of the Merger, Enzon expects that the IEH Parties will hold a substantial majority of the voting power of the Combined Company. As of [•], IEH — through its control of the IEH Parties — Beneficially Owns approximately (i) [48.6]% of the issued and outstanding shares of Enzon Common Stock, (ii) [98.2]% of the issued and outstanding shares of Enzon Series C Preferred Stock and (iii) [91.76]% of the issued and outstanding shares of Viskase Common Stock. Following the Merger, it is expected that the IEH Parties will Beneficially Own approximately from [•]% to [•]% of the outstanding shares of the Combined Company Common Stock, depending on the amount of Enzon Series C Preferred Stock that is exchanged for Shares of Enzon Common Stock. Mr. Icahn is the controlling stockholder and chairman of the board of the general partner of IEH. Because of their substantial ownership and voting power, Mr. Icahn and the IEH Parties may exert significant influence over the management and strategic direction of the Combined Company, including, but not limited to, (i) the declaration of any future dividends, (ii) the ability to control the election, removal or replacement of any one or more members of the board of directors of the Combined Company, (iii) the voting on decisions related to fundamental corporate actions, consolidations or sales of all or substantially all of the Combined Company’s assets and (iv) the ability to control the approval of various transactions. This concentration of ownership may also discourage or prevent a third party from seeking to acquire control of the Combined Company, even if such a transaction might be beneficial to other stockholders. As a result, the interests of Mr. Icahn and the IEH Parties may not always align with the interests of the Combined Company or its other stockholders.
The IEH Parties have agreed to consent in favor of the Merger and related transactions, which makes it more likely that the required Enzon Stockholder Approval will be obtained.
Concurrently with the execution of the Merger Agreement, Enzon, Viskase and the IEH Parties entered into the IEH Support Agreement, pursuant to which the IEH Parties agreed to, among other things, and subject to certain exceptions, deliver written consents approving the adoption of the Merger Agreement and the Reverse Stock Split.
Under the terms of the IEH Support Agreement, the IEH Parties also agreed to vote against any Enzon Acquisition Proposal or other action that would reasonably be expected to impede or adversely affect the Merger or the other transactions contemplated by the Merger Agreement. As a result, the consent commitments of the IEH Parties make it more likely that the required Enzon Stockholder Approval will be obtained than would be the case in the absence of such commitments. Please see the section titled “The Merger — IEH Support Agreement” in this prospectus/consent solicitation statement for further information on the IEH Support Agreement.
The rights of former Viskase stockholders following the Merger will differ from the rights they held prior to the Merger.
Upon completion of the Merger, former holders of Viskase Common Stock will become holders of Enzon Common Stock and their rights will be governed by Enzon’s Organizational Documents. These rights differ in certain material respects from the rights currently associated with Viskase Common Stock. Please see the section titled “Comparison of Stockholder Rights” in this prospectus/consent solicitation statement for further information regarding the differences in rights between Viskase stockholders and Enzon stockholders.
The Merger Agreement limits Enzon’s ability to pursue alternatives to the Merger.
The Merger Agreement contains provisions that make it more difficult for Enzon to enter into alternative transactions. The Merger Agreement contains certain provisions that restrict Enzon’s ability to, among other things, solicit, initiate or knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an Enzon Acquisition Proposal from a third party. The Merger Agreement also provides that the Enzon Board and the Enzon Special Committee may not make an Enzon Adverse Recommendation Change (subject to certain limited exceptions). Please see the section titled “The Merger Agreement — Other Covenants of the Parties — No Shop/No Solicitation” in this prospectus/consent solicitation statement for further information regarding restrictive provisions applicable to Enzon.
Enzon and Viskase will be subject to business uncertainties and contractual restrictions while the Merger is pending.
Uncertainty about the impact of the Merger may have an adverse effect on Enzon or Viskase. Furthermore, the Merger Agreement contains restrictions on the ability of Enzon and Viskase to take certain actions outside the ordinary course of business prior to Closing, which may delay or prevent Enzon and Viskase from undertaking certain actions or business opportunities that may arise prior to the Closing. Please see the section titled “The Merger Agreement — Conduct of Business Pending the Merger” in this prospectus/consent solicitation statement for further information regarding restrictive covenants applicable to Enzon and Viskase.
Uncertainty about the impact of the Merger on employees and customers may have an adverse effect on Enzon and Viskase and, as a result, the Combined Company. These uncertainties may impair the Combined Company’s and Viskase’s ability to attract, retain and motivate key personnel until the Merger is completed, and could cause customers, business partners and others that deal with Enzon or Viskase to seek to change existing business relationships with Enzon or Viskase. In addition, pursuant to the Merger Agreement and subject to certain exceptions, both Enzon and Viskase have agreed to operate their respective businesses in the ordinary course and to refrain from taking certain actions prior to the Closing without the other party’s consent. These restrictions could cause Enzon and Viskase to be unable to pursue certain beneficial opportunities that may arise prior to the completion of the Merger and could have an adverse effect on Enzon, Viskase and the Combined Company’s results of operations, cash flows and financial position.
The Merger may divert the attention of key personnel and resources at Viskase and Enzon, which could disrupt operations and adversely affect performance.
Viskase and Enzon have expended, and expect to continue to expend, significant time and resources in connection with the Merger. For Viskase, this includes the attention of its management team, which may be diverted from day-to-day operations, strategic initiatives, and performance improvement efforts. Although Enzon does not have employees and operates primarily through the Enzon Board, executive officers and external advisors, the Merger has required and will continue to require substantial involvement from its directors and advisors. This diversion of attention and resources could disrupt operations and may adversely affect the business, financial condition and results of operations of each company, particularly if the Merger is not completed.
If the Merger is not completed, the business, financial results and stock prices of Enzon and Viskase could be adversely affected.
The Merger is subject to a number of conditions, and there can be no assurance that it will be completed. If the Merger is not consummated for any reason, the ongoing businesses of Enzon and/or Viskase may be adversely affected. In addition, Enzon and Viskase will be subject to a number of risks, including, among others:
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the obligation to pay a termination fee to the other party under certain circumstances, as provided in the Merger Agreement;
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the incurrence of significant transaction-related costs that will not be recouped, including legal, accounting, financial advisory and regulatory filing fees;
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potential declines in the market prices of Enzon Common Stock and Viskase Common Stock to the extent that such prices reflect a market assumption that the Merger will be completed;
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for Viskase, the diversion of management attention from day-to-day operations and strategic initiatives due to the focus on the Merger, which may result in missed business opportunities or delayed execution of business plans;
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negative reactions from the financial markets, Viskase employees, as well as Viskase’s customers; and
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potential litigation related to any failure to complete the Merger or any failure to fulfill the parties’ respective obligations under the Merger Agreement.
If the Merger is not completed, Enzon and Viskase cannot assure their respective stockholders that these risks will not materialize or will not materially adversely affect their businesses, financial results or stock prices. Please see the section titled “The Merger Agreement — Termination of the Merger Agreement” in this prospectus/consent solicitation statement for further information regarding termination of the Merger.
Enzon and Viskase have no history operating as a combined company. The selected unaudited pro forma combined financial information included in this prospectus/consent solicitation statement is preliminary and the actual financial condition and results of operations after the Merger may differ materially from them. Accordingly, you have limited financial information on which to evaluate Enzon and your investment decision.
Enzon and Viskase have no prior history as a combined entity and their operations have not been previously managed on a combined basis. The selected unaudited pro forma combined financial information included in this prospectus/consent solicitation statement is presented for illustrative purposes only and is not necessarily indicative of what the Combined Company’s actual financial condition or results of operations would have been had the Merger been completed on the dates indicated. The selected unaudited pro forma combined financial information reflects preliminary estimates and assumptions, including accounting adjustments to reflect the fair value of the assets acquired and liabilities assumed in the Merger and the resulting goodwill, if any. These assumptions may not prove to be accurate, and other factors may affect the Combined Company’s results of operations or financial condition following the consummation of the Merger. For these and other reasons, the historical and pro forma condensed combined financial information included in this prospectus/consent solicitation statement does not necessarily reflect Enzon’s and Viskase’s results of operations and financial condition and the actual financial condition and results of operations of the Combined Company following the Merger may not be consistent with, or evident from, this pro forma financial information.
The purchase price allocation reflected in this prospectus/consent solicitation statement is preliminary, and final allocation of the purchase price will be based upon the actual purchase price and the fair value of the assets and liabilities of Viskase as of the Closing Date. Accordingly, the final accounting adjustments as a result of the acquisition may differ materially from the pro forma adjustments reflected in this prospectus/consent solicitation statement. Please see the section titled “Selected Unaudited Pro Forma Combined Financial Information” in this prospectus/consent solicitation statement for further information.
Enzon and Viskase will incur direct and indirect costs as a result of the Merger.
Enzon and Viskase expect to incur significant non-recurring costs in connection with the Merger and the integration of their respective businesses. These costs may include legal, financial advisory, accounting,
consulting and other professional fees, as well as regulatory filing fees and other transaction-related expenses. In addition, the Combined Company may incur costs related to employee retention, severance, and other employment-related matters, as well as expenses associated with maintaining employee morale and retaining key management personnel.
Enzon, Viskase and the Combined Company may also incur additional costs or experience disruptions in business relationships with customers, suppliers or other third parties as a result of the Merger. These disruptions could include the termination or renegotiation of existing contracts, reductions in customer orders or delays in business development activities. The Combined Company may also incur costs related to the development and execution of integration plans, and the implementation of such plans may result in unanticipated expenses or delays.
The total amount and timing of these costs are subject to various factors, many of which are outside the control of Enzon and Viskase, and are difficult to estimate with precision. Although Enzon and Viskase expect that the elimination of duplicative costs and the realization of operational efficiencies may offset some of the incremental transaction and integration-related expenses over time, such benefits may not be realized in the near term or at all. Whether or not the Merger is consummated, Enzon and Viskase will incur substantial expenses in connection with the transaction, which may adversely affect the financial condition and results of operations of Enzon, Viskase or the Combined Company.
If the Merger fails, Enzon or Viskase may be required to pay a termination fee.
Under the terms of the Merger Agreement, Enzon may be required to pay Viskase a termination fee if the Merger Agreement is terminated under certain circumstances, including if Enzon terminates the Merger Agreement to enter into a definitive agreement with respect to an Enzon Superior Proposal. Viskase may be required to pay Enzon a termination fee of $1,000,000 if the Merger Agreement is terminated by Enzon due to the failure of the Viskase Board to deliver the required written stockholder consent within 24 hours of the execution of the Merger Agreement. Note, however, that the Viskase Board delivered the requisite stockholder consent for the Merger on June 20, 2025 and subsequently on November 11, 2025. Please see the section titled “The Merger Agreement — Effect of Termination; Termination Fees” in this prospectus/consent solicitation statement for further information regarding circumstances under which such a termination fee is payable.
Litigation relating to the Merger may be filed against the Enzon Board, the Enzon Special Committee, the Viskase Board, and/or Viskase Special Committee that could prevent or delay the Closing and/or result in the payment of damages following the Closing.
Securities class action lawsuits and derivative lawsuits are often brought against companies that have entered into business combination agreements or similar agreements. In connection with the execution of the Merger Agreement, it is possible that Enzon or Viskase stockholders may file Enzon Transaction Litigation or Viskase Transaction Litigation, respectively. Among other remedies, these stockholders could seek damages. Even if the lawsuits are without merit, defending against these claims can result in substantial costs and divert management time and resources. The outcome of any litigation is uncertain, and any such potential lawsuits could prevent or delay the Closing and/or result in substantial costs to Enzon or Viskase. Any such actions may create uncertainty relating to the Merger and may be costly and distracting to Enzon and Viskase. Further, the defense or settlement of any lawsuit or claim that remains unresolved at the time the Merger is completed may adversely affect the Combined Company’s business, financial condition, results of operations and cash flows.
If a plaintiff is successful in obtaining an injunction prohibiting consummation of the Merger, then that injunction may delay or prevent the Merger from being completed. An adverse judgment could result in monetary damages, which could have a negative impact on Enzon’s ability to satisfy the Minimum Cash Condition at Closing. Currently, Enzon and Viskase are not aware of any securities class action lawsuits or derivative lawsuits being filed in connection with the Merger.
Additionally, under the terms of the Merger Agreement, Enzon and Viskase each agreed to control the defense, settlement or prosecution of any Enzon Transaction Litigation or Viskase Transaction Litigation, respectively, and to consult with the other party and to consider in good faith the other party’s advice with
respect to such litigation. However, neither party may, nor may offer to, compromise, settle or come to an arrangement regarding any such litigation without the prior written consent of the other party (which consent shall not be unreasonably held, conditioned or delayed). Please see the section titled “The Merger — Litigation Relating to the Merger” in this prospectus/consent solicitation statement for further information regarding litigation related to the Merger.
Enzon may not be able to utilize its NOLs, certain credits and other tax attributes.
The Combined Company’s ability to utilize NOLs, certain credits, and other tax attributes to offset the Combined Company’s future taxable income and/or payment of taxes would be limited if the Combined Company experiences an “ownership change” within the meaning of Section 382 of the Code. An ownership change under Section 382 of the Code (“Section 382”) would establish an annual limitation to the amount of Enzon’s NOL carryforwards, certain credits, and other tax attributes that the Combined Company could utilize in any single year. Assuming the Combined Company has taxable income, it would potentially have higher cash tax obligations than if it were able to utilize Enzon’s NOLs, which could adversely affect the Combined Company’s financial condition, results of operations and cash flows, if that occurred.
Historically, Enzon has not been able to utilize most of its NOLs because Enzon has had minimal or no taxable income. However, the restrictions imposed by Section 382 of the Code, if applicable, could materially reduce or eliminate the future benefit of these NOL carryforwards even if the Combined Company has taxable income after the Merger. The loss of these tax benefits could be significant, and there can be no assurance that subsequent changes in the ownership of the Combined Company’s stock — whether through additional equity issuances, strategic transactions or other events — would not impose additional limitations on the Combined Company’s ability to use Enzon’s NOLs and other tax attributes. In addition, similar rules under state and foreign tax laws could further limit utilization of Enzon’s NOLs and other tax attributes.
Enzon’s accountants have performed an analysis under Section 382 of the Code, the results of which conclude, based on certain assumptions, that utilization of Enzon’s NOLs and certain other credit carryforwards should not be subject to an annual limitation under Section 382 of the Code. It is therefore intended that the Merger, pursuant to the terms of the Merger Agreement, as amended by the Merger Agreement Amendment, should not limit Enzon’s NOL carryforwards and other tax attributes under Section 382 of the Code. However, Section 382 of the Code rules and the application of such rules to the Merger are complex and there is no assurance that Enzon’s view is correct. If such an ownership change is found to have occurred, the amount of the Combined Company’s taxable income that could be offset by Enzon’s pre-ownership change NOL carryforwards and other tax attributes would be severely limited. However, notwithstanding the foregoing, due to the existence of a valuation allowance for substantially all of the deferred tax assets for both Enzon and Viskase, the effect of having an ownership change under Section 382 of the Code may not be significant.
Enzon had previously adopted a Rights Agreement specifically designed to reduce the risk of an ownership change that would limit Enzon’s ability to use its NOL carryforwards. The Merger Agreement, however, requires that the Rights Agreement be terminated prior to the Merger becoming effective. Accordingly, on August 13, 2025, Enzon amended the Rights Agreement to set the Final Expiration Date as the close of business on September 30, 2025, and, again, amended the Rights Agreement on September 30, 2025 to set the Final Expiration Date as the close of business on December 31, 2025. Enzon anticipates amending the Rights Agreement to extend the Final Expiration Date beyond December 31, 2025. However, once the Rights Agreement terminates, Enzon will have no similar protections in place.
The Reverse Stock Split may have a potential negative impact on the Combined Company.
There can be no assurance that the total market capitalization of Combined Company Common Stock after the implementation of the Reverse Stock Split will be equal to or greater than the total market capitalization before the Reverse Stock Split or that the per share market price of Combined Company Common Stock following the Reverse Stock Split will increase in proportion to the reduction in the number of shares of Enzon Common Stock outstanding in connection with the Reverse Stock Split. Also, Enzon cannot assure you that the Reverse Stock Split would lead to a sustained increase in the trading price of Combined Company Common Stock. The trading price of Combined Company Common Stock may change
due to a variety of other factors, including its ability to successfully accomplish its business goals, market conditions and the market perception of Enzon’s business. You should also keep in mind that the implementation of a reverse stock split does not have an effect on the actual or intrinsic value of Combined Company’s business or a stockholder’s proportional ownership in Enzon. However, should the overall value of Combined Company Common Stock decline after the proposed Reverse Stock Split, then the actual or intrinsic value of the shares of Combined Company Common Stock held by you will also proportionately decrease as a result of the overall decline in value.
Further, the liquidity of Combined Company Common Stock may be harmed by the proposed Reverse Stock Split given the reduced number of shares that would be outstanding after the Reverse Stock Split, particularly if the expected increase in stock price as a result of the Reverse Stock Split is not sustained. In addition, the proposed Reverse Stock Split may increase the number of stockholders who own odd lots (less than 100 shares) of Enzon Common Stock, creating the potential for such stockholders to experience an increase in the cost of selling their shares and greater difficulty effecting sales.
Risk Factors Relating to the Series C Exchange Offer
The Series C Exchange Offer may be terminated, cancelled or delayed.
Enzon reserves the right to extend the Series C Exchange Offer for any reason at all. Enzon also expressly reserves the right, at any time or from time to time, to amend the terms of the Series C Exchange Offer in any respect prior to the Series C Exchange Time. If Enzon makes a material change in the terms of the Series C Exchange Offer or the information concerning the Series C Exchange Offer, or waives a material condition of the Series C Exchange Offer, Enzon will promptly disseminate disclosure regarding the changes to the Series C Exchange Offer as required by law. In addition, Enzon will take steps to ensure that the Series C Exchange Offer remains open for the minimum number of days, as required by law, following the date Enzon disseminates disclosure regarding the changes. During any extension of the Series C Exchange Offer, shares of Enzon Series C Preferred Stock that were previously tendered for exchange pursuant to the Series C Exchange Offer and not validly withdrawn will remain subject to the Series C Exchange Offer. Enzon reserves the right, in Enzon’s sole and absolute discretion, to terminate the Series C Exchange Offer at any time prior to the Series C Exchange Time if any condition is not met. If the Series C Exchange Offer is terminated, no shares of Enzon Series C Preferred Stock validly tendered in the Series C Exchange Offer will be accepted for exchange and any such shares that have been tendered for exchange will be returned to the holder promptly after the termination at Enzon’s expense.
Even if the Series C Exchange Offer is completed, the Series C Exchange Offer may not be completed on the schedule described in this prospectus/consent solicitation statement. The Series C Exchange Offer may be delayed by a waiver of certain of the conditions of the Series C Exchange Offer. The Series C Exchange Offer may also be delayed if the Merger is not approved by written consent of Enzon stockholders. Accordingly, holders of Enzon Series C Preferred Stock participating in the Series C Exchange Offer may have to wait longer than expected to receive their consideration.
We may choose to waive certain of the conditions of the Series C Exchange Offer that we are permitted by law to waive.
The consummation of the Series C Exchange Offer is subject to, and conditioned upon, the satisfaction or waiver of certain conditions. Please see the section titled “The Series C Exchange Offer — Conditions of the Series C Exchange Offer” in this prospectus/consent solicitation statement for further information regarding these conditions. Certain of these conditions may be waived by Enzon in whole or in part at any time or from time to time in our sole discretion, in accordance with law. Accordingly, Enzon may elect to waive certain conditions to allow the Series C Exchange Offer to close, notwithstanding the fact that one (1) or more conditions may not have been satisfied.
We have not obtained a third-party determination that the Series C Exchange Offer is fair to holders of Enzon Series C Preferred Stock.
None of Enzon, the Enzon Board, the Exchange Agent or any Affiliate of any of the foregoing nor any other Person is making any recommendation as to whether you should tender your Enzon Series C
Preferred Stock in the Series C Exchange Offer. Enzon has not authorized any Person to make such a recommendation. Enzon has not retained, and does not intend to retain, any unaffiliated Representative to act solely on behalf of the holders of Enzon Series C Preferred Stock for purposes of negotiating the Series C Exchange Offer or preparing a report concerning the fairness of the Series C Exchange Offer. You must make your own independent decision regarding your participation in the Series C Exchange Offer.
In the future, we may acquire shares of Enzon Series C Preferred Stock that are not accepted in the Series C Exchange Offer for consideration different than that in the Series C Exchange Offer.
In the future and prior to the Closing, Enzon may acquire shares of Enzon Series C Preferred Stock that are not accepted in the Series C Exchange Offer through redemptions permitted at any time under the terms of the Series C Preferred Stock or such other means as Enzon deems appropriate. Any such acquisitions will occur upon the terms and at the prices as Enzon may determine in Enzon’s discretion, based on factors prevailing at the time, which may be greater or less than the value of the Enzon Common Stock being exchanged for the Enzon Series C Preferred Stock in the Series C Exchange Offer and could be for cash or other consideration.
Risk Factors Relating to Enzon’s Business
Raising additional capital would cause dilution to Enzon’s existing stockholders and may adversely affect the rights of existing stockholders.
Enzon may seek additional capital through a combination of private and public equity offerings, debt financings and collaborations, and strategic and licensing arrangements. To the extent that Enzon raises additional capital through the issuance of equity or otherwise, including through additional preferred stock or convertible debt securities, the ownership interest of Enzon’s stockholders will be diluted, and the terms may include liquidation or other preferences that adversely affect the rights of Enzon’s stockholders. Future sales of Enzon Common Stock or of securities convertible into Enzon Common Stock, or the perception that such sales may occur, could cause immediate dilution and adversely affect the value of Enzon Common Stock.
Risk Factors Relating to Enzon’s Common Stock
Enzon Common Stock ranks junior to the Enzon Series C Preferred Stock with respect to dividends and liquidation rights, and certain holders will have redemption rights in connection with a change of control.
Pursuant to the Series C Exchange Offer, Enzon Series C Preferred Stock is expected to be converted to Enzon Common Stock. Prior to the consummation of the Series C Exchange Offer, Enzon Series C Preferred Stock has rights and preferences that are senior to those of Enzon Common Stock. With respect to the payment of cash dividends and amounts payable in the event of a liquidation, dissolution or winding up of Enzon, the Series C Preferred Stock ranks senior to Enzon Common Stock. As a result, unless full dividends have been paid or set aside for payment on all outstanding shares of Series C Preferred Stock, no cash dividends may be declared or paid on Enzon Common Stock. Enzon’s ability to pay dividends in the future will depend on a number of factors, including the Combined Company’s financial condition, available cash, future revenues (including any royalties or milestone payments), the successful execution of its business strategy and its ability to manage expenses. There can be no assurance that Enzon will declare or pay any dividends on Enzon Common Stock in the foreseeable future.
In the event of Enzon’s voluntary or involuntary liquidation, dissolution or winding up, no distribution of assets may be made to holders of Enzon Common Stock until the holders of Series C Preferred Stock have received the full Liquidation Preference of $1,102 per share, as of September 30, 2025, plus any additional accrued and unpaid dividends.
In addition, the holders of Series C Preferred Stock will have the right to demand redemption of their shares in the event of a change of control. Although the Merger Agreement contemplates the IEH Share Exchange, any shares of Series C Preferred Stock not exchanged pursuant to the Series C Exchange Offer will retain their senior rights and preferences. If any such holders exercise their redemption rights in connection with the Merger or a subsequent change of control, Enzon will be required to use a portion of its available
cash to satisfy such obligations, which could limit or eliminate the availability of cash for dividends on Enzon Common Stock. In addition, following the Merger, the board of directors of the Combined Company could determine to redeem any remaining outstanding shares of Series C Preferred Stock which could require a significant amount of cash and have an adverse effect on the Combined Company’s consolidated financial condition, results of operations and cash flows.
The market price of Enzon Common Stock has historically been volatile and may decline significantly if the Combined Company is unable to execute its strategic objectives.
Historically, the market price of Enzon Common Stock has fluctuated over a wide range due to a variety of factors, including company-specific developments, global and industry-wide conditions and broader economic events. These fluctuations have been exacerbated by the fact that a small number of stockholders collectively hold a majority of outstanding Enzon Common Stock, resulting in a limited public float and relatively low trading volume on the OTCQB, where Enzon Common Stock is quoted.
Following the Merger, the value of Enzon Common Stock may be affected by the Combined Company’s ability to generate revenue, monetize its remaining assets (including its net operating losses), manage integration risks and address any unexpected liabilities or expenses. If the Combined Company is unable to execute its business strategy or complete future acquisitions or investments, the market price of Enzon Common Stock could decline significantly.
In addition, any future financing transactions may involve the issuance of Enzon Common Stock or securities convertible into or exercisable for Enzon Common Stock at prices below the then-current market price. Such financings may also include warrants or other instruments with conversion or exercise prices that are calculated at a discount to the market price at the time of issuance, which could result in further dilution and downward pressure on the stock price.
Enzon Common Stock is quoted on the OTCQB market, which has limited trading volume and liquidity, and stockholders may have difficulty selling their shares.
On August 11, 2025, Enzon was notified by the OTCQX Markets Group (the “OTCQX”), the marketplace for over-the-counter trading of its stock, that it no longer met the standards for continued qualification for the OTCQX, in that its stock bid price had fallen below $0.10 per share for 30 consecutive calendar days. On August 12, 2025, Enzon Common Stock began trading on the OTCQB tier of the OTCQB Market. The quotation of Enzon Common Stock on the OTCQB does not assure that a liquid trading market exists or will develop. Securities traded on the OTCQB generally experience limited trading volume and wider bid/ask spreads compared to securities listed on national exchanges. In addition, many institutional investors have investment policies that restrict or prohibit trading in OTCQB securities, which may further reduce market participation.
As a result, investors may find it difficult to dispose of their shares of Enzon Common Stock or to obtain accurate quotations of its market price. This limited liquidity may adversely affect the market price of Enzon Common Stock and increase its volatility. Enzon does not currently meet, and is not expected to meet in the future, the listing standards of any national securities exchange. Accordingly, investors must be prepared to bear the economic risk of holding Enzon Common Stock for an indefinite period of time.
In the future, Enzon Common Stock could become subject to the “penny stock” rules under the Exchange Act, which impose additional disclosure and suitability requirements on broker-dealers and could further impair the liquidity and marketability of the stock.
Following the Effective Time, the name of the Combined Company will be “Viskase Holdings, Inc.” and the common stock of the Combined Company will be quoted and traded on the “OTCQB” tier of OTC under new ticker symbol “[•]”.
The declaration of dividends on Enzon Common Stock is at the discretion of the Enzon Board and is subject to limitations under Delaware law and the rights of holders of Series C Preferred Stock.
The declaration and payment of dividends on Enzon Common Stock is within the discretion of the Enzon Board and is subject to applicable limitations under Delaware corporate law. In addition, the Series C
Preferred Stock ranks senior to Enzon Common Stock with respect to dividends and liquidation rights. As a result, Enzon may not declare or pay any cash dividends on its Common Stock unless all accrued and unpaid dividends on the Series C Preferred Stock have been paid in full or set aside for payment.
Enzon’s ability to pay dividends in the future will depend on a number of factors, including the Combined Company’s financial condition, available cash, future revenues (including any royalties or milestone payments), the successful execution of its business strategy and its ability to manage expenses. There can be no assurance that Enzon will declare or pay any dividends on Enzon Common Stock in the foreseeable future, or that, if declared, such dividends will be liquid or readily accessible to Enzon’s stockholders.
Anti-takeover provisions in the Enzon Organizational Documents and under Delaware corporate law may discourage or delay a change in control, even if such a transaction would be beneficial to stockholders.
Provisions of the Enzon Organizational Documents, as well as provisions of the DGCL, could have the effect of discouraging, delaying or preventing a change in control of Enzon, even if such a transaction might be beneficial to stockholders.
These anti-takeover provisions include, among others:
•
lack of a provision for cumulative voting in the election of directors;
•
the ability of the Enzon Board to authorize issuance of “blank check” preferred stock to increase the number of outstanding shares and thwart a takeover attempt;
•
advance notice requirements for nominations for election to the Enzon Board or for proposing matters to be acted upon at stockholder meetings;
•
the ability of the board of directors of the Combined Company to adopt a rights agreement; and
•
limitations on the ability of stockholders to call special meetings.
In addition, the significant ownership of Enzon Common Stock and Series C Preferred Stock by the IEH Parties, may further discourage or prevent a third party from acquiring control of Enzon. As of [•], 2026, the IEH Parties Beneficially Own approximately [48.6]% of the issued and outstanding shares of Enzon Common Stock and [98.2]% of the issued and outstanding shares of Enzon Series C Preferred Stock. Following the Merger, it is expected that the IEH Parties will Beneficially Own approximately from [•]% to [•]% of the outstanding shares of the Combined Company Common Stock, depending on the amount of Enzon Series C Preferred Stock that is exchanged for shares of Enzon Common Stock. These provisions and ownership concentrations may also limit the ability of stockholders to influence corporate matters and could adversely affect the market price of Enzon Common Stock.
Following the Merger, the anti-takeover provisions of the Combined Company will be those set forth in the Enzon Organizational Documents. Please see the section titled “Comparison of Stockholder Rights” in this prospectus/registration statement for further information.
Risk Factors Relating to the Series C Preferred Stock
In the event of a dissolution, liquidation or winding up of Enzon, Enzon may not be able to satisfy its obligations to holders of Series C Preferred Stock.
The Series C Preferred Stock ranks senior to Enzon Common Stock. In the event of any dissolution, liquidation, winding up or change of control of Enzon, may not be able to make distributions or payments in full to all the holders of the Series C Preferred Stock or, if requested by such holders upon a change of control, to redeem the Series C Preferred Stock, in which case holders of the Series C Preferred Stock could lose some or all of the entire value of their investment. Although Enzon will seek maximum participation of the holders of Series C Preferred Stock in the Series C Exchange Offer, the Series C Exchange Offer may not be accepted by all holders of Series C Preferred Stock. If few or no such holders elect to participate in the Series C Exchange Offer, the aggregate Liquidation Preference of the remaining Series C Preferred Stock could materially impact the satisfaction of the Minimum Cash Condition, which is a condition to Closing.
Dividends on the Series C Preferred Stock may be paid either in cash or be paid in kind by increasing the liquidation value of the shares of Series C Preferred Stock.
The terms of the Series C Preferred Stock allow dividends on the shares of Series C Preferred Stock to be paid either in cash or in kind by increasing the liquidation value of the shares of Series C Preferred Stock and, therefore allow the repayment of the principal and accrued dividends on the Series C Preferred Stock to be deferred until the earliest of the redemption of the Series C Preferred Stock or upon Enzon’s dissolution, liquidation or winding up. Enzon may not have enough capital to repay the full amount of the principal and accrued dividends when the payment of principal and accrued dividends on the Series C Preferred Stock becomes due.
The Series C Preferred Stock is equity and is subordinate to Enzon’s existing and future indebtedness and other liabilities and holders’ interests may be diluted by future preferred stock issuances.
Shares of the Series C Preferred Stock represent equity interests and do not constitute indebtedness. As such, it ranks junior to all of Enzon’s indebtedness and other non-equity claims of creditors with respect to assets available to satisfy its claims, including in Enzon’s liquidation, dissolution or winding up. Unlike indebtedness, where principal and interest would customarily be payable on specified due dates, in the case of preferred stock such as the Series C Preferred Stock, dividends are payable only if declared by the Enzon Board (or a duly authorized committee thereof), and may be subject to restrictions under future debt agreements or other contractual arrangements.
In addition, subject to the limitations of Delaware law and the Enzon Charter, the Enzon Board is authorized to issue additional shares of preferred stock in such classes or series as the Enzon Board may determine and to establish from time to time the number of shares of preferred stock to be included in any such class or series. The issuance of additional shares of Series C Preferred Stock or additional shares of preferred stock designated as ranking on parity with the Series C Preferred Stock would dilute the interests of the holders of shares of the Series C Preferred Stock, and the issuance of shares of any class or series of our capital stock expressly designated as ranking senior to the Series C Preferred Stock or the incurrence of additional indebtedness could affect our ability to pay distributions on, redeem or pay the Liquidation Preference on the Series C Preferred Stock.
Holders of Series C Preferred Stock have no voting rights.
Except as otherwise required by applicable law, holders of Series C Preferred Stock do not have voting rights and are not entitled to vote on matters submitted to Enzon’s stockholders. As a result, all corporate matters requiring stockholder approval are determined by the vote of holders of Enzon Common Stock. Holders of Series C Preferred Stock have no ability to influence the outcome of such matters and may be adversely affected by decisions made by the holders of Common Stock.
There is no public market for the Series C Preferred Stock.
There is no established public trading market for the Series C Preferred Stock, and Enzon does not expect a market to develop. Enzon does not intend to apply for listing of the Series C Preferred Stock on any securities exchange or recognized trading system. As a result, holders of Series C Preferred Stock may be unable to resell their shares or may only be able to do so at an unfavorable price and after a prolonged period, if at all.
Holders of Series C Preferred Stock may be adversely affected by the terms and execution of the Series C Exchange Offer and the Merger.
In connection with the proposed Merger, Enzon intends to convert outstanding shares of its Series C Preferred Stock into shares of Enzon Stock through the Series C Exchange Offer. The IEH Parties, who collectively hold [39,277] shares of Series C Preferred Stock — representing approximately [98.2]% of the total outstanding Series C Preferred Stock — have already committed to exchange their shares pursuant to the IEH Support Agreement.
As a result, the Series C Exchange Offer may proceed even if other Series C holders do not participate. The Series C Exchange Offer is based on a formula that includes a volume-weighted average price of Enzon
Common Stock, which may not reflect the fair market value of the Series C Preferred Stock or its Liquidation Preference. Holders who do not participate may be left with a less liquid or less valuable security, particularly if the Series C Preferred Stock is no longer supported by a trading market or if its rights are subordinated or otherwise impaired following the Merger. Under the terms of the Enzon Series C Preferred Stock, following the Merger, Enzon may, and at this time intends to, redeem any outstanding shares of Enzon Series C Preferred Stock for a cash amount equal to the aggregate Liquidation Preference of such shares, but Enzon may elect not to proceed with such redemption in its sole discretion.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this prospectus/consent solicitation statement may be considered forward-looking statements within the meaning of the U.S. Private Securities Litigation Reform Act of 1995. Forward-looking statements generally include statements that are predictive in nature and depend upon or refer to future events or conditions, and include words such as “may,” “will,” “should,” “would,” “expect,” “anticipate,” “plan,” “likely,” “believe,” “estimate,” “project,” “intend,” and other similar expressions. Statements that are not historical facts are forward-looking statements. Forward-looking statements are based on current beliefs and assumptions that are subject to risks and uncertainties and are not guarantees of future performance. These and other forward-looking statements are not guarantees of future results and are subject to risks, uncertainties and assumptions that could cause actual results to differ materially from those expressed in any forward-looking statements, including, without limitation: (i) the risk that the conditions to the Closing of the Merger are not satisfied, including the failure to obtain the necessary approvals for the Merger; (ii) uncertainties as to the timing of the consummation of the Merger, including timing for satisfaction of the closing conditions, and the ability of each of Enzon and Viskase to consummate the Merger; (iii) the possibility that other anticipated benefits of the Merger will not be realized, including, without limitation, anticipated revenues, expenses, earnings and other financial results, and growth and expansion of the Combined Company’s operations, and the anticipated tax treatment of the Merger; (iv) potential litigation relating to the Merger that could be instituted against Enzon, Viskase or their respective officers or directors, including the effects of any outcomes related thereto; (v) possible disruptions from the Merger that could harm Enzon’s or Viskase’s respective businesses; (vi) the risk that the Combined Company will be unable to successfully integrate Viskase’s corporate functions and infrastructure with Enzon’s similar functions; (vii) the ability of Viskase to retain, attract and hire key personnel; (viii) potential adverse reactions or changes to relationships with customers, employees, suppliers or other parties resulting from the announcement or completion of the Merger; (ix) potential business uncertainty, including changes to existing business relationships, during the pendency of the Merger that could affect Enzon’s or Viskase’s financial performance; (x) certain restrictions during the pendency of the Merger that may impact Enzon’s or Viskase’s ability to pursue certain business opportunities or strategic transactions; (xi) the Exchange Ratio and relative ownership levels as of the Closing; (xii) estimates regarding future revenue, expenses and capital requirements following the Closing; (xiii) the occurrence of any event, change or other circumstance that could give rise to the termination of the Merger; (xiv) legislative, regulatory and economic developments; (xv) unpredictability and severity of catastrophic events, including, but not limited to, acts of terrorism, trade wars or outbreak of war or hostilities, as well as management’s response to any of the aforementioned factors; (xvi) global economic, political, legislative, regulatory and market conditions (including competitive pressures), trade policies, trade wars, inflation and foreign currency exchange rate fluctuations around the world and the impact of war and other conflicts around the world; (xvii) Viskase’s fiscal stability and ability to continue as a going concern, including Viskase’s ability to obtain funds to pay its expenses and repay indebtedness; (xviii) the potential for further deterioration in the Viskase business and Viskase’s financial condition, which could materially and adversely impact its ability to carry out its business plans, meet its obligations or realize the anticipated benefits of the Merger and (xix) such other risks and uncertainties, including those that are set forth in the section entitled “Risk Factors” in this prospectus/consent solicitation statement, in Enzon’s periodic public filings with the SEC and in Viskase’s annual and quarterly reports posted to Viskase’s website.
Although Enzon and Viskase believe that Enzon’s and Viskase’s plans, intentions, expectations, strategies and prospects as reflected in or suggested by these forward-looking statements are reasonable, neither Enzon nor Viskase can give any assurance that the plans, intentions, expectations or strategies will be attained or achieved. Furthermore, actual results may differ materially from those described in the forward-looking statements and will be affected by a number of risks, uncertainties and assumptions, including, without limitation, those risks and uncertainties described in the section titled “Risk Factors” in this prospectus/consent solicitation statement. While the lists of factors presented here and in the section titled “Risk Factors” in this prospectus/consent solicitation statement are considered representative, no such list should be considered to be a complete statement of all potential risks and uncertainties. Unlisted factors may present significant additional obstacles to the realization of forward-looking statements. Consequences of material differences in results as compared with those anticipated in the forward-looking statements could include, among other things, business disruption, operational problems, financial loss, legal liability to
third parties and similar risks, any of which could have a material adverse effect on Enzon or Viskase’s consolidated financial condition, results of operations, credit rating or liquidity or those of the Combined Company.
Neither Enzon nor Viskase assumes any obligation to publicly provide revisions or updates to any forward-looking statements, whether as a result of new information, future developments or otherwise, should circumstances change, except as otherwise required by securities and other applicable laws. You should not, therefore, rely on these forward-looking statements as representing our views as of any date subsequent to the date of this prospectus/consent solicitation statement.
By referring to Enzon’s website and Viskase’s website, neither Enzon nor Viskase incorporate any such website or its contents into this prospectus/consent solicitation statement.
ENZON SOLICITATION OF WRITTEN CONSENT
Executing Consents
If you are a holder of Enzon Common Stock, you may execute a written consent with respect to such stock to approve the Reverse Stock Split Proposal and the Merger Proposal (which is equivalent to a vote “FOR” the Reverse Stock Split Proposal and the Merger Proposal) or disapprove, or withhold consent with respect to, the Reverse Stock Split Proposal and the Merger Proposal (which is equivalent to a vote “AGAINST” the Reverse Stock Split Proposal and the Merger Proposal). If you do not execute and return your written consent, or otherwise withhold your written consent, it will have the same effect as voting against the Reverse Stock Split Proposal and the Merger Proposal. The Enzon Board has set [•] [a.m./p.m.], Eastern Time, on [•], 2026, as the target date for the receipt of written consents. Please return your written consent promptly. Once a sufficient number of consents to adopt the Enzon Proposals has been received, the consent solicitation will conclude.
Consent Required
Approval of each of the Reverse Stock Split Proposal and the Merger Proposal requires the execution and delivery to Enzon of a written consent by the holders of a majority of the outstanding shares of Enzon Common Stock.
Consent Record Date; Stockholders Entitled to Consent
Only holders of Enzon Common Stock of record as of the close of business on the Enzon Record Date will be entitled to execute and deliver a written consent with respect to the Reverse Stock Split Proposal and the Merger Proposal, including the Merger Proposal and the Reverse Stock Split Proposal. Under the Enzon Charter and the Delaware General Corporation Law (the “DGCL”), each holder of Enzon Common Stock as of the Consent Record Date is entitled to one (1) vote per share.
IEH Support Agreement
Concurrently with the execution of the Merger Agreement, the IEH Parties, who, in the aggregate, as of [•], Beneficially Own approximately [48.6] % of the issued and outstanding shares of Enzon Common Stock and [98.2] % of the issued and outstanding shares of Enzon Series C Preferred Stock, entered into the IEH Support Agreement with Enzon and Viskase, pursuant to which, immediately prior to the Closing, each IEH Party shall deliver to Enzon each share of Enzon Series C Preferred Stock Beneficially Owned by such IEH Party, and Enzon shall, in exchange therefor, deliver to the IEH Parties a number of shares of Enzon Common Stock equal to (i) the aggregate Liquidation Preference of the shares of Enzon Series C Preferred Stock Beneficially Owned by such IEH Party, divided by (ii) the Enzon 20-Day VWAP, in each case, on the terms and conditions set forth in the IEH Support Agreement. The Enzon 20-Day VWAP is $0.08 per share of Enzon Common Stock, which after giving effect to the Reverse Stock Split of 1 for 100, will be adjusted to $7.83. Enzon will use commercially reasonable efforts to consummate the IEH Share Exchange in accordance with the terms of the IEH Support Agreement.
Enzon is soliciting stockholder approval for an amendment to the Enzon Charter to, among other things, effect a consolidation of the issued and outstanding shares of Enzon Common Stock, pursuant to which the shares of Enzon Common Stock would be combined and reclassified at a ratio of 1 for 100. The delivery of the written consents of the holders of more than 50.0% of the outstanding shares of Enzon Common Stock will constitute receipt by Enzon of the requisite Enzon Stockholder Approval.
The IEH Parties are obligated to vote or cause to be voted all shares of Enzon Common Stock and Enzon Series C Preferred Stock, as applicable, Beneficially Owned by such IEH Parties against any (i) Enzon Acquisition Proposal, (ii) amendment to the Enzon Organizational Documents that would impede or adversely affect the Merger or other transactions contemplated by the Merger Agreement (except as otherwise contemplated by the Merger Agreement) and (iii) other action or transaction involving Enzon that is intended or reasonably expected to impede or adversely affect the Merger, the Reverse Stock Split or other transactions contemplated by the Merger Agreement; provided that the foregoing clauses (i)-(iii) will not
apply to any transaction, proposal or action that is the subject of an Enzon Adverse Recommendation Change made in accordance with the Merger Agreement that has not been rescinded.
Solicitation of Consents; Expenses
The Enzon Board is soliciting consents from holders of Enzon Common Stock with respect to the Reverse Stock Split Proposal and the Merger Proposal. The expense of preparing, printing and mailing these consent solicitation materials is being borne by Enzon. Enzon has engaged HKL as a consent solicitor. HKL will receive reasonable and customary compensation for its services. Enzon estimates that it will pay HKL a fee of approximately $40,000, plus reasonable out-of-pocket expenses. Upon request, Enzon will reimburse brokerage firms, banks or other nominees for their reasonable charges and expenses to forward the consent solicitation materials to the Enzon stockholders in accordance with the applicable rules. In addition to the mailing of these consent solicitation materials, the solicitation of proxies or votes may be made in person, by telephone or by electronic communication by Enzon’s directors, officer or Affiliates, who will not receive any additional compensation for such solicitation activities.
Submission of Consents
If you hold shares of Enzon Common Stock at the close of business on the Enzon Record Date and you wish to give your written consent, you must fill out the enclosed written consent, date and sign it and promptly return it to Enzon on or before [•], 2026. Once you have completed, dated and signed the written consent, you may deliver your executed consent to Enzon c/o Continent Stock Transfer & Trust Company, 1 State Street Plaza, 30th Floor, New York, New York 10004. Enzon recommends that you also email a .pdf copy of your written consent to Enzon’s consent solicitor, HKL, at enzn@hklco.com.
The delivery of the written consents of the holders of more than 50.0% of the outstanding shares of Enzon Common Stock will constitute receipt by Enzon of the requisite Enzon Stockholder Approval, and therefore a failure to deliver a written consent, as well as the delivery, change or revocation of a written consent, by any other Enzon stockholder after the delivery by the holders of more than 50.0% of the outstanding shares of Enzon Common Stock of their written consent will not have any effect on the approval of the Merger Proposal and the Reverse Stock Split Proposal.
Recommendations of the Enzon Special Committee and the Enzon Board of Directors
The Enzon Special Committee unanimously, among other things, (i) determined that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of, Enzon and its stockholders, without regard to the IEH Parties, and (ii) recommended that the Enzon Board (A) approve the Merger Agreement and the transactions contemplated thereby, including the Reverse Stock Split, and (B) recommend that the Enzon stockholders entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal. Upon the unanimous recommendation of the Enzon Special Committee, the Enzon Board unanimously, among other things, (1) determined that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of, Enzon and its stockholders, (2) approved the Merger Agreement and the transactions contemplated thereby, including the Reverse Stock Split, and (3) recommended that the holders of Enzon Common Stock entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal.
Please see the section titled “Interests of Executive Officers and Directors in the Merger” in this prospectus/consent solicitation statement for further information regarding the Enzon Special Committee and the Enzon Board in approving the Merger Agreement.
Other Information
The Reverse Stock Split Proposal and the Merger Proposal are of great importance to Enzon stockholders. Accordingly, you are urged to read and carefully consider the information contained in or incorporated by reference to this prospectus/consent solicitation statement and, with respect to your shares of Enzon Common Stock, fill out the enclosed written consent, date and sign it, and promptly deliver your executed consent to Enzon c/o Continental Stock Transfer & Trust Company, 1 State Street Plaza,
30th Floor, New York, New York 10004. Enzon recommends that you also email a .pdf copy of your executed written consent to Enzon’s consent solicitor, HKL, at enzn@hklco.com.
This prospectus/consent solicitation statement describes the Reverse Stock Split Proposal and the Merger Proposal and the actions to be taken in connection with the Reverse Stock Split Proposal and the Merger Proposal and provides additional information about the parties involved, the Merger Agreement and the agreements entered into in connection with the Merger. Please give this information your careful attention. In particular, please see the section titled “Risk Factors” in this prospectus/consent solicitation statement for further information. The Merger Agreement is included as Annex A in this prospectus/consent solicitation statement and the Merger Agreement Amendment is included as Annex A-1 in this prospectus/consent solicitation statement.
The Enzon Board unanimously recommends that the holders of Enzon Common Stock entitled to vote deliver a written consent “FOR” the Reverse Stock Split Proposal and the Merger Proposal.
Please complete, date and sign the written consent furnished with the accompanying prospectus/consent solicitation statement and return it promptly to Enzon by one (1) of the means described in the section titled “Enzon Solicitation of Written Consents” and following the instructions described therein.
PARTIES TO THE MERGER
Enzon
Enzon is positioned as a public company acquisition vehicle that has sought to become an acquisition platform. Enzon is a Delaware corporation with its principal executive offices located at 20 Commerce Drive, Suite 135, Cranford, New Jersey 07016, and its telephone number at such address is (732) 980-4500.
Enzon Common Stock is currently quoted on the “OTCQB Tier” of the OTC market under the symbol “ENZN.”
Merger Sub
Merger Sub is a wholly owned Subsidiary of Enzon, incorporated in Delaware solely for the purpose of consummating the Merger. Merger Sub has not carried on any activities to date, except for activities incidental to its formation and activities undertaken in connection with the Merger. The principal executive offices of Merger Sub are located c/o Enzon Pharmaceuticals, Inc., 20 Commerce Drive, Suite 135, Cranford, New Jersey 07016, and its telephone number at such address is (732) 980-4500.
At the Effective Time, Merger Sub will merge with and into Viskase, with Viskase surviving the Merger as a wholly owned Subsidiary of Enzon, and the separate corporate existence of Merger Sub will cease. Promptly thereafter, Viskase will convert into a limited liability company under Delaware law.
Viskase
Viskase, together with its Subsidiaries, is a producer of non-edible cellulosic, fibrous and plastic casings used to prepare and package processed meat products and provides value-added support services relating to these products for some of the largest global consumer product companies. Viskase operates nine (9) manufacturing facilities in North America, Europe, South America and Asia, and, as a result, is able to sell its products in nearly one hundred countries throughout the world.
Viskase is a Delaware corporation with its principal executive offices located at 333 East Butterfield Road, Suite 400, Lombard, Illinois 60148, and its telephone number at such address is (630) 874-0700.
Viskase stock is currently quoted on the “OTC Pink” tier of the OTC under the symbol “VKSC.”
ENZON PROPOSAL 1: APPROVAL OF THE REVERSE STOCK SPLIT
Enzon is asking the holders of Enzon Common Stock to approve the Proposed Charter Amendment of Enzon to effect a consolidation of the issued and outstanding shares of Enzon Common Stock, pursuant to which the shares of Enzon Common Stock would be combined and reclassified at a ratio of 1 for 100 (such proposal, the “Reverse Stock Split Proposal”). If the Reverse Stock Split Proposal is approved by Enzon stockholders, Enzon intends to take all actions necessary to effectuate the Reverse Stock Split immediately prior to the Effective Time.
The Reverse Stock Split, if approved by the holders of Enzon Common Stock, would become effective at the time and date set forth in a certificate of amendment to the Enzon Charter to be filed with the Secretary of State of the State of Delaware.
Concurrently with the execution of the Merger Agreement, the IEH Parties, which hold approximately [48.6]% of the issued and outstanding Enzon Common Stock as of [•], 2026, entered into the IEH Support Agreement, as amended by the IEH Support Agreement Amendment, with Enzon and Viskase, pursuant to which the IEH Parties agreed to, among other things, deliver written consents with respect to all of the issued and outstanding shares of Enzon Common Stock held by the IEH Parties approving the Reverse Stock Split, subject to certain exceptions. Accordingly, assuming delivery of written consents from the IEH Parties pursuant to the terms of the IEH Support Agreement, written consents with respect to [1,050,666] shares of Enzon Common Stock will be needed to approve the Enzon Proposals.
Enzon stockholders should carefully read this prospectus/consent solicitation statement in its entirety, including the annexes and exhibits, for more detailed information concerning the Reverse Stock Split. In particular, Enzon stockholders are directed to the copy of the proposed form of certificate of amendment to the Enzon Charter, which is attached as Exhibit B to the Merger Agreement Amendment, which is attached as Annex A-1 to this prospectus/consent solicitation statement.
The consummation of the Merger is conditioned on the approval of the Reverse Stock Split Proposal and the consummation of the Reverse Stock Split by Enzon.
The Enzon Board established the Enzon Special Committee consisting of only independent and disinterested directors to, among other things, analyze, evaluate and oversee the Reverse Stock Split. The Enzon Board, upon the unanimous recommendation of the Enzon Special Committee, unanimously approved the Reverse Stock Split Proposal for the following reasons:
•
each of the Enzon Board and the Enzon Special Committee believes that a higher stock price may help generate investor interest in Enzon and ultimately the Combined Company, and help Enzon attract and retain employees; and
•
each of the Enzon Board and the Enzon Special Committee believes that the Reverse Stock Split helps rationalize the number of outstanding shares of Combined Company Common Stock following the issuance to the holders of Viskase Common Stock, holders of Enzon Common Stock and holders of Enzon Series C Preferred Stock as a result of the Merger.
The Enzon Board and Enzon Special Committee have evaluated the Reverse Stock Split and have taken, into consideration negative factors associated with reverse stock splits. In particular, please see the section titled “Risk Factors Relating to the Transaction” in this prospectus/consent solicitation statement for further information about such negative factors.
Criteria Used for Decision to Apply the Reverse Stock Split
If the holders of Enzon Common Stock approve the Reverse Stock Split Proposal, the Enzon Board will be authorized to proceed with the Reverse Stock Split. In setting the appropriate ratio for the Reverse Stock Split, the parties considered, among other things, factors such as:
•
the historical trading prices and trading volume of Enzon Common Stock and Viskase Common Stock;
•
the number of shares of Combined Company Common Stock expected to be outstanding following the Effective Time;
•
the then-prevailing and expected trading prices and trading volume of Enzon Common Stock and Viskase Common Stock and the anticipated impact of the Reverse Stock Split on the trading market for Combined Company Common Stock; and
•
the number of shares of Enzon Common Stock that are authorized for issuance under the Enzon Charter.
Effect of the Reverse Stock Split
The Reverse Stock Split would be effected simultaneously for all outstanding shares of Enzon Common Stock and the Merger Consideration issued to the holders of Viskase Common Stock will take into account the Reverse Stock Split. The Reverse Stock Split would affect all of holders of Enzon Common Stock uniformly and would not change any holder of Enzon Common Stock’s percentage ownership interest in Enzon.
No fractional shares will be issued in connection with the Reverse Stock Split. Instead, any holder of Enzon Common Stock who would have been entitled to receive a fractional share as a result of the Reverse Stock Split will have the right to receive cash (without interest) in an amount equal to such fractional amount multiplied by the volume weighted averages of the trading prices of Enzon Common Stock on the “OTCQB” tier of the OTC (as reported by Bloomberg or, if not reported thereby, in another authoritative source mutually selected by Enzon and Viskase) on the five (5) consecutive Trading Days ending on (and including) the Trading Day that is two (2) Trading Days prior to the date of the Effective Time, rounded down to the nearest penny, in lieu of fractional shares. The Reverse Stock Split would not change the terms of the Enzon Common Stock or the Combined Company Common Stock. Following the Reverse Stock Split, Enzon would continue to be subject to the periodic reporting requirements of the Exchange Act.
With a Reverse Stock Split ratio of 1 for 100, the following table sets forth the number of shares of Enzon Common Stock that would be issued and outstanding giving effect to the Reverse Stock Split as of December 5, 2025.
| |
|
|
1 for 100 Reverse Stock Split
|
|
| |
|
|
Shares
|
|
|
% Ownership
|
|
|
Shares held by legacy Viskase common stockholders
|
|
|
|
|
7,915,136 |
|
|
|
|
|
55.0% |
|
|
|
Shares held by IEH Parties underlying Enzon Series C Preferred Stock subsequent to IEH Share Exchange
|
|
|
|
|
5,630,234 |
|
|
|
|
|
39.1% |
|
|
|
Shares held by legacy Enzon common stockholders
|
|
|
|
|
742,146 |
|
|
|
|
|
5.2% |
|
|
|
Shares held by non-IEH Parties underlying Enzon Series C Preferred Stock subsequent to Series C Exchange Offer
|
|
|
|
|
103,640 |
|
|
|
|
|
0.7% |
|
|
|
Total shares of Combined Company Common Stock
|
|
|
|
|
14,391,156 |
|
|
|
|
|
100.0% |
|
|
Enzon’s directors and executive officers have no substantial interests, directly or indirectly, in the matters set forth in the Reverse Stock Split Proposal, except to the extent of their ownership in shares of Enzon Common Stock, which shares would be subject to the same proportionate adjustment in accordance with the terms of the Reverse Stock Split as all other outstanding shares of Enzon Common Stock.
Maintenance of Ownership Percentage. If the Reverse Stock Split is approved and effected, each holder of Enzon Common Stock will own a reduced number of shares of Enzon Common Stock. This would affect all holders of Enzon Common Stock uniformly and would not affect any holder of Enzon Common Stock’s percentage ownership in Enzon, except to the extent that the Reverse Stock Split results in a holder of Enzon Common Stock owning a fractional share, as described below. The number of stockholders of record would not be affected by the Reverse Stock Split, except to the extent of fractional shares.
Voting Rights. Proportionate voting rights and other rights of the holders of Enzon Common Stock would not be affected by the Reverse Stock Split, subject to the limitations and qualifications set forth in this discussion and to the note below regarding the receipt of an additional fraction of a share. For example, a holder of one percent (1%) of the voting power of the outstanding shares of Enzon Common Stock
immediately prior to the Reverse Stock Split would continue to hold one percent (1%) of the voting power of the outstanding shares of common stock after the Reverse Stock Split.
Procedure for Effecting the Reverse Stock Split
If the holders of Enzon Common Stock approve the Reverse Stock Split, and if the Reverse Stock Split is to be effectuated in accordance with the Merger Agreement, prior to the Effective Time, Enzon will file the certificate of amendment effecting the Reverse Stock Split with the Secretary of State of the State of Delaware. Enzon intends to effectuate the Reverse Stock Split immediately prior to the Effective Time. The form of the proposed certificate of amendment to the Enzon Charter to effect the Reverse Stock Split is attached as Exhibit C of the Merger Agreement Amendment, which is attached as Annex A-1 to this prospectus/consent solicitation statement.
The combination of, and reduction in, the number of shares of outstanding Enzon Common Stock as a result of the Reverse Stock Split will occur automatically and without any action on the part of Enzon stockholders at the date and time set forth in the amendment to the Enzon Charter to effect the Reverse Stock Split following filing with the Secretary of State of the State of Delaware (the “Reverse Split Effective Time”). As soon as practicable after the Reverse Split Effective Time, Enzon’s transfer agent, Continental Stock Transfer & Trust Company, acting as Enzon’s “exchange agent” for purposes of implementing the exchange of stock certificates, will mail each holder of Enzon Common Stock of record a transmittal form accompanied by instructions specifying other details of the exchange. Upon receipt of the transmittal form, each stockholder should surrender the certificates representing Enzon Common Stock prior to the Reverse Stock Split in accordance with the applicable instructions. Each holder who surrenders certificates will receive new certificates representing the whole number of shares of Enzon Common Stock that he, she or it holds as a result of the Reverse Stock Split. New certificates will not be issued to any stockholder until such stockholder has surrendered his, her or its outstanding certificate(s) and submitted with the properly completed and executed transmittal form to the exchange agent. Certain of Enzon’s registered holders of Enzon Common Stock hold some or all of their shares electronically in book-entry form with Enzon’s transfer agent. If a stockholder holds registered shares in book-entry form with Enzon’s transfer agent, no action needs to be taken to receive post-Reverse Stock Split shares or payment in lieu of fractional shares, if applicable. If an Enzon stockholder is entitled to post-Reverse Stock Split shares, a transaction statement will automatically be sent to such Enzon stockholder’s address of record as of the Enzon Record Date indicating the number of shares of Enzon Common Stock held following the Reverse Stock Split.
If Enzon stockholder’s shares are held in “street name” at a brokerage firm, bank or other nominee, Enzon intends to treat such stockholder in the same manner as registered stockholders whose shares are registered in their names. Brokerage firms, banks or other nominees will be instructed to implement the exchange of shares required by the combination resulting from the Reverse Stock Split for their beneficial holders holding Enzon Common Stock in “street name.” However, these brokerage firms, banks or other nominees may have different procedures than registered stockholders for processing substitution of certificates, or book-entries, representing the former number shares of Enzon Common Stock for certificates, or book-entries, representing the reduced number of shares resulting from the combination. If an Enzon stockholder’s shares are held with a brokerage firm, bank or other nominee and if such stockholder has any questions in this regard, Enzon encourages such stockholder to contact his, her or its brokerage firm, bank or other nominee.
Any stockholder whose stock certificate has been lost, destroyed or stolen will be entitled to a new stock certificate only after complying with the requirements that Enzon and Enzon’s transfer agent customarily apply in connection with replacing lost, stolen or destroyed stock certificates.
No service charges, brokerage commissions or transfer taxes shall be payable by any holder of any old certificate, except that if any new certificate is to be issued in a name other than that in which the old stock certificate(s) are registered, it will be a condition of such issuance that (i) the Person requesting such issuance must pay to Enzon any applicable transfer taxes or establish to Enzon’s satisfaction that such taxes have been paid or are not payable, (ii) the transfer complies with all applicable federal and state securities laws, and (iii) the surrendered stock certificate is properly endorsed and otherwise in proper form for transfer.
STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATES AND SHOULD NOT SUBMIT THEIR STOCK CERTIFICATES UNTIL THEY RECEIVE A TRANSMITTAL FORM FROM ENZON’S TRANSFER AGENT.
Fractional Shares
No fractional shares will be issued in connection with the Reverse Stock Split. Instead, any holder of Enzon Common Stock who would have been entitled to receive a fractional share as a result of the Reverse Stock Split will have the right to receive, in lieu thereof, cash (without interest) in an amount equal to such fractional amount multiplied by the volume weighted averages of the trading prices of Enzon Common Stock on the “OTCQB” tier of the OTC (as reported by Bloomberg or, if not reported thereby, in another authoritative source mutually selected by Enzon and Viskase) on the five (5) consecutive Trading Days ending on (and including) the Trading Day that is two (2) Trading Days prior to the date of the Effective Time, rounded down to the nearest penny, in lieu of fractional shares.
No Appraisal Rights
No action is proposed herein for which the laws of the State of Delaware, or the Enzon Charter or the Enzon Bylaws, provide a right to the holders of Enzon Common Stock to dissent and obtain appraisal of, or payment for, such stockholders’ capital stock.
Accounting Matters
The Reverse Stock Split would not affect the par value of Enzon Common Stock per share, which would remain $0.01 par value per share, while the number of outstanding shares of Enzon Common Stock would decrease in accordance with the Reverse Stock Split ratio. As a result, as of the Reverse Stock Split Effective Time, the stated capital attributable to Enzon Common Stock on Enzon’s balance sheet would decrease and the additional paid-in capital account on Enzon’s balance sheet would increase by an offsetting amount. Following the Reverse Stock Split, reported per share net income or loss would be higher because there would be fewer shares of Enzon Common Stock outstanding and Enzon would adjust historical per share amounts set forth in Enzon’s future financial statements.
Vote Required and Enzon Board Recommendation
Approval of the Reverse Stock Split Proposal requires the affirmative vote of the holders of a majority of the outstanding shares of Enzon Common Stock entitled to vote thereon.
The IEH Parties have agreed to deliver written consents with respect to all of the issued and outstanding shares of Enzon Common Stock held by the IEH Parties approving the Reverse Stock Split, subject to certain exceptions. As of the Enzon Record Date, IEH — through its control of the IEH Parties — Beneficially Owns approximately [48.6]% of the issued and outstanding shares of Enzon Common Stock. Please see the section titled “IEH Support Agreement” in this prospectus/consent solicitation statement for further information. Accordingly, assuming delivery of written consents from the IEH Parties pursuant to the terms of the IEH Support Agreement, written consents with respect to [1,050,666] shares of Enzon Common Stock will be needed to approve the Enzon Proposals.
The Enzon Board, acting upon the unanimous recommendation of the Enzon Special Committee, has unanimously recommended that holders of Enzon Common Stock entitled to vote deliver a written consent “FOR” the Reverse Stock Split Proposal. The consummation of the Merger is conditioned upon the approval of the Reverse Stock Split Proposal. Notwithstanding the approval of the Reverse Stock Split Proposal, if the Merger is not consummated for any reason, the actions contemplated by the Reverse Stock Split Proposal will not be effected.
Abstentions and broker non-votes will have the same effect as delivering consents marked “WITHHOLD CONSENT” as to the Reverse Stock Split Proposal.
ENZON PROPOSAL 2: ADOPTION OF THE MERGER AGREEMENT
Enzon is asking the holders of Enzon Common Stock to adopt the Merger Agreement (the “Merger Proposal” and, together with the Reverse Stock Split Proposal, the “Enzon Proposals”). Under the terms of the Merger Agreement, Merger Sub will be merged with and into Viskase, with Viskase surviving the Merger as a wholly owned Subsidiary of Enzon.
At the Effective Time, each share of Viskase Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Viskase Common Stock (i) held by Viskase as treasury shares, (ii) owned by Enzon, Merger Sub or a wholly owned Subsidiary of Viskase, Enzon or Merger Sub immediately prior to the Effective Time and (iii) Dissenting Viskase Shares) will be automatically converted into the right to receive a number of shares of Enzon Common Stock equal to the Exchange Ratio (such shares, the “Merger Consideration”). From and after the Effective Time, all shares of Viskase Common Stock converted into the right to receive the Merger Consideration will no longer be outstanding and will automatically be cancelled and will cease to exist.
Under the Exchange Ratio mechanics, and assuming that the Enzon Series C Preferred Stock is exchanged for Enzon Common Stock in full pursuant to the Series C Exchange Offer and the IEH Share Exchange, upon the Closing, (i) holders of Enzon Common Stock immediately prior to the Closing are expected to own approximately 5% of the Combined Company Common Stock, (ii) holders of Enzon Series C Preferred Stock are expected to own approximately 40% of the Combined Company Common Stock, and (iii) Viskase stockholders are expected to own 55% of the Combined Company Common Stock, subject to certain adjustments based upon the number of shares of Enzon Series C Preferred Stock exchanged for Enzon Common Stock by non-Affiliates of IEH, and depending on the liquidation value of the Series C Preferred Stock at the Closing Date.
Please see the section titled “The Merger — Enzon’s Reasons for the Merger; Recommendation of the Enzon Special Committee and the Enzon Board” in this prospectus/consent solicitation statement for further information on reasons for the proposed Merger.
Enzon stockholders should carefully read this prospectus/consent solicitation statement in its entirety, including the Annexes and exhibits, for more detailed information concerning the Merger Agreement and the Merger. In particular, Enzon stockholders are directed to the Merger Agreement, which is attached as Annex A to this prospectus/consent solicitation statement, and the Merger Agreement Amendment, which is attached as Annex A-1 to this prospectus/consent solicitation statement which, in each case, is incorporated by reference into this prospectus/consent solicitation statement.
The consummation of the Merger is conditioned on approval of the Merger Proposal and the Reverse Stock Split Proposal.
Vote Required and Enzon Board Recommendation
Approval of the Merger Proposal requires the affirmative vote of the holders of a majority of the outstanding shares of Enzon Common Stock entitled to vote thereon. Only the holders of Enzon Common Stock of record holding shares of Enzon Common Stock at the close of business on the record date of [•], 2026 (the “Enzon Record Date”) will be notified of and entitled to sign and deliver written consents with respect to the Enzon Proposals.
The IEH Parties have agreed to deliver written consents with respect to all of the issued and outstanding shares of Enzon Common Stock held by the IEH Parties approving the Merger Proposal, subject to certain exceptions. As of the Enzon Record Date, IEH — through its control of the IEH Parties — Beneficially Owns approximately [48.6]% of the issued and outstanding shares of Enzon Common Stock. Please see the section titled “IEH Support Agreement” in this prospectus/consent solicitation statement for further information regarding the IEH Support Agreement. Accordingly, assuming delivery of written consents from the IEH Parties pursuant to the terms of the IEH Support Agreement, written consents with respect to [1,050,666] shares of Enzon Common Stock will be needed to approve the Enzon Proposals.
The Enzon Board, acting upon the unanimous recommendation of the Enzon Special Committee, has unanimously recommended that holders of Enzon Common Stock entitled to vote deliver a written consent “FOR” the adoption of the Merger Proposal.
Abstentions and broker non-votes will have the same effect as delivering consents marked “WITHHOLD CONSENT” as to the Merger Proposal.
THE MERGER
The following describes certain material provisions of the Merger. This description may not contain all of the information that may be important to you. The discussion of the Merger in this prospectus/consent solicitation statement is qualified in its entirety by reference to the Merger Agreement (including all exhibits thereto), a copy of which is attached to this prospectus/consent solicitation statement as Annex A, the Merger Agreement Amendment, a copy of which is attached to this prospectus/consent solicitation statement as Annex A-1, the IEH Support Agreement, a copy of which is attached to this prospectus/consent solicitation statement as Annex B and the IEH Support Agreement Amendment, a copy of which is attached to this prospectus/consent solicitation statement as Annex B-1. This summary does not purport to be complete and may not provide all of the information about the Merger that may be important to you. We encourage you to read carefully this entire prospectus/consent solicitation statement, including the Annexes and Exhibits thereto, and the documents incorporated by reference therein, for a more complete understanding of the Merger and the documents incorporated by reference. This section is also not intended to provide you with any factual information about Enzon or Viskase. Such information can be found elsewhere in this prospectus/consent solicitation statement and in the public filings Enzon and Viskase make with the SEC, as described in the sections titled “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference” in this prospectus/consent solicitation statement.
General Description of the Merger
Under the terms of the Merger Agreement, at the Effective Time, Merger Sub will be merged with and into Viskase, with Viskase surviving the Merger as a wholly owned Subsidiary of Enzon. Viskase will then be converted into a limited liability company, following which Viskase will be a disregarded entity for tax purposes, and its profits and losses will flow up to Enzon.
Background of the Merger
The management and boards of directors of Enzon and Viskase, together with Representatives of IEH, a significant stockholder of Enzon and Viskase, regularly review the performance, strategy, competitive position, liquidity position, opportunities and prospects of their respective businesses. These reviews are conducted in the context of prevailing business and economic conditions, as well as ongoing developments within their respective industries. As part of these ongoing evaluations, the parties have periodically considered potential strategic combinations and acquisition opportunities.
The following chronology summarizes certain key meetings and events that led to the signing of the Merger Agreement, the Merger Agreement Amendment and the related transaction documents. This summary is not intended to capture every discussion or interaction among members of the Enzon Board, the Enzon Special Committee, Enzon’s management, the Viskase Board, the Viskase Special Committee, Viskase’s management, IEH or any of its Affiliates or any of their respective financial, legal or other advisors. Except as stated otherwise, all dates and times discussed in this “Background of the Merger” are reflective of Eastern Time.
All descriptions solely related to the activities of Viskase, the Viskase Board, the Viskase Special Committee, Viskase management or any of their respective financial advisors, legal advisors or other Representatives on September 26, 2024, October 9, 2024, November 5, 2024, November 13, 2024, November 18, 2024, November 26, 2024, November 27, 2024, the paragraph following the November 27, 2024 paragraph, the period beginning January 3, 2025, January 17, 2025, January 25, 2025, February 27, 2025, February 28, 2025, the period from March 1, 2025 to March 2, 2025, March 3, 2025, the period from March 3, 2025 to March 11, 2025, March 24, 2025, April 23, 2025 (solely as to the meeting of the Viskase Special Committee), April 26, 2025 (solely as to the meeting of the Viskase Special Committee), May 2, 2025 (solely as to the meeting of the Viskase Special Committee), June 19, 2025, September 9, 2025 (solely as to the meeting of the Viskase Special Committee), September 11, 2025 (solely as to the meeting of the Viskase Special Committee), September 16, 2025 (solely as to the meeting of the Viskase Special Committee), October 22, 2025 and October 23, 2025, are based solely on information provided by Viskase. Enzon has relied on Viskase to provide such information and has not independently verified the information in this section provided by Viskase. Enzon has also relied on Viskase’s representations and warranties relating to such information in the Merger Agreement.
Enzon is positioned as a public company acquisition vehicle that has sought to become an acquisition platform. Since at least 2020, the Enzon Board and its management have been actively involved in pursuing, sourcing, reviewing and evaluating various potential acquisition transactions consistent with Enzon’s strategy. Enzon’s management and the Enzon Board have originated a number of potential acquisition opportunities and engaged in discussions with certain potential acquisition targets and financial advisors on behalf of various individual entities.
The Viskase Board regularly considers in the normal course of business Viskase’s optimal liquidity position in light of Viskase’s existing debt levels and impending debt maturities. In doing so, the Viskase Board has considered a number of alternatives, including modifications to currently outstanding indebtedness, refinancing of its currently outstanding indebtedness, and potential business combination transactions. In October 2024, following consideration of such alternatives and in light of Viskase’s liquidity needs, the Viskase Board determined that a business combination with Enzon would be worth exploring more closely.
On September 26, 2024, the Viskase Board held its regularly scheduled monthly meeting. During a session that included the independent directors and Viskase management, Viskase management informed the Viskase independent directors that it had come to its attention that Enzon had positioned itself as an acquisition platform to make use of its existing operating loss carry forwards (NOL’s) and that Enzon had in excess of $45 million in cash. Viskase management recommended that Viskase explore a potential combination between Viskase and Enzon. Joseph King, Viskase’s General Counsel, was present and noted that in light of the IEH Parties’ ownership in both Viskase and Enzon, it would be advisable for Viskase to form a special committee of independent directors. Mr. King informed the Viskase Board that any Viskase special committee would likely retain its own legal counsel and financial advisor to assist in the process of exploring a potential transaction. A member of the Viskase Board affiliated with the IEH Parties stated that he would consider supporting a transaction if, and only if, it was vetted and recommended by independent director committees at both Viskase and Enzon. Mr. King stated that he would circulate an independence questionnaire to Viskase’s independent directors, and that a subsequent special meeting would be called for the Viskase Board to evaluate director independence and determine whether to form a special committee to explore a potential transaction with Enzon.
On October 9, 2024, the Viskase Board held a special meeting. At the meeting, the Viskase Board approved the creation of a special committee consisting of Stephen T. Maurer, Kenneth Shea and Peter K. Shea to evaluate and consider a potential merger transaction between Viskase and Enzon. The Viskase Board determined that the establishment of a special committee was in the best interests of Viskase and its stockholders because certain of the IEH Parties owned a majority of the outstanding capital stock of Viskase and a significant portion of the capital stock of Enzon. The Viskase Board determined that each of the members of the Viskase Special Committee were independent of Enzon and the IEH Parties and not otherwise interested in a potential transaction between Viskase and Enzon or other potential alternatives. Mr. K. Shea and Mr. P. Shea are not related to each other.
On October 9, 2024, the Viskase Board adopted resolutions forming the Viskase Special Committee to consider and evaluate a possible sale or other business transaction or series of transactions involving all or substantially all of Viskase’s equity or assets and any alternatives to any such transaction, including Viskase continuing to operate as an independent company. The resolutions passed by the Viskase Board forming the Viskase Special Committee delegated to the Viskase Special Committee the exclusive authority to, among other things, (i) review and evaluate the terms and conditions and determine the advisability of a potential transaction with Enzon, (ii) consider whether there were alternatives to a potential transaction with Enzon that would be in the best interests of Viskase and its stockholders (each, a “Viskase Alternative Transaction”), (iii) review and evaluate the terms and conditions and determine the advisability of one or more Viskase Alternative Transactions, (iv) if the Viskase Special Committee deemed it appropriate or advisable, negotiate the price, structure, form, terms and conditions of a potential transaction with Enzon or any Viskase Alternative Transaction, as well as any definitive agreements in connection therewith, (v) after obtaining appropriate knowledge of the material facts, determine whether any such transaction was fair and reasonable to, advisable and in the best interests of, Viskase and its stockholders (including the applicable IEH Parties, as well as any other interested stockholders, but solely in their capacities as stockholders), (vi) if the Viskase Special Committee deemed it appropriate or advisable, recommend to the entire Viskase Board what action, if any, should be taken by Viskase with respect to a potential transaction with Enzon or
any Viskase Alternative Transaction, (vii) take such other action related to or arising in connection with a potential transaction with Enzon or any Viskase Alternative Transaction as the Viskase Special Committee deemed necessary, appropriate or advisable, and (viii) provide reports and/or recommendations to the Viskase Board in regard to such matters at such times as the Viskase Special Committee deemed appropriate and consistent with its activities. The Viskase Board further resolved not to approve or submit for the approval of Viskase stockholders any potential transaction between Viskase and Enzon or other third parties without having received the prior favorable recommendation of the Viskase Special Committee. The Viskase Board subsequently appointed Mr. P. Shea as the Viskase Special Committee’s Chairman.
On October 30, 2024, the Viskase Special Committee interviewed Troutman Pepper Hamilton Sanders LLP, which subsequently changed its name to Troutman Pepper Locke LLP (“Troutman”), to serve as legal counsel to the Viskase Special Committee. The Viskase Special Committee approved the engagement of Troutman because of Troutman’s qualifications and ability to provide disinterested legal advice to the Viskase Special Committee in connection with the potential transaction with Enzon.
On November 5, 2024, the Viskase Special Committee met with Representatives of Troutman, at which a potential transaction between Viskase and Enzon was discussed. During the meeting, Representatives of Troutman provided an overview of the Viskase Special Committee’s fiduciary duties, including the duty of care and the duty of loyalty, and the process for evaluating and considering a potential transaction between Viskase and Enzon. A discussion was then held regarding the Viskase Special Committee engaging an independent financial advisor that could (i) assist in reviewing a potential transaction between Viskase and Enzon and other alternatives available to Viskase and (ii) issue a fairness opinion in connection with any such potential transaction.
On November 13, 2024, the Viskase Special Committee met virtually with Representatives of Troutman and continued to discuss the outline of a potential transaction between Viskase and Enzon and the potential structures for such a transaction. The Viskase Special Committee again discussed engaging a financial advisor. The Viskase Special Committee identified three (3) nationally recognized financial advisors and asked Representatives of Troutman to ask such advisors for proposals. The Viskase Special Committee also discussed engaging a separate financial advisor to analyze Viskase’s net operating losses (“Viskase NOLs”) and the impact a potential transaction with Enzon would have on the Viskase NOLs.
On November 18, 2024, Mr. P. Shea and Representatives of Troutman conducted virtual meetings with Representatives of three (3) financial advisors and requested formal proposals be submitted to the Viskase Special Committee.
On November 26, 2024, the Viskase Special Committee met virtually with Representatives of Troutman to discuss the three (3) potential financial advisors. After discussion and after receiving proposals from and interviewing such financial advisors, the Viskase Special Committee determined to retain Alvarez & Marsal Valuation Services, LLC (“Alvarez & Marsal”) as its financial advisor, based on its reputation, qualifications, relevant experience, and the lack of any conflicts of interest.
On November 27, 2024, the Viskase Special Committee met virtually with Representatives of Troutman and Alvarez & Marsal at which they discussed the process Alvarez & Marsal would undertake to conduct its analysis and expected timing thereof.
Subsequently, Representatives of Alvarez & Marsal and the Viskase Special Committee negotiated and entered into a formal engagement letter for Alvarez & Marsal to serve as the Viskase Special Committee’s financial advisor, dated as of December 9, 2024.
On December 19, 2024, at the direction of the Viskase Special Committee, Mr. P. Shea called Randolph C. Read, Chairman of the Enzon Board, and advised Mr. Read that Viskase was interested in making a proposal that might lead to a potential business combination of Enzon and Viskase. Mr. P. Shea informed Mr. Read that the Viskase Special Committee had engaged Alvarez & Marsal as its financial advisor and Troutman as its legal advisor and that they had commenced preliminary due diligence based on Enzon’s public filings. Mr. P. Shea indicated that Viskase may submit a term sheet or offer letter with respect to a potential structure and terms for any such business combination to the Enzon Board.
In connection with the discussion between Viskase and Enzon Representatives, also on December 19, 2024, certain of the IEH Parties filed Amendment No. 15 to their Schedule 13D with the SEC describing the discussion and indicating that Viskase may formulate and submit a proposal with respect to a potential structure and terms for a transaction involving Enzon and Viskase. Mr. Read and Richard L. Feinstein, Enzon’s Chief Executive Officer, Chief Financial Officer and Secretary, informed Representatives of Thompson Hine LLP (“Thompson Hine”), legal counsel to Enzon, that a proposal for a potential transaction may be submitted by Viskase. Representatives of Enzon and Representatives of Thompson Hine informally discussed the general process to be undertaken in the event that Enzon received a proposal from Viskase.
On January 3, 2025, Enzon and Viskase entered into a non-disclosure agreement (the “NDA”) in order to, among other things, facilitate continued conversations regarding a potential transaction and the sharing of due diligence materials between the parties. Following execution of the NDA, Viskase requested certain due diligence information from Enzon.
Beginning on January 3, 2025, Representatives of Alvarez & Marsal and Troutman conducted their respective reviews of information related to Enzon that was provided by Enzon via email.
On January 7, 2025, the Enzon Board met by telephonic conference at a special meeting to review the interest received from Viskase and discuss the appointment of an additional director to the Enzon Board and the formation of a special committee. The meeting included Representatives of Thompson Hine and Ashby & Geddes P.A., Delaware counsel to the Enzon Board (“Ashby”). At the meeting, the Enzon Board determined to increase the size of the Enzon Board to four directors, and Stephen T. Wills was appointed to the Enzon Board and determined to be an independent director. Also at the meeting, the Enzon Board adopted resolutions forming the Enzon Special Committee to, among other things, analyze, evaluate and oversee a potential transaction with Viskase and any available alternatives thereto, and/or to reject a potential transaction with Viskase. The resolutions passed by the Enzon Board forming the Enzon Special Committee delegated exclusive authority to, among other things, (i) analyze, evaluate, and oversee a potential transaction and any available alternatives thereto (each, an “Enzon Alternative Transaction”), (ii) establish, approve, modify, monitor, and direct the process and procedures related to the review and evaluation of any Enzon Alternative Transaction, including, but not limited to, the authority to determine not to proceed with any such process, procedures, review, or evaluation, or to recommend any of the foregoing to the full Board, (iii) reject any Enzon Alternative Transaction, (iv) determine whether any Enzon Alternative Transaction is fair to, and in the best interests of, Enzon and its stockholders, (v) recommend to the Enzon Board what action, if any, should be taken by the Enzon Board with respect to any Enzon Alternative Transaction, (vi) take such other action related to or arising in connection with a potential transaction with Viskase or any Enzon Alternative Transaction as the Enzon Special Committee deemed necessary, appropriate or advisable, (vii) retain legal, investment banking, accounting or other advisors, experts and services, including the engagement of an outside law firm and an outside financial advisor, to advise and report to the Enzon Special Committee, to assist the Enzon Special Committee in analyzing and responding to any proposals received with respect to any Enzon Alternative Transaction, and to pay the fees of such advisors, experts and vendors, (viii) consult with management and direct the officers of Enzon to assist the Enzon Special Committee in fulfilling its activities relating to any Enzon Alternative Transaction, and (ix) take any other action in furtherance of the Enzon Special Committee’s consideration of any Enzon Alternative Transaction which the Enzon Special Committee determines in its sole discretion to be advisable and consider such other matters as may be requested by the Enzon Board from time to time. The Enzon Board determined that a special committee was in the best interests of Enzon and its stockholders because certain Affiliates of the IEH Parties owned a significant portion of the capital stock of Enzon and a majority of the outstanding capital stock of Viskase.
The Enzon Board appointed Messrs. Read and Wills as members of the Enzon Special Committee, and Mr. Read was subsequently elected Chairman of the Enzon Special Committee by the Enzon Special Committee. The Enzon Board determined that each of the members of the Enzon Special Committee was independent and disinterested in connection with a potential transaction between Viskase and Enzon. Following the Enzon Board meeting, the Enzon Special Committee met separately to review the status of the discussions with Viskase since December 19, 2024, and to discuss the retention of advisors, including a financial advisor and legal counsel.
Over the next several days, the members of the Enzon Special Committee interviewed by telephonic conference a number of law firms to serve as potential legal counsel to the Enzon Special Committee. Following such discussions, the Enzon Special Committee determined to retain Brownstein Hyatt Farber Schreck, LLP (“Brownstein”) as legal counsel to the Enzon Special Committee and approved and executed an engagement letter with Brownstein dated as of January 19, 2025. The decision to engage Brownstein was based on, among other things, Brownstein’s qualifications, experience, reputation and the Enzon Special Committee’s determination, based on disclosures provided by Brownstein, that Brownstein did not have any material conflicts with respect to Enzon, Viskase or the IEH Parties.
Also during this time, the members of the Enzon Special Committee interviewed by telephonic conference a number of potential financial advisors. Following such discussions and after considering factors relevant to the possible financial advisors, including experience, potential conflicts of interest, costs and other factors, the Enzon Special Committee decided to retain A.G.P./Alliance Global Partners (“A.G.P.”) as financial advisor to the Enzon Special Committee and negotiated and executed an engagement letter with A.G.P., dated as of January 21, 2025. The Enzon Special Committee selected A.G.P. based on the Enzon Special Committee’s interview with Representatives of A.G.P. and the A.G.P. principals’ reputation and experience in investment banking and positive referrals and the Enzon Special Committee’s determination, based on disclosures provided by A.G.P., that A.G.P. did not have any material conflicts with respect to Enzon, Viskase or the IEH Parties.
On January 17, 2025, the Viskase Special Committee met virtually with Representatives of Troutman and Alvarez & Marsal. At the meeting, Alvarez & Marsal provided the Viskase Special Committee with its preliminary financial analysis regarding Viskase and Enzon. The Viskase Special Committee then had the opportunity to ask questions of Alvarez & Marsal and to deliberate on Alvarez & Marsal’s presentation.
On January 25, 2025, the Viskase Special Committee met virtually with Representatives of Troutman and Alvarez & Marsal. At the meeting, Alvarez & Marsal provided the Viskase Special Committee with an updated financial analysis of Viskase and Enzon. After further deliberation, the Viskase Special Committee agreed that it would make an offer to Enzon based on Viskase’s proposed equity value of Viskase of $368,000,000 and a proposed equity value of Enzon of $42,165,000.
On January 25, 2025, Mr. P. Shea delivered a non-binding proposal to Mr. Read setting forth a potential transaction between Enzon and Viskase (the “January 25 Proposal”). The January 25 Proposal indicated that stockholders of Enzon would receive in the aggregate shares of Viskase Common Stock that Viskase valued at $42,165,000, based on an equity valuation of Viskase that Viskase valued at $368,000,000 (assuming that no more than $768,000 was used to redeem Enzon Preferred Stock and that any remaining Enzon Preferred Stock either remained outstanding or was converted into Enzon Common Stock prior to the transaction). The January 25 Proposal suggested the parties would determine the final structure of the transaction after consultation with the parties’ respective advisors.
The Enzon Special Committee met virtually on January 28, 2025, to discuss the January 25 Proposal with A.G.P. and Brownstein. At that time, the Enzon Special Committee determined that additional questions would need to be asked of the Viskase Special Committee to develop a full understanding of the transaction proposed by the January 25 Proposal, including in relation to the proposed structure and how the offer treated the Enzon Common Stock and the Enzon Preferred Stock. The Enzon Special Committee and Brownstein discussed the Enzon Special Committee’s fiduciary duties in connection with the January 25 Proposal and the value that the January 25 Proposal offered to the non-IEH Enzon Common Stockholders.
On January 29, 2025, Mr. Read and Mr. P. Shea spoke regarding the January 25 Proposal. In particular, they discussed issues related to the structure of the transaction, whether IEH would be willing to support and make certain concessions with respect to certain aspects of a potential transaction and the relative valuations of Enzon and Viskase. In light of IEH’s ownership of Viskase Common Stock, Enzon Common Stock and Enzon Preferred Stock, each of the Enzon Special Committee and Viskase Special Committee understood that IEH’s support of any potential transaction would be necessary to consummate any such transaction. Mr. P. Shea confirmed to Mr. Read that Viskase did not object to Mr. Read discussing aspects of the transaction directly with members of IEH’s management. Following that discussion, the Enzon Special Committee concluded that it was important to discuss the January 25 Proposal with Representatives of IEH and that it would be appropriate to require a non-disclosure agreement from IEH prior to that discussion.
On February 4, 2025, Enzon and IEH entered into a non-disclosure agreement. Later that day, Mr. Read and a Representative of Brownstein had a discussion with Representatives of the IEH Parties regarding the January 25 Proposal. Representatives of the IEH Parties and Mr. Read discussed the January 25 Proposal and potential structures for a possible transaction. Representatives of the IEH Parties expressed that the Enzon Special Committee and the Viskase Special Committee were solely responsible for negotiating and agreeing on the structure of the transaction and the relative valuations for Enzon and Viskase.
The Enzon Special Committee met virtually later on February 4, 2025, with A.G.P. and Brownstein present. The Enzon Special Committee instructed A.G.P. to begin work to assist the Enzon Special Committee with respect to the relative valuations of Enzon and Viskase. The Enzon Special Committee also determined that consulting with Enzon’s second largest stockholder, Jonathan Couchman, would be appropriate.
Shortly thereafter, Mr. Read proceeded to ask Mr. Couchman if he would be willing to enter into a non-disclosure agreement to discuss potential strategic alternatives for Enzon. Mr. Couchman indicated that, at that time, he was disinclined to enter into such an agreement.
Also on February 4, 2025, the then-current version of the Initial Projections (as defined below) was provided to the Enzon Special Committee.
Over the ensuing three weeks, the Enzon Special Committee, with the assistance of its advisors continued to assess whether a transaction with Viskase might be in the best interests of Enzon and its stockholders, and, if so, the optimal structure for such a transaction. The Enzon Special Committee, with the assistance of its advisors, also continued to evaluate Viskase’s business and financial performance and the January 25 Proposal, with a particular focus on the relative valuations of Enzon and Viskase and a potential transaction structure and related considerations. A.G.P. reviewed financial matters relating to the potential transaction with the Enzon Special Committee based on information provided by Viskase to date, including the Initial Projections, as well as public data sources. The Enzon Special Committee, with the assistance of Brownstein and A.G.P., continued to develop a potential response to the January 25 Proposal regarding a potential transaction structure and the implications on the pro forma capital structure of the combined companies if such a transaction was consummated. The Enzon Special Committee met virtually with A.G.P. and Brownstein present on February 12, 2025, February 18, 2025 and February 20, 2025 regarding such matters.
On February 14, 2025, primarily as a result of continued weakness in the Viskase business and subpar manufacturing results, Viskase entered into the third amendment of its Senior Credit Facility providing a waiver for fourth quarter covenants and a covenant relief period for 2025.
On February 21, 2025, Mr. Read and a Representative of Brownstein held a call with Representatives of the IEH Parties, with the prior approval of the Enzon Special Committee. Mr. Read indicated to the Representatives of the IEH Parties that the counter-proposal being developed by the Enzon Special Committee included a proposal to exchange the Enzon Preferred Stock owned by the IEH Parties for Enzon Common Stock, and that such exchange included an implied control premium expressed through a discount to the price at which the Enzon Common Stock was issued in exchange for the Enzon Preferred Stock. Representatives of the IEH Parties indicated they were amenable to such a control premium, but that the amount of any such control premium remained subject to further discussion and negotiation. In addition, the treatment of the Enzon Preferred Stock in the January 25 Proposal was discussed, with Representatives of the Enzon Special Committee and the IEH Parties mutually determining that additional detail regarding Viskase’s proposed treatment of the Enzon Preferred Stock was necessary to develop a full understanding of the transaction proposed by the January 25 Proposal. Mr. Read indicated he would discuss these matters further directly with the Viskase Special Committee. Later that day, Mr. Read and Mr. P. Shea and Representatives of Brownstein and Troutman had a call to discuss the treatment of the Enzon Preferred Stock in the January 25 Proposal. In that discussion, Mr. P. Shea clarified that the January 25 Proposal included an aggregate valuation of $42,165,000 for all outstanding shares of Enzon Common Stock and Enzon Preferred Stock, which could then be allocated to the holders of Enzon Common Stock and the Enzon Preferred Stock as determined by the Enzon Special Committee. Mr. Read noted that, taking into account the then-current Enzon Preferred Stock Liquidation Preference, the Enzon Special Committee believed that such a valuation significantly undervalued Enzon, as it effectively provided no value to the non-IEH Party holders of Enzon Common
Stock, and that any potential transaction would need to provide acceptable value to the non-IEH Party holders of Enzon Common Stock. The Enzon Special Committee concluded the discussion by indicating that the Enzon Special Committee intended to send a counter-proposal to continue negotiations.
Over the next several days, the Enzon Special Committee, with the assistance of its advisors, continued to deliberate and refine a counter-proposal. On February 22, 2025, the Enzon Special Committee met virtually with Representatives of A.G.P. and Brownstein present. Representatives of A.G.P. reviewed with the Enzon Special Committee an initial analysis regarding potential valuations of Viskase and Enzon, which the Enzon Special Committee carefully reviewed and discussed.
On February 25, 2025, the Enzon Special Committee met virtually with A.G.P. and Brownstein and reviewed its recent discussions. Following discussion, on advice of counsel, the Enzon Special Committee approved sending a counter-proposal to the Viskase Special Committee that had been circulated prior to the meeting and discussed in detail during the meeting. Following such meeting, Mr. Read delivered the Enzon Special Committee’s counter-proposal (the “February 25 Proposal”) to Mr. P. Shea. The February 25 Proposal included details regarding the proposed transaction structure and referenced the potential of using a reverse triangular merger structure and an exchange of part of Enzon’s Preferred Stock for Enzon Common Stock. The Enzon Special Committee noted the public trading prices of the two companies. The February 25 Proposal included an exchange ratio that would result in the holders of Viskase Common Stock owning approximately 93.5% of the combined company’s common stock following the merger and holders of Enzon Common Stock owning approximately 6.5% of the combined company’s common stock following the merger. The February 25 Proposal further provided for a partial exchange of the Enzon Preferred Stock for Enzon Common Stock, which was designed to preserve Enzon’s NOLs.
On February 27, 2025, the Viskase Special Committee met virtually with Representatives of Troutman and Alvarez & Marsal. At the meeting, a discussion was held regarding the February 25 Proposal, which the Viskase Special Committee believed undervalued Viskase and overvalued Enzon. It was determined that Mr. P. Shea and Representatives of Troutman would speak with Mr. Read and the Enzon Special Committee’s advisors to see if a potential transaction could be progressed.
On February 28, 2025, the Viskase Special Committee met virtually with Representatives of Troutman and Alvarez & Marsal to further discuss the February 25 Proposal, after which, Mr. P. Shea and Representatives of Troutman and Mr. Read, Mr. Wills, Representatives of A.G.P. and Brownstein held a discussion regarding the February 25 Proposal. In particular, the participants focused on valuations of Enzon and Viskase. Mr. P. Shea expressed that the Viskase Special Committee believed Enzon’s enterprise value should be determined solely by Enzon’s Cash on Hand, and that Viskase believed Enzon did not have other assets to which the Viskase Special Committee attributed any value. Mr. Read and Mr. Wills disagreed with Viskase, and both separately expressed that they could not support a transaction that did not provide adequate consideration to the non-IEH Party holders of Enzon Common Stock.
Later on February 28, 2025, a call occurred involving Mr. Read, Mr. P. Shea and Representatives of the IEH Parties and each of their respective legal counsels. The parties continued to discuss the merits of a potential transaction or, alternatively, whether to consider terminating discussions. The participants collectively agreed that continuing to discuss a mutually acceptable transaction was an appropriate course of action. Mr. Read indicated that the Enzon Special Committee had expected to have further negotiations with the Viskase Special Committee, and that a transaction that provided approximately 4.25% of the combined company to the holders of Enzon Common Stock (excluding any Enzon Common Stock resulting from the exchange or conversion of the Enzon Preferred Stock) could potentially be acceptable to the Enzon Special Committee. Mr. P. Shea indicated that he needed additional information to assess such a transaction, and the parties agreed to continue to assess a potential transaction on that basis. Subsequently, the Viskase Special Committee requested that the Enzon Special Committee perform and provide an analysis of Enzon’s NOLs, which the Enzon Special Committee agreed to do with the assistance of EisnerAmper LLP (“Eisner”), an accounting firm familiar with Enzon’s NOLs due to prior engagement by Enzon. Eisner was then instructed by the Enzon Special Committee to perform such analysis of Enzon’s NOLs.
Additionally, the Enzon Special Committee determined that it would be advisable and in the best interests of Enzon to retain Delaware legal counsel to assist the Enzon Special Committee in evaluating the
potential transaction with Viskase. The Enzon Special Committee interviewed by telephonic conference a number of Delaware law firms to serve as its potential Delaware legal counsel, and on March 10, 2025, the Enzon Special Committee retained Potter Anderson Corroon LLP (“Potter”) as its Delaware legal counsel. The decision to engage Potter was based on, among other things, Potter’s qualifications, experience, reputation and the Enzon Special Committee’s determination, based on disclosures provided by Potter, that Potter did not have any material conflicts with respect to Enzon, Viskase or the IEH Parties.
Between March 1, 2025, and March 2, 2025, the Viskase Special Committee and Representatives of Alvarez & Marsal held multiple calls to discuss the February 25 Proposal and subsequent discussions among the parties.
On March 3, 2025, Viskase’s management presented updated draft projections solely to the Viskase Special Committee as a result of underperforming financial results and a potential covenant default.
Between March 3, 2025 and March 11, 2025, the Viskase Special Committee convened multiple times, both internally and in consultation with Viskase management, to review updated financial projections and assess their implications for the potential transaction with Enzon. During these discussions, the Viskase Special Committee carefully evaluated how the revised forecasts might affect the terms and overall attractiveness of the proposed merger to Viskase.
Between December 30, 2024 and March 5, 2025, Viskase’s management had been reviewing preliminary illustrative financial projections for Viskase that were prepared by management at the request of the Viskase Special Committee (the “Initial Projections”), based on the original preliminary five-year projections that had been presented by management to the Viskase Board earlier in the year as part of Viskase’s regular long-range planning process, and key assumptions underlying those projections. The Initial Projections assumed, among other things, new extrusion line start up in the second quarter of 2025, completion of viscose capacity expansion in Tennessee, potential selling price increases that would offset inflationary cost increases, and improved operational performance in Viskase’s manufacturing facilities.
On March 11, 2025, Tom Holz, Viskase’s Chief Financial Officer at the time, provided revised projections to the Viskase Special Committee, and then the Viskase Special Committee sent the revised projections to Alvarez & Marsal. The revised projections included a hold on the new extrusion line start up due to cash constraints, reduction in pricing assumptions, higher operational waste and inefficiencies and an earlier closure of Viskase’s Osceola facility. Mr. Holz explained to the Viskase Special Committee that the revised projections lowered revenue by $39 million and gross margin by $15 million.
On March 21, 2025, an Affiliate of IEH invested $15,000,000 in Viskase by purchasing 7,142,858 shares of Viskase Common Stock in a private placement transaction at a purchase price per share of $2.10. The private placement was entered into to enable Viskase to meet its debt and other obligations while pursuing its restructuring plans.
On March 24, 2025, the Viskase Special Committee determined that Mr. P. Shea would reach out to Mr. Read to discuss a potential counteroffer to Enzon.
Throughout March 2025, the Enzon Special Committee continued to work with Eisner to refine an analysis of Enzon’s NOLs. On April 2, 2025, Mr. Read and Mr. P. Shea and Representatives of Brownstein and Troutman spoke regarding the status of the Enzon NOL analysis. As the parties collectively assessed Enzon’s NOLs, Viskase began to consider that a transaction structure where the utilization of Enzon’s NOLs might be limited pursuant to Section 382 of the Code might still be viable for Viskase, in part due to an expectation by Viskase that the Enzon NOLs may not have otherwise been usable in full following consummation of a potential transaction. Further, Viskase believed such a structure would enable the exchange of additional Enzon Preferred Stock owned by the IEH Parties into Enzon Common Stock, which Viskase believed could help to narrow the differences in valuation expectations between the Enzon Special Committee and the Viskase Special Committee. On April 9, 2025, Mr. P. Shea and Mr. Read and Representatives of Troutman and Brownstein again met by telephone to discuss the Enzon NOL analysis. Mr. Read agreed to organize a call between Eisner and Forvis Mazars, LLP, which the Viskase Special Committee had engaged as its tax advisors.
On April 23, 2025, the Viskase Special Committee met virtually with Representatives of Troutman. At the meeting, a discussion was held regarding a transaction structure whereby all of the Enzon Preferred Stock held by the IEH Parties would be converted into shares of Enzon Common Stock following the merger. The Viskase Special Committee decided to propose a transaction that would result in holders of Enzon Common Stock and Enzon Preferred Stock owning 15.4% of the combined company’s common stock following the merger, assuming conversion of all shares of Enzon Preferred Stock into shares of Enzon Common Stock and no further dividend payments on the Enzon Preferred Stock. On that same day, Mr. P. Shea called Mr. Read to tell him that the Viskase Special Committee intended to make a revised offer. Mr. Read asked Mr. P. Shea to send the offer in writing. Later that day, Mr. P. Shea emailed Mr. Read a proposal for a transaction whereby holders of Enzon’s Common Stock would own 15.4% of the combined company’s common stock following the merger and holders of Viskase Common Stock would own 84.6% of the combined company’s common stock following the merger, assuming that all of Enzon’s Preferred Stock was converted into Enzon Common Stock and a requirement from Viskase that no further cash dividends were to be paid on the Enzon Preferred Stock.
Following careful review and discussion by the Enzon Special Committee with its advisors, including discussion of the April 23 proposal emailed by Mr. P. Shea, the Enzon Special Committee delivered a non-binding counterproposal (the “April 25 Proposal”) to the Viskase Special Committee on April 25, 2025. The April 25 Proposal provided, among other things, additional detail regarding the transaction structure and proposed that holders of Enzon Common Stock would own 18.6% of the combined company’s common stock following the merger and holders of Viskase Common Stock would own 81.4% of the combined company’s common stock following the merger.
On April 26, 2025, the Viskase Special Committee met virtually with Representatives of Troutman to, among other things, discuss the April 25 Proposal, after which the Viskase Special Committee agreed that the April 25 Proposal was untenable. Mr. P. Shea called Mr. Read to explain that the Viskase Special Committee might consider a transaction in which the holders of Enzon Common Stock would own 15.9% of the combined company’s common stock following the merger, assuming that all of Enzon’s Preferred Stock was converted into Enzon Common Stock.
On April 29, 2025, Mr. Read and Mr. P. Shea and the respective legal counsels discussed the transaction and the proposed combined company pro forma ownership. Mr. Read indicated, based on a prior discussion with Representatives of the IEH Parties, the IEH Parties would consider contributing some of the value associated with their Enzon Preferred Stock so that additional value could be provided to the non-IEH Party holders of Enzon Common Stock and, if the IEH Parties were willing to do that, the Enzon Special Committee might be willing to consider a transaction providing holders of Enzon Common Stock with 16.5% of the combined company’s common stock following the merger. Mr. P. Shea indicated that such a proposal was not acceptable to the Viskase Special Committee.
Subsequent to the April 29, 2025 call with Mr. P. Shea, the Enzon Special Committee arranged for A.G.P. and Mr. Read to have a discussion with Viskase’s management to gather additional information relevant to the valuation of Viskase.
On April 30, 2025, Representatives of A.G.P. and Mr. Read held a discussion with Viskase’s President & Chief Executive Officer, Mr. Timothy P. Feast, regarding Viskase’s business and its prospects, including Viskase’s capital expenditure plans. Also on April 30, 2025, Mr. Read spoke with Representatives of the IEH Parties regarding the willingness of the IEH Parties to contribute some of the value associated with their Enzon Preferred Stock so that additional value could be provided to the non-IEH Party holders of Enzon Common Stock in the potential transaction. Representatives of the IEH Parties indicated to Mr. Read that the IEH Parties would be willing to contribute $500,000 of value in order to facilitate the transaction. With this information and after consultation with A.G.P., the Enzon Special Committee determined to propose to the Viskase Special Committee that holders of Enzon Common Stock retain 15.9% of the combined company’s common stock following the merger, with holders of Viskase Common Stock having 84.1% of the combined company’s common stock following the merger. The Enzon Special Committee members updated the draft of the April 25 Proposal to reflect such percentages (the “Revised April Proposal”) and delivered the Revised April Proposal to Mr. P. Shea.
On May 2, 2025, the Viskase Special Committee met virtually with Representatives of Troutman and Alvarez & Marsal, where Alvarez & Marsal reviewed and discussed with the Viskase Special Committee Alvarez & Marsal’s financial analysis regarding Viskase, Enzon and the proposed transaction contemplated by the Revised April Proposal.
Also on May 2, 2025, Troutman delivered the Viskase Special Committee’s response to the Revised April Proposal to Brownstein, which indicated the proposed post-closing ownership percentages proposed by the Enzon Special Committee were acceptable to the Viskase Special Committee (the “May Proposal”). However, the May Proposal also indicated that the post-closing ownership percentages were subject to adjustment for changes in cash balances or in connection with the outcome of Enzon’s exchange of Enzon Preferred Stock for Enzon Common Stock. The Viskase Special Committee subsequently proposed a closing condition requiring that Enzon satisfy the Minimum Cash Condition at closing and indicated that, to the extent Enzon’s Cash on Hand was less than that amount at closing, the IEH Parties could contribute additional value to the transaction to account for the difference (and thereby preserve the contemplated value for both holders of Viskase Common Stock and non-IEH Party holders of Enzon Common Stock). Following further discussions between the Enzon Special Committee and Representatives of the IEH Parties, the IEH Parties confirmed that they would agree to contribute up to the previously discussed $500,000 of value to the non-IEH Party holders of Enzon Common Stock to facilitate the transaction and that they would agree to contribute additional value in connection with the transaction, in an amount to be determined, to the extent that Enzon failed to satisfy the Minimum Cash Condition at closing.
On May 5, 2025, the Enzon Special Committee held a meeting with Representatives from Brownstein to discuss the latest response to the May Proposal from Viskase. The Enzon Special Committee raised clarifying questions and potential issues regarding the Minimum Cash Condition and potential solutions for any shortfall, including the IEH Parties’ willingness to contribute value to make up for such a shortfall, if one occurred. After discussing certain key matters, including consideration and discussion of the Enzon Special Committee’s fiduciary duties, and providing comments to the May Proposal to Brownstein, the Enzon Special Committee directed Brownstein to prepare the revised May Proposal for execution. Later that afternoon on May 5, 2025, the Enzon Special Committee and the Viskase Special Committee executed a non-binding letter of intent memorializing the revised May Proposal, as updated to reflect such discussions.
On May 13, 2025, in light of progress made on the transaction and the execution of the letter of intent relating to the revised May Proposal, the Enzon Special Committee attempted again to engage Mr. Couchman in discussions. Mr. Couchman agreed to engage in discussions and the parties negotiated and entered into a non-disclosure agreement on May 19, 2025, which, among other things, included an agreement from Mr. Couchman to not sell shares of Enzon Common Stock for a certain period of time. The Enzon Special Committee subsequently provided certain information to Mr. Couchman regarding the proposed transaction and asked whether he would consider entering into a support agreement. Mr. Couchman indicated that, at that time, he was not willing to commit to entering into a support agreement.
On May 13, 2025, acting on behalf of the Viskase Special Committee, Troutman provided an initial draft of the Merger Agreement to Brownstein.
On May 22, 2025, Troutman provided an initial draft of the IEH Support Agreement, which included input from the IEH Parties and Proskauer, to Brownstein.
On May 22, 2025, the Enzon Special Committee held a virtual meeting with Representatives from Brownstein to, among other things, discuss the Merger Agreement. The Enzon Special Committee, having previously reviewed the draft Merger Agreement, reviewed in detail with Brownstein the initial draft of the Merger Agreement and provided further feedback on numerous points for a proposed revised draft, including, among other things, with respect to the calculation of the merger consideration, the amount of a potential termination fee, the terms relating to responsibility for certain fees and taxes and requisite approvals.
On May 29, 2025, Brownstein, on behalf of the Enzon Special Committee, delivered a revised draft of the Merger Agreement to Troutman. Over the subsequent days, discussions occurred between the parties and their respective legal counsels, including discussions regarding the requisite approvals required by Enzon.
On May 30, 2025, the Enzon Special Committee provided an update to the Enzon Board regarding the status of the potential transaction.
On June 1, 2025, Troutman provided certain new additional diligence materials to Brownstein on behalf of Viskase, including, among other documents, a limited waiver and amendment to Viskase’s credit agreement that included a waiver of certain covenant defaults thereunder.
On June 3, 2025 and June 5, 2025, the Enzon Special Committee held virtual meetings with Representatives from Brownstein and Potter to discuss the Merger Agreement.
On June 5, 2025, acting on behalf of the Viskase Special Committee, Troutman provided a revised draft of the Merger Agreement to Brownstein.
On June 6, 2025, the Enzon Special Committee held a virtual meeting with Representatives from Brownstein to discuss the latest developments related to the Merger Agreement, including the proposed officers of the combined company, the covenants governing the operation of Viskase between signing and closing of the proposed transaction, timing of the HSR Act filing and the termination fee amount. The Enzon Special Committee and Brownstein carefully reviewed and discussed the material comments and various timing considerations.
On June 10, 2025, acting on behalf of the Enzon Special Committee, Brownstein delivered a revised draft of the Merger Agreement to Troutman. On June 11, 2025, acting on behalf of the IEH Parties, Proskauer delivered comments to the Merger Agreement and the IEH Support Agreement to Brownstein and Troutman. Between June 11, 2025 and June 20, 2025, the parties and their respective counsels continued to negotiate the Merger Agreement, the IEH Support Agreement and related ancillary documents, along with other documents necessary or desirable to execute the Merger Agreement and the IEH Support Agreement. In connection with finalizing the IEH Support Agreement, on June 18, 2025, the IEH Parties agreed to convert their Enzon Preferred Stock at a discount of $961,700 to their liquidation preference and to contribute up to an additional $1,000,000 pursuant to an IEH exchange adjustment mechanism in the IEH Support Agreement (the “IEH Exchange Adjustment”), if needed, in the event of any shortfall in the Minimum Cash Condition by Enzon at the Closing.
On June 12, 2025, Troutman provided via email modified Viskase projections (the “June 12 Projections”) to Brownstein, which shared such projections with the Enzon Special Committee and A.G.P.
On June 13, 2025, the Enzon Special Committee engaged in additional discussions with Mr. Couchman regarding his willingness to enter into a support agreement. Mr. Couchman again indicated that he was not willing at that time to enter into a support agreement.
Also on June 13, 2025, Troutman, on behalf of Viskase management, provided responses to questions from the Enzon Special Committee regarding Viskase’s projections and business plan.
On June 18, 2025, the Enzon Special Committee met with Brownstein to review, among other things, the current status of legal due diligence. Later on June 18, 2025, the Enzon Special Committee met with A.G.P., Brownstein and Potter present and discussed with Representatives of A.G.P. the current status of A.G.P.’s fairness opinion process. Representatives of A.G.P. reviewed with the Enzon Special Committee certain preliminary information regarding the potential fairness opinion. In addition, Representatives of Potter advised the members of the Enzon Special Committee regarding their fiduciary duties and related issues.
On June 19, 2025, the Viskase Special Committee held a virtual meeting. At the Viskase Special Committee’s request, Alvarez & Marsal reviewed with the Viskase Special Committee its financial analyses with respect to Viskase, Enzon and the Merger and rendered its oral opinion, dated June 19, 2025, which was confirmed by delivery of Alvarez & Marsal’s written opinion dated the same date, to the Viskase Special Committee to the effect that, as of that date and based on and subject to the assumptions made, qualifications and limitations on the review undertaken and other matters considered by Alvarez & Marsal in preparing its opinion, the Exchange Ratio provided for in the Merger Agreement, after giving effect to the IEH Share Exchange, the Series C Exchange Offer, Reverse Stock Split, and the Surviving Company Conversion, was fair, from a financial point of view, to the holders of Viskase Common Stock other than the IEH Parties.
Representatives of Troutman then provided an overview of fiduciary duties of the Viskase Special Committee members applicable to their consideration of the transaction. Following discussion, the Viskase Special Committee unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of Viskase and its stockholders, other than the IEH Parties and (ii) declared it advisable that Viskase enter into the Merger Agreement and consummate the transactions contemplated thereby. Upon the unanimous recommendation of the Viskase Special Committee, the Viskase Board, acting by written consent, unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of Viskase and Viskase’s stockholders, other than the IEH Parties, and declared it advisable, that Viskase enter into the Merger Agreement and consummate the transactions contemplated thereby, (ii) adopted resolutions approving and declaring the advisability of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Merger, (iii) adopted resolutions recommending that the stockholders of Viskase entitled to vote adopt the Merger Agreement and (iv) directed that the Merger Agreement and the transactions contemplated thereby be submitted to the stockholders of Viskase entitled to vote for adoption.
On June 20, 2025, the Enzon Special Committee held a virtual meeting with Representatives of Brownstein, Potter and A.G.P. present. A.G.P. provided a financial presentation to the Enzon Special Committee, which included a review of the financial analyses of Viskase performed by A.G.P. based on the June 12 Projections, and rendered to the Enzon Special Committee an opinion, dated June 20, 2025, as to the fairness, from a financial point of view, to Enzon of the exchange ratio in the Merger pursuant to the Merger Agreement, which was confirmed in a written opinion. Representatives of Potter then provided an overview of fiduciary duties of the Enzon Special Committee members applicable to their consideration of the transaction. Following discussion and consideration of the proposed transaction, the Enzon Special Committee unanimously, among other things, (i) determined that the Merger Agreement and the transactions contemplated thereby were fair to, and in the best interests of, Enzon and its stockholders, without regard to the IEH Parties and (ii) recommended that the Enzon Board (a) approve the Merger Agreement and the transactions contemplated thereby, including the Reverse Stock Split and (b) recommend that the Enzon stockholders entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal.
Following the Enzon Special Committee meeting, on June 20, 2025, the Enzon Board held a board meeting, which all members of the Enzon Board attended, with Enzon’s Chief Executive Officer, Chief Financial Officer and Secretary, Richard L. Feinstein, Representatives from A.G.P., Thompson Hine, Brownstein, Potter and Ashby, were also in attendance. At the Enzon Board meeting, the Enzon Special Committee delivered its recommendation and provided detail on the Enzon Special Committee’s process. The Enzon Board then discussed various legal, financial and other considerations relating to the proposed transaction, including, among other things, the transaction structure, the relative valuations of Enzon and Viskase and the Exchange Ratio, the treatment of the IEH Parties in the transaction, including the IEH Support Agreement, the indirect contribution of additional value by the IEH Parties to the non-IEH Party holders of Enzon Common Stock through the IEH Exchange Adjustment and the contemplated transaction timeline. Representatives of Ashby then provided an overview of fiduciary duties of the Enzon Board members applicable to their consideration of the transaction. Discussions among the Enzon Board members ensued. Following discussion, certain members of the Enzon Board requested an adjournment. Following said adjournment, the Enzon Board reconvened and continued additional discussion of key considerations. Thereafter, the Enzon Board, acting upon the unanimous recommendation of the Enzon Special Committee, unanimously, among other things, (i) determined that the Merger Agreement and the transactions contemplated thereby were fair to, and in the best interests of, Enzon and its stockholders, (ii) approved the Merger Agreement and the transactions contemplated thereby, including the Reverse Stock Split and (iii) recommended that the holders of Enzon Common Stock entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal.
On June 20, 2025, the Merger Agreement, IEH Support Agreement and other related definitive documentation were executed by the parties. Later that evening, the IEH Parties holding sufficient Viskase Common Stock to provide the Viskase Stockholder Approval under the Merger Agreement adopted the Merger Agreement and approved the Merger by written consent.
Later that evening, on June 20, 2025, Enzon and Viskase issued a press release announcing the execution of the Merger Agreement. On the morning of June 23, 2025, Enzon filed a current report on
Form 8-K disclosing the execution of the Merger Agreement, and including certain appropriate exhibits. Also on June 23, 2025, IEH filed with the SEC an amended Schedule 13D disclosing the transaction.
On June 27, 2025, Enzon and Viskase filed their respective Notification and Report Forms pursuant to the HSR Act. On July 15, 2025, the FTC granted early termination of the applicable waiting period under the HSR Act to Enzon and Viskase, effective July 15, 2025.
On July 25, 2025, Viskase entered into an amendment to its credit agreement, providing for, among other things, a limited waiver of certain covenant defaults that may have occurred as of June 30, 2025.
On August 14, 2025, Enzon was informed that, absent further amendments to Viskase’s credit agreement or the provision of additional credit support, Viskase management would likely need to conclude that substantial doubt exists regarding Viskase’s ability to continue as a going concern in its financial statements for the quarter ended June 30, 2025. In addition, Brownstein and Thompson Hine were informed that the PCAOB audit opinion on Viskase’s financial statements for the year ended December 31, 2024 was also expected to include a “going concern” emphasis of matter paragraph. Following this disclosure, the Enzon special committee convened to discuss the implications for the transaction.
During the course of July and August 2025, Enzon further learned, among other things, that the Viskase business had underperformed in the second quarter of 2025 and its financial results did not reflect what was included in the June 12 projections, that such underperformance was expected to continue for the remainder of fiscal year 2025 and that Viskase was pausing capital investment into one of its product lines. Assessing these developments with Thompson Hine, Ashby, Brownstein and Potter, and also discussing these developments with A.G.P., the Enzon Special Committee came to believe that, a Viskase Material Adverse Effect may have occurred subsequent to March 31, 2025. Accordingly, the Enzon Special Committee and the Enzon Board determined that the Merger Agreement would either need to be renegotiated or terminated in order to take into account such developments.
On August 20, 2025, Brownstein, on behalf of the Enzon Special Committee, sent a request to Troutman for certain financial information relating to Viskase, including updated financial statements, forecasts, updated projections and information regarding a potential “going concern” qualification in Viskase’s financial statements.
On August 28, 2025, Troutman, on behalf of the Viskase Special Committee, provided certain financial information, including updated forecast information, to Thompson Hine, Proskauer and Brownstein, in partial response to Enzon’s prior information request.
On August 31, 2025, the Enzon Special Committee met with Brownstein to discuss the latest developments and the responses to the information requests previously made by the Enzon Special Committee of Viskase. The Enzon Special Committee discussed the parameters of a potential renegotiation of the exchange ratio in light of the deterioration in Viskase’s financial performance.
Also on August 31, 2025, Mr. Feinstein and the Enzon Special Committee met with members of Viskase’s management to discuss Viskase’s business operations, the potential “going concern” qualification and the production of certain information, including, but not limited to, a new financial forecast.
The Viskase Special Committee, also on August 31, 2025, met virtually with Representatives of Viskase management and Troutman to, among other things, discuss the financial information that was provided to the Enzon Special Committee on August 28, 2025.
On September 5, 2025, the Viskase Special Committee sent updated projections through the end of fiscal year 2025 to the Enzon Special Committee.
On September 9, 2025, at the direction of each of the Enzon Special Committee and the Viskase Special Committee, Mr. Feinstein and Mr. Feast held a call to discuss the transaction. Mr. Feinstein informed Mr. Feast that it was the Enzon Special Committee’s view that in light of the deterioration in Viskase’s financial condition, Viskase management’s determination that substantial doubt about Viskase’s ability to continue as a “going concern” was expected to exist when the December 31, 2024 financial statements were issued after considering management’s plans, issues regarding Viskase’s debt burden and refinancing plans, and the closing conditions, representations and warranties in the Merger Agreement that were
implicated by such developments, a reconsideration of the transaction and exchange ratio was necessary. Mr. Feinstein indicated to Mr. Feast that any revised exchange ratio would need to be substantially improved for the benefit of the Enzon stockholders. Mr. Feinstein suggested that an exchange ratio that resulted in the Enzon stockholders owning approximately 50% of the combined company’s common stock and the Viskase stockholders owning approximately 50% of the combined company’s common stock might be appropriate.
On September 9, 2025, the Viskase Special Committee met virtually with Representatives of Troutman to discuss the financial information that was sent to Enzon on August 28, 2025 and September 5, 2025.
On September 10, 2025, at the direction of each of the Enzon Special Committee and the Viskase Special Committee, Mr. Feinstein and Mr. Feast again held a call to further discuss the potential transaction. Without agreeing to a specific exchange ratio, they agreed to discuss the matter further with their respective special committees.
On September 11, 2025, the Enzon Special Committee, the Viskase Special Committee, Representatives of IEH, Proskauer, Troutman and Brownstein held a call to discuss the status of negotiations relating to a potential amended transaction. Following discussions, each of the Enzon Special Committee, the Viskase Special Committee and IEH agreed that amendments to certain principal terms of the transaction would be appropriate considering the deterioration in Viskase’s financial performance. The parties agreed to pursue an amended transaction that revised (i) the exchange ratio to result in a post-transaction ownership of Enzon of 45% for the holders of Enzon Common Stock and 55% for the holders of Viskase Common Stock and (ii) the Minimum Cash Condition to $40 million, subject to review and approval of the Enzon Special Committee and the Enzon Board and the Viskase Special Committee and the Viskase Board.
On September 11, 2025, the Viskase Special Committee met virtually with Representatives of Troutman and Alvarez & Marsal to discuss, among other things, the call earlier in the day among the Enzon Special Committee, the Viskase Special Committee, Representatives of IEH, Proskauer, Troutman and Brownstein. Representatives of Troutman also provided an overview of the Viskase Special Committee’s fiduciary duties and the process for evaluating and considering an amended transaction between Viskase and Enzon. Representatives of Alvarez & Marsal indicated that they would update their financial analysis.
On September 16, 2025, Brownstein sent an initial draft of the Merger Agreement Amendment to the Enzon Special Committee reflecting the previously discussed modifications to the Merger Agreement. On September 17, 2025 and September 18, 2025, the Enzon Special Committee reviewed the draft of the Merger Agreement Amendment and discussed changes with Brownstein. The Enzon Special Committee also continued to analyze whether the revised Exchange Ratio would result in a limitation on Enzon’s ability to utilize its NOLs.
On September 16, 2025, the Viskase Special Committee met virtually with Representatives of Troutman and Alvarez & Marsal for the purpose of, among other things, engaging Alvarez & Marsal to provide a fairness opinion in connection with the proposed revised exchange ratio.
On September 18, 2025, Brownstein, on behalf of the Enzon Special Committee, circulated an initial draft of the Merger Agreement Amendment to Troutman and Proskauer and included an additional post-closing milestone payment for the benefit of Enzon stockholders based upon certain future cash that Enzon may receive within three years of the Closing Date.
On September 22, 2025, the Enzon Special Committee approved the engagement of A.G.P. to provide a fairness opinion with respect to the proposed revised exchange ratio.
On September 25, 2025, Troutman, on behalf of the Viskase Special Committee, circulated comments to the Merger Agreement Amendment to Brownstein and Thompson Hine, which included comments provided to Troutman by Proskauer on behalf of the IEH Parties.
On September 28, 2025, Brownstein, on behalf of the Enzon Special Committee, circulated comments to the Merger Agreement Amendment to Troutman, Proskauer and Thompson Hine. At the time, the principal open item in the Merger Agreement Amendment related to the previously described post-closing milestone payment which the Enzon Special Committee believed would be attractive to Enzon stockholders.
On September 29, 2025, an Affiliate of IEH invested approximately $5,000,000 in Viskase by purchasing 7,042,254 shares of Viskase Common Stock in private placement transaction at a purchase price per share of $0.71. The private placement was entered into to enable Viskase to meet its debt and other obligations while pursuing its restructuring plans.
On September 30, 2025, Proskauer, on behalf of IEH, circulated an initial draft of the IEH Support Agreement Amendment to Brownstein, Troutman and Thompson Hine.
Also on September 30, 2025, the Enzon Special Committee sent to the Viskase Special Committee questions relating to Viskase’s financial performance, projections and anticipated cash uses.
On October 1, 2025, the Enzon Special Committee met with Brownstein to discuss the Merger Agreement Amendment, including the composition of the board of directors of the combined company following the transaction, the potential for the inclusion of a post-closing milestone payment and certain textual changes to the Merger Agreement Amendment.
On October 6, 2025, Troutman provided comments to the Merger Agreement Amendment on behalf of the Viskase Special Committee to Brownstein, Proskauer and Thompson Hine.
On October 6, 2025, Troutman, on behalf of Viskase, provided written responses to Brownstein to the questions asked by the Enzon Special Committee on September 30, 2025.
On October 7, 2025, the Enzon Special Committee sent additional follow-up questions to Viskase to the Viskase Special Committee.
On October 10, 2025, Viskase entered into an amendment to its credit agreement, providing for, among other things, a limited waiver of certain covenant defaults and covenants that may have occurred as of September 30, 2025.
On October 13, 2025, the Viskase Special Committee provided the Enzon Special Committee with revised projections (the “October 13 Projections”) for use by the Enzon Special Committee in its consideration of the amended transaction and by A.G.P. in connection with its fairness opinion process. Also on October 13, 2025, Troutman provided written responses to questions that were sent to Viskase on October 7, 2025.
On October 14, 2025, Proskauer provided comments to the Merger Agreement Amendment on behalf of IEH to Brownstein, Troutman and Thompson Hine.
On October 14, 2025, the Enzon Special Committee and Representatives of IEH discussed certain transaction points. Among the points discussed, IEH indicated that it would be willing to support a post-transaction board of directors for the combined company that included Mr. Bleznick and Mr. Read, along with other directors to be named later by Viskase. IEH also indicated that it was not willing to provide a comfort letter or other form of credit support to Enzon at this point in time that would potentially enable the removal of Viskase’s going concern qualification, which the Enzon Special Committee had requested.
On October 15, 2025, the Enzon Special Committee and a Representative of Brownstein met to discuss the status of negotiations on the Merger Agreement Amendment, the status of A.G.P.’s fairness opinion process and the October 14, 2025 call with IEH. The Enzon Special Committee further determined that the updates included in the October 13 projections did not warrant renegotiation of the terms of the proposed Merger Agreement Amendment. The Enzon Special Committee determined that the proposed board of directors including two current Enzon directors was an acceptable proposal and agreed that, while a comfort letter from IEH regarding Viskase’s debt financing would be helpful, such a letter would be unusual in the context and that the balance of factors supported continuing to pursue the amended transaction with Viskase without such a comfort letter. In addition, the Enzon Special Committee discussed the possibility that Mr. Couchman would agree to enter into a support agreement regarding the transaction. The Enzon Special Committee determined that Mr. Couchman was unlikely to enter into a support agreement at that time and that it would consider continuing discussions with him at a later date.
On October 20, 2025, Brownstein, on behalf of the Enzon Special Committee, circulated comments to the Merger Agreement Amendment and the IEH Support Agreement Amendment to Troutman and Proskauer. In connection with finalizing the terms of the Merger Agreement Amendment, the parties agreed to omit the post-closing milestone payment construct from the Merger Agreement Amendment. In addition, due to the change in the exchange ratio and the Minimum Cash Condition, the parties determined that the IEH Exchange Adjustment was no longer necessary to be included and that the IEH Share Exchange should occur at the 20-day VWAP calculated as of the date of the Merger Agreement Amendment. Based on the Section 382 analysis performed by Eisner, the Enzon Special Committee also determined that the amended transaction reflected in the Merger Agreement Amendment was not expected to limit Enzon’s ability to utilize its NOLs in the future.
On October 21, 2025, the Enzon Special Committee held a virtual meeting with Representatives of Brownstein, Potter and A.G.P. present. A.G.P. provided a financial presentation to the Enzon Special Committee, which included a review of the financial analyses of Viskase performed by A.G.P. based on the October 13 Projections, and rendered to the Enzon Special Committee an opinion, which was initially rendered verbally and confirmed in a written opinion, dated October 21, 2025, to the effect that, as of that date and based on and subject to the matters described in its opinion, the Exchange Ratio in the Merger pursuant to the Merger Agreement, as amended by the Merger Agreement Amendment, was fair, from a financial point of view, to Enzon. Representatives of Potter then provided an overview of fiduciary duties of the Enzon Special Committee members applicable to their consideration of the transaction. Following discussion and consideration of the proposed transaction, the Enzon Special Committee unanimously, among other things, (i) determined that the Merger Agreement, as amended by the Merger Agreement Amendment, and the transactions contemplated thereby are fair to, and in the best interests of, Enzon and its stockholders, without regard to the IEH Parties and (ii) recommended that the Enzon Board (a) approve the Merger Agreement Amendment and the transactions contemplated thereby, including the Reverse Stock Split and (b) recommend that the Enzon stockholders entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal.
Following the Enzon Special Committee meeting, on October 21, 2025, the Enzon Board held a virtual board meeting, which all members of the Enzon Board attended, with Enzon’s Chief Executive Officer, Chief Financial Officer and Secretary, Richard L. Feinstein and Representatives from A.G.P., Thompson Hine, Brownstein and Ashby also in attendance. At the Enzon Board meeting, the Enzon Special Committee delivered its recommendation and provided detail on the Enzon Special Committee’s process. The Enzon Board then discussed various legal, financial and other considerations relating to the proposed transaction, including, among other things, the transaction structure, the relative valuations of Enzon and Viskase and the Exchange Ratio, the treatment of the IEH Parties in the transaction, including the IEH Support Agreement Amendment and the contemplated transaction timeline. Representatives of Ashby then provided an overview of fiduciary duties of the Enzon Board members applicable to their consideration of the transaction. Discussions among the Enzon Board members ensued. Following discussion, the Enzon Board, acting upon the unanimous recommendation of the Enzon Special Committee, unanimously, among other things, (i) determined that the Merger Agreement, as amended by the Merger Agreement Amendment and the transactions contemplated thereby are fair to, and in the best interests of, Enzon and its stockholders, (ii) approved the Merger Agreement Amendment and the transactions contemplated thereby, including the Reverse Stock Split and (iii) recommended that the holders of Enzon Common Stock entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal.
Later on October 21, 2025, Troutman contacted Brownstein to inform Enzon that Viskase had discovered a miscalculation in the October 13 Projections and subsequently sent updated projections to Enzon (the “October 21 Projections”). The Enzon Special Committee and the Enzon Board reviewed the changes to the October 13 Projections reflected in the October 21 Projections and with their advisors, assessed the impact of the changes to Viskase and the transaction.
On October 22, 2025, the Viskase Special Committee held a virtual meeting. At the Viskase Special Committee’s request, Alvarez & Marsal reviewed with the Viskase Special Committee its financial analyses with respect to Viskase, Enzon and the Merger and rendered its oral opinion, dated October 22, 2025, which was confirmed by delivery of Alvarez & Marsal’s written opinion dated October 22, 2025, to the Viskase Special Committee to the effect that, as of that date and based on and subject to the assumptions made,
qualifications and limitations on the review undertaken and other matters considered by Alvarez & Marsal in preparing its opinion, the amended Exchange Ratio provided for in the Merger Agreement Amendment, after giving effect to the IEH Share Exchange, the Series C Exchange Offer, Reverse Stock Split, and the Surviving Company Conversion, was fair, from a financial point of view, to the holders of Viskase Common Stock other than the IEH Parties. Representatives of Troutman then provided an overview of fiduciary duties of the Viskase Special Committee members applicable to their consideration of the transaction. Following discussion, the Viskase Special Committee unanimously (with the exception of Mr. P. Shea who had a scheduling conflict but had otherwise stated his support for the Merger) (i) determined that the Merger Agreement Amendment and the transactions contemplated thereby are fair to, and in the best interests of Viskase and Viskase’s stockholders, other than the IEH Parties and (ii) declared it advisable that Viskase enter into the Merger Agreement Amendment and consummate the transactions contemplated thereby.
On October 23, 2025, the Viskase Board held a virtual meeting. Upon the recommendation of the Viskase Special Committee, the Viskase Board unanimously (with the exception of Mr. P. Shea who had a scheduling conflict but had otherwise stated his support for the merger) (i) determined that the Merger Agreement Amendment and the transactions contemplated thereby are fair to, and in the best interests of Viskase and Viskase’s stockholders, other than the IEH Parties, and declared it advisable, that Viskase enter into the Merger Agreement Amendment and consummate the transactions contemplated thereby, (ii) adopted resolutions approving and declaring the advisability of the Merger Agreement Amendment and the consummation of the transactions contemplated thereby, including the Merger, (iii) adopted resolutions recommending that the stockholders of Viskase entitled to vote adopt the Merger Agreement, as amended by the Merger Agreement Amendment, and (iv) directed that the Merger Agreement, as amended by the Merger Agreement Amendment, and the transactions contemplated thereby be submitted to the stockholders of Viskase entitled to vote for adoption.
On October 24, 2025, Representatives of A.G.P. informed the Enzon Special Committee the extent to which the financial analyses in A.G.P.’s financial presentation, dated October 21, 2025, were affected by the October 21 Projections. A.G.P. did not withdraw the opinion it rendered on and as of October 21, 2025 and subsequently replaced the financial presentation to the Enzon Special Committee, dated October 21, 2025, in order to reflect the October 21 Projections. Following discussion among the members of the Enzon Special Committee and the Enzon Board, Enzon determined that the updates reflected in the October 21 Projections did not change the Enzon Special Committee’s or the Enzon Board’s recommendations, approvals and determinations made at the respective meetings on October 21, 2025 and determined to proceed with the execution of the Merger Agreement Amendment.
On October 24, 2025, the Merger Agreement Amendment and the IEH Support Agreement Amendment were executed by the parties. Later that evening, on October 24, 2025, Enzon and Viskase issued a press release announcing the execution of the Merger Agreement Amendment, and, as instructed by Enzon and acting on Enzon’s behalf, Representatives of Thompson Hine filed a current report on Form 8-K on Enzon’s behalf disclosing the execution of the Merger Agreement Amendment, and appropriate exhibits. IEH filed with the SEC an amendment to its Schedule 13D disclosing the revised transaction and filing the IEH Support Agreement.
Enzon’s Reasons for the Merger; Recommendation of the Enzon Special Committee and the Enzon Board
The Enzon Special Committee consists of two (2) directors: Randolph C. Read and Stephen T. Wills. Each of Messrs. Read and Wills satisfies the requirements to serve on the Enzon Special Committee and such committee of the Enzon Board was formed pursuant to the Enzon Bylaws. The Enzon Board established the Enzon Special Committee of independent and disinterested directors to, among other things, analyze, evaluate and oversee a potential transaction with Viskase and any available alternatives thereto and/or to reject such a transaction.
The Enzon Special Committee retained, and was advised by, Brownstein, as its outside legal counsel, Potter, as its Delaware legal counsel, A.G.P., as its financial advisor and Eisner, as its tax advisor. The Enzon Special Committee oversaw the performance of due diligence on behalf of Enzon, conducted a review and evaluation of the Enzon Proposals, considered other alternatives to the Merger, including maintaining the status quo, and negotiated with Viskase, IEH and each of their respective Representatives with respect to the Enzon Proposals and other related arrangements.
In a meeting held on June 20, 2025, the Enzon Special Committee unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of, Enzon and its stockholders, without regard to the IEH Parties, and (ii) recommended that the Enzon Board (A) approve the Merger Agreement and the transactions contemplated thereby, including the Reverse Stock Split and (B) recommend that the Enzon stockholders entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal.
On June 20, 2025, upon the unanimous recommendation of the Enzon Special Committee, the Enzon Board unanimously, among other things, (i) determined that the Merger Agreement and the transactions contemplated thereby are fair to, in the best interests of, Enzon and its stockholders, (ii) approved the Merger Agreement and the transactions contemplated thereby, including the Reverse Stock Split and (iii) recommended that the holders of Enzon Common Stock entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal.
In a meeting held on October 21, 2025, the Enzon Special Committee unanimously (i) determined that the Merger Agreement, as amended by the Merger Agreement Amendment, and the transactions contemplated thereby are fair to, and in the best interests of, Enzon and its stockholders, without regard to the IEH Parties, and (ii) recommended that the Enzon Board (A) approved the Merger Agreement Amendment and the transactions contemplated thereby, including the Reverse Stock Split and (B) recommend that the Enzon stockholders entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal.
On October 21, 2025, upon the unanimous recommendation of the Enzon Special Committee, the Enzon Board unanimously, among other things, (i) determined that the Merger Agreement, as amended by the Merger Agreement Amendment and the transactions contemplated thereby are fair to, in the best interests of, Enzon and its stockholders, (ii) approved the Merger Agreement Amendment and the transactions contemplated thereby, including the Reverse Stock Split and (iii) recommended that the holders of Enzon Common Stock entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal.
In evaluating the Merger Agreement and transactions contemplated thereby, including the Merger, the Enzon Special Committee, as described above in the section titled “Background of the Merger” in this prospectus/consent solicitation statement, held a number of meetings and consulted with Enzon’s senior management and its advisors, A.G.P., Brownstein and Potter. In making the decision to recommend that the Enzon stockholders vote to adopt the Merger Agreement and approve the Merger, the Enzon Board considered the Enzon Special Committee’s evaluation, analysis and unanimous recommendation, and the fact that the Enzon Special Committee consists of two (2) independent and disinterested directors of Enzon who are not affiliated with the IEH Parties, are not employees of Enzon or any of its Affiliates and have no financial interest in the Merger different from, or in addition to, the interests of Viskase’s unaffiliated stockholders, other than their interests described under the section titled “Interests of Executive Officers and Directors in the Merger — Interests of Enzon’s Executive Officers and Directors in the Merger” in this prospectus/consent solicitation statement. In addition, in making the decisions to recommend that the Enzon stockholders vote to adopt the Merger Agreement and approve the merger, the Enzon Board also consulted with Enzon’s senior management and its advisors, Thompson Hine and Ashby.
In reaching their determinations and recommendations, the Enzon Special Committee and the Enzon Board considered a broad range of factors as being generally positive or favorable, including, but not limited to, the following (and not listed in order of relative importance):
Financial Terms
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the percentage of Enzon that would be owned by the holders of Enzon Common Stock, other than the IEH Parties, in the aggregate following the Merger, including the increased percentage of Enzon that would be owned by the holders of Enzon Common Stock following the change to the Exchange Ratio in connection with the Merger Agreement Amendment;
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the opportunity for holders of Enzon Common Stock to own shares in an operating business having Viskase’s current and historical business, financial condition, results of operations, competitive position, strategic options and future prospects;
The Enzon Special Committee
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the Enzon Special Committee’s belief that the Merger presents the best opportunity available to maximize value for holders of Enzon Common Stock, which belief is based on consideration of alternative transaction structures (including maintaining the status quo);
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the value achieved through arm’s-length negotiations, including:
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the Exchange Ratio and the Merger Consideration;
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the IEH Support Agreement, pursuant to which the IEH Parties agreed to, among other things and subject to certain exceptions, (i) deliver written consents approving the Merger Proposal, (ii) deliver written consents with respect to all of the issued and outstanding shares of Enzon Common Stock held by the IEH Parties approving the Reverse Stock Split Proposal and (iii) immediately prior to the Closing, effectuate the conversion of each issued and outstanding share of Enzon Series C Preferred Stock into shares of Enzon Common Stock based upon the Enzon 20-day VWAP;
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the following procedural safeguards involved in the negotiation of the Merger Agreement:
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the Enzon Special Committee consisted solely of independent directors who are not officers, employees or controlling stockholders of IEH or its Affiliates;
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the Enzon Special Committee was delegated exclusive authority to, among other things, (i) analyze, evaluate and oversee any Enzon Alternative Transactions, (ii) establish, approve, modify, monitor and direct the process and procedures related to the review and evaluation of any Enzon Alternative Transaction, including, but not limited to, the authority to determine not to proceed with any such process, procedures, review, or evaluation, or to recommend any of the foregoing to the full Enzon Board, (iii) reject any Enzon Alternative Transaction, (iv) determine whether any Enzon Alternative Transaction is fair to, and in the best interests of, Enzon and its stockholders, (v) recommend to the Enzon Board what action, if any, should be taken by the Enzon Board with respect to any Enzon Alternative Transaction, (vi) take such other action related to or arising in connection with a potential transaction with Viskase or any Enzon Alternative Transaction as the Enzon Special Committee deemed necessary, appropriate or advisable, (vii) retain legal, investment banking, accounting or other advisors, experts, and services, including the engagement of an independent law firm and a third-party financial advisor, to advise and report to the Enzon Special Committee, to analyze and assist the Enzon Special Committee in responding to any proposals received with respect to any Enzon Alternative Transaction, and to pay the fees of such advisors, experts and vendors, (viii) to consult with management and direct the officers of Enzon to assist the Special Committee in fulling its activities relating to any Enzon Alternative Transaction and (ix) take any other action in furtherance of the Enzon Special Committee’s consideration of any Enzon Alternative Transaction which the Enzon Special Committee determines in its sole discretion to be advisable and consider such other matters as may be requested by the Enzon Board from time to time;
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the compensation of the members of the Enzon Special Committee was in no way contingent on approval of any transaction;
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the Enzon Special Committee was charged with evaluating and negotiating the terms and conditions of the proposed Merger on behalf of Enzon, the Enzon Board and the holders of Enzon Common Stock and empowered to negotiate or decline to pursue a transaction;
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the terms of the Merger were determined through arm’s-length negotiations between the Enzon Special Committee and the Viskase Special Committee, with the assistance of their respective advisors;
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the Enzon Special Committee was advised by experienced and qualified advisors, consisting of legal counsel, Brownstein and Potter, financial advisor, A.G.P. and tax advisor, Eisner.
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the frequency and extent of the Enzon Special Committee’s deliberation and its access to Enzon’s management and advisors in connection with the evaluation of the potential transaction with Viskase.
Low Likelihood of Alternative Transactions
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the IEH Parties own, in the aggregate, approximately [48.6]% of the issued and outstanding shares of Enzon Common Stock and communicated to the Enzon Special Committee that the IEH Parties, in their capacity as holders of Enzon Common Stock, are interested only in effectuating the Merger and the transactions contemplated thereby and that in such capacity, the IEH Parties have no interest in any alternative sale, merger or similar transaction involving Enzon, which could discourage the making of a competing proposal;
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the absence of other strategic alternatives available to Enzon prior to the execution of the Merger Agreement that would provide comparable or superior value to the holders of Enzon Common Stock;
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Since June 20, 2025, Enzon has not received any Enzon Superior Proposals and neither Enzon nor its Representatives is engaged in discussions with any third party regarding an Enzon Superior Proposal.
Opinion of the Enzon Special Committee’s Financial Advisor
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the Enzon Special Committee was advised by A.G.P. as financial advisor, a nationally recognized firm selected by the Enzon Special Committee, and that, based on disclosures made to the Enzon Special Committee, the Enzon Special Committee concluded that A.G.P. was free of material conflicts and could provide independent advice in connection with the potential transaction;
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the opinion of A.G.P., dated October 21, 2025, to the Enzon Special Committee as to the fairness, from a financial point of view, to Enzon of the Exchange Ratio in the Merger pursuant to the Merger Agreement (please see the section titled “Opinion of the Enzon Special Committee’s Financial Advisor” in this prospectus/consent solicitation statement for further information regarding the opinion).
Timing and Certainty
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the timing of the Merger and the risk that a similar or better opportunity may not arise in the future;
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the Enzon Special Committee’s belief that the Merger has a high likelihood of being completed in a timely manner based on, among other things, (i) the limited number and nature of the conditions to the Merger and (ii) Enzon’s ability, pursuant to the Merger Agreement, to pursue remedies that include specific performance and equitable relief to prevent breaches of the Merger Agreement by Viskase and to specifically enforce the terms of the Merger Agreement;
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Viskase committed to provide the Viskase Stockholder Approval, to adopt the Merger Agreement and approve the Merger by written consent in connection with the execution of the Merger Agreement and the IEH Parties committed to approve the Merger by written consent in connection with the execution of the Merger Agreement;
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the terms of the Merger Agreement, principally:
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the provisions allowing the Enzon Special Committee and the Enzon Board (acting on the recommendation of the Enzon Special Committee) to (i) make an Enzon Adverse Recommendation Change in response to an Enzon Intervening Event, if the Enzon Board (acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee determines in good faith, after consultation with outside legal counsel, that failure to do so would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable law or (ii) make an Enzon Adverse Recommendation Change or effect an Enzon Superior Proposal Termination in response to an Enzon Superior Proposal, if the Enzon Board (acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee determines in good faith, after consultation with its financial advisor and outside legal counsel, that such proposal constitutes an Enzon Superior Proposal;
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the agreement that Jordan Bleznick and Randolph C. Read, two of the current directors of Enzon, will each remain as a director of Enzon following the Merger;
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the operating covenants which Viskase is subject to in the Merger Agreement provide protection to Enzon stockholders by restricting Viskase’s ability to take certain actions prior to the Closing that could reduce the value of the Combined Company following the Merger (please see the section titled “Covenants of the Parties — Conduct of Business Pending the Merger” in this prospectus/consent solicitation statement for further information regarding such restrictions);
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the provisions allowing Enzon, under certain circumstances provided in the Merger Agreement, to terminate the Merger Agreement in order to enter into a superior proposal from a third party (other than the IEH Parties) and upon payment of the termination fee equal to $1,000,000; and
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the termination fee of $1,000,000 that could become payable by Enzon pursuant to the Merger Agreement in the event the Merger Agreement is terminated under certain circumstances described in the Merger Agreement, which is reasonable and would not likely deter third parties from making alternative acquisition proposals that would be more favorable to holders of Enzon Common Stock than the Merger.
Risks and Potentially Negative Factors
In reaching their determinations and recommendations, the Enzon Special Committee and the Enzon Board considered additional factors as being potentially negative, including but not limited to, the following (and not listed in order of relative importance):
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there are certain potential negative consequences that may affect holders of Enzon Common Stock, including the following:
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the ownership dilution to current holders of Enzon Common Stock as a result of the issuance of Enzon Common Stock to holders of Viskase Common Stock as a Merger Consideration, which may reduce the influence that current holders of Enzon Common Stock have on the management of the Combined Company;
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control of Enzon following the Merger will be exercised by directors appointed by holders of Viskase Common Stock;
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following the Merger, the IEH Parties will hold a significant majority of the Enzon Common Stock and the IEH Parties will have the ability to exercise voting control over the Combined Company.
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the absence of certain procedural safeguards, including:
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holders of Enzon Common Stock are not entitled to appraisal rights under the Merger Agreement or the DGCL;
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certain directors of Enzon have interests in the Merger that are different than, or in addition to, the interests of the holders of Enzon Common Stock;
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certain terms of the Merger Agreement, principally:
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the provisions limiting the ability of Enzon to solicit, or to consider, unsolicited offers from third parties;
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certain potential break-up fees payable by Enzon, including in connection with termination of the Merger Agreement as a result of a superior transaction proposal;
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the closing condition relating to the limitation of not more than three percent (3%) of holders of Viskase Common Stock from exercising their dissenters’ rights pursuant to Section 262 of the DGCL;
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the closing condition relating to Enzon’s satisfaction of the Minimum Cash Condition at Closing;
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with respect to each of Enzon and Merger Sub (each, a “Waiving Party”), waive, consent to and release (a) any inaccuracy in, breach of or failure to comply with any representation, warranty,
covenant or agreement of Viskase in the Merger Agreement, to the extent known to such Waiving Party as of the date of the Merger Agreement Amendment (each, a “Viskase Breach”) and (b) any fact, event, circumstance or condition giving rise to a Viskase Breach, in each case to the extent known to such Waiving Party as of the date of the Merger Agreement Amendment and occurring or existing on or prior to such date;
•
if Enzon, Merger Sub or any of their respective Representatives knew of the material facts of a matter prior to the date of the Merger Agreement Amendment, then no effect, change, event or occurrence arising out of, or resulting from, such facts will constitute a Viskase Material Adverse Effect for all purposes under the Merger Agreement; provided that, for the avoidance of doubt, a Viskase Material Adverse Effect may result from facts that Enzon, Merger Sub or any of their respective Representatives become aware of after the date of the Merger Agreement Amendment;
•
litigation may occur in connection with the Merger and any such litigation may result in significant costs and/or an adverse judgment granting permanent injunctive relief could indefinitely enjoin consummation of the Merger;
•
the costs incurred to date and to be incurred in connection with the Merger and the other transactions contemplated thereby, including the fees and expenses associated with completing such transactions;
•
the Merger might not be completed in a timely manner, or the Merger might not be consummated at all as a result of a failure to satisfy the conditions contained in the Merger Agreement, including, but not limited to, a failure to obtain required stockholder approvals, and a failure to complete the Merger could negatively affect the trading price of Enzon Common Stock or could result in significant costs and disruption to Enzon;
•
the Merger may not be completed within the expected timeline;
•
although it is intended that the Merger should not result in an ownership change under Section 382 of the Code, if such an ownership change is found to have occurred, it would significantly limit the Combined Company’s ability to use Enzon’s NOL carryforwards, certain credits and other tax attributes that the Combined Company would be permitted to use to offset taxable income in a single year; however, due to the existence of a valuation allowance for deferred tax assets, it is not expected that such limitation under Section 382 of the Code, if any, should have an impact on the Combined Company’s financial statements and effective tax rate;
•
if the Merger is completed, the IEH Parties, in the aggregate, will be controlling stockholders of the Combined Company, which may have the effect of making it more difficult for third parties to acquire, or discouraging a third party from seeking to acquire, the Combined Company and that a third party would be required to negotiate any such transaction with the IEH Parties, and the interests of the IEH Parties may be different from the interests of other current Enzon stockholders; and
•
substantial time and effort of Viskase’s management will be required to complete the Merger, which may disrupt Viskase’s business operations and divert management’s attention away from Viskase’s day-to-day business, which may impact the Combined Company following the Merger.
The foregoing discussion is not intended to be exhaustive, but it is intended to address the material information and principal factors considered by the Enzon Special Committee and the Enzon Board in considering the Merger. In view of the number and variety of factors and the amount of information considered, the Enzon Special Committee and the Enzon Board did not find it practicable to, and did not make specific assessments of, quantify, rank or otherwise assign relative weights to, the specific factors considered in reaching their determinations. In addition, the Enzon Special Committee and the Enzon Board did not undertake to make any specific determination as to whether any particular factor, or any aspect of any particular factor, was favorable or unfavorable to their ultimate determinations. Individual members of the Enzon Special Committee and the Enzon Board may have given different weight to different factors. The Enzon Special Committee and the Enzon Board made their recommendations based on the totality of information presented to, and the investigation conducted by, the Enzon Special Committee and the Enzon Board. It should be noted that certain statements and other information presented in this section are forward-looking in nature and, therefore, should be read in light of the factors discussed under the section
titled “Cautionary Statement Regarding Forward-Looking Statements” in this prospectus/consent solicitation statement. Many factors were considered by the Enzon Special Committee and the Enzon Board, and the factors outlined herein may or may not have been considered by any particular directors. Notwithstanding whether any of these were considered by any individual board member, the Enzon Board voted unanimously to approve and enter into the Merger Agreement and the transactions contemplated thereby.
Upon the unanimous recommendation of the Enzon Special Committee, the Enzon Board unanimously, among other things, (i) determined that the Merger Agreement, as amended by the Merger Agreement Amendment, and the transactions contemplated thereby are fair to, and in the best interests of, Enzon and its stockholders, (ii) approved the Merger Agreement and the transactions contemplated thereby, including the Reverse Stock Split, and (iii) recommended that the holders of Enzon Common Stock entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal.
Viskase’s Reasons for the Merger; Recommendation of the Viskase Special Committee and the Viskase Board
All disclosures in this section are based solely on information provided by Viskase. Enzon has relied on Viskase to provide such information and has not independently verified the information in this section provided by Viskase. Enzon has also relied on Viskase’s representations and warranties related to such information in the Merger Agreement.
As described above under the section titled “Background of the Merger” in this prospectus/consent solicitation statement, the Viskase Board formed the Viskase Special Committee, consisting of independent and disinterested directors — Stephen Maurer, Kenneth Shea and Peter Shea — pursuant to the Viskase Bylaws. The resolutions passed by the Viskase Board forming the Viskase Special Committee delegated exclusive authority to, among other things, (i) review and evaluate the terms and conditions and determine the advisability of a potential transaction with Enzon, (ii) consider whether there were alternatives to a potential transaction with Enzon that would be in the best interests of Viskase and its stockholders (each, a “Viskase Alternative Transaction”), (iii) review and evaluate the terms and conditions and determine the advisability of one (1) or more Viskase Alternative Transactions, (iv) if the Viskase Special Committee deemed it appropriate or advisable, negotiate the price, structure, form, terms and conditions of a potential transaction with Enzon or any Viskase Alternative Transaction, as well as any definitive agreements in connection therewith, (v) after obtaining appropriate knowledge of the material facts, determine whether any such transaction was fair and reasonable to, advisable and in the best interests of, Viskase and its stockholders (including the applicable IEH Parties, as well as any other interested stockholders, but solely in their capacities as stockholders), (vi) if the Viskase Special Committee deemed it appropriate or advisable, recommending to the entire Viskase Board what action, if any, should be taken by Viskase with respect to a potential transaction with Enzon or any Viskase Alternative Transaction, (vii) take such other action related to or arising in connection with a potential transaction with Enzon or any Viskase Alternative Transaction as the Viskase Special Committee deemed necessary, appropriate or advisable, and (viii) provide reports and/or recommendations to the Viskase Board in regard to such matters at such times as the Viskase Special Committee deemed appropriate and consistent with its activities. The Viskase Board further resolved not to approve or submit for the approval of Viskase stockholders any potential transaction between Viskase and Enzon or other third parties without having received the prior favorable recommendation of the Viskase Special Committee. The Viskase Board subsequently appointed Mr. P. Shea as the Viskase Special Committee’s Chairman.
The Viskase Special Committee retained, and was advised by, Troutman, as its outside legal counsel and Alvarez & Marsal, as its financial advisor. The Viskase Special Committee oversaw the performance of financial and legal due diligence by its advisors, conducted a review and evaluation of the Reverse Stock Split Proposal and the Merger Proposal, considered other alternatives to the Merger, including maintaining the status quo and negotiated with Enzon, IEH and each of their respective Representatives with respect to the Enzon Proposals and other related arrangements.
At a meeting of the Viskase Special Committee held on June 19, 2025, the Viskase Special Committee unanimously adopted resolutions (i) determining that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of Viskase and Viskase’s stockholders other than IEH and its Affiliates, and declared it advisable that Viskase enter into the Merger Agreement and consummate the transactions contemplated thereby and (ii) recommending that the Viskase Board (A) adopt resolutions
approving and declaring the advisability of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Merger, (B) adopt resolutions recommending that the stockholders of Viskase entitled to vote adopt the Merger Agreement and (C) direct that the Merger Agreement and the transactions contemplated thereby be submitted to the stockholders of Viskase entitled to vote for adoption.
In lieu of a meeting, following the meeting of the Viskase Special Committee, and upon the unanimous recommendation of the Viskase Special Committee, the Viskase Board unanimously adopted resolutions via written consent on June 19, 2025, (i) determining that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of, Viskase and Viskase’s stockholders, and declared it advisable that Viskase enter into the Merger Agreement and consummate the transactions contemplated thereby, (ii) approving and declaring the advisability of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Merger, (iii) recommending that the stockholders of Viskase entitled to vote adopt the Merger Agreement and (iv) directing that the Merger Agreement and the transactions contemplated thereby be submitted to the stockholders of Viskase entitled to vote for adoption.
At a meeting of the Viskase Special Committee held on October 22, 2025, the Viskase Special Committee adopted resolutions (i) determining that the Merger Agreement Amendment and the transactions contemplated thereby are fair to, and in the best interests of Viskase and its stockholders, other than the IEH Parties and (ii) declaring it advisable that Viskase enter into the Merger Agreement Amendment and consummate the transactions contemplated thereby.
At a meeting of the Viskase Board held on October 23, 2025, and upon the recommendation of the Viskase Special Committee, the Viskase Board adopted resolutions (i) approving and declaring the advisability of the Merger Agreement Amendment and the consummation of the transactions contemplated thereby, including the Merger, (ii) adopted resolutions recommending that the stockholders of Viskase entitled to vote adopt the Merger Agreement, as amended by the Merger Agreement Amendment, and (iii) directed that the Merger Agreement, as amended by the Merger Agreement Amendment, and the transactions contemplated thereby be submitted to the stockholders of Viskase entitled to vote for adoption.
In evaluating the Merger Agreement and transactions contemplated thereby, including the Merger, the Viskase Special Committee, as described above in the section titled “Background of the Merger” in this prospectus/consent solicitation statement, held a number of meetings, consulted with Viskase’s senior management and its advisors, Alvarez & Marsal and Troutman. In making the decision to recommend that the Viskase stockholders vote to adopt the Merger Agreement and approve the Merger, the Viskase Board considered the Viskase Special Committee’s evaluation, analysis and unanimous recommendation, and the fact that the Viskase Special Committee consists of three (3) independent and disinterested directors of Viskase who are not affiliated with the IEH Parties, are not employees of Viskase or any of its Affiliates and have no financial interest in the Merger different from, or in addition to, the interests of Viskase’s unaffiliated stockholders, other than their interests described under the section titled “Interests of Executive Officers and Directors in the Merger — Interests of Viskase’s Executive Officers and Directors in the Merger” in this prospectus/consent solicitation statement.
In reaching their determinations and recommendations, the Viskase Special Committee and the Viskase Board considered a broad range of factors as being generally positive or favorable, including but not limited to, the following (and not listed in order of relative importance):
Financial Terms
•
the Exchange Ratio and the Merger Consideration;
•
after discussions with Viskase’s management and the financial advisor to the Viskase Special Committee, Alvarez & Marsal, and extensive communications with Enzon, the Viskase Special Committee concluded that the Exchange Ratio reflected the most favorable exchange ratio that Enzon would be willing to agree to in light of the deterioration in Viskase’s financial condition, Viskase management’s “going concern” assessment and issues regarding Viskase’s debt burden, low liquidity and challenges in refinancing;
•
as a result of the all-stock merger consideration upon completion of the Merger and the transactions contemplated by the Merger Agreement, Viskase stockholders will own 55% of the Combined Company’s Common Stock, which will provide Viskase stockholders with an opportunity to benefit, proportionate to their ownership interests of the Combined Company, from the potential long-term value creation of the Combined Company;
•
the Merger will provide Viskase stockholders with greater liquidity, as the Combined Company’s stock will be quoted on the “OTCQB” tier of the OTC;
•
holders of Viskase Common Stock are entitled to appraisal rights in connection with the Merger under the DGCL, which allow such holders to seek appraisal of the fair value of their shares of Viskase Common Stock as determined by the Court;
•
the shares of Viskase Common Stock issued to Viskase stockholders will be registered on the registration statement on Form S-4 of which this prospectus/consent solicitation statement is a part and will become freely tradable for Viskase stockholders who are not Affiliates of Viskase; and
•
the expectation that the Enzon Common Stock to be received by Viskase stockholders as the Merger Consideration to be received will be tax-free to Viskase stockholders for U.S. federal income tax purposes (please read the section titled “Material United States Federal Income Tax Consequences” in this prospectus/consent solicitation statement for further information regarding tax consequences).
Viskase’s Prospects
•
Viskase’s current and historical business, financial condition, results of operations, competitive position, strategic options and capital requirements and prospects; and
•
the inherent uncertainty of achieving, due to the scale, available capital and other factors that would be required in order to attain, management’s internal financial projections, including those set forth in the section titled “— Unaudited Pro Forma Condensed Combined Financial Statements” in this prospectus/consent solicitation statement and the fact that Viskase’s actual financial results in future periods could differ materially and adversely from the projected results.
Opinion of the Viskase Special Committee’s Financial Advisor
•
the Viskase Special Committee was advised by Alvarez & Marsal as financial advisor, a nationally recognized firm selected by the Viskase Special Committee, and that, based on disclosures made to the Viskase Special Committee, the Viskase Special Committee concluded that Alvarez & Marsal was free of material conflicts and could provide independent advice in connection with the potential transaction; and
•
the financial analyses reviewed by Alvarez & Marsal with the Viskase Special Committee as well as the oral opinion of Alvarez & Marsal rendered to the Viskase Special Committee on October 22, 2025 (which was confirmed by delivery of Alvarez & Marsal’s written opinion, dated October 22, 2025, to the Viskase Special Committee) as to, as of such date, the fairness, from a financial point of view, to the holders of Viskase Common Stock, other than the IEH Parties, of the Exchange Ratio provided for in the Merger, after giving effect to the IEH Share Exchange, the Series C Exchange Offer and Reverse Stock Split, pursuant to the Merger Agreement (please see the section titled “— Opinion of the Viskase Special Committee’s Financial Advisor” in this prospectus/consent solicitation statement for further information regarding Alvarez & Marsal’s opinion).
The Viskase Special Committee
•
The procedural safeguards and processes implemented to enable the Viskase Special Committee to determine the fairness of the Merger for all of Viskase’s stockholders (other than the IEH Parties), including that:
•
the Viskase Special Committee consists of three (3) independent and disinterested directors of Viskase who are not affiliated with the IEH Parties, are not employees of Viskase or any of its Affiliates and have no financial interest in the Merger different from, or in addition to, the interests of Viskase’s unaffiliated stockholders;
•
the Viskase Board resolved not to approve any potential transaction between Viskase and Enzon without the prior favorable recommendation of the Viskase Special Committee;
•
the Viskase Special Committee was delegated exclusive authority to, among other things, (i) review and evaluate the terms and conditions and determine the advisability of a potential transaction with Enzon, (ii) consider whether there were any Viskase Alternative Transactions, (iii) review and evaluate the terms and conditions and determine the advisability of one (1) or more Viskase Alternative Transactions, (iv) if the Viskase Special Committee deemed it appropriate or advisable, negotiate the price, structure, form, terms and conditions of a potential transaction with Enzon or any Viskase Alternative Transaction, as well as any definitive agreements in connection therewith, (v) after obtaining appropriate knowledge of the material facts, determine whether any such transaction was fair and reasonable to, and in the best interests of, Viskase and its stockholders (including IEH, as well as any other interested stockholders, but solely in their capacities as stockholders), (vi) if the Viskase Special Committee deemed it appropriate or advisable, recommend to the entire Viskase Board what action, if any, should be taken by Viskase with respect to a potential transaction with Enzon or any Viskase Alternative Transaction, (vii) take such other action related to or arising in connection with a potential transaction with Enzon or any Viskase Alternative Transaction as the Viskase Special Committee deemed necessary, appropriate or advisable and (viii) provide reports and/or recommendations to the Viskase Board in regard to such matters at such times as the Viskase Special Committee deem appropriate and consistent with its activities;
•
the terms and conditions of the Merger Agreement were determined through arm’s-length negotiations conducted at the direction of the Viskase Special Committee and the Enzon Special Committee and their respective Representatives and legal advisors;
•
the compensation of the members of the Viskase Special Committee was in no way contingent on approval of any transaction;
•
the Viskase Special Committee made its evaluation of the Merger Agreement and the Merger based upon the factors discussed in this prospectus/consent solicitation statement and with the full knowledge of the interests of the IEH Parties in the Merger;
•
the Viskase Special Committee was advised by experienced and qualified advisors, consisting of legal counsel, Troutman, and financial advisor, Alvarez & Marsal; and
•
the frequency and extent of the Viskase Special Committee’s deliberation and its access to Viskase’s management and advisors in connection with the evaluation of the potential transaction with Enzon.
Timing and Certainty of Value
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the consideration by the Viskase Special Committee of the timing of the transactions contemplated by the Merger Agreement, including the Merger, and the risk that if Viskase did not accept the terms reflected in the Merger Agreement, at the time that it did, the Viskase Special Committee might not have had another opportunity to do so;
•
the Viskase Special Committee’s belief that no alternatives to the Merger were reasonably likely to create greater value for Viskase stockholders, after reviewing the various financing and other strategic options to enhance stockholder value that were considered by the Viskase Special Committee and the likelihood of achieving any alternative transaction compared to the likelihood of completing the Merger;
•
American Entertainment Properties Corp., an Affiliate of IEH, owns approximately 91.76% of the issued and outstanding shares of Viskase Common Stock, and communicated to the Viskase Special Committee that American Entertainment Properties Corp., in its capacity as a holder of Viskase Common Stock is interested only in effectuating the Merger and the transactions contemplated thereby and that in such capacity, American Entertainment Properties Corp. has no interest in any alternative sale, merger or similar transaction involving Viskase, which could discourage the making of a competing proposal;
•
Viskase committed to provide the Viskase Stockholder Approval, to adopt the Merger Agreement and approve the Merger by written consent in connection with the execution of the Merger Agreement;
•
the IEH Parties, who, as of the date of the Merger Agreement, directly or indirectly controlled approximately 36,056,636 shares of Enzon Common Stock, or approximately 48.6%, executed the IEH Support Agreement, pursuant to which the IEH Parties agreed to, among other things, and subject to certain exceptions, deliver written consents to all of the issued and outstanding shares of Enzon Common Stock held by the IEH Parties approving the Enzon Proposals as more fully described in the section titled “IEH Support Agreement” in this prospectus/consent solicitation statement;
•
the limited conditions to Viskase’s and Enzon’s respective obligations to complete the Merger; and
•
the conditions to the completion of the transactions contemplated thereby, including the Merger, are not generally within the sole control or discretion of Enzon.
Merger Agreement Terms
•
the financial and other terms and conditions of the Merger Agreement, including the representations, warranties and covenants therein, and the transactions contemplated thereby, including the Merger, resulted from extensive arm’s-length negotiations conducted at the direction of the Viskase Special Committee, with the assistance of experienced outside legal and advisors;
•
the closing condition relating to Enzon’s satisfaction of the Minimum Cash Condition at Closing would cause the Combined Company to have a minimum amount of capital resources to fund the Combined Company;
•
the Viskase Special Committee’s belief that the Merger has a high likelihood of being completed in a timely manner based on, among other things, (i) the limited number and nature of the conditions to the Merger and (ii) Viskase’s ability, pursuant to the Merger Agreement, to pursue remedies that include specific performance and equitable relief to prevent breaches of the Merger Agreement by Enzon and to specifically enforce the terms of the Merger Agreement;
•
the operating covenants to which Enzon is subject in the Merger Agreement provide protection to Viskase stockholders by restricting Enzon’s ability to take certain actions prior to the Closing could reduce the value of the Combined Company following the Merger (please see the section titled “Covenants of the Parties — Conduct of Business Pending the Merger” in this prospectus/consent solicitation statement for further information regarding such restrictions);
•
the Viskase Board’s right under the Merger Agreement to select the officers and directors of the Combined Company; provided that the board of directors of the Combined Company will consist of two current Enzon directors, Jordan Bleznick and Randolph C. Read, together with [•]; and
•
Viskase may terminate the Merger Agreement in the event of an Enzon Adverse Recommendation Change.
Risks and Potentially Negative Factors
In reaching their determinations and recommendations, the Viskase Special Committee and the Viskase Board considered additional factors as being potentially negative, including but not limited to, the following (and not listed in order of relative importance):
•
the interests of the IEH Parties with respect to the transactions contemplated by the Merger Agreement, including the Merger, may be in addition to, or may be different from, the interests of the Viskase stockholders unaffiliated with the IEH Parties, including the financial benefits that the IEH Parties are likely to derive from the transactions contemplated by the Merger Agreement, including the Merger;
•
The terms of the Merger Agreement, including:
•
the operational restrictions imposed on Viskase between the date of the Merger Agreement and the Closing Date (which may delay or prevent Viskase from undertaking business opportunities
that may arise pending the completion of the Merger or any other actions Viskase otherwise would have taken with respect to the operations of Viskase absent the pending completion of the Merger);
•
the restrictions imposed by the Merger Agreement on Viskase’s solicitation of acquisition proposals from third parties, and that prospective acquirors may perceive Enzon’s right under the Merger Agreement to negotiate with Viskase to match the terms of any superior proposal prior to Viskase being able to terminate the Merger Agreement and accept a superior proposal to be a deterrent to making alternative proposals;
•
the closing condition limiting dissenting Viskase stockholders to no more than three percent (3%);
•
litigation may occur in connection with the Merger and any such litigation may result in significant costs and/or an adverse judgment granting permanent injunctive relief could indefinitely enjoin consummation of the Merger;
•
the risk that the transactions contemplated by the Merger Agreement, including the Merger, may not be completed, and the consequences thereof, including (i) the potential loss of value to Viskase’s stockholders, (ii) the potential negative impact on the operations and prospects of Viskase, including the risk of loss of key personnel, and (iii) the market’s perception of Viskase’s prospects, which could be adversely affected if such transactions contemplated by the Merger Agreement, including the Merger, were delayed or were not completed;
•
the possible effects of the pendency or completion of the transactions contemplated by the Merger Agreement, including the risk of any loss or change in the relationship of Viskase and its subsidiaries with their respective employees, agents, customers and other business relationships, and any possible effect on Viskase’s ability to attract and retain key employees, including that certain key members of Viskase’s senior management have chosen and others might choose not to remain employed with Viskase prior to the completion of the transactions contemplated by the Merger Agreement and the Merger;
•
the completion of the Merger will require the satisfaction of certain other closing conditions, including Enzon’s consummation of the Series C Exchange Offer and Enzon obtaining the Enzon Stockholder Approval;
•
if the Merger is completed, the IEH Parties, in the aggregate, will be controlling stockholders of the Combined Company, which may have the effect of making it more difficult for third parties to acquire, or discouraging a third party from seeking to acquire, the Combined Company, and that a third party would be required to negotiate any such transaction with the IEH Parties, and the interests of the IEH Parties may be different from the interests of other current Viskase stockholders;
•
Viskase’s directors, officers and employees have expended and will expend extensive efforts attempting to complete the transactions completed by the Merger Agreement, including the Merger, and such Persons have experienced and will experience significant distractions from their work during the pendency of such transactions contemplated by the Merger Agreement, including the Merger, which may disrupt Viskase’s business operations; and
•
Viskase has incurred substantial expenses and will generally be required, if the transactions contemplated by the Merger Agreement, including the Merger, are not completed, to pay its own expenses associated with the Merger Agreement and the transactions contemplated thereby, including the Merger, subject to certain limited exceptions.
The foregoing discussion is not intended to be exhaustive, but it is intended to address the material information and principal factors considered by the Viskase Special Committee and the Viskase Board in considering the Merger. In view of the number and variety of factors and the amount of information considered, the Viskase Special Committee and the Viskase Board did not find it practical to, and did not make specific assessments of, quantify, rank or otherwise assign relative weights to the specific factors considered in reaching their determinations. In addition, the Viskase Special Committee and the Viskase Board did not undertake to make any specific determination as to whether any particular factor, or any aspect of any particular factor, was favorable or unfavorable to their ultimate determinations. Individual members of the Viskase Special Committee may have given different weight to different factors. The Viskase Special
Committee and the Viskase Board made their recommendations based on the totality of information presented to, and the investigation conducted by, the Viskase Special Committee and the Viskase Board.
It should be noted that certain statements and other information presented in this section are forward-looking in nature and, therefore, should be read in light of the factors described in the section titled “Cautionary Statement Regarding Forward-Looking Statements” in this prospectus/consent solicitation statement. Many factors were considered by the Viskase Special Committee and the Viskase Board, and the factors outlined herein may or may not have been considered by any particular directors, member of management or advisor of Viskase. Notwithstanding whether any of these were considered by any individual board member, the Viskase Board voted to approve and enter into the Merger Agreement.
Opinion of the Enzon Special Committee’s Financial Advisor
On October 21, 2025, at a meeting of the Enzon Special Committee held to evaluate the Merger and the related transactions, A.G.P. rendered to the Enzon Special Committee an opinion, dated October 21, 2025, to the effect that, as of that date and based on and subject to the matters described in its opinion, the Exchange Ratio in the Merger pursuant to the Merger Agreement was fair, from a financial point of view, to Enzon.
The full text of A.G.P.’s written opinion, dated October 21, 2025, which describes the assumptions made, procedures followed, matters considered and limitations on the review undertaken, is attached to this consent solicitation statement as Annex C and is incorporated by reference in its entirety. A.G.P.’s opinion was provided for the Enzon Special Committee (in its capacity as such) for its information and assistance in connection with its consideration of the financial terms of the Merger. A.G.P.’s opinion does not constitute a recommendation to the Enzon Special Committee or the Enzon Board as to whether the Enzon Special Committee or the Enzon Board should vote to approve the Merger or to any stockholder of Enzon or Viskase as to how any such stockholder should vote at any stockholders’ meeting at which the Merger is considered, or whether or not any stockholder should enter into a voting, shareholders’, or affiliates’ agreement with respect to the Merger, or exercise any dissenters’ or appraisal rights that may be available to such stockholder. A.G.P.’s opinion does not compare the relative merits of the Merger with any other alternative transactions or business strategies which may have been available to Enzon and does not address the underlying business decision of the Enzon Special Committee, the Enzon Board or Enzon to proceed with or effect the Merger (including, without limitation, continuing to proceed with the Merger by way of the Merger Agreement Amendment). This summary of A.G.P.’s opinion is qualified in its entirety by reference to the full text of its opinion.
At the direction of Enzon and without independent verification, A.G.P. relied upon and assumed for purposes of its analyses and opinion, that, based on the Exchange Ratio, (a) the number of shares of Enzon Common Stock to be issued by Enzon in the Merger for shares of Viskase Common Stock will be equal to 55% of the total number of shares of Enzon Common Stock issued and outstanding upon consummation of the Merger and (b) the number of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time will be equal to 45% of the total number of shares of Enzon Common Stock issued and outstanding upon consummation of the Merger.
In rendering its opinion, A.G.P. did, among other things, the following:
•
reviewed the original Merger Agreement and a draft dated October 20, 2025 of the Merger Agreement Amendment;
•
reviewed (i) the audited consolidated financial statements of Enzon contained in its Annual Reports on Form 10-K for the years ended December 31, 2023, and December 31, 2024 as well as (ii) unaudited consolidated financial statements of Enzon contained in its Quarterly Reports on Form 10-Q for the quarters ended March 31, 2025 and June 30, 2025;
•
reviewed (i) the audited consolidated financial statements of Viskase for the years ended December 31, 2023, and December 31, 2024 as well as (ii) unaudited consolidated financial statements of Viskase for the quarters ended March 31, 2025 and June 30, 2025;
•
reviewed and discussed with Enzon’s management certain other publicly available information concerning Enzon;
•
reviewed certain non-publicly available information concerning Enzon and Viskase, including internal financial analyses and forecasts for Viskase prepared by its management, and held discussions with Enzon’s and Viskase’s respective senior managements regarding recent developments;
•
reviewed publicly available financial and stock market information of certain public companies that were deemed by A.G.P. to be reasonably comparable to Viskase;
•
reviewed financial terms, to the extent publicly available, of certain transactions that were deemed by A.G.P. to be reasonably comparable to the Merger; and
•
reviewed publicly available stock market information of Enzon and Viskase, including current and historical market prices and trading volumes of publicly traded shares of Enzon Common Stock and Viskase Common Stock.
Enzon did not provide A.G.P. with any internal financial analyses or forecasts for Enzon. Given the de minimis revenue attributable to Enzon’s legacy intellectual property assets in the most recent fiscal periods, Enzon instructed A.G.P. to disregard Enzon’s legacy intellectual property assets for the purposes of evaluating the Exchange Ratio. Accordingly, no meaningful value was ascribed for such purposes to such legacy intellectual property assets. For purposes of evaluating the Exchange Ratio, A.G.P. relied on an implied illustrative pre-Merger value of Enzon based on the closing price of Enzon Common Stock on October 20, 2025, as adjusted for an illustrative merger premium and the aggregate liquidation preference amount for the outstanding shares of Enzon Preferred Stock. Since A.G.P. relied on such implied illustrative pre-Merger value of Enzon for purposes of evaluating the Exchange Ratio, A.G.P. did not perform any financial analyses of Enzon.
In rendering its opinion, A.G.P. relied upon and assumed, without independent verification, the accuracy and completeness of all of the financial and other information that was provided to or discussed with A.G.P. by or on behalf of Enzon or Viskase, or that was otherwise reviewed by A.G.P., and did not assume any responsibility for independently verifying any such information. With respect to the financial forecasts supplied to A.G.P. by Viskase, A.G.P. assumed that they were prepared reasonably and in good faith and were based upon the best currently available estimates and judgments of the management of Viskase as to the matters covered thereby, and A.G.P. relied upon such forecasts in its analysis. As the Enzon Special Committee was aware, in light of Viskase’s deterioration in its financial and operating performance in the first half of 2025 (which accelerated during the second fiscal quarter of 2025), the management of Viskase updated and revised its forecasts significantly downward to reflect lower projected future financial results than those that management had previously projected. A.G.P. was not engaged to assess the reasonableness or achievability of such forecasts or the assumptions upon which they were based, and A.G.P. expressed no views as to such forecasts or the assumptions on which they were based. A.G.P. assumed that the financial and other information that was provided to or discussed with A.G.P. by or on behalf of Enzon or Viskase provided a reasonable basis upon which A.G.P. could form its opinion.
A.G.P. also assumed that there had been no material changes in the assets, liabilities, financial condition, results of operations, business or prospects of either Enzon or Viskase since the date of the last financial statements of each company made available to A.G.P. A.G.P. did not make or obtain any independent evaluation, appraisal or physical inspection of either Enzon’s or Viskase’s assets or liabilities, nor was A.G.P. furnished with any such evaluation or appraisal. Estimates of values of companies and assets did not purport to be appraisals or necessarily reflect the prices at which companies or assets might actually be sold. Such estimates were inherently subject to uncertainty and should not be taken as A.G.P.’s view of the actual value of any companies or assets. A.G.P.’s opinion was not a solvency opinion and did not in any way address the solvency or financial condition of Enzon, Viskase or any other party. As part of its engagement, A.G.P. was not requested by the Enzon Special Committee to solicit and did not solicit the interest of any other parties with respect to the sale of all or any part of Enzon or any other alternative transaction or strategy. A.G.P. expressed no view or opinion as to Viskase’s ability to comply in the future with its covenant and other obligations under its debt agreement(s) or as to the ability of Enzon (if the Merger is consummated) and Viskase to repay or refinance Viskase’s outstanding debt in 2026. A.G.P. expressed no view or opinion as to then recent covenant breaches by Viskase of its debt agreement(s) (which breaches A.G.P. understood were waived) or as to any other developments which resulted in the Merger Agreement Amendment.
A.G.P. assumed, in all respects material to its analysis, that there were no factors that would delay or subject to any adverse conditions any necessary regulatory or governmental approval and that all conditions to the Merger would be satisfied without waiver or modification the effect of which would be in any respect material to A.G.P.’s analysis. In addition, A.G.P. assumed that the definitive Merger Agreement Amendment would not differ from the draft A.G.P. reviewed in any respect material to its analysis. A.G.P. also assumed, in all respects material to its analysis, that the representations and warranties of the parties set forth in the Merger Agreement were and would be true and correct and that the Merger would be consummated substantially on the terms and conditions described in the Merger Agreement, without any waiver of any terms or conditions by Enzon or any other party in any respect material to A.G.P.’s analysis, and that obtaining any necessary regulatory approvals or satisfying any other conditions for consummation of the Merger and related transactions would not have an adverse effect on Enzon, Viskase or the Merger in any respect material to A.G.P.’s analysis. In addition, A.G.P. assumed that any adjustments to the Exchange Ratio pursuant to the Merger Agreement would not be material to its opinion. A.G.P. assumed, in all respects material to its analysis, that the Merger and related transactions would be consummated in a manner that complied with all applicable federal and state statutes, rules and regulations. A.G.P. further assumed that Enzon relied upon the advice of its counsel, independent accountants and other advisors (other than A.G.P.) as to all legal, reporting, tax, accounting and regulatory matters with respect to Enzon, Viskase, the Merger and related transactions and the Merger Agreement Amendment and the Merger Agreement. A.G.P.’s opinion did not constitute legal, regulatory, accounting, insurance, tax or other similar professional advice.
A.G.P.’s opinion was limited to whether the Exchange Ratio in the Merger pursuant to the Merger Agreement was fair, from a financial point of view, to Enzon, and did not address any other terms, aspects or implications of the Merger or any related transaction, including, without limitation, the form or structure of the Merger or any related transaction or the treatment of Enzon Preferred Stock in connection with the IEH Share Exchange or any other related transaction (including the number of shares of Enzon Common Stock into which shares of Enzon Preferred Stock would convert or the price at which shares of Enzon Preferred Stock would be redeemed). A.G.P.’s opinion also did not consider, address or include: (i) any other strategic alternatives which were currently (or which had been or might be) contemplated by the Enzon Special Committee, the Enzon Board or Enzon; (ii) the legal, tax or accounting consequences of the Merger or any related transaction on Enzon (including, without limitation, whether or not the Merger would qualify as a tax-free reorganization pursuant to Section 368 of the Internal Revenue Code); (iii) the fairness of the amount or nature of any compensation to any of Enzon’s officers, directors or employees, or class of such persons, relative to any compensation to the holders of Enzon’s securities or relative to the Exchange Ratio; or (iv) the effect of the Merger or any related transaction on, or the fairness of the consideration to be received by, holders of any class of securities of Enzon, Viskase or any other party to any transaction contemplated by the Merger Agreement. A.G.P. did not express any opinion as to what the actual value of Enzon Common Stock would be when issued in the Merger or any related transaction or the prices at which Enzon Common Stock or Viskase Common Stock would trade at any time.
A.G.P.’s opinion was necessarily based on economic, market, financial and other conditions as they existed on, and on the information made available to A.G.P. by or on behalf of Enzon, Viskase or their respective advisors, or information otherwise reviewed by A.G.P. as of, the date of its opinion. It was understood that subsequent developments might affect the conclusion reached in A.G.P.’s opinion and A.G.P. did not and does not have any obligation to update, revise or reaffirm its opinion. Further, as the Enzon Special Committee was aware, the credit, financial and stock markets have been experiencing unusual volatility and A.G.P. expressed no opinion or view as to any potential effects of such volatility on Enzon, Viskase or the Merger. In addition, A.G.P. expressed no view or opinion as to what the actual number of shares of Enzon Common Stock issued in the Merger and related transactions would be.
Except as described in this summary, Enzon imposed no other instructions or limitations on A.G.P. with respect to the investigations made or the procedures followed by it in rendering its opinion. This summary is not a complete description of A.G.P.’s opinion or the financial analyses performed and factors considered by A.G.P. in connection with its opinion. A.G.P. believes that its analysis must be considered as a whole and that selecting portions of the analysis or the factors considered by it, without considering all factors and analysis together, could create a misleading view of the process underlying its opinion. A.G.P. did not draw, in isolation, conclusions from or with regard to any one factor or method of analysis for
purposes of its opinion. The preparation of an opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. Any attempt to do so could lead to undue emphasis on any one particular factor or analysis and an inaccurate conclusion.
In performing its analyses, A.G.P. considered industry performance, general business, economic, market and financial conditions and other matters existing as of the date of its opinion, many of which are beyond Viskase’s or Enzon’s control. No company, business or transaction used in the analyses is identical to Viskase or the Merger, and an evaluation of the results of those analyses is not entirely mathematical. Rather, the analyses involve complex considerations and judgments concerning financial and operating characteristics and other factors that could affect the acquisition, public trading or other values of the companies, business segments or transactions analyzed.
The assumptions and estimates contained in A.G.P.’s analyses and the ranges of valuations resulting from any particular analysis are not necessarily indicative of actual values or future results, which may be significantly more or less favorable than those suggested by its analyses. In addition, analyses relating to the value of businesses or securities do not purport to be appraisals or to reflect the prices at which businesses or securities actually may be sold or acquired. Accordingly, the assumptions and estimates used in, and the results derived from, A.G.P.’s analyses are inherently subject to substantial uncertainty.
A.G.P. was not requested to, and it did not, recommend the specific consideration payable in the Merger. The type and amount of consideration payable in the Merger was determined through negotiation between Enzon and Viskase and was approved by the Enzon Special Committee and the Enzon Board. The decision of Enzon to enter into the Merger Agreement was solely that of the Enzon Special Committee and the Enzon Board. A.G.P.’s opinion and financial analysis were only one of many factors considered by the Enzon Special Committee in its evaluation of the Merger and should not be viewed as determinative of the views of the Enzon Special Committee, the Enzon Board or Enzon’s management with respect to the Merger or the consideration payable in the Merger.
The following is a summary of the material financial analyses performed by A.G.P. in connection with A.G.P.’s opinion dated October 21, 2025 (using the October 21 projections) and provided to the Enzon Special Committee. The financial analyses summarized below include information presented in tabular format. In order to fully understand A.G.P.’s financial analyses, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the financial analyses. Considering the data in the tables below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of A.G.P.’s financial analyses.
Financial Analysis Overview
For purposes of the “Selected Companies Analysis,” the “Selected Transactions Analysis” and “Discounted Cash Flow Analysis” summarized below, (1) the “Enzon Pro Forma Ownership % at Exchange Ratio” of 45% refers to the percentage of the total number of shares of Enzon Common Stock issued and outstanding upon consummation of the Merger (including shares of Enzon Common Stock issued to former holders of Enzon Preferred Stock) that will be comprised of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time and (2) the “Implied Illustrative Enzon Pre-Merger Value” of approximately $51.57 million refers to the sum of (1) the implied market capitalization of Enzon based on the closing price of Enzon Common Stock on October 20, 2025, as adjusted for an illustrative merger premium of 36% utilized by A.G.P., plus (2) the aggregate liquidation preference amount for the outstanding shares of Enzon Preferred Stock as of September 30, 2025 as provided by the management of Enzon. A.G.P. evaluated the Exchange Ratio by comparing (A) the Enzon Pro Forma Ownership % at Exchange Ratio to (B) reference ranges of implied equity value contribution percentages obtained by dividing (i) the Implied Illustrative Enzon Pre-Merger Value by (ii) the sum of (a) the Implied Illustrative Enzon Pre-Merger Value and (b) the implied total equity value reference ranges for Viskase indicated in the financial analyses of Viskase described below.
Selected Companies Analysis
A.G.P. reviewed publicly available financial and stock market information of the following thirteen (13) selected publicly traded companies:
Amcor plc
AptarGroup, Inc.
Avery Dennison Corporation
Ball Corporation
Crown Holdings, Inc.
Graphic Packaging Holding Co.
Greif, Inc.
International Paper Company
Reynolds Consumer Products Inc.
Sealed Air Corporation
Sonoco Products Company
Viscofan, S.A.
Winpak Ltd.
A.G.P. reviewed, among other things, the enterprise values, calculated as fully-diluted market capitalization based on closing stock prices on October 20, 2025, plus debt and non-controlling interests, less cash, of the selected companies as multiples of their respective latest 12 months (“LTM”), 2024, 2025 and 2026 revenue and earnings before interest, taxes, depreciation and amortization (“EBITDA”). Financial data for the selected companies was based on public filings and publicly available consensus research analyst estimates (2024 financial data was not publicly available for one of the selected companies). Historical financial data of Viskase was provided by the management of Viskase for 2024 and the LTM period ended August 31, 2025, and estimated financial data of Viskase was based on financial forecasts provided by the management of Viskase.
The low, 25th percentile, median, 75th percentile and high of the enterprise value-to-revenue multiples and enterprise value-to-EBITDA multiples of the selected companies are indicated in the table below:
| |
|
|
Enterprise Value-to-Revenue
|
|
|
Enterprise Value-to-EBITDA
|
|
| |
|
|
LTM
|
|
|
2024
|
|
|
2025
|
|
|
2026
|
|
|
LTM
|
|
|
2024
|
|
|
2025
|
|
|
2026
|
|
|
Low
|
|
|
|
|
1.0x |
|
|
|
|
|
1.2x |
|
|
|
|
|
1.2x |
|
|
|
|
|
1.2x |
|
|
|
|
|
6.2x |
|
|
|
|
|
6.0x |
|
|
|
|
|
6.2x |
|
|
|
|
|
5.6x |
|
|
|
25th Percentile
|
|
|
|
|
1.3x |
|
|
|
|
|
1.4x |
|
|
|
|
|
1.3x |
|
|
|
|
|
1.3x |
|
|
|
|
|
7.7x |
|
|
|
|
|
8.4x |
|
|
|
|
|
7.9x |
|
|
|
|
|
7.6x |
|
|
|
Median
|
|
|
|
|
1.6x |
|
|
|
|
|
1.8x |
|
|
|
|
|
1.6x |
|
|
|
|
|
1.4x |
|
|
|
|
|
9.2x |
|
|
|
|
|
10.1x |
|
|
|
|
|
8.8x |
|
|
|
|
|
8.2x |
|
|
|
75th Percentile
|
|
|
|
|
1.8x |
|
|
|
|
|
2.0x |
|
|
|
|
|
1.8x |
|
|
|
|
|
1.7x |
|
|
|
|
|
11.1x |
|
|
|
|
|
11.4x |
|
|
|
|
|
10.2x |
|
|
|
|
|
9.6x |
|
|
|
High
|
|
|
|
|
2.7x |
|
|
|
|
|
2.7x |
|
|
|
|
|
2.6x |
|
|
|
|
|
2.5x |
|
|
|
|
|
16.3x |
|
|
|
|
|
17.3x |
|
|
|
|
|
11.8x |
|
|
|
|
|
11.0x |
|
|
Applying a selected range of five percent (5%) above and below the medians of the above enterprise value-to-revenue multiples and enterprise value-to-EBITDA multiples of the selected companies to the corresponding financial data of Viskase, this analysis indicated the following approximate implied total equity value reference ranges for Viskase:
| |
|
|
Implied Total Equity
Value Reference
Ranges for Viskase
($ in millions)
|
|
|
Based on LTM Revenue
|
|
|
$439.7 to $502.2
|
|
|
Based on 2024 Revenue
|
|
|
$520.6 to $591.5
|
|
|
Based on 2025 Revenue
|
|
|
$431.8 to $493.4
|
|
|
Based on 2026 Revenue
|
|
|
$376.5 to $432.3
|
|
|
Based on LTM EBITDA
|
|
|
$4.2 to $20.9
|
|
|
Based on 2024 EBITDA
|
|
|
$244.9 to $286.8
|
|
| |
|
|
Implied Total Equity
Value Reference
Ranges for Viskase
($ in millions)
|
|
|
Based on 2025 EBITDA
|
|
|
$32.0 to $51.5
|
|
|
Based on 2026 EBITDA
|
|
|
$65.1 to $88.1
|
|
A.G.P. then calculated the following reference ranges of implied equity value contribution percentages obtained by dividing (1) the Implied Illustrative Enzon Pre-Merger Value by (2) the sum of (A) the Implied Illustrative Enzon Pre-Merger Value and (B) the implied total equity value reference ranges for Viskase indicated in the above selected companies analysis, as compared below to the Enzon Pro Forma Ownership % at Exchange Ratio:
| |
|
|
Implied Equity Value
Contribution Percentage
Reference Ranges
|
|
|
Enzon Pro Forma
Ownership % at
Exchange Ratio
|
|
|
Based on LTM Revenue
|
|
|
9.38% to 10.36%
|
|
|
|
|
45% |
|
|
|
Based on 2024 Revenue
|
|
|
8.06% to 8.91%
|
|
|
|
|
45% |
|
|
|
Based on 2025 Revenue
|
|
|
9.63% to 10.53%
|
|
|
|
|
45% |
|
|
|
Based on 2026 Revenue
|
|
|
10.74% to 11.87%
|
|
|
|
|
45% |
|
|
|
Based on LTM EBITDA
|
|
|
76.41% to 84.46%
|
|
|
|
|
45% |
|
|
|
Based on 2024 EBITDA
|
|
|
15.43% to 17.06%
|
|
|
|
|
45% |
|
|
|
Based on 2025 EBITDA
|
|
|
52.51% to 58.04%
|
|
|
|
|
45% |
|
|
|
Based on 2026 EBITDA
|
|
|
38.23% to 42.25%
|
|
|
|
|
45% |
|
|
Selected Transactions Analysis
Using publicly available information, A.G.P. reviewed implied transaction values in the following twelve (12) selected transactions as multiples of the respective acquired company’s LTM revenue and LTM EBITDA at the time of the announcement of the respective transaction:
|
Acquiror:
|
|
|
Acquired Company:
|
|
|
Koito Manufacturing Co., Ltd.
|
|
|
Cepton, Inc.
|
|
|
Lockheed Martin Corp.
|
|
|
Terran Orbital Corp.
|
|
|
Drilling Tools International Corp.
|
|
|
Superior Drilling Products, Inc.
|
|
|
Restaurant Brands International, Inc.
|
|
|
Carrols Restaurant Group, Inc.
|
|
|
Rithm Capital Corp.
|
|
|
Sculptor Capital Management, Inc.
|
|
|
SoftBank Group Corp.
|
|
|
Berkshire Grey, Inc.
|
|
|
Shin Nippon Biomedical Laboratories, Ltd.
|
|
|
Satsuma Pharmaceuticals, Inc.
|
|
|
Murata Electronics North America, Inc.
|
|
|
Resonant, Inc.
|
|
|
B. Riley Financial, Inc.
|
|
|
National Holdings Corp.
|
|
|
Amcor plc
|
|
|
Berry Global Group, Inc.
|
|
|
Sealed Air Corporation
|
|
|
Liqui-Box Corporation
|
|
|
Archrock, Inc.
|
|
|
Archrock Partners LP
|
|
The low, average, median and high of the implied transaction value multiples of the selected transactions are indicated in the table below (excluding the impact of the LTM revenue multiple for three of the selected transactions and LTM EBITDA multiples for six of the selected transactions, which multiples were considered not meaningful):
| |
|
|
Enterprise Value-to-
LTM Revenue
|
|
|
Enterprise Value-to-
LTM EBITDA
|
|
|
Low
|
|
|
|
|
0.1x |
|
|
|
|
|
8.0x |
|
|
| |
|
|
Enterprise Value-to-
LTM Revenue
|
|
|
Enterprise Value-to-
LTM EBITDA
|
|
|
Average
|
|
|
|
|
2.0x |
|
|
|
|
|
10.2x |
|
|
|
Median
|
|
|
|
|
1.7x |
|
|
|
|
|
9.6x |
|
|
|
High
|
|
|
|
|
4.3x |
|
|
|
|
|
13.5x |
|
|
Applying a selected range of 5% above and below the medians of the above enterprise value-to-LTM revenue multiple and enterprise value-to-LTM EBITDA multiple of the selected transactions to the corresponding financial data of Viskase, this analysis indicated the following approximate implied total equity value reference ranges for Viskase:
| |
|
|
Implied Total Equity
Value Reference
Ranges for Viskase
($ in millions)
|
|
|
Based on LTM Revenue
|
|
|
$448.0 to $511.3
|
|
|
Based on LTM EBITDA
|
|
|
$10.5 to $27.8
|
|
A.G.P. then calculated the following reference ranges of implied equity value contribution percentages obtained by dividing (1) the Implied Illustrative Enzon Pre-Merger Value by (2) the sum of (A) the Implied Illustrative Enzon Pre-Merger Value and (B) the implied total equity value reference ranges for Viskase indicated in the above selected transactions analysis, as compared below to the Enzon Pro Forma Ownership % at Exchange Ratio:
| |
|
|
Implied Equity Value
Contribution Percentage
Reference Ranges
|
|
|
Enzon Pro Forma
Ownership % at
Exchange Ratio
|
|
|
Based on LTM Revenue
|
|
|
9.22% to 10.19%
|
|
|
|
|
45% |
|
|
|
Based on LTM EBITDA
|
|
|
69.29% to 76.58%
|
|
|
|
|
45% |
|
|
A.G.P. also reviewed the premiums paid in the selected transactions relative to the market capitalizations of the acquired companies based on the closing stock price of the acquired company 30 days prior to public announcement of the respective transaction.
The low, average, median and high premiums to market capitalization in the selected transactions are indicated in the table below (excluding the impact of the premiums to market capitalization for five of the selected transactions, which premiums to market capitalization were considered not meaningful):
| |
|
|
Premiums to Market
Capitalization
|
|
|
Low
|
|
|
|
|
16.64% |
|
|
|
Average
|
|
|
|
|
36.40% |
|
|
|
Median
|
|
|
|
|
38.92% |
|
|
|
High
|
|
|
|
|
55.12% |
|
|
Discounted Cash Flow Analysis
A.G.P. performed a discounted cash flow analysis of Viskase to calculate the estimated present value of (a) the standalone unlevered free cash flows that Viskase was forecasted to generate during the fiscal years ending December 31, 2025 through December 31, 2028 and (b) terminal values for Viskase. Estimated financial data of Viskase was based on financial forecasts provided by the management of Viskase. A.G.P. calculated terminal values for Viskase by applying a selected range of multiples of 8.0x to 12.0x to the estimated calendar year 2028 EBITDA of Viskase. The unlevered free cash flows and terminal values were then discounted to present value using discount rates ranging from six to ten percent (6.0% to 10.0%). This analysis indicated the following approximate implied total equity value reference range for Viskase:
| |
Implied Total Equity Value
Reference Range for Viskase
|
|
| |
$51.7 million to $130.8 million
|
|
A.G.P. then calculated the following reference range of implied equity value contribution percentages obtained by dividing (1) the Implied Illustrative Enzon Pre-Merger Value by (2) the sum of (A) the Implied Illustrative Enzon Pre-Merger Value and (B) the implied total equity value reference range for Viskase indicated in the above discounted cash flow analysis, as compared below to the Enzon Pro Forma Ownership % at Exchange Ratio:
| |
Implied Equity Value Contribution
Percentage Reference Range
|
|
|
Enzon Pro Forma Ownership % at
Exchange Ratio
|
|
| |
28.28% to 49.93%
|
|
|
|
|
45% |
|
|
Illustrative “Has-Gets” Comparison from the Perspective of Holders of Enzon Common Stock
A.G.P. calculated illustrative pro forma per share values of the combined company from the sum of (1) the Implied Illustrative Enzon Pre-Merger Value and (2) implied total equity values of Viskase based on two different approaches: (A) using a terminal multiple of 9.0x 2028 EBITDA and a discount rate of 8% in the discounted cash flow analysis of Viskase (as described in the section entitled “Discounted Cash Flow Analysis” above) and (B) applying the median 2025 EBITDA multiple of the selected companies (as described in the section entitled “Selected Companies Analysis” above) to the corresponding financial data of Viskase. The resulting illustrative pro forma per share values of the combined company (“Gets” values) were then compared to the following “Has” values: (1) the closing price of Enzon Common Stock on October 20, 2025, (2) the closing price of Enzon Common Stock on October 20, 2025, as adjusted for an illustrative merger premium of 36% utilized by A.G.P., (3) the 10-day average closing price of Enzon Common Stock for the period ended October 20, 2025, and (4) the 30-day average closing price of Enzon Common Stock for the period ended October 20, 2025. This comparison, presented for purposes of this Consent Solicitation Statement/Registration Statement without the application of any reverse stock split of Enzon Common Stock, is summarized in the following table:
|
Illustrative “Has” Values
|
|
| |
|
|
Last Closing
Price
|
|
|
Last Closing Price +
Illustrative
Merger Premium
|
|
|
Average 10-Day
Closing Price
|
|
|
Average 30-Day
Closing Price
|
|
|
Enzon Common Stock Price Per Share
|
|
|
|
$ |
0.0720 |
|
|
|
|
$ |
0.0979 |
|
|
|
|
$ |
0.07765 |
|
|
|
|
$ |
0.07832 |
|
|
|
Illustrative “Gets” Values
|
|
| |
|
|
Based on Viskase Discounted
Cash Flow Analysis with
Terminal Multiple of 9.0x
EBITDA and Discount Rate of 8%
|
|
|
Based on Median
2025 EBITDA Multiple in
Viskase Selected
Companies Analysis
|
|
|
Enzon Common Stock Price Per Share
|
|
|
|
$ |
0.0998 |
|
|
|
|
$ |
0.0672 |
|
|
Miscellaneous
The Enzon Special Committee selected A.G.P. to act as financial advisor to the Enzon Special Committee in connection with the Merger and to provide a financial advisory opinion in connection with the Merger based on A.G.P.’s reputation and experience in investment banking. A.G.P. is a financial services firm engaged in the securities, investment management and individual wealth management businesses. Its securities business is engaged in securities underwriting, trading and brokerage activities, foreign exchange, commodities and derivatives trading, prime brokerage, as well as providing investment banking, financing and financial advisory services. A.G.P., its affiliates, directors and officers may at any time invest on a principal basis or manage funds that invest, hold long or short positions, finance positions, and may trade or otherwise structure and effect transactions, for their own account or for the accounts of their customers, in debt or equity securities or loans of Enzon or Viskase, or any other company, or any currency or commodity, that
may be involved in the Merger or any related transaction, or any related derivative instrument. A.G.P. may seek to provide investment banking services to Enzon or Viskase or their affiliates in the future.
A.G.P. acted in the past as financial advisor to the Enzon Special Committee in connection with certain potential transactions, which included the potential combination of Enzon with Viskase. During the term of A.G.P.’s engagement as financial advisor to the Enzon Special Committee until its completion in June 2025, A.G.P. received a monthly fee for such services of $80,000, with the exception of the first monthly fee which was $100,000, totaling $340,000 in the aggregate, which monthly fees are not contingent upon consummation of the Merger. As part of separate engagements, A.G.P. also received a fee of $450,000 for the rendering of opinion services to the Enzon Special Committee in connection with the proposed merger transaction between Enzon and Viskase as initially contemplated in June 2025 and a fee of $425,000 upon the delivery of A.G.P.’s opinion dated October 21, 2025. In addition, Enzon has agreed to reimburse A.G.P. for certain reasonable expenses and to indemnify A.G.P. for certain liabilities arising out of its engagement. No portion of A.G.P.’s fee was contingent upon either the conclusion expressed in A.G.P.’s opinion or whether or not the Merger is successfully consummated.
A.G.P.’s opinion was approved by A.G.P.’s fairness opinion committee, a committee of A.G.P. investment banking and other professionals, in accordance with A.G.P.’s customary practice.
Opinion of Financial Advisor to the Viskase Special Committee
On October 22, 2025, Alvarez & Marsal orally rendered its opinion to the Viskase Special Committee (which was confirmed by delivery of Alvarez & Marsal’s written opinion, dated October 22, 2025, to the Viskase Special Committee) as to, as of such date, the fairness, from a financial point of view, to the holders of Viskase Common Stock, other than the IEH Parties, of the Exchange Ratio provided for in the Merger, after giving effect to the IEH Share Exchange, the Series C Exchange Offer, the Reverse Stock Split and the Surviving Company Conversion, pursuant to the Merger Agreement.
Alvarez & Marsal’s opinion was provided for the benefit of the Viskase Special Committee (in its capacity as such), in connection with and for the purposes of the Viskase Special Committee’s consideration of the Merger. The opinion only addressed the fairness, from a financial point of view, to the holders of Viskase Common Stock, other than the IEH Parties, of the Exchange Ratio provided for in the Merger, after giving effect to the IEH Share Exchange, the Series C Exchange Offer, the Reverse Stock Split and the Surviving Company Conversion, pursuant to the Merger Agreement, and did not address any other term or aspect of the Merger Agreement or the Merger. The summary of Alvarez & Marsal’s opinion in this prospectus/consent solicitation statement is qualified in its entirety by reference to the full text of its written opinion, which is attached as Annex D to this prospectus/consent solicitation statement and describes the assumptions made, qualifications and limitations on the review undertaken and other matters considered by Alvarez & Marsal in connection with the preparation of its opinion. However, neither Alvarez & Marsal’s opinion nor the summary of its opinion and the related analyses set forth in this prospectus/consent solicitation statement are intended to be, and do not constitute, advice or a recommendation to the Viskase Special Committee, the Viskase Board, any security holder or any other party as to how to act or vote with respect to any matter relating to the Merger, any related transaction or otherwise or any form of assurance by Alvarez & Marsal as to the condition of Viskase. The decision as to whether to proceed with the Merger or any related transaction may depend on an assessment of factors unrelated to the financial analysis on which Alvarez & Marsal’s opinion was based.
In connection with its opinion, Alvarez & Marsal, among other things:
•
Reviewed the Original Agreement and a draft, dated October 21, 2025, of the Merger Agreement Amendment;
•
Reviewed certain publicly available business and historical financial information relating to Viskase and Enzon;
•
Reviewed certain historical financial information relating to Viskase and Enzon, including (i) audited financial statements for the fiscal years ended December 31, 2020 through December 31, 2024, as well as (ii) unaudited, internally prepared financial statements for the interim year-to-date periods ending:
•
August 31, 2025 and August 31, 2024 for Viskase; and
•
September 30, 2025 and September 30, 2024 for Enzon.
•
Reviewed certain non-public internal financial information and other data relating to the business and financial prospects for Viskase provided to us by Viskase, including financial forecasts prepared by management of Viskase (“Management’s Forecast”), which included projected utilization of Viskase’s NOLs;
•
Reviewed information regarding available federal NOLs (“Enzon NOLs”) and certain research and development (“R&D”) tax credit carryforwards, and corresponding expiration schedules, for Enzon provided by Enzon management;
•
Conducted discussions with members of the senior management of Viskase concerning the business, operations, historical financial results, and future prospects of Viskase and Enzon, and the Merger;
•
Reviewed a letter dated October 22, 2025, from the management of Viskase which made certain representations as to historical financial statements, current financial condition, financial projections and the assumptions underlying such projections for Viskase;
•
Considered the historical trading price and trading volume of the Viskase Common Stock and the Enzon Common Stock;
•
Considered the historical trading price and trading volume of publicly traded securities of certain other companies Alvarez & Marsal deemed relevant;
•
Considered certain financial performance data of Viskase and compared that data with similar data for other companies in lines of business Alvarez & Marsal deemed relevant;
•
Considered the publicly available financial data and terms of certain transactions involving target companies Alvarez & Marsal deemed relevant; and
•
Considered such other information, financial studies, analyses and investigations and financial, economic and market criteria as Alvarez & Marsal deemed relevant and appropriate for purposes of its opinion.
Alvarez & Marsal’s opinion was subject to the following additional qualifications and limitations, with the Viskase Special Committee’s consent:
•
The Special Committee advised Alvarez & Marsal, and Alvarez & Marsal relied upon and assumed, that Enzon previously indicated it intended to terminate the Original Agreement based on purported breaches of the Original Agreement by Viskase, as a result of which certain conditions to the consummation of the transactions contemplated thereby (collectively, the “Original Proposed Transaction”) could not have been satisfied.
•
At the Special Committee’s direction, Alvarez & Marsal’s opinion did not address nor did it express any view on (i) the Exchange Ratio as defined in the Original Agreement as compared to the Exchange Ratio as defined in the Amended Agreement, or (ii) the likelihood that Viskase would have been successful in completing the consummation of the Original Proposed Transaction in accordance with the terms of the Original Agreement.
•
In arriving at its opinion, Alvarez & Marsal relied upon and assumed, without independent verification, the accuracy and completeness of all financial and other information that was publicly available or furnished to Alvarez & Marsal by Viskase, Enzon and their advisors, or otherwise reviewed by Alvarez & Marsal for purposes of its opinion, and Alvarez & Marsal did not assume any responsibility or liability for any such information.
•
With respect to Management’s Forecast reviewed by Alvarez & Marsal, Alvarez & Marsal assumed that it was reasonably prepared on bases reflecting the best currently available information and good faith judgments of Viskase’s management as to the future financial performance of Viskase.
•
With respect to the projected utilization of the NOLs, Alvarez & Marsal assumed that such utilization was reasonably prepared on bases reflecting the best currently available information and good faith judgments of Viskase’s management.
•
Alvarez & Marsal assumed, without independent verification, that the consummation of the Merger and the related transactions would not constitute a change of control for Viskase pursuant to
Internal Revenue Code Section 382 or otherwise limit the usage by Viskase of its NOLs, including, without limitation, under the terms of the tax allocation agreement to which it is party.
•
For purposes of its financial analyses, (a) Alvarez & Marsal assumed that any potential non-compliance with financial covenants (consisting of a consolidated leverage ratio and fixed charge ratio) related to Viskase’s senior credit facilities through Management’s Forecast would be sufficiently addressed with a waiver from its lenders, amendment to the financial covenant metric threshold, or by way of some other relief mechanism, and (b) at the Viskase Special Committee’s direction, Alvarez & Marsal evaluated Viskase on a going concern basis;
•
Alvarez & Marsal assumed, without independent verification, that the consummation of the Merger and the related transactions would constitute a change of control for Enzon pursuant to Section 382 of the Code and would effectively limit the usage of Enzon NOL carryforwards and R&D tax credit carryforwards on a combined basis.
•
Alvarez & Marsal did not make an independent evaluation or appraisal of the assets or liabilities (contingent or otherwise) of Viskase or Enzon, nor was Alvarez & Marsal furnished with any such evaluation or appraisals.
•
Alvarez & Marsal was not requested to, and did not, (i) initiate any discussions with, or solicit any indications of interest from, third parties with respect to the Merger, any related transaction, the assets, businesses or operations of Viskase, Enzon or any alternatives to the Merger or any related transaction, (ii) negotiate the terms of the transactions or (iii) advise the Viskase Special Committee or any other party with respect to alternatives to the transactions.
•
Alvarez & Marsal assumed that the Merger and related transactions would be consummated in accordance with the Merger Agreement, without waiver or amendment of any material term or condition thereof, and that the parties to the Merger Agreement would comply in all material respects with all material terms of the Merger Agreement.
•
Alvarez & Marsal assumed that the final executed Merger Agreement would not differ from the draft of the Merger Agreement referenced above in any respect material to its analyses or its opinion.
•
Alvarez & Marsal assumed that all of the conditions required to implement the Merger and related transactions would be satisfied and that the Merger and related transactions would be completed in accordance with the Merger Agreement without any amendments thereto or any waivers of any material terms or conditions thereof.
•
Alvarez & Marsal assumed that all non-IEH Affiliated holders of Enzon Series C Preferred Stock will elect to convert their shares to Enzon Common Stock and not redeem such shares for cash at their stated liquidation value.
•
Alvarez & Marsal expressed no view regarding, and its opinion did not address, any legal, regulatory, taxation or accounting matters, as to which Alvarez & Marsal understood that the Viskase Special Committee had obtained such advice as it deemed necessary from qualified professionals.
•
Alvarez & Marsal further assumed that the Merger and the Surviving Company Conversion would qualify for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code.
•
Alvarez & Marsal’s opinion did not address, and should not be construed to address, the relative merits of the Merger or the related transactions as compared to other business strategies or transactions that might be available with respect to Viskase, or the underlying business decision of the Viskase Special Committee to effect the Merger or the related transactions.
•
Alvarez & Marsal’s opinion did not address whether the consideration to be received for the Viskase Common Stock in the Merger represents the best price obtainable.
•
Alvarez & Marsal’s opinion was based on business, economic, regulatory, monetary, market and other conditions as they existed as of the date of its opinion or as of the date of the information provided to Alvarez & Marsal.
•
Alvarez & Marsal’s opinion was effective as of the date thereof. Alvarez & Marsal has no obligation to update, revise, reaffirm or withdraw its opinion or otherwise consider events occurring or coming to our attention after the date of its opinion.
•
Alvarez & Marsal assumed that all governmental, regulatory or other consents and approvals necessary for the consummation of the Merger and related transactions would be obtained without any adverse effect on Viskase or Enzon, or the contemplated benefits to be derived in the Merger and related transactions.
To the extent that any of the foregoing assumptions or any of the facts on which Alvarez & Marsal’s opinion was based prove to be untrue in any material respect, the opinion cannot and should not be relied upon. Furthermore, in its analysis and in connection with the preparation of its opinion, Alvarez & Marsal made numerous assumptions with respect to industry performance, general business, market and economic conditions and other matters, many of which are beyond the control of any party involved in the proposed Merger.
Alvarez & Marsal’s opinion should not be construed as a valuation opinion, credit rating or solvency opinion regarding, or an analysis of the credit worthiness of, Viskase, Enzon or any other party, whether prior to or subsequent to the Merger, the related transactions or otherwise. In addition, Alvarez & Marsal did not express any opinion as to the price or range of prices at which any of the securities of Viskase or Enzon may trade or be purchased or sold at any time.
In rendering its opinion, Alvarez & Marsal did not express any opinion with respect to the fairness of the amount or nature of any compensation to any officers, directors or employees of any party to the Merger, or any class of such Persons, relative to the Exchange Ratio in the Merger or otherwise.
Alvarez & Marsal’s opinion may not be quoted or referred to, in whole or in part, filed with, or furnished or disclosed to any other party, without its prior written consent, except as described in the remainder of this paragraph. Alvarez & Marsal’s opinion may be included in its entirety in any prospectus/consent solicitation statement distributed to stockholders of Enzon and the information statement distributed to the stockholders of Viskase in connection with the Merger or other document required by law or regulation to be filed with the SEC, and Viskase may summarize or otherwise reference the existence of Alvarez & Marsal’s opinion in such documents, provided that any such summary or reference language will also be subject to the prior written approval by Alvarez & Marsal. In that regard, Alvarez & Marsal has consented to the inclusion, summarization and quotation of its opinion, and references to its opinion, in this prospectus/consent solicitation statement.
Alvarez & Marsal’s opinion was provided for the benefit of the Viskase Special Committee, in its capacity as such, in connection with and for the purposes of the Viskase Special Committee’s consideration of the Merger and related transactions. Alvarez & Marsal’s opinion did not constitute a recommendation by Alvarez & Marsal to the Viskase Special Committee, any holder of securities of Viskase or any other Person as to how to vote or whether to take any action in relation to the Merger or any related transaction or any form of assurance by Alvarez & Marsal as to the condition of Viskase or Enzon. Alvarez & Marsal’s opinion only addressed whether the Exchange Ratio in the Merger was within a reference range suggested by certain financial analyses. The decision as to whether to proceed with the Merger or any related transaction may depend on an assessment of factors unrelated to the financial analysis on which Alvarez & Marsal’s opinion was based. Alvarez & Marsal’s opinion should not be construed as creating any fiduciary duty on the part of Alvarez & Marsal to any party.
Material Financial Analyses
In preparing its opinion to the Viskase Special Committee, Alvarez & Marsal performed a variety of analyses, including those described below. The summary of Alvarez & Marsal’s analyses is not a complete description of the analyses underlying Alvarez & Marsal’s opinion. The preparation of such an opinion is a complex process involving various quantitative and qualitative judgments and determinations with respect to the financial, comparative and other analytical methods employed and the adaptation and application of these methods to the unique facts and circumstances presented. As a consequence, neither Alvarez & Marsal’s opinion nor its underlying analyses is readily susceptible to summary description. Alvarez & Marsal
arrived at its opinion based on the results of all analyses undertaken by it and assessed as a whole and did not draw, in isolation, conclusions from or with regard to any individual analysis, methodology or factor. While the results of each analysis were taken into account in reaching Alvarez & Marsal’s overall conclusion with respect to fairness, Alvarez & Marsal did not make separate or quantifiable judgments regarding individual analyses. Accordingly, Alvarez & Marsal believes that its analyses and the following summary must be considered as a whole and that selecting portions of its analyses, methodologies and factors, without considering all analyses, methodologies and factors, could create a misleading or incomplete view of the processes underlying Alvarez & Marsal’s analyses and opinion.
In performing its analyses, Alvarez & Marsal considered general business, economic, industry and market conditions, financial and otherwise, and other matters as they existed on, and could be evaluated as of, the date of its opinion. No company or business or transaction used in Alvarez & Marsal’s analyses or otherwise reviewed for comparative purposes is identical to Viskase, Enzon or the Merger, and an evaluation of the results of those analyses is not entirely mathematical. The implied reference range values indicated by Alvarez & Marsal’s analyses are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than those suggested by the analyses. In addition, any analyses relating to the value of assets, businesses or securities do not purport to be appraisals or to reflect the prices at which businesses or securities actually may be sold, which may depend on a variety of factors, many of which are beyond the control of Viskase. Much of the information used in, and accordingly the results of, Alvarez & Marsal’s analyses are inherently subject to substantial uncertainty.
Alvarez & Marsal’s opinion was only one (1) of many factors considered by the Viskase Special Committee in evaluating the Merger. Neither Alvarez & Marsal’s opinion nor its analyses were determinative of the Exchange Ratio or of the views of the Viskase Special Committee, the Board, management or any other party with respect to the Merger or the Exchange Ratio. Alvarez & Marsal was not requested to, and it did not, recommend the specific consideration payable in the Merger or that any given consideration constituted the only appropriate consideration for the Merger. The type and amount of consideration payable in the Merger were determined through negotiation between the Viskase Special Committee and Enzon, and the decision for Viskase to enter into the Merger Agreement was solely that of the Viskase Special Committee and the Viskase Board.
The following is a summary of the material financial analyses performed by Alvarez & Marsal in connection with the preparation of its opinion and reviewed with the Viskase Special Committee on October 22, 2025. The order of the analyses does not represent relative importance or weight given to those analyses by Alvarez & Marsal. The analyses summarized below include information presented in tabular format. The tables alone do not constitute a complete description of the analyses. Considering the data in the tables below without considering the full narrative description of the analyses, as well as the methodologies underlying, and the assumptions, qualifications and limitations affecting, each analysis, could create a misleading or incomplete view of Alvarez & Marsal’s analyses.
Discounted Cash Flow Analysis
Alvarez & Marsal performed a discounted cash flow analysis of Viskase by calculating the estimated net present value of the projected unlevered, after-tax free cash flows of Viskase based on Management’s Forecast. Alvarez & Marsal applied a long-term growth rate of one percent (1%) and discount rates ranging from nine percent (9%) to ten percent (10%). The discounted cash flow analysis indicated an implied enterprise value reference range of Viskase of $207 million to $230 million.
Selected Public Company Analysis
Alvarez & Marsal performed a selected public company analysis of Viskase by reviewing selected financial data of Viskase and companies with publicly traded equity securities that Alvarez & Marsal deemed relevant. The financial data reviewed included:
•
Enterprise value as a multiple of lease-adjusted EBITDA for the last 12 months, or “EV / LTM Lease Adj. EBITDA”;
•
Enterprise value as a multiple of estimated lease-adjusted EBITDA for the next fiscal year following the fiscal year for which financial results had been disclosed, or “EV / FYE +1 Estimated Lease Adj. EBITDA”; and
•
Enterprise value as a multiple of estimated lease-adjusted EBITDA for the second fiscal year following the fiscal year for which financial results had been disclosed, or “EV / FYE +2 Estimated Lease Adj. EBITDA.”
The selected companies and resulting minimum, maximum, mean and median financial data were:
•
Viscofan, S.A.
•
Amcor plc
•
Sealed Air Corporation
•
Winpak Ltd.
| |
|
|
Enterprise Value /
|
|
| |
|
|
LTM Lease Adj.
EBITDA
|
|
|
FYE+1 Estimated
Lease Adj. EBITDA
|
|
|
FYE+2 Estimated Lease
Adj. EBITDA
|
|
|
Min
|
|
|
|
|
6.5x |
|
|
|
|
|
6.4x |
|
|
|
|
|
6.0x |
|
|
|
Max
|
|
|
|
|
9.1x |
|
|
|
|
|
8.8x |
|
|
|
|
|
8.2x |
|
|
|
Mean
|
|
|
|
|
8.1x |
|
|
|
|
|
7.9x |
|
|
|
|
|
7.5x |
|
|
|
Median
|
|
|
|
|
8.3x |
|
|
|
|
|
8.1x |
|
|
|
|
|
7.9x |
|
|
Taking into account the results of the selected public company analysis, Alvarez & Marsal applied multiple ranges of 8.0x to 8.5x to Viskase’s last 12 months lease-adjusted EBITDA, 7.5x to 8.0x to Viskase’s 2025 fiscal year’s estimated lease-adjusted EBITDA, and 7.0x to 7.5x to Viskase’s 2026 fiscal year’s estimated lease-adjusted EBITDA. This analysis indicated an implied enterprise value reference range for Viskase of approximately $201 million to $215 million.
Precedent M&A Transaction Analysis
Alvarez & Marsal performed a precedent M&A transaction analysis of Viskase by reviewing selected financial data of Viskase and precedent M&A transactions that Alvarez & Marsal deemed relevant. The financial data reviewed:
•
EV / LTM Lease Adj. EBITDA; and
•
EV / FYE +1 Estimated Lease Adj. EBITDA.
The precedent M&A transactions and resulting minimum, maximum, lower quartile, upper quartile, mean and median multiples were as follows:
|
Date Announced
|
|
|
Date Closed
|
|
|
Acquiror
|
|
|
Target
|
|
|
11/19/24
|
|
|
04/30/25
|
|
|
Amcor plc
|
|
|
Berry Global Group, Inc.
|
|
|
11/25/22
|
|
|
04/14/23
|
|
|
SARIA SE & Co. KG
|
|
|
Devro Limited
|
|
|
10/31/22
|
|
|
01/31/23
|
|
|
Sealed Air Corporation
|
|
|
Liqui-Box Corporation
|
|
|
12/19/19
|
|
|
12/31/19
|
|
|
Viscofan, S.A.
|
|
|
Nitta Casings Inc.
|
|
|
03/08/19
|
|
|
07/01/19
|
|
|
Berry Global Group, Inc.
|
|
|
RPC Group Plc
|
|
|
08/06/18
|
|
|
06/11/19
|
|
|
Amcor Limited
|
|
|
Bemis Company, Inc.
|
|
| |
|
|
Enterprise Value /
|
|
| |
|
|
LTM Lease
Adj. EBITDA
|
|
|
FYE+1 Estimated
Lease Adj. EBITDA
|
|
|
Min
|
|
|
|
|
8.0x |
|
|
|
|
|
8.8x |
|
|
|
Max
|
|
|
|
|
13.8x |
|
|
|
|
|
10.1x |
|
|
|
Lower Quartile
|
|
|
|
|
9.1x |
|
|
|
|
|
9.5x |
|
|
|
Upper Quartile
|
|
|
|
|
10.8x |
|
|
|
|
|
10.1x |
|
|
|
Mean
|
|
|
|
|
10.3x |
|
|
|
|
|
9.7x |
|
|
|
Median
|
|
|
|
|
10.0x |
|
|
|
|
|
10.1x |
|
|
Taking into account the results of the precedent M&A transaction analysis, Alvarez & Marsal applied a multiple range of 8.5x to 9.0x to Viskase’s last 12 months lease-adjusted EBITDA and 8.0x to 8.5x to Viskase’s 2025 fiscal year’s estimated lease-adjusted EBITDA. This analysis indicated an implied enterprise value reference range for Viskase of $199 million to $211 million.
Taking into account the results of the Discounted Cash Flow Analysis, the Selected Public Company Analysis and the Precedent M&A Transaction Analysis for Viskase, Alvarez & Marsal selected an implied enterprise value reference range for Viskase of $202.0 million to $219.0 million, which, after deducting interest-bearing debt, operating lease obligations and after-tax underfunded pension obligations and adding back cash, resulted in an implied value reference range per share of Viskase Common Stock of $0.26 to $0.40.
Net Asset Analysis of Enzon
Alvarez & Marsal considered the assets and liabilities of Enzon, using the book value of those assets as of September 30, 2025, as provided by Enzon management, adjusting its current assets for various prepaid expenses, including E&O and D&O insurance and deposits for coworking office space. This indicated an implied equity value for Enzon of approximately $42.7 million. Alvarez & Marsal then factored in the implied present value of Enzon’s acquired NOL carryforwards of $1.5 million which considered change of control limitations, resulting in an implied equity value of $44.2 million and an implied value per share of Enzon Common Stock after giving effect to the IEH Share Exchange, the Series C Exchange Offer, the Reverse Stock Split and the Surviving Company Conversion of $7.07.
Review of Implied Exchange Ratio
Taking into account the results of its financial analyses of Viskase and Enzon, Alvarez & Marsal divided the implied value per share of Viskase Common Stock by the implied value per share of Enzon Common Stock after giving effect to the IEH Share Exchange, the Series C Exchange Offer and the Reverse Stock Split, which resulted in an implied exchange ratio reference range of 0.04 to 0.06 shares of Viskase Common Stock for each share of Enzon Common Stock, as compared to the Exchange Ratio of 0.07 shares of Viskase Common Stock for each share of Enzon Common Stock provided for in the Merger after giving effect to the IEH Share Exchange, the Series C Exchange Offer, the Reverse Stock Split and the Surviving Company Conversion, pursuant to the Merger Agreement.
Other Matters
Alvarez & Marsal was engaged by Viskase to provide an opinion to the Viskase Special Committee as to, as of such date, the fairness, from a financial point of view, to the holders of Viskase Common Stock, other than the IEH Parties, of the Exchange Ratio provided for in the Merger, after giving effect to the IEH Share Exchange, the Series C Exchange Offer, the Reverse Stock Split and the Surviving Company Conversion, pursuant to the Merger Agreement. The Viskase Special Committee engaged Alvarez & Marsal based on Alvarez & Marsal’s experience and reputation. Alvarez & Marsal is regularly engaged to provide financial advisory services in connection with mergers and acquisitions, financings, and financial restructurings. Pursuant to its engagement by the Viskase Special Committee, Alvarez & Marsal is entitled to an aggregate fee of $500,000 as compensation for its services, $250,000 of which was paid as a non-refundable retainer, $50,000 of which became payable upon completion by Alvarez & Marsal of certain milestones and $200,000 of which became payable upon Alvarez & Marsal stating to the Viskase Special Committee that it had completed its work with respect to its opinion. No portion of Alvarez & Marsal’s fee was contingent upon either the conclusion expressed in Alvarez & Marsal’s opinion or whether or not the Merger is successfully consummated. Viskase also agreed to reimburse Alvarez & Marsal for certain expenses, including attorneys’ fees, and to indemnify Alvarez & Marsal in respect of certain liabilities that might arise out of its engagement. During the two (2) years preceding the date of its opinion, Alvarez & Marsal and its Affiliates previously provided financial advisory services to the Viskase Special Committee for which Alvarez & Marsal has received compensation, including in connection with certain financing transactions between Viskase and an Affiliate of IEH and in connection with the Original Proposed Transaction, for which Alvarez & Marsal received aggregate compensation of approximately $375,000.
Enzon Special Committee Compensation
As compensation for services rendered in connection with their service on the Enzon Special Committee, each of Randolph C. Read and Stephen T. Wills is entitled to (i) a cash fee of $15,000 per month, which fee is prorated for any partial month of service, during the period of time that the Enzon Special Committee is constituted and (ii) reimbursement for all travel and incidental expenses incurred in connection with serving on the Enzon Special Committee. The compensation was approved by the Enzon Board and was not, and is not, contingent upon the approval of the Merger Proposal or completion of the Merger or any other transaction involving Enzon or Viskase. The cash fee and expense reimbursements are in addition to, not in lieu of, fees payable to Messrs. Read and Wills in their capacity as regular members of the Enzon Board.
Viskase Special Committee Compensation
As compensation for services rendered in connection with their service on the Viskase Special Committee, each member of the Viskase Special Committee is entitled to (i) reimbursement for expenses incurred in connection with such member’s service on the Viskase Special Committee and (ii) in addition to such member’s normal annual compensation as a director of Viskase, the same telephonic and regular meeting participation fees as are paid for service on other committees of the Viskase Board.
Certain Unaudited Prospective Financial Information of Viskase
Viskase has informed Enzon that it does not, as a matter of course, publicly disclose forecasts or internal projections as to future performance, earnings or other results due to, among other reasons, the inherent uncertainty of the related underlying assumptions and estimates, especially in respect of projections covering extended periods of time. In connection with the proposed Merger, Viskase’s management prepared certain unaudited financial projections regarding Viskase’s future performance for the fiscal years ending December 31, 2025 through December 31, 2028 on a standalone basis without giving effect to the Merger (as updated and revised through October 21, 2025, the “Viskase Management Forecasts”), which were based on certain of Viskase’s management’s internal assumptions (as of October 21, 2025, the date on which the Viskase Management Forecasts were last shared with the Enzon Special Committee). The inclusion of a summary of the Viskase Management Forecasts in this prospectus/consent solicitation statement should not be regarded as an indication that Enzon, Viskase, the Enzon Board, the Viskase Board, the Enzon Special Committee or the Viskase Special Committee considered, or now considers, these projections to be necessarily predictive of actual future results, and such summary of the Viskase Management Forecasts should not be relied upon as such. In addition, the inclusion of a summary of the Viskase Management Forecasts in this prospectus/consent solicitation statement should not be regarded as an indication that Enzon or the Enzon Board relied on such projections in connection with the Merger. The Enzon Special Committee considered the Viskase Management Forecasts in its review but did not rely on them in making its decision.
While Viskase’s management has informed Enzon that the Viskase Management Forecasts summarized below were prepared in good faith and based on information available at the time of preparation, no assurance can be made regarding future events. The estimates and assumptions underlying the Viskase Management Forecasts involve judgments with respect to, among other things, future economic, competitive, regulatory and financial market conditions and future business decisions that may not be realized and that are inherently subject to significant uncertainties and contingencies, including, among others, risks and uncertainties described in the sections titled “Risk Factors” and “Cautionary Statements Regarding Forward-Looking Statements” in this prospectus/consent solicitation statement, all of which are difficult to predict and many of which are beyond the control of Viskase, and will be beyond the control of Enzon following the Merger. There can be no assurance that the underlying assumptions or projected results will be realized, and actual results may differ materially from those reflected in the Viskase Management Forecasts, whether or not the Merger is completed. As a result, the Viskase Management Forecasts should not be considered fact or necessarily predictive in any way of actual future operating results, and this information should not be relied on as such.
The Viskase Management Forecasts were not prepared with a view toward public disclosure or with a view toward complying with the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial data, published guidelines of the SEC
regarding forward-looking statements and the use of non-GAAP measures or GAAP. In the view of Viskase’s management, the Viskase Management Forecasts were prepared on a reasonable basis based on the best information available to Viskase management at the time of their preparation. The Viskase Management Forecasts, however, are not facts and should not be relied upon as such, and readers of this prospectus/consent solicitation statement are cautioned not to place undue reliance, if any, on this information. The inclusion of the Viskase Management Forecasts in this prospectus/consent solicitation statement is not an admission or representation by Enzon or Viskase that such information is material. The Viskase Management Forecasts summarized below do not reflect any impact of the Merger or the other transactions contemplated by the Merger Agreement. The summary of the Viskase Management Forecasts included in this prospectus/consent solicitation statement are presented solely to give (i) Viskase stockholders access to this information that was made available to the Viskase Board and the Viskase Special Committee and (ii) Enzon stockholders access to this information that was made available to the Enzon Board and the Enzon Special Committee. The inclusion of such summary should not be regarded as an indication that any of Enzon, the Enzon Board, the Enzon Special Committee, Viskase, the Viskase Board, or the Viskase Special Committee or their respective Affiliates, advisors, officers, directors or representatives considered, or now considers, the Viskase Management Forecasts to be necessarily predictive of actual future results, and the Viskase Management Forecasts should not be relied upon as such.
All of the Viskase Management Forecasts summarized in this section were solely prepared by and are the sole responsibility of Viskase’s management. No independent registered public accounting firm has examined, compiled or otherwise performed any procedures with respect to the prospective financial information contained in these financial forecasts and, accordingly, no independent registered public accounting firm has expressed any opinion or given any other form of assurance with respect thereto and no independent registered public accounting firm assumes any responsibility for the prospective financial information. The reports of the independent registered public accounting firm of Viskase included in this prospectus/consent solicitation statement relate to the historical financial information of Viskase. Such reports do not extend to the Viskase Management Forecasts and should not be read to do so.
By including in this prospectus/consent solicitation statement a summary of certain of the Viskase Management Forecasts, none of Enzon, the Enzon Board, the Enzon Special Committee, Viskase, the Viskase Board, the Viskase Special Committee or any of their respective Affiliates, advisors, officers, directors or representatives has made or makes any representation to any person regarding the ultimate performance of Viskase or, following the Merger, the Combined Company, compared to the information contained in any financial projections, including the Viskase Management Forecasts. The Viskase Management Forecasts cover multiple years and such information by its nature becomes subject to greater uncertainty with each succeeding year. None of Enzon, Viskase nor any other person undertakes any obligation to update or otherwise revise the Viskase Management Forecasts contained in this prospectus/consent solicitation statement to reflect circumstances existing since their preparation or to reflect the occurrence of unanticipated events or to reflect changes in general economic or industry conditions, even in the event that any or all of the underlying assumptions are shown to be in error. None of Viskase, the Viskase Board, the Viskase Special Committee, Enzon, the Enzon Board or the Enzon Special Committee or any of their respective Affiliates, advisors, officers, directors or representatives has made, makes or is authorized to make any representation to any stockholder or other person regarding Viskase’s ultimate performance compared to the information contained in the Viskase Management Forecasts or that the Viskase Management Forecasts will be achieved, and any statement to the contrary should be disregarded. None of Viskase, the Viskase Board, the Viskase Special Committee, Enzon, the Enzon Board or the Enzon Special Committee or any of their respective Affiliates, advisors, officers, directors or representatives assumes any responsibility for the validity, reasonableness, accuracy or completeness of the Viskase Management Forecasts.
The summary of the Viskase Management Forecasts are not included in this prospectus/consent solicitation statement in order to induce any Enzon stockholder to consent to the Merger Proposal or any of the other proposals for which consent is sought pursuant to this prospectus/consent solicitation statement.
The following table presents unaudited prospective financial data for Viskase:
|
($ in millions)
|
|
|
2025E
|
|
|
2026E
|
|
|
2027E
|
|
|
2028E
|
|
|
Revenue
|
|
|
|
$ |
389.3 |
|
|
|
|
$ |
400.0 |
|
|
|
|
$ |
404.0 |
|
|
|
|
$ |
408.0 |
|
|
|
EBITDA(1)
|
|
|
|
$ |
22.2 |
|
|
|
|
$ |
28.2 |
|
|
|
|
$ |
28.9 |
|
|
|
|
$ |
30.5 |
|
|
|
EBIT(2)
|
|
|
|
$ |
(19.2) |
|
|
|
|
$ |
9.9 |
|
|
|
|
$ |
10.3 |
|
|
|
|
$ |
10.5 |
|
|
|
NOPAT(3)
|
|
|
|
$ |
(17.3) |
|
|
|
|
$ |
8.9 |
|
|
|
|
$ |
9.3 |
|
|
|
|
$ |
9.4 |
|
|
|
Unlevered Free Cash Flow(4)
|
|
|
|
$ |
(23.4) |
|
|
|
|
$ |
18.2 |
|
|
|
|
$ |
18.9 |
|
|
|
|
$ |
20.0 |
|
|
(1)
EBITDA is a non-GAAP financial measure that refers to net income before depreciation and amortization, income tax expense, interest expense (net) and certain non-recurring and non-cash charges.
(2)
EBIT is a non-GAAP financial measure that refers to net income before income tax expense, interest expense (net) and certain non-recurring and non-cash charges.
(3)
NOPAT is a non-GAAP financial measure that refers to EBIT less income tax expense.
(4)
Unlevered Free Cash Flow is a non-GAAP financial measure that refers to NOPAT plus depreciation and amortization, less projected capital expenditures and plus projected increases in net working capital (defined as operating current assets less operating current liabilities).
The Viskase Management Forecasts were provided to Enzon, the Enzon Board and the Enzon Special Committee in connection with their evaluation of the Merger, and were provided to A.G.P. in connection with rendering its opinion to the Enzon Special Committee, and in performing related financial analyses. In addition, Viskase, the Viskase Board and the Viskase Special Committee and their financial advisor, Alvarez & Marsal, used the Viskase Management Forecasts in connection with their evaluation of the Merger.
The Viskase Management Forecasts reflect numerous estimates and assumptions made with respect to industry performance, general business, economic, regulatory, market and financial conditions and other future events, including assumptions and estimates related to future business initiatives for which historical financial statements are not available, as well as matters specific to Viskase’s business, all of which are difficult to predict and many of which are beyond anyone’s control.
Series C Exchange of Shares
Immediately prior to the Closing of the Merger and pursuant to and subject to the terms of the IEH Support Agreement, the IEH Parties agreed to, among other things, and subject to certain exceptions, deliver to Enzon each share of Enzon Series C Preferred Stock Beneficially Owned by the IEH Parties in exchange for a number of shares of Enzon Common Stock equal to (i) the aggregate Liquidation Preference of such shares of Enzon Series C Preferred Stock, divided by (ii) the Enzon 20-Day VWAP. As of the Enzon Record Date, the IEH Parties Beneficially Own approximately [98.2]% of the Enzon Series C Preferred Stock. Please see the section titled “IEH Support Agreement” in this prospectus/consent solicitation statement for further information regarding the IEH Share Exchange.
Enzon will use commercially reasonable efforts to consummate the IEH Share Exchange in accordance with the terms of the IEH Support Agreement. No less than twenty-five (25) business days prior to the Closing, Enzon will commence an exchange offer pursuant to which Enzon will offer to each holder of Enzon Series C Preferred Stock to exchange a number of shares of Enzon Common Stock for each share of Enzon Series C Preferred Stock equal to (i) the aggregate Liquidation Preference of each share of Enzon Series C Preferred Stock, divided by (ii) the Enzon 20-Day VWAP. The Enzon 20-Day VWAP is $0.08 per share of Enzon Common Stock, which after giving effect to the Reverse Stock Split of 1 for 100, will be adjusted to $7.83.
The consummation of the Merger is conditioned on the consummation of the IEH Share Exchange and the Series C Exchange Offer. Please see the section titled “Series C Exchange Offer” in this prospectus/consent solicitation statement for further information on the Series C Exchange Offer.
IEH Support Agreement
Concurrently with the execution of the Merger Agreement, Enzon, Viskase and the IEH Parties entered into the IEH Support Agreement, pursuant to which the IEH Parties agreed to, among other things, and subject to certain exceptions, (i) deliver written consents approving the Merger Proposal, (ii) deliver written consents with respect to all of the issued and outstanding shares of Enzon Common Stock held by the IEH Parties approving the Reverse Stock Split Proposal, (iii) vote against any Enzon Acquisition Proposal or other action that would reasonably be expected to impede or adversely affect the Merger or the other transactions contemplated by the Merger Agreement, and (iv) immediately prior to the Closing, effectuate the conversion of each issued and outstanding share of Enzon Series C Preferred Stock into shares of Enzon Common Stock based upon the Enzon 20-day VWAP. The Enzon 20-Day VWAP is $0.08 per share of Enzon Common Stock, which after giving effect to the Reverse Stock Split of 1 for 100, will be adjusted to $7.83. The shares of Enzon Common Stock owned by the IEH Parties represent approximately [48.6]% of the outstanding voting power of Enzon Stock as of the Enzon Record Date. Accordingly, assuming delivery of written consents from the IEH Parties pursuant to the terms of the IEH Support Agreement, written consents with respect to [1,050,666] shares of Enzon Common Stock will be needed to approve the Enzon Proposals.
The IEH Parties are obligated to vote or cause to be voted all shares of Enzon Common Stock and Enzon Series C Preferred Stock, as applicable, Beneficially Owned by such IEH Party against any (i) Enzon Acquisition Proposal, (ii) amendment to the Enzon Organizational Documents that would impede or adversely affect the Merger or other transactions contemplated by the Merger Agreement (except as otherwise contemplated by the Merger Agreement) and (iii) other action or transaction involving Enzon that is intended or reasonably expected to impede or adversely affect the Merger, the Reverse Stock Split or other transactions contemplated by the Merger Agreement; provided that the foregoing clauses (i)-(iii) will not apply to any transaction, proposal or action that is the subject of an Enzon Adverse Recommendation Change made in accordance with the Merger Agreement that has not been rescinded.
Please see the section titled “IEH Support Agreement” in this prospectus/consent solicitation statement for further information on the IEH Support Agreement.
Enzon Solicitation of Written Consents
Enzon is asking the holders of Enzon Common Stock to approve (i) the Reverse Stock Split Proposal and (ii) the Merger Proposal and the transactions contemplated thereby, including the Merger, by executing and delivering the written consent furnished with this prospectus/consent solicitation statement.
The Enzon Board, upon the unanimous recommendation of the Enzon Special Committee, has unanimously determined that each Enzon Proposal is fair to, and in the best interests of, Enzon and the holders of Enzon Common Stock. The Enzon Board, upon the unanimous recommendation of the Enzon Special Committee, unanimously recommends that the holders of Enzon Common Stock consent to the Enzon Proposals.
Record Date
Only the holders of Enzon Common Stock of record holding shares of Enzon Common Stock at the close of business on the Enzon Record Date will be notified of and entitled to sign and deliver written consents with respect to the Enzon Proposals.
Enzon Stockholders Entitled to Consent
On the Enzon Record Date, the outstanding securities of Enzon eligible to consent with respect to the Enzon Proposals consisted of [74,214,603] shares of Enzon Common Stock.
Consents; Required Consents
Written consents from the holders of a majority of the outstanding shares of Enzon Common Stock are required to adopt the Enzon Proposals.
Please see the above description with respect to consents that the IEH Parties are expected to deliver following effectiveness of this prospectus/consent solicitation statement pursuant to the IEH Support Agreement.
Interests of Certain Persons in the Merger
In considering whether to adopt the Merger Proposal by executing and delivering the written consent, Enzon stockholders should be aware that aside from their interests as stockholders, Enzon’s officers and members of the Enzon Board have interests in the Merger that are different from, or in addition to, those of other Enzon stockholders generally. Enzon stockholders should take these interests into account in deciding whether to approve the Merger Proposal. Please see the section titled “Interests of Executive Officers and Directors in the Merger” in this prospectus/consent solicitation statement for further information.
Submission of Consents
If you hold shares of Enzon Common Stock as of the Enzon Record Date and you wish to give your written consent, you must fill out the enclosed written consent, date and sign it, and promptly return it to Enzon. Once you have completed, dated and signed the written consent, you may deliver to Enzon your executed consent to Enzon c/o Continental Stock Transfer & Trust Company, 1 State Street Plaza, 30th Floor, New York, New York 10004. Enzon recommends that you also email a .pdf copy of your executed written consent to Enzon’s consent solicitor, HKL, at enzn@hklco.com.
The Enzon Board has set [•] [a.m./p.m.] Eastern Time on [•], 2026 as the target date for the receipt of written consents. Enzon reserves the right to extend the final date for receipt of written consents beyond such date. Any such extension may be made without notice to Enzon stockholders. Once a sufficient number of consents to adopt the Enzon Proposals has been received, the consent solicitation will conclude.
Executing Consents; Revocation of Consents
You may execute a written consent to adopt the Enzon Proposals, which is equivalent to a vote “FOR” the Enzon Proposals. If you do not execute and return your written consent, or otherwise withhold your written consent, it will have the same effect as voting against the Enzon Proposals.
If you are a record holder of shares of Enzon Common Stock as of the close of business on the Enzon Record Date, you may change or revoke your written consent (subject to any contractual obligations you may otherwise have) at any time prior to [•] [a.m./p.m.], Eastern Time, on [•], 2026t (or, if earlier, before the consents of a sufficient number of shares to adopt the Enzon Proposals have been delivered to the Secretary of Enzon). If you wish to change or revoke your consent before that time, you may do so by sending in a new written consent with a later date by one of the means described in the section titled “Enzon Solicitation of Written Consent” in this prospectus/consent solicitation statement delivering a notice of revocation to the Secretary of Enzon.
Solicitation of Consents; Expenses
The expenses of soliciting tenders of the shares of Enzon Series C Preferred Stock will be borne by Enzon. The principal solicitations are being made by mail; however, additional solicitations may be made by electronic communication or by telephone, or in person by Enzon and the Information Agent, as well as by Enzon’s officer and other Affiliates. These Persons will receive their regular salaries but no special compensation for soliciting consents. Enzon has engaged HKL, as a consent solicitor. HKL will receive reasonable and customary compensation for its services. Enzon estimates that it will pay HKL a fee of approximately $40,000, plus reasonable out-of-pocket expenses. Upon request, Enzon will reimburse brokerage firms, banks or other nominees for their reasonable charges and expenses to forward the consent solicitation materials to the Enzon stockholders in accordance with the applicable rules. In addition to the mailing of these consent solicitation materials, the solicitation of written consents may be made in person, by telephone or by electronic communication by Enzon’s directors, officer or Affiliates, who will not receive any additional compensation for such solicitation activities.
Enzon stockholders will not be required to pay any fees or commissions to Enzon, the Exchange Agent or the Information Agent in connection with the Series C Exchange Offer. If an Enzon stockholder’s shares
of Enzon Series C Preferred Stock are held through a brokerage firm, bank or other nominee that tenders such holder’s shares of Enzon Series C Preferred Stock on his, her or its behalf, such brokerage firm, bank or other nominee may charge such holder a commission or service fee for doing so. Enzon stockholders should consult their broker, dealer, commercial bank, trust company or other nominee to determine whether any charges will apply.
Reverse Stock Split
Prior to the Effective Time, Enzon will take all actions necessary to effectuate the Reverse Stock Split. Enzon expects to effectuate the Reverse Stock Split immediately prior to the Effective Time. The ratio of the Reverse Stock Split will be 1 for 100.
Following the Closing, there will be approximately 36,345,955 shares of Combined Company Common Stock outstanding (after giving effect to the Reverse Stock Split).
Post-Merger Surviving Company Conversion (into an LLC)
Promptly following the Effective Time, Enzon will cause the conversion of the Surviving Company from a Delaware corporation into a Delaware limited liability company through a statutory conversion permitted under Delaware law. The corporate existence of the Surviving Company will continue unaffected and unimpaired by the conversion, except that, upon the consummation of the conversion, all of the outstanding shares of Viskase Common Stock will be converted to limited liability company interests. Because the Surviving Company will be a wholly owned Subsidiary of Enzon at the Effective Time, Enzon will be the sole member of the Surviving Company following the conversion. Under DGCL § 266(h), the rights, privileges, powers and interest in property of the pre-conversion corporation, as well as the debts, liabilities and duties of the pre-conversion corporation, will remain with the post-conversion limited liability company and will not be deemed, as a consequence of the conversion, to have been transferred to the post-conversion limited liability company for any purpose of the laws of the State of Delaware. No appraisal rights attach in connection with the conversion.
The converted company is intended to be treated as an entity disregarded as separate from its owner for U.S. federal income tax purposes, and, to the extent applicable, for state and local income tax purposes. As such, all income, gain, losses, deductions and credits of the converted company would be treated, for U.S. federal income tax purposes, as recognized by Enzon.
Governance of the Combined Company
Combined Company Name and Ticker Symbols
Following the Effective Time, the name of the Combined Company will be “Viskase Holdings, Inc.” and the common stock of the Combined Company will be traded on the “OTCQB” tier of the OTC under new ticker symbol “[•]”.
Combined Company Board of Directors
As of the Effective Time, the board of directors of the Combined Company will consist of two current Enzon directors Jordan Bleznick and Randolph C. Read, together with [•].
Management of the Combined Company
As of the Effective Time, the officers of Viskase immediately prior to the Effective Time will be the officers of the Combined Company and the Surviving Company, in each case, until his or her respective successor is duly elected or appointed and qualified or until his or her earlier death, resignation or removal in accordance with the governing documents of the Combined Company or the Surviving Company, as applicable, and applicable law.
Constituent Documents of the Combined Company and its Subsidiaries
Following Enzon’s receipt of the requisite approval by Enzon’s stockholders and immediately prior to the Effective Time, the amended and restated certificate of incorporation of Enzon as in effect immediately
prior to such approval will be amended by filing the amendment to the Enzon Charter with the Delaware Secretary of State as set forth in Exhibit B to the Merger Agreement Amendment, which is attached as Annex A-1 to this prospectus/consent solicitation statement. The Enzon Charter Amendment will effectuate (i) the Reverse Stock Split and (ii) the changing of Enzon’s name from “Enzon Pharmaceuticals, Inc.” to “Viskase Holdings, Inc.”
At the Effective Time, the Viskase Charter as in effect immediately prior to the Effective Time will be amended and restated in its entirety to read as set forth in Exhibit C to the Merger Agreement, which is attached as Annex A to this prospectus/consent solicitation statement and, as so amended and restated, will be the certificate of incorporation of the Surviving Company until thereafter amended as provided therein or as provided by applicable law. Additionally, at the Effective Time, the Viskase Bylaws of Viskase as in effect immediately prior to the Effective Time will be amended and restated in their entirety to read as the bylaws of Merger Sub as in effect immediately prior to the Effective Time until thereafter amended as provided therein or as provided by applicable law.
Delisting and Deregistration of Viskase Common Stock
Viskase has agreed to take all actions necessary to remove the Viskase Common Stock from quotation on OTC, effective as of the Effective Time. As such, if the Merger is completed, shares of Viskase Common Stock will no longer be publicly traded and will be removed from quotation on the OTC.
OTC Listing of Combined Company Common Stock
Enzon’s Common Stock is currently quoted on the “OTCQB” tier of the OTC under the symbol “ENZN”. Enzon will use its commercially reasonable efforts to cause the shares of Combined Company Common Stock to be issued in connection with the Merger to be quoted on the OTC, subject to official notice of issuance, prior to the Effective Time. It is a condition of the consummation of the Merger that Enzon receives confirmation from the OTC that such shares of Combined Company Common Stock have been approved for listing on the OTC, but there can be no assurance such listing conditions will be met or that Enzon will obtain such confirmation from the OTC. If such listing conditions are not met or if such confirmation is not obtained, the Merger will not be consummated unless this listing condition is waived by the applicable parties.
Appraisal and Dissenters’ Rights
The discussion of the provisions set forth below is not a complete summary regarding your appraisal rights under Delaware law and is qualified in its entirety by reference to Section 262 of the DGCL, the full text of which can be accessed without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262. Viskase stockholders intending to exercise appraisal rights should carefully review Section 262 in its entirety. Failure to follow precisely any of the statutory procedures set forth in Section 262 of the DGCL will result in a termination or waiver of these rights. This summary does not constitute any legal or other advice nor does it constitute a recommendation that you exercise your rights to demand appraisal under Section 262 of the DGCL.
Appraisal and Dissenters’ Rights
If you hold (or Beneficially Own, as the case may be) one (1) or more shares of Viskase Common Stock, you are entitled to appraisal rights under Delaware law and have the right to have your shares appraised by the Court and receive the “fair value” of such shares (exclusive of any element of value arising from the accomplishment or expectation of the transaction) as of completion of the Merger in place of the Merger Consideration, as determined by the Court, if you strictly comply with the procedures specified in Section 262 of the DGCL. Any such Viskase stockholder or beneficial owner awarded “fair value” for his, her or its shares by the Court would receive payment of that fair value in cash, together with interest, if any, to be paid upon the amount determined to be the “fair value” in lieu of the right to receive the Merger Consideration.
The following discussion is not a full summary of the law pertaining to appraisal rights under the DGCL and is qualified in its entirety by the full text of Section 262 of the DGCL that can be accessed
without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262. All references in Section 262 of the DGCL and in this summary to a: (i) “stockholder” are to the record holders of the shares of Viskase Common Stock immediately prior to the Effective Time; and (ii) “beneficial owner” are to a Person who is the beneficial owner of shares of Viskase Common Stock held either in voting trust or by a nominee on behalf of such Person. Failure to comply strictly with the procedures set forth in Section 262 of the DGCL may result in the loss of appraisal rights. The following discussion does not constitute any legal or other advice, nor does it constitute a recommendation that you exercise your rights to seek appraisal under Section 262 of the DGCL.
If the Merger is completed, subject to certain exceptions specified in Section 262 of the DGCL and summarized below, Persons who: (i) submit to Viskase a proper written demand for appraisal of such shares; (ii) continuously remain the record holders or beneficial owners of such shares through the Effective Time; and (iii) otherwise comply with the applicable procedures and requirements set forth in Section 262 of the DGCL will be entitled to have their shares appraised by the Court and receive payment in cash of the “fair value” of such shares (as determined by the Court, exclusive of any element of value arising from the accomplishment or expectation of the transaction) instead of the Merger Consideration. Any such Person awarded “fair value” for his, her or its shares by the Court would receive payment of that fair value in cash, together with interest, if any, to be paid upon the amount determined to be the “fair value” in lieu of the right to receive the Merger Consideration. It is possible that any such “fair value” as determined by the Court may be more or less than, or the same as, the Merger Consideration that such Person is entitled to receive pursuant to the Merger Agreement.
When a merger agreement is approved by written consent without a meeting of stockholders pursuant to Section 228 of the DGCL, as is the case with the Merger Agreement, Section 262 of the DGCL requires that either a constituent corporation before, or the surviving corporation within ten (10) days after, the effective date of the merger notify each stockholder of the constituent corporation who is entitled to appraisal rights of the approval of the transaction and that appraisal rights are so available and must include in each such notice a copy of Section 262 of the DGCL. Such notice may, and, if given on or after the effective date of the transaction, shall, also notify the stockholders of the effective date of the transaction. THIS PROSPECTUS/CONSENT SOLICITATION STATEMENT CONSTITUTES VISKASE’S NOTICE TO VISKASE’S STOCKHOLDERS OF THE AVAILABILITY OF APPRAISAL RIGHTS IN CONNECTION WITH THE TRANSACTION IN COMPLIANCE WITH THE REQUIREMENTS OF SECTION 262 OF THE DGCL. A COPY OF THE FULL TEXT OF SECTION 262 OF THE DGCL CAN BE ACCESSED WITHOUT SUBSCRIPTION OR COST AT THE FOLLOWING PUBLICLY AVAILABLE WEBSITE: https://delcode.delaware.gov/title8/c001/sc09/index.html#262.
PERSONS WHO WISH TO EXERCISE APPRAISAL RIGHTS OR WHO WISH TO PRESERVE THE RIGHT TO DO SO SHOULD REVIEW THE FOLLOWING SUMMARY AND THE FULL TEXT OF SECTION 262 OF THE DGCL CAREFULLY. FAILURE TO COMPLY WITH THE PROCEDURES OF SECTION 262 OF THE DGCL IN A TIMELY AND PROPER MANNER MAY RESULT IN THE LOSS OF APPRAISAL RIGHTS. IN ADDITION, THE COURT WILL DISMISS APPRAISAL PROCEEDINGS IN RESPECT OF VISKASE COMMON STOCK UNLESS CERTAIN STOCK OWNERSHIP CONDITIONS ARE SATISFIED BY PERSONS SEEKING APPRAISAL. DUE TO THE COMPLEXITY OF THE PROCEDURES FOR EXERCISING THE RIGHT TO SEEK APPRAISAL, PERSONS WHO WISH TO EXERCISE APPRAISAL RIGHTS ARE URGED TO CONSULT WITH THEIR OWN LEGAL AND FINANCIAL ADVISORS IN CONNECTION WITH COMPLIANCE UNDER SECTION 262 OF THE DGCL. A STOCKHOLDER OR BENEFICIAL OWNER WHO LOSES HIS, HER OR ITS APPRAISAL RIGHTS WILL BE ENTITLED TO RECEIVE THE MERGER CONSIDERATION.
How to Exercise and Perfect Your Appraisal Rights
If you are a Viskase stockholder or beneficial owner and wish to exercise the right to seek an appraisal of your shares of Viskase Common Stock, you must satisfy each of the following conditions:
•
you must deliver to Viskase a written demand for appraisal of your shares of Viskase Common Stock within 20 days after the date of Viskase mailing the appraisal notice and be a stockholder of record or beneficial owner at the time of the making of such demand. Failure to make a written
demand for appraisal on or before the expiration of such 20-day period may result in the loss of such Person’s appraisal rights. For clarity, such 20-day period will begin to run on the date of mailing of the appraisal notice;
•
you must not consent to the Merger or otherwise withdraw or waive your appraisal rights;
•
you must continuously hold (or Beneficially Own, as the case may be) the shares from the date of making the demand through the Effective Time (a stockholder or beneficial owner will lose appraisal rights if such Person transfers the shares before the Effective Time); and
•
you or the Combined Company (or any other stockholder or beneficial owner that has properly demanded appraisal rights and is otherwise entitled to appraisal rights) must file a petition in the Court requesting a determination of the fair value of the shares within 120 days after the Effective Time. The Combined Company is under no obligation to file any such petition in the Court and has no intention of doing so. Accordingly, it is the obligation of the Viskase stockholders and beneficial owners to initiate all necessary action to perfect their appraisal rights in respect of shares of Viskase Common Stock within the time prescribed in Section 262 of the DGCL.
If you fail to comply with any of these conditions and the Merger is completed, you will be entitled to receive the Merger Consideration, but you will have no appraisal rights with respect to your shares of Viskase Common Stock.
Who May Exercise Appraisal Rights
In addition to the foregoing requirements, the demand must reasonably inform Viskase of the identity of the stockholder or beneficial owner and that such Person intends to demand appraisal of his, her or its Viskase Common Stock and, with respect to a demand for appraisal made by a beneficial owner, must additionally reasonably inform Viskase of the identify the holder of record of the shares for which the demand is made, be accompanied by documentary evidence of such beneficial owner’s ownership of Viskase Common Stock and a statement that such documentary evidence is a true and correct copy of what it purports to be and provide an address at which such beneficial owner consents to receive notices given by Viskase and to be set forth on the verified list (as defined below).
IF YOU HOLD YOUR VISKASE COMMON STOCK IN BROKERAGE ACCOUNTS, BANK OR OTHER NOMINEE FORMS AND YOU WISH TO EXERCISE APPRAISAL RIGHTS, YOU SHOULD CONSULT WITH YOUR BROKERAGE FIRM, BANK OR OTHER NOMINEE, AS APPLICABLE, TO DETERMINE THE APPROPRIATE PROCEDURES FOR APPRAISAL OF THOSE SHARES. If you own shares of Viskase Common Stock jointly with one (1) or more other Persons, as in a joint tenancy or tenancy in common, demand for appraisal must be executed by or on behalf of all joint owners. An authorized agent, including an agent for two (2) or more joint owners, may execute the demand for appraisal; however, the agent must identify the owner(s) and expressly disclose the fact that, in making the demand, such agent is acting as agent for the owner(s). If you elect to exercise appraisal rights under Section 262 of the DGCL, you should mail or deliver your written demand to:
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400
Lombard, Illinois 60148
Attention: Joseph D. King, Secretary
Actions After Completion of the Merger
If the Merger is completed, the Combined Company will give written notice that the Merger has become effective within ten (10) days after the Effective Time to each Person that is entitled to appraisal rights; provided, however, that if such notice is sent more than 20 days following the mailing of this prospectus/consent solicitation statement, such notice need only be sent to each Person who is entitled to appraisal rights and who has demanded appraisal of his, her or its shares of Viskase Common Stock in accordance with Section 262 of the DGCL. At any time within 60 days after the Effective Time, any Person entitled to appraisal rights who has not commenced an appraisal proceeding or joined in such a proceeding as a named party will have the right to withdraw his, her or its demand and to accept the Merger Consideration in
accordance with the Merger Agreement for his, her or its shares of Viskase Common Stock by delivering to the Combined Company a written withdrawal of the demand for appraisal. Within 120 days after the Effective Time, any Person who has complied with the requirements of Section 262 of the DGCL, or the Combined Company, may commence an appraisal proceeding by filing a petition in the Court, with a copy served on the Combined Company in the case of a petition filed by such a Person, demanding a determination of the fair value of the shares of Viskase Common Stock held by all Persons who have properly demanded appraisal. The Combined Company is under no obligation to file an appraisal petition and has no intention of doing so.
If you desire to have your shares appraised and have otherwise complied with the requirements of Section 262 of the DGCL, you should initiate any petitions necessary for the perfection of your appraisal rights within the time periods and in the manner prescribed in Section 262 of the DGCL.
Within 120 days after the Effective Time, any Person who has complied with the provisions of Section 262 of the DGCL will be entitled to receive from the Combined Company, upon written request, a statement setting forth the aggregate number of shares of Viskase Common Stock not voted in favor of the Merger and with respect to which Viskase has received demands for appraisal, and the aggregate number of stockholders or beneficial owners holding or owning such shares. The Combined Company must give this statement to you within ten (10) days after receipt by the Combined Company of the request therefor or ten (10) days after expiration of the period for delivery of demands for appraisal, whichever is later.
If a petition for appraisal is duly filed, and a copy of the petition is delivered to the Combined Company, the Combined Company will then be obligated, within 20 days after receiving service of a copy of the petition, to file in the office of the Delaware Register in Chancery in which the petition was filed a duly verified list containing the names and addresses of all Persons who have demanded appraisal for their shares and with whom agreements as to the value of their shares have not been reached by the Combined Company. We refer to this list as the “verified list.” The Delaware Register in Chancery, if so ordered by the Court, shall give notice of the time and place fixed for the hearing of such petition to the Combined Company and to the Persons shown on the verified list. The forms of the notices by mail and by publication shall be approved by the Court, and the costs thereof shall be borne by the Combined Company. At the hearing on the petition, the Court will determine the Persons who have complied with Section 262 of the DGCL and who have become entitled to the appraisal rights provided thereby. The Court may require the Persons who have demanded an appraisal of their shares and who hold stock represented by certificates to submit their stock certificates (if any) to the Delaware Register in Chancery for notation thereon of the pendency of the appraisal proceedings, and the Court may dismiss the proceedings as to any Person who fails to comply with this direction. After the Court determines the Persons entitled to appraisal, the appraisal proceeding will be conducted in accordance with the rules of the Court, including any rules specifically governing appraisal proceedings. The Court will determine the fair value of the shares of Viskase Common Stock, exclusive of any element of value arising from the accomplishment or expectation of the transaction, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining the fair value, the Court will take into account all relevant factors. Unless the Court in its discretion determines otherwise for good cause shown, and except as provided in Section 262 of the DGCL, interest from the Effective Time through the date of payment of the judgment will be compounded quarterly and will accrue at five percent (5%) over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the Effective Time and the date of payment of the judgment. At any time before the entry of judgment in the proceedings, the Combined Company may pay to each Person entitled to appraisal an amount in cash, in which case interest will accrue thereafter only upon the sum of (i) the difference, if any, between the amount paid and the fair value of the shares as determined by the Court and (ii) interest theretofore accrued, unless paid at that time. When the value is determined, the Court will direct the payment of such value, with interest thereon, if any, to the Persons entitled thereto, upon such terms and conditions as the Court may order.
In determining the fair value, the Court is required to take into account all relevant factors. In Weinberger v. UOP, Inc., the Delaware Supreme Court discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that “proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court” should be considered and that “[f]air price obviously requires consideration of all relevant factors involving
the value of a company.” The Delaware Supreme Court has stated that, in making this determination of fair value, the Court must consider market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other factors which could be ascertained as of the date of the merger which throw any light on future prospects of the merged corporation. Section 262 of the DGCL provides that fair value is to be “exclusive of any element of value arising from the accomplishment or expectation of the merger.” In Cede & Co. v. Technicolor, Inc., the Delaware Supreme Court stated that such exclusion is a “narrow exclusion [that] does not encompass known elements of value,” but which rather applies only to the speculative elements of value arising from such accomplishment or expectation. In Weinberger, the Delaware Supreme Court construed Section 262 of the DGCL to mean that “elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the merger and not the product of speculation, may be considered”. An opinion of an investment banking firm as to the fairness from a financial point of view of the consideration payable in a merger is not an opinion as to, and does not in any manner address, fair value under Section 262 of the DGCL. The fair value of your shares as determined under Section 262 of the DGCL could be greater than, the same as or less than the value of the Merger Consideration. Enzon and the Surviving Company do not anticipate offering more than the Merger Consideration to any Person exercising appraisal rights and reserve the right to assert, in any appraisal proceeding, that, for purposes of Section 262, the “fair value” of a share of Viskase Common Stock is less than the Merger Consideration.
If no petition for appraisal is filed within 120 days after the Effective Time, or if the Person delivers a written withdrawal of his, her or its demand for appraisal, then the right of that Person to appraisal will cease and that Person will be entitled to receive the Merger Consideration described in the Merger Agreement, without interest thereon.
The Court may determine the costs of the appraisal proceeding and may tax those costs against the parties as the Court determines to be equitable under the circumstances. Upon the application of a Person whose name appears on the verified list who participated in the proceeding and incurred expenses in connection therewith, the Court may order all or a portion of the expenses, including, without limitation, reasonable attorneys’ fees and the fees and expenses of experts, to be charged pro rata against the value of all shares entitled to appraisal. In the absence of such a determination, each party bears its own expenses.
Any Person who has duly demanded an appraisal in compliance with Section 262 of the DGCL will not, after the Effective Time, be entitled to vote the shares of Viskase Common Stock subject to that demand for any purpose or receive any dividends or other distributions on those shares, except dividends or other distributions payable to record holders of Viskase Common Stock as of a record date prior to the Effective Time.
Any Person who has not commenced an appraisal proceeding or joined such a proceeding as a named party may withdraw a demand for appraisal and accept the Merger Consideration by delivering a written withdrawal of the demand for appraisal to the Combined Company, except that any attempt to withdraw made more than 60 days after the Effective Time will require written approval of the Combined Company. No appraisal proceeding in the Court will be dismissed as to any Person without the approval of the Court and such approval may be conditioned on the terms the Court deems just; provided, however, that this provision will not affect the right of any Person who has not commenced an appraisal proceeding or joined such proceeding as a named party to withdraw such Person’s demand for appraisal and to accept the terms offered in the transaction within 60 days after the Effective Time. If you fail to perfect, successfully withdraw or lose your appraisal rights, your shares of Viskase Common Stock will be converted into the right to receive the Merger Consideration, without interest thereon.
Failure to follow the steps required by Section 262 of the DGCL for perfecting appraisal rights may result in the loss of appraisal rights. In that event, you will be entitled to receive the Merger Consideration for your shares in accordance with the Merger Agreement. In view of the complexity of the provisions of Section 262 of the DGCL, if you are a Viskase stockholder or beneficial owner and are considering exercising your appraisal rights under the DGCL, you should consult your own legal advisor.
THE PROCESS OF DEMANDING AND EXERCISING APPRAISAL RIGHTS REQUIRES STRICT COMPLIANCE WITH TECHNICAL PREREQUISITES. IF YOU WISH TO EXERCISE YOUR APPRAISAL RIGHTS, YOU SHOULD CONSULT WITH YOUR OWN LEGAL COUNSEL
IN CONNECTION WITH COMPLIANCE UNDER SECTION 262 OF THE DGCL. TO THE EXTENT THERE ARE ANY INCONSISTENCIES BETWEEN THE FOREGOING SUMMARY AND SECTION 262 OF THE DGCL, SECTION 262 OF THE DGCL WILL GOVERN.
No Appraisal or Dissenters’ Rights For Enzon Stockholders
Under the DGCL, Enzon stockholders will not be entitled to exercise any appraisal rights in connection with the Merger. Please see the section titled “The Merger — Appraisal and Dissenters’ Rights” in this prospectus/consent solicitation statement for further information regarding how to exercise your voting rights as an Enzon stockholder.
Litigation Relating to the Merger
To the knowledge of our management team, there are not any lawsuits or other legal proceedings currently pending or contemplated against us relating to the Merger.
Accounting Treatment
Notwithstanding the legal form, the Merger will be accounted for as a reverse recapitalization and not a business combination under ASC 805. Under this method of accounting, Enzon will be treated as the acquired company for accounting purposes, whereas Viskase will be treated as the accounting acquirer. In accordance with this method of accounting, the Merger will be treated as the equivalent of Viskase issuing shares for the net assets of Enzon, accompanied by a recapitalization. The net assets of Enzon will be stated at historical cost, with no goodwill or other intangible assets recorded, and operations prior to the Merger will be those of Viskase.
HSR Act Filing
Under the HSR Act, the Merger cannot be completed until Enzon and Viskase file a Notification and Report Form with the FTC and the DOJ and the applicable waiting period has expired or been terminated. The parties filed a Notification and Report Form with the FTC and the DOJ on June 30, 2025. The FTC granted early termination of the applicable HSR Act waiting period to the parties on July 15, 2025. However, the DOJ, the FTC and others may still challenge the Merger on antitrust grounds after the termination of the waiting period. At any time before or after the completion of the Merger, any of the DOJ, the FTC or another Person could take action under the antitrust laws as it deems necessary or desirable in the public interest, including, without limitation, seeking to enjoin the consummation of the Merger, conditionally approve the Merger upon the divestiture of assets of Enzon or Viskase, subject the consummation of the Merger to regulatory conditions or seek other remedies. Enzon and Viskase cannot assure you that a challenge to the Merger will not be made or that, if a challenge is made, it will not succeed. Please see the section titled “HSR Act Filing” in this prospectus/consent solicitation statement for further information regarding the HSR Act filing.
In addition to the Notification and Report Form discussed above, the Merger Agreement requires that Enzon and Viskase obtain any consents, licenses, permits, waivers, clearances, approvals, authorizations, or waiting period expirations required to be obtained or made by Viskase, Enzon or Merger Sub under any foreign or other antitrust or related law governing competition or prohibiting, restricting or regulating actions with the purpose or effect of monopolization, restraint of trade or lessening of competition. Each of Enzon and Viskase will promptly respond to any request by the FTC, and the Antitrust Division of the U.S. Department of Justice and any other requesting governmental entity pursuant to the HSR Act or any other antitrust law in connection with the transactions contemplated by the Merger Agreement. Enzon and Viskase will cooperate fully with each other in connection with the making of all such filings or responses. In addition, except as may be prohibited by any governmental entity or by any applicable Law, Enzon, Viskase and Merger Sub will reasonably consult with the other party before participating in or attending any meeting or conference or engaging in any material communication, with any governmental entity or any official or such other Person in respect of the transactions contemplated by the Merger Agreement and give the other party a reasonable opportunity to attend and participate therein, and in the event one (1) party is prohibited or unable to participate, attend or engage in any such meeting, conference or material written communication, and keep such party apprised with respect thereto.
Subject to applicable law, each party has agreed to consult with the other in advance of any material communications with Governmental Entities and to provide the other with a reasonable opportunity to attend and participate in meetings or discussions with such authorities (and may designate competitively sensitive materials as “outside counsel only”). Viskase is responsible for developing and controlling the strategy for obtaining any required antitrust approvals, including the content and timing of submissions to governmental entities; provided that Viskase is required to consult with Enzon in advance and consider Enzon’s views in good faith. Enzon is required to provide reasonable cooperation in support of these efforts.
The Merger Agreement provides that, if any proceeding is threatened or instituted challenging the Merger Agreement as violative of any antitrust law, Enzon and Viskase will each use commercially reasonable efforts to (i) avoid any order or similar action that would restrain, prevent or delay the Closing and (ii) avoid or eliminate any impediments under antitrust law as to enable the Closing to occur as soon as possible (and in any event no later than the Termination Date, except as otherwise provided in the Merger Agreement). However, notwithstanding the foregoing, neither party is required to (A) litigate or defend against any action by a governmental entity seeking to restrain the transactions contemplated by the Merger Agreement or (B) propose or agree to any divestiture, sale, licensing or disposition of businesses, product lines, equity holdings, technology, intellectual properties, or other assets of Viskase, Enzon or their respective Subsidiaries or (C) agree to take any post-Closing action that would limit its freedom of action or ability to operate or retain any of its businesses or assets.
In addition, from the date of the Merger Agreement until the earliest of (i) the expiry or termination of the waiting period under the HSR Act, (ii) the waiver such condition by Enzon, Viskase and Merger Sub or (iii) the termination of the Merger Agreement in accordance with its terms, Enzon, Viskase and Merger Sub will not agree to or enter into certain acquisitions or business combinations if doing so could reasonably be expected to (A) materially delay the receipt of (or materially increase the risk of not obtaining) any consent of any governmental entity necessary to consummate the transactions contemplated by the Merger Agreement or the expiration or termination of any applicable waiting period under any antitrust law, (B) materially increase the risk of any governmental entity seeking to prohibit the transactions contemplated by the Merger Agreement or (C) materially increase the risk of being unable to remove any such prohibition. On July 15, 2025, the FTC granted early termination of the waiting period. Accordingly, the conditions discussed in this paragraph have been satisfied.
There can be no assurance that any required regulatory approvals will be obtained on a timely basis or at all, or that the Merger will not be challenged by governmental entities or private parties. Any such challenge could result in an order enjoining the Merger or in conditions or restrictions that could delay or prevent its completion.
THE MERGER AGREEMENT
The following describes certain material provisions of the Merger Agreement. This description may not contain all of the information that may be important to you. The description in this section and elsewhere in this prospectus/consent solicitation statement is qualified in its entirety by reference to the Merger Agreement (including all exhibits thereto), a copy of which is attached to this prospectus/consent solicitation statement as Annex A, and the Merger Agreement Amendment (including all exhibits thereto), a copy of which is attached to this prospectus/consent solicitation statement as Annex A-1. This summary does not purport to be complete and may not provide all of the information about the Merger Agreement that may be important to you. We encourage you to read the Merger Agreement carefully and in its entirety.
Explanatory Note Regarding the Merger Agreement
The Merger Agreement, as amended, and this summary are included solely to provide you with information regarding the terms of the Merger Agreement. It is not intended to provide any other factual information about Enzon, Viskase or any of their respective Subsidiaries or Affiliates. The representations, warranties and covenants made in the Merger Agreement by Enzon, Merger Sub and Viskase are qualified and subject to important limitations agreed to by the parties to the Merger Agreement in connection with negotiating the terms of the Merger Agreement. In particular, in your review of the representations and warranties contained in the Merger Agreement and described in this summary, it is important to bear in mind that the representations and warranties were made solely for the benefit of the parties to the Merger Agreement and were negotiated with the principal purpose of allocating risk between the parties to the Merger Agreement, rather than establishing matters as facts. The representations and warranties may also be subject to a contractual standard of materiality that may be different from that generally relevant to stockholders or applicable to reports and documents filed with the SEC, and, in some cases, are qualified by confidential disclosures that were made by each party to the other, which disclosures are not publicly disclosed. The representations and warranties in the Merger Agreement will not survive the completion of the merger. Moreover, information concerning the subject matter of the representations and warranties may have changed since the date of the Merger Agreement. For the foregoing reasons, the representations, warranties and covenants or any descriptions of those provisions should not be read alone but instead should be read together with the information provided elsewhere in this prospectus/consent solicitation statement and in the documents incorporated by reference into this prospectus/consent solicitation statement. Please see the section titled “Where You Can Find More Information” in this prospectus/consent solicitation statement for further information.
Closing/Effective Time
Unless another date and time are agreed to by the parties, the completion of the mergers will occur at 10:00 a.m., Eastern Time, on the third (3rd) Business Day after the satisfaction or waiver (to the extent permitted by applicable Law) of the conditions to completion of the Merger (other than those conditions that by their nature are to be satisfied at completion of the Merger, but subject to the fulfillment or waiver of such conditions at the time of completion) described under the section titled “The Merger Agreement — Conditions to Completion of the Merger” in this prospectus/consent solicitation statement. Unless the Merger Agreement is terminated, as described in the section titled “Termination” in this prospectus/consent solicitation statement, the parties will cause the Merger to be consummated by filing all necessary documentation, including a certificate of merger (the “Certificate of Merger”) with the Secretary of State of the State of Delaware (the “Secretary of State”), in such form as required by, and executed in accordance with, the DGCL.
The Merger will become effective at the Effective Time.
Merger Consideration
At the Effective Time, by virtue of the Merger and without any action on the part of Enzon, Viskase or the holder of any capital stock of Enzon or Viskase, each share of Viskase Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Viskase Common Stock (i) held by Viskase as treasury shares, (ii) owned by Enzon, Merger Sub or a wholly owned Subsidiary of Viskase, Enzon or Merger Sub immediately prior to the Effective Time and (iii) Dissenting Viskase Shares) (the
“Exchanged Viskase Shares”) will be automatically converted into the right to receive a number of shares of Enzon Common Stock equal to the Exchange Ratio (the merger consideration described in this section, the “Merger Consideration”).
Under the Exchange Ratio mechanics, the Exchanged Viskase Shares will be automatically converted into the right to receive a number of shares of Enzon Common Stock equal to (i) the number of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time (after giving effect to each of the Reverse Stock Split, the IEH Share Exchange and the shares of Enzon Common Stock issued pursuant to the Series C Exchange Offer, and such number of shares of Enzon Common Stock, the “Pre-Exchange Enzon Shares”), divided by 0.45, minus (ii) the Pre-Exchange Enzon Shares, divided (iii) by the number of Exchanged Viskase Shares.
As a result of the Exchange Ratio mechanics described above, it is anticipated that, upon completion of the Merger and assuming that the Enzon Series C Preferred Stock is exchanged for Enzon Common Stock in full, (i) the holders of Enzon Common Stock immediately prior to the Closing are expected to own approximately 5% of the Enzon Common Stock, (ii) the holders of Enzon Series C Preferred Stock are expected to own approximately 40% of the Enzon Common Stock and (iii) Viskase stockholders are expected to own 55% of the Enzon Common Stock, subject to certain adjustments based upon the number of shares of Enzon Series C Preferred Stock exchanged for Enzon Common Stock by non-Affiliates of IEH, and depending on the liquidation value of the Series C Preferred Stock at the Closing. If the actual facts differ from any of the foregoing assumptions (which they may), the percentage ownership retained by current Enzon stockholders in the Combined Company will differ. Certain of these adjustments are described in further detail in the section titled “IEH Support Agreement” in this prospectus/consent solicitation statement.
Additionally, at the Effective Time:
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Viskase stockholders will not receive any fractional shares of Enzon Common Stock as Merger Consideration. Each Viskase stockholder who would have otherwise have been entitled to receive a fraction of a share of Enzon Common Stock will receive, in lieu thereof, a cash payment (without interest) in an amount equal to such fractional amount multiplied by the volume weighted averages of the trading prices of Enzon Common Stock over the five (5) consecutive Trading Days ending on (and including) the Trading Day that is two (2) Trading Days prior to the date of the Effective Time, rounded down to the nearest penny;
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all shares of Viskase Common Stock held by Viskase as treasury shares or by Enzon, Merger Sub or any of their (or Viskase’s) wholly owned Subsidiaries immediately prior to the Effective Time will be automatically cancelled and will cease to exist, and no consideration shall be delivered in exchange therefor (such shares, the “Viskase Cancelled Shares”); and
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each share of Enzon Common Stock issued and outstanding immediately prior to the Effective Time will remain an issued and outstanding share of the Combined Company.
Exchange Procedures
Establishment of Exchange Fund
Immediately prior to or concurrently with the Effective Time, Enzon will deposit with a nationally recognized bank or trust company (the “Exchange Agent”), which Exchange Agent will be reasonably satisfactory to Viskase, a sufficient number of uncertificated, book-entry shares of Enzon Common Stock to issue as the Merger Consideration and cash sufficient to cover amounts payable for dividends, distributions and the redeemed fractional shares. This deposit constitutes the “Exchange Fund.” No consideration will be provided for shares subject to appraisal rights until such rights are waived, withdrawn or lost.
Exchange Procedures
Promptly after the Effective Time (and in any event, no later than five (5) business days following the Effective Time), Enzon will cause the Exchange Agent to send each Viskase stockholder a letter of transmittal and instructions for surrendering such stockholder’s stock certificates or book-entry shares. Upon proper surrender and documentation, Enzon will cause the Exchange Agent to promptly (and in any event, no later
than five (5) business days thereafter) issue the corresponding shares of Enzon Common Stock and any applicable cash payments for dividends, distributions and the redeemed fractional shares.
Dividends or Other Distributions on Unexchanged Shares
Dividends or other distributions on Enzon Common Stock with a record date after the Effective Time will not be paid to former Viskase stockholders until their shares are properly surrendered. Once surrendered, such holders will receive all unpaid dividends or distributions to which they are entitled, without interest.
Termination of Rights in Viskase Shares
Upon conversion, all rights in Viskase Common Stock will cease, other than the right to receive the Merger Consideration, cash in lieu of fractional shares and any applicable dividends or distributions. Viskase’s stock transfer books will be closed as of the Effective Time.
No Fractional Shares
No fractional shares of Enzon Common Stock will be issued. Instead, holders will receive a cash payment (without interest) in an amount equal to such fractional amount multiplied by the volume weighted averages of the trading prices of Enzon Common Stock over the five (5) consecutive Trading Days ending on (and including) the Trading Day that is two (2) Trading Days prior to the date of the Effective Time, rounded down to the nearest penny, in lieu of fractional shares.
Termination of Exchange Fund
Any portion of the Exchange Fund remaining unclaimed 180 days after the Effective Time may be returned to Enzon. Thereafter, former Viskase stockholders must look to Enzon for any remaining consideration, subject to abandoned property, escheat or other similar laws.
Withholding Rights
Each of Enzon, Viskase, the Surviving Company and the Exchange Agent may withhold amounts from payments as required by applicable tax laws.
Lost Certificates
Holders of lost, stolen or destroyed Viskase certificates may receive the Merger Consideration upon submitting an affidavit and, if required by Enzon, bond in such reasonable amount as Enzon may direct as indemnity against any claim that may be made against it with respect to such certificate or other documentation (including an indemnity in customary form) reasonably requested by Enzon.
Dissenting Shares
Shares held by Viskase stockholders who properly demand appraisal under Delaware law will not be converted into the Merger Consideration unless such rights are withdrawn, waived or otherwise lost. Viskase will promptly notify Enzon of any appraisal demands, withdrawals of such demands and any other instruments served pursuant to Delaware law and received by Viskase in respect of the Dissenting Viskase Shares. Viskase will not, except with Enzon’s prior written consent, make any payment with respect to any demands for appraisal, or settle or offer to settle any such demands for payment, in respect of Dissenting Viskase Shares. Under the DGCL, Enzon stockholders will not be entitled to exercise any dissenters’ or appraisal rights in connection with the Merger. Please see the section titled “The Merger — Appraisal and Dissenters’ Rights” in this prospectus/consent solicitation statement for further information regarding appraisal and dissenters’ rights.
Representations and Warranties
The Merger Agreement contains a number of representations and warranties made by each of Enzon, Merger Sub and Viskase that are subject in some cases to exceptions and qualifications (including exceptions
that are not material to the party making the representations and warranties and its Subsidiaries and exceptions that do not have, and would not reasonably be expected to have, individually or in the aggregate, a “Material Adverse Effect” on the party making the representations and warranties). Please see the section titled “Merger Consideration — Material Adverse Effect” in this prospectus/consent solicitation statement for the definition of Material Adverse Effect.
The representations and warranties in the Merger Agreement relate to, among other things:
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organization; standing;
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capitalization;
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authority; noncontravention; voting requirements;
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governmental approvals;
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Viskase documents; undisclosed liabilities;
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absence of certain changes;
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legal proceedings;
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compliance with laws; permits;
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tax matters;
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employee plans;
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labor matters;
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environmental matters;
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intellectual property; information technology; data privacy;
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no rights agreement; anti-takeover provisions;
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property;
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contracts;
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insurance;
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information supplied;
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opinion of financial advisors;
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brokers and other advisors; and
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no other representations or warranties.
Additionally, each of Enzon and Merger Sub also makes representations and warranties relating to, among other things:
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Enzon SEC documents; and
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ownership of Viskase common stock.
Material Adverse Effect
Many of the representations and warranties in the Merger Agreement are qualified by “Material Adverse Effect” on the party making such representations and warranties.
For purposes of the Merger Agreement:
A “Material Adverse Effect” with respect to either Enzon or Viskase means any event, change, circumstance, effect, development or state of facts that, individually or in the aggregate, is or would reasonably be expected to:
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(i) be materially adverse to the business, results of operations, assets or financial condition of such party and its Subsidiaries, taken as a whole, or
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(ii) materially delay, impede or prevent the transactions contemplated by the Merger Agreement on or before the Termination Date.
However, for purposes of clause (i) above, a Material Adverse Effect does not include the effect of any event, change, circumstance, effect, development or state of facts to the extent it results from or arises out of:
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(i) general economic or political conditions or securities, credit, financial or other capital markets conditions, in each case, in the United States or any foreign jurisdiction;
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(ii) changes or conditions generally affecting the industries, businesses or segments in which the applicable party or its respective Subsidiaries operate;
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(iii) any change after the date of the Merger Agreement in applicable law, regulation, GAAP or accounting standards (or authoritative interpretation of any of the foregoing);
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(iv) the announcement of the Merger Agreement or the transactions contemplated thereby or the consummation of the transactions contemplated by the Merger Agreement, including the impact thereof on the relationships of the applicable party or its Subsidiaries with customers, suppliers, distributors, partners, officers or employees;
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(v) pandemics, epidemics, COVID-19, acts of war (whether or not declared), armed hostilities, sabotage, terrorism or cyber-attacks, or any escalation or worsening of any acts of war, armed hostilities, sabotage, terrorism or cyber-attack threatened or underway as of the date of the Merger Agreement (including requirements for business closures, restrictions on operations or “sheltering-in-place”);
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(vi) earthquakes, hurricanes, floods or other natural disasters or other weather related or force majeure events;
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(vii) any failure, in and of itself, by the applicable party to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period;
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(viii) any change in the market price or trading volume of the applicable party’s securities or any downgrade in its credit rating;
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(ix) tariffs, trade wars or similar matters;
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(x) any demands, litigation or similar actions brought by stockholders of the applicable party in connection with the Merger Agreement and the transactions contemplated thereby; or
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(xi) the taking of any specific action expressly required by the Merger Agreement or taken with the written consent of the other party or the failure to take any specific action expressly prohibited by the Merger Agreement and as for which the other party declined to consent.
With respect to clauses (i), (ii), (iii) or (v) above, such event, change, circumstance, effect, development or state of facts shall be taken into account for the purpose of determining whether a Material Adverse Effect has occurred to the extent it materially disproportionately affects the applicable party and its Subsidiaries, taken as a whole, relative to other similarly situated companies in the industries in which the applicable party operates.
In addition, if Enzon, Merger Sub or any of their respective Representatives knew of the material facts of a matter prior to the date of the Merger Agreement Amendment, then no effect, change, event or occurrence arising out of, or resulting from, such facts will constitute a Viskase Material Adverse Effect for all purposes under the Merger Agreement; provided that, for the avoidance of doubt, a Viskase Material Adverse Effect may result from facts that Enzon, Merger Sub or any of their respective Representatives become aware of after the date of the Merger Agreement Amendment.
Pursuant to the Merger Agreement Amendment, each of Enzon and Merger Sub has waived, consented to and released any inaccuracy in, breach of, or failure to comply with any representation, warranty, covenant or agreement of Viskase to the extent known to Enzon or Merger Sub as of the date of the Merger
Agreement Amendment and occurring or existing on or prior to that date. As a result, any such matters will be disregarded for purposes of determining whether the conditions relating to the accuracy of Viskase’s representations and warranties or its compliance with covenants have been satisfied at Closing, and Enzon and Merger Sub may not terminate, delay or refuse to consummate the Merger by reason of any such matter. This waiver does not affect any claim for fraud or intentional breach with respect to facts first arising or becoming known after the date of the Merger Agreement Amendment.
Survival
The representations and warranties in the Merger Agreement do not survive the Effective Time. Please see the section titled “The Merger Agreement — Explanatory Note Regarding the Merger Agreement” in this prospectus/consent solicitation statement for further information.
Covenants of the Parties
Conduct of Business Pending the Merger
During the period from the date of the Merger Agreement to the earlier of the termination of the Merger Agreement or the Effective Time (except, in each case, (i) as otherwise specifically contemplated by the terms of the Merger Agreement, (ii) as may be required by law or order or (iii) in the case of Viskase, with respect to the Viskase Credit Agreement), unless the other party otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), each of Viskase and Enzon has agreed that it will use its commercially reasonable efforts:
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to conduct the businesses of itself and its Subsidiaries, in all material respects, in the ordinary course of business, in a manner consistent with past practice; and
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consistent with the foregoing to preserve substantially intact the business organization of itself and its Subsidiaries, to keep available the services of the present executive officers and key employees of itself and its Subsidiaries, and to preserve, in all material respects, the assets and properties of itself and its Subsidiaries in good repair and condition and the present relationships and goodwill of itself and its Subsidiaries with governmental entities and Persons with which it or any of its Subsidiaries has significant business relations.
Additionally, without limiting the generality of the foregoing, during such period, each of Viskase and Enzon has agreed not to, and to cause its Subsidiaries not to, directly or indirectly, take any of the following actions without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed), except, in each case, (i) as otherwise specifically contemplated by the terms of the Merger Agreement, (ii) as may be required by law or order or (iii) in the case of Viskase, with respect to the Viskase Credit Agreement:
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amend, modify, rescind, waive or make any change in its organizational documents or those of any of its Subsidiaries, that, individually or in the aggregate, would reasonably be expected to prevent, delay or materially impair its ability to consummate the Merger;
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issue, deliver, sell, pledge, grant, transfer, encumber or subject to any Lien any additional shares of capital stock, membership interests or partnership interests or other equity securities or grant any option, warrant or right to acquire any capital stock, membership interests or partnership interests or other equity securities or issue any security convertible into or exchangeable for such securities or alter in any way any of its outstanding securities or make any change in outstanding shares of capital stock, membership interests or partnership interests or other ownership interests or its capitalization, whether by reason of a reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, stock dividend or otherwise;
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redeem, retire, purchase or otherwise acquire, directly or indirectly, any shares of the capital stock, membership interests or partnership interests or other ownership interests of Enzon or Viskase, as applicable, or any of their respective Subsidiaries or any other securities convertible into or exercisable or exchangeable for, or warrants, options or other rights to acquire, any such shares or other ownership interests, other than in connection with redemptions, purchases or other acquisitions of
shares or interests of any wholly owned Subsidiary of Enzon or Viskase, as applicable, by Enzon or Viskase, respectively, or any other wholly owned Subsidiary of Enzon or Viskase, respectively;
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declare, set aside or pay any dividends or other distributions in respect of such shares or interests, other than dividends or distributions by wholly owned Subsidiaries to the parent or another wholly owned Subsidiary (and, with respect to Enzon, including the payment of any dividends or other distributions in respect of the Enzon Series C Preferred Stock; provided that dividends will continue to accrue pursuant to the terms of such Enzon Series C Preferred Stock);
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transfer, lease, license, sell, assign, let lapse, abandon, cancel, mortgage, pledge, place a Lien upon (other than a Permitted Lien) or otherwise dispose of any cash or cash equivalents, properties or assets (including cash or cash equivalents or capital stock of any Subsidiaries but excluding intellectual property, which is governed by the following bullet point), in each case, other than in the ordinary course of business consistent with past practice (and, with respect to Enzon, in each case, other than expenses incurred in connection with the Merger Agreement and the transactions contemplated thereby);
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transfer, lease, license, sell, assign, let lapse, abandon, cancel, mortgage, pledge, place a Lien upon or otherwise dispose of any material intellectual property, in each case, other than in the ordinary course of business consistent with past practice;
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acquire, lease or sublease any material assets or properties (including any equity interests or any real property) or spend or commit to spend any cash or cash equivalents to acquire any assets or property, whether by merger, consolidation, purchase or otherwise, in each case, other than in the ordinary course of business consistent with past practice;
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merge with or consolidate with any other Person, or restructure, reorganize or completely or partially liquidate;
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make any material change in any financial or accounting policy, principle, procedure, method, estimate or practice, except as required by changes in GAAP (or any interpretation thereof) or applicable law, in each case, occurring after the date of the Merger Agreement;
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make, change or revoke any tax election that is material to Enzon or Viskase, as applicable, and its respective Subsidiaries as a whole; adopt or change any tax accounting method or period, in each case, that is material to Enzon or Viskase, as applicable, and its respective Subsidiaries as a whole; file any amended U.S. federal income or other material tax return; settle any tax proceeding or audit; surrender any right to claim a refund of taxes; or enter into any “closing agreement” within the meaning of Section 7121 of the Code (or similar provision of state, local or non-U.S. law);
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settle, release, waive, compromise or forgive any claim, action, proceeding, investigation or inquiry, or make any material commitment to a governmental entity, in each case, other than settlements that result solely in customary confidentiality obligations and monetary obligations, or waive any material right with respect to any material claim, in each case, other than in the ordinary course of business consistent with past practice (excluding claims related to (i) taxes, which are governed by the preceding bullet point in this list or (ii) Enzon Transaction Litigation or Viskase Transaction Litigation, respectively, which such litigation will be governed by a cooperation covenant referred to in the section titled “Covenants of the Parties — Other Covenants of the Parties” in this prospectus/consent solicitation statement);
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incur, assume, endorse, guarantee or otherwise become liable for, (or, with respect to Viskase, modify in any manner materially adverse to Viskase when considered as a whole), the terms of, any indebtedness for borrowed money, or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), in each case, except in the ordinary course of business consistent with past practice;
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amend in any material respect, terminate early or fail to use commercially reasonable efforts to renew, or waive, release or assign any material rights, claims or benefits under, any material contract, or enter into any agreement that would be a material contract if in effect on the date of the Merger Agreement, in each case, other than in the ordinary course of business consistent with past practice;
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fail to maintain in all material respects insurance in such amounts and covering such risks as are consistent with past practice, subject to availability of such insurance in the market at commercially reasonable rates consistent with past practice;
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enter into or amend any material contract, agreement or transaction with any of their respective Affiliates (other than a wholly owned Subsidiary of Enzon or Viskase, respectively);
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make any loans, advances or capital contributions to, or investments in, any Person (other than to itself or its wholly owned Subsidiaries), except, in each case, in the ordinary course of business consistent with past practice;
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adopt or implement any stockholder rights plan, “poison pill” or similar agreement;
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enter into a material new line of business outside of its existing business and that of its Subsidiaries, taken as a whole;
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enter into or amend any agreement, contract or commitment, or take any other action, in each case, that would reasonably be expected to prevent or materially delay or materially impair the consummation of the Merger; or
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commit, resolve or agree to do or authorize, any of the foregoing.
Additional Covenants of Enzon
In addition to the restrictions described above, Enzon has agreed not to, and to cause its Subsidiaries not to, directly or indirectly, take any of the following actions without the prior written consent of Viskase (such consent not to be unreasonably withheld, conditioned or delayed), except, in each case, as otherwise specifically contemplated by the terms of the Merger Agreement or as may be required by law or order:
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(i) increase the compensation or benefits payable or to become payable under any employee benefit plan of Enzon or otherwise to any employees, officers, director or independent contractors (who are individuals, including individuals providing their services through a personal services entity) of Enzon or any of its Subsidiaries, (ii) establish, adopt, enter into or amend any employee benefit plan of Enzon, or any benefit plan, arrangement, program, policy, commitment, or other arrangement that would be an employee benefit plan of Enzon if it were in existence on the date hereof, or any collective bargaining agreement, (iii) grant any awards under any bonus, incentive, performance or other compensation plan or arrangements, (iv) take any action to accelerate the vesting or payment of, or establish or provide any funding for any rabbi trust or similar arrangement for, any compensation or benefits under any employee benefit plan of Enzon (including any equity or equity-based awards), (v) grant or provide any change-in-control, retention, severance, termination compensation or benefits, (vi) hire or terminate (other than for “cause”) any employee, officer, director, or independent contractor (who is an individual, including an individual providing services through a personal services entity), or (vii) increase the compensation of any of its, or any of its Affiliates’, officers, directors, managers, partners, or employees, or pay or agree to pay any bonus or similar payment to any of the foregoing other than, in each case, in the ordinary course of business consistent with past practice;
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accelerate the collection of accounts receivable or delay the payment of accounts payable or accrued expenses, in each case, other than in the ordinary course of business consistent with past practice; or
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commit, resolve or agree to do or authorize any of the foregoing.
No Solicitation by Enzon
From the date of the Merger Agreement until the earlier of the Effective Time or the termination of the Merger Agreement in accordance with its terms, Enzon has agreed not to, and to cause its Subsidiaries not to, and to instruct (and cause) its and its Subsidiaries’ respective Representatives not to, directly or indirectly:
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solicit, initiate or knowingly facilitate or encourage (including by furnishing non-public information) the submission of any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an Enzon Acquisition Proposal;
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engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person, any non-public information in connection with an actual or potential Enzon Acquisition Proposal; or
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enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement constituting an Enzon Acquisition Proposal.
In addition, except as expressly permitted by the Merger Agreement and described below, Enzon has agreed to, and to cause its Subsidiaries’ to (i) immediately cease any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Enzon Acquisition Proposal, or any inquiry or proposal that may reasonably be expected to lead to an Enzon Acquisition Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to any such Person in connection with a potential Enzon Acquisition Proposal and (iii) immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives.
Notwithstanding anything contained in the Merger Agreement to the contrary, if at any time prior to obtaining the Enzon Stockholder Approval, Enzon receives an Enzon Acquisition Proposal that did not result from any breach of the no solicitations provisions of the Merger Agreement, and the Enzon Board (acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Enzon Acquisition Proposal constitutes or is reasonably likely to lead to an Enzon Superior Proposal, then Enzon (acting at the direction of the Enzon Special Committee) may:
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enter into an Acceptable Confidentiality Agreement with the Person or group making such Enzon Acquisition Proposal and furnish pursuant to such Acceptable Confidentiality Agreement information (including non-public information) with respect to Enzon and its Subsidiaries to such Person or group; provided that Enzon must promptly provide to Viskase any material non-public information concerning Enzon or its Subsidiaries that is provided to such Person and was not previously provided to Viskase; and
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engage in or otherwise participate in discussions or negotiations with such Person or group and otherwise facilitate or assist with such Enzon Acquisition Proposal, if requested by such Person.
Enzon has also agreed to notify Viskase within two (2) business days of receipt of an Enzon Acquisition Proposal by Enzon or any of its Subsidiaries and, subject to applicable law (including with respect to fiduciary duties), to disclose to Viskase the material terms and conditions of any such Enzon Acquisition Proposal (including the consideration offered therein) and the identity of the Person or group making such Enzon Acquisition Proposal. Upon request by Viskase, Enzon has agreed to keep Viskase reasonably informed of any material developments with respect to such Enzon Acquisition Proposal, including any material changes thereto. Enzon has agreed to not, and to cause its Subsidiaries not to, enter into any confidentiality or similar agreement relating to an Enzon Acquisition Proposal with any Person that would prohibit it from providing such information to Viskase in accordance with the Merger Agreement.
Adverse Recommendation Change; Enzon Superior Proposal Termination
The Merger Agreement provides that neither the Enzon Board (acting on the recommendation of the Enzon Special Committee) nor the Enzon Special Committee will:
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withhold or withdraw (or modify in a manner adverse to Viskase), or publicly propose to withhold or withdraw (or modify in a manner adverse to Viskase), the Enzon Recommendation or the Enzon Special Committee Recommendation (as applicable);
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recommend the approval or adoption of, or approve or adopt, or publicly propose to recommend, approve or adopt, any Enzon Acquisition Proposal;
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fail to include the Enzon Recommendation or the Enzon Special Committee Recommendation in this prospectus/consent solicitation statement.
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make any public recommendation in connection with a tender or exchange offer that is subject to Regulation 14D under the Exchange Act, other than a recommendation in a Schedule 14D-9 against such tender or exchange offer;
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if an Enzon Acquisition Proposal (not subject to Regulation 14D under the Exchange Act) has been publicly announced or disclosed, fail to reaffirm the Enzon Recommendation or the Enzon Special Committee Recommendation on or prior to the tenth (10th) Business Day after Viskase requests such reaffirmation (any action described in this and the foregoing four (4) bullets being referred to as an “Enzon Adverse Recommendation Change”); provided, however, that (i) neither the delivery of notice to Viskase of an Enzon Acquisition Proposal nor any public announcement thereof will constitute an Enzon Adverse Recommendation Change and (ii) the Enzon Board (acting upon the recommendation of the Enzon Special Committee) or the Enzon Special Committee may make or cause Enzon to make a customary “stop, look and listen” communication and may elect to take no position with respect to an Enzon Acquisition Proposal until the close of business on the tenth (10th) business day after the commencement of such Enzon Acquisition Proposal pursuant to Rule 14e-2 under the Exchange Act without such action being considered an Enzon Adverse Recommendation Change; or
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enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or similar agreement constituting an Enzon Acquisition Proposal, other than an Acceptable Confidentiality Agreement.
However, notwithstanding the foregoing or any other provision of the Merger Agreement to the contrary, prior to obtaining the Enzon Stockholder Approval, the Enzon Board (acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee may:
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(i) make an Enzon Adverse Recommendation Change in response to an Enzon Intervening Event, if the Enzon Board (acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee determines in good faith, after consultation with outside legal counsel, that failure to do so would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable law; or
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(ii) make an Enzon Adverse Recommendation Change or effect an Enzon Superior Proposal Termination in response to an Enzon Superior Proposal, if the Enzon Board (acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee determines in good faith, after consultation with its financial advisor and outside legal counsel, that such proposal constitutes an Enzon Superior Proposal;
provided that, in either case of the foregoing clauses (i) and (ii), the Enzon Board (acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee must:
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provide Viskase with at least five (5) business days’ prior written notice of its intention to take such action, including details of the Enzon Intervening Event or the Enzon Superior Proposal, as applicable, the identity of the Person making the Enzon Superior Proposal and the material terms thereof and attach the relevant agreement and all material documentation providing for such Enzon Superior Proposal;
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negotiate in good faith with Viskase during such notice period to allow Viskase to propose revisions to the Merger Agreement such that (i) in the case of an Enzon Adverse Recommendation Change to be made in response to an Enzon Intervening Event, it would obviate any need to make such Enzon Adverse Recommendation Change or (ii) in the case of any Enzon Adverse Recommendation Change or Enzon Superior Proposal Termination to be made in response to an Enzon Superior Proposal, it would cause such Enzon Superior Proposal to no longer constitute an Enzon Superior Proposal;
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consider in good faith any binding offer from Viskase and determine whether (i) in the case of an Enzon Adverse Recommendation Change to be made in response to an Enzon Intervening Event, the failure to make an Enzon Adverse Recommendation Change in response to such Enzon Intervening Event would continue to reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable law or (ii) in the case of an Enzon Adverse Recommendation Change or Enzon Superior Proposal Termination to be made in response to an Enzon Superior Proposal, the Enzon Superior Proposal would continue to constitute an Enzon Superior Proposal, in each case, if the revisions proposed by Viskase in such binding offer were to be given effect would still justify the action; and
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in the event of any material development or change to the Enzon Intervening Event or Enzon Superior Proposal, as applicable, deliver a new notice to Viskase and recommence the notice and negotiation process.
Permitted Disclosures
Nothing in the Merger Agreement prohibits the Enzon Board (acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee from:
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taking and disclosing to Enzon’s stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A under the Exchange Act; or
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making any disclosure to Enzon’s stockholders that is required by applicable law or stock exchange rules.
In addition, a factually accurate public statement by Enzon, solely if and to the extent required by law in the opinion of its legal counsel, describing the receipt of an Enzon Acquisition Proposal, the identity of the Person making such Enzon Acquisition Proposal, the material terms of the Enzon Acquisition Proposal and the operation of the Merger Agreement with respect thereto will not, in and of itself, be deemed to be: (i) a withholding, withdrawal, amendment, modification or proposal by the Enzon Board or the Enzon Special Committee to withhold, withdraw, amend or modify the Enzon Recommendation or the Enzon Special Committee Recommendation (as applicable); (ii) an adoption, approval or recommendation with respect to such Enzon Acquisition Proposal; or (iii) an Enzon Adverse Recommendation Change, in each case, so long as the Enzon Board or the Enzon Special Committee expressly reaffirms the Enzon Recommendation and the Enzon Special Committee Recommendation in such public statement.
Certain Definitions
For purposes of the Merger Agreement:
“Enzon Acquisition Proposal” means any inquiry, proposal or offer from any Person or group (other than Viskase and its Subsidiaries) relating to, in a single transaction or series of related transactions, any direct or indirect:
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acquisition of 20% or more of the consolidated assets of Enzon and its Subsidiaries (based on the fair market value thereof, as determined in good faith by the Enzon Board or any committee thereof), or assets comprising 20% or more of the consolidated revenues or EBITDA of Enzon and its Subsidiaries, including in any such case through the acquisition of one (1) or more Subsidiaries of Enzon owning such assets;
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acquisition of Enzon Common Stock representing 20% or more of the aggregate equity or voting power of Enzon;
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tender or exchange offer that, if consummated, would result in any Person or group Beneficially Owning Enzon Common Stock representing 20% or more of the aggregate equity or voting power of Enzon; or
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merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving Enzon pursuant to which such Person or group (or the stockholders of any Person) would acquire, directly or indirectly, 20% or more of the aggregate equity or voting power of Enzon or of the surviving entity in a merger involving Enzon or the resulting direct or indirect parent of Enzon or such surviving entity.
“Enzon Intervening Event” means any event, change, circumstance, effect, development or state of facts that is material to Enzon and its Subsidiaries, taken as a whole, that (i) first becomes known after the date of the Merger Agreement and prior to the Enzon Stockholder Approval and (ii) was not known by or reasonably foreseeable to the Enzon Board or the Enzon Special Committee as of the date of the Merger Agreement; provided, however, that in no event shall any of the following events, changes, circumstances, effects, developments or states of fact be taken into account in determining whether an Enzon Intervening Event has occurred: (A) the receipt, existence or terms of an Enzon Acquisition Proposal or any matter
relating thereto or direct or indirect consequence thereof; (B) the fact that, in and of itself, Enzon or any of its Subsidiaries exceeds any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that the facts or occurrences giving rise to or contributing to such event may be taken into account in determining whether there has been, or will be, an Enzon Intervening Event to the extent not otherwise excluded hereunder); or (C) any change, in and of itself, in the market price or trading volume of Enzon’s securities (it being understood that the facts or occurrences giving rise to or contributing to such change may be taken into account in determining whether there has been or will be, an Enzon Intervening Event to the extent not otherwise excluded hereunder).
“Enzon Superior Proposal” means any bona fide unsolicited written Enzon Acquisition Proposal that the Enzon Board and the Enzon Special Committee have determined in their good faith judgment, after consultation with their outside legal counsel and financial advisor, (i) would be more favorable to Enzon’s stockholders from a financial point of view than the transactions contemplated by the Merger Agreement (taking into account any amendment or modification proposed by Viskase pursuant to the Merger Agreement and (ii) is reasonably likely to be completed in accordance with its terms, taking into account all terms and conditions of such proposal and the legal, regulatory, financial (including financing terms), timing and other aspects of such proposal (including certainty of closing) and of the Merger Agreement; provided that for purposes of the definition of “Enzon Superior Proposal”, the references to “20%” in the definition of Enzon Acquisition Proposal shall be deemed to be references to “50%.”
“Enzon Superior Proposal Termination” means the termination of the Merger Agreement by the Enzon Board (acting on the recommendation of the Enzon Special Committee) or by the Enzon Special Committee to enter into a definitive agreement providing for an Enzon Superior Proposal.
Efforts
Enzon and Viskase have each agreed to use their commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with each other in doing, all things necessary, proper or advisable to consummate and make effective, as soon as possible following the date of the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, including using commercially reasonable efforts in:
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conducting their business and the business of their respective Subsidiaries in all material respects, in the ordinary course of business, in a manner consistent with past practice and preserve substantially intact the business organization of itself and its respective Subsidiaries, to keep available the services of the present executive officers and the key employees of each party and its respective Subsidiaries and to preserve, in all material respects, their respective assets and properties in good repair and condition and the present relationships and goodwill of itself and its respective Subsidiaries with governmental entities and Persons with which it or any of its respective Subsidiaries has significant business relations;
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the obtaining of all necessary actions, non-actions, waivers, consents and approvals from governmental entities prior to the Effective Time, and the making of all necessary registrations and filings and the taking of all steps as may be reasonably necessary in connection therewith;
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the obtaining of all required consents, approvals or waivers from third parties;
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the contesting and defending of any lawsuits or other legal proceedings challenging the Merger Agreement, the Merger or the other contemplated transactions, including seeking to have any stay or temporary restraining order entered by any governmental entity vacated or reversed;
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executing and delivering any additional instruments necessary to consummate the contemplated transactions; and
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refraining from taking any action that would reasonably be expected to impede, interfere with, prevent or materially delay the Closing.
D&O Insurance and Indemnification
The Merger Agreement requires that, for a period of six (6) years following the Effective Time (to the fullest extent permitted by applicable law, the Enzon Organizational Documents and Viskase Organizational
Documents, and certain indemnification agreements to which Enzon is a party), Enzon will, and will cause the Surviving Company to, indemnify and hold harmless all past and present directors, officers and managers of Enzon, Viskase, and their respective Subsidiaries (collectively, the “Indemnified Parties”) against any costs (including reasonable attorneys’ fees), expenses (including advancement of such costs and expenses and applicable retention amounts under applicable insurance policies) prior to the final disposition of any actual or threatened claim, suit, proceeding or investigation to each Indemnified Party, judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, investigation or proceeding, whether civil, criminal, administrative or investigative, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time (including acts or omissions occurring in connection with the approval of the Merger Agreement and the consummation of the Merger), whether asserted or claimed prior to, at or after the Effective Time, by reason of the fact that such Indemnified Party is or was serving as a director, officer or manager of Enzon, Viskase or any of their respective Subsidiaries.
For six (6) years following the Effective Time, Enzon and the Surviving Company are required to maintain in effect the provisions in (i) the Enzon Organizational Documents and Viskase Organizational Documents, respectively, and (ii) certain indemnification agreements of Enzon or any of its Subsidiaries with any Indemnified Party, subject to certain limited exceptions. Such provisions may not be amended, modified or repealed in a manner that would adversely affect the rights or protections of any Indemnified Party with respect to acts or omissions occurring or alleged to have occurred at or prior to the Effective Time (including acts or omissions occurring in connection with the approval of the Merger Agreement and the consummation of the Merger) without the prior written consent of such Indemnified Party or such Person’s heirs, executors, administrators or Representatives.
In addition, the Merger Agreement requires that, at or prior to the Effective Time, Viskase (or, at Enzon’s election, Enzon) will purchase a six (6)-year prepaid “tail” policy for the benefit of Enzon’s directors and officers who served prior to the transactions contemplated by the Merger Agreement, which Enzon and the Surviving Company will maintain in effect for the duration of such policy. The policy must provide coverage on terms and conditions (including retentions, limits and other material terms) that are substantially equivalent to the current directors’ and officers’ liability insurance and fiduciary liability insurance policies maintained by Enzon and its Subsidiaries with respect to matters arising at or prior to the Effective Time. However, the aggregate cost of such “tail” policy may not exceed 300% of the last aggregate annual premium paid by Enzon prior to the date of the Merger Agreement for such policies, and if the cost would exceed such amount, Viskase will be permitted to purchase as much coverage as is reasonably practicable for such amount.
Other Covenants of the Parties
The Merger Agreement contains additional agreements among and obligations of Enzon, Merger Sub and Viskase, relating to, among other things:
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cooperation between Enzon and Viskase in the preparation and filing of this prospectus/consent solicitation statement and the solicitation of written consents from the stockholders of Enzon;
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access by each party and its Representatives to certain information about the other party and its Subsidiaries during the period prior to the Effective Time, subject to customary limitations and the terms of the Confidentiality Agreement;
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cooperation between Enzon and Viskase in the defense, settlement or prosecution of any Viskase Transaction Litigation or Enzon Transaction Litigation, including consultation rights and consent requirements with respect to any such litigation;
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obtaining the prior written consent of the other party before making public announcements relating to the Merger and the other transactions contemplated by the Merger Agreement (except as otherwise required by applicable law, in which case, the other party will be given an opportunity to review and comment on such public announcement);
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actions by Enzon to exempt certain dispositions of Viskase Common Stock and acquisitions of Enzon Common Stock under Rule 16b-3 promulgated under the Exchange Act;
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the intention of Enzon and Viskase that the Merger and the conversion of Viskase into a limited liability company qualify for the Intended Tax Treatment, and the obligation of each party to use its reasonable best efforts to cause such treatment and to notify the other party of any fact or circumstance that could reasonably be expected to prevent such treatment;
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actions by Enzon to (i) consummate the IEH Share Exchange in accordance with the IEH Support Agreement and (ii) commence and consummate the Series C Exchange Offer, subject to the conditions set forth in the Merger Agreement, and to seek maximum participation by holders of Enzon Series C Preferred Stock, other than the IEH Parties;
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cooperation between Enzon and Viskase in connection with the delivery of officers’ certificates, legal opinions and other documentation required under the Viskase Credit Agreement in connection with the Merger;
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actions by Viskase to terminate that certain Private Placement Agreement, dated as of October 9, 2020, by and between Viskase and Icahn Enterprise Holdings L.P. prior to or concurrently with the Effective Time;
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actions by Enzon and Viskase to ensure that no Takeover Law becomes applicable to the Merger Agreement, the Merger, the IEH Support Agreement or any of the other transactions contemplated thereby, or to otherwise minimize the effect of any such Takeover Law;
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cooperation between Enzon and Viskase in connection with the delisting of Viskase Common Stock from quotation on the OTC, effective as of the Effective Time;
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actions by Enzon to cause the shares of Enzon Common Stock to be issued in connection with the Merger to be quoted on the OTC, subject to official notice of issuance, prior to the Effective Time;
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actions by Enzon to effectuate the Reverse Stock Split prior to the Effective Time, with the final ratio to be determined by Viskase in its sole discretion within a specified range, and subject to the authorized share limit under Enzon’s Amended and Restated Certificate of Incorporation;
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actions by Enzon to permit the rights issued pursuant to the Section 382 Rights Agreement to expire in accordance with the terms of the 382 Rights Agreement and cause the 382 Rights Agreement to be terminated or expire in accordance with its terms prior to the Effective Time; and
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efforts by Enzon to cause each Person identified by Viskase, and upon Viskase’s written request, who is in office as a director or officer of Enzon or any of its Subsidiaries to resign from all such positions, effective as of the Effective Time.
Conditions to Completion of the Merger
Mutual Conditions to Completion
The respective obligations of Enzon and Viskase to effect the Merger are subject to the satisfaction, or (to the extent permitted by law) waiver by Enzon and Viskase (as applicable), at or prior to the Effective Time, of the following conditions:
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Viskase Stockholder Approval. Viskase having obtained the Viskase Stockholder Approval (which was satisfied on November 11, 2025).
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Enzon Stockholder Approval. Enzon having obtained the Enzon Stockholder Approval.
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Series C Exchange Offer. The Series C Exchange Offer will have been consummated.
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Absence of Legal Restraint. the consummation of the Merger not being prohibited, made illegal or enjoined by any law or order of any governmental authority of competent jurisdiction. No Governmental Entity of competent jurisdiction in the United States having (i) adopted or promulgated any law that is in effect or (ii) issued any temporary, preliminary or permanent Order that is in effect, in each case, which has the effect of making the Merger illegal or otherwise restraining, enjoining or prohibiting consummation of the Merger (each, a “Legal Restraint”).
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Exchange Listing. The shares of Enzon Common Stock to be issued in the Merger having been approved for listing on the OTC, subject to official notice of issuance.
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Effectiveness of Registration Statement. The registration statement on Form S-4, of which this prospectus/consent solicitation statement forms a part, having become effective under the Securities Act and not being subject of any stop order or any proceedings (initiated or threatened) by the SEC seeking a stop order.
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Antitrust Approval. Any waiting period applicable to the Merger under the HSR Act having expired or having been terminated, which early termination was granted by the FTC on July 15, 2025.
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IEH Share Exchange. The IEH Share Exchange having been consummated in accordance with the terms of the IEH Support Agreement.
Additional Conditions to Completion for the Benefit of Enzon
The obligation of Enzon to effect the Merger is subject to the satisfaction, or waiver by Enzon, at or prior to the Effective Time, of the following additional conditions:
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Representations and Warranties. (i) The representations and warranties of Viskase set forth in the Merger Agreement relating to organization, standing, capitalization, authority, voting requirements, no rights agreement, anti-takeover provisions, opinion of financial advisors and brokers and other advisors being true and correct in all material respects; (ii) the representations and warranties of Viskase set forth in the Merger Agreement relating to no Material Adverse Effect since the Viskase Balance Sheet Date being true and correct in all respects; and (iii) all other representations and warranties of Viskase set forth in the Merger Agreement being true and correct, except, in the case of this clause (iii), where the failure to be so true and correct (without giving effect to any “materiality” or “Material Adverse Effect” qualifiers) has not had a Material Adverse Effect on Viskase, in the case of each of the foregoing clauses (i) through (iii), when made and as of the Closing Date, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case as of such date).
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Covenants. Viskase having performed in all material respects and complied in all material respects with all agreements and covenants required to be performed or complied with by it under the Merger Agreement at or prior to the Effective Time.
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Officer’s Certificate. Enzon having received a certificate of an executive officer of Viskase, dated as of the Closing Date, certifying that the representations and conditions of Viskase set forth in the foregoing two (2) bullets have been satisfied.
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Senior Credit Facility. Viskase having delivered to Enzon proof reasonably satisfactory to Enzon that no event of default, acceleration or other demand for payment under the Viskase Credit Agreement will occur as a result of the transactions contemplated by the Merger Agreement, including the Merger.
Additional Conditions to Completion for the Benefit of Viskase
The obligation of Viskase to effect the Merger is subject to the satisfaction or waiver by Viskase, at or prior to the Effective Time, of the following additional conditions:
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Representations and Warranties. (i) The representations and warranties of Enzon set forth in the Merger Agreement relating to organization, standing, capitalization, authority, voting requirements, no rights agreement, anti-takeover provisions, opinion of financial advisors and brokers and other advisors being true and correct in all material respects; (ii) the representations and warranties of Enzon set forth in the Merger Agreement relating to no Enzon Material Adverse Effect since the Enzon Balance Sheet Date being true and correct in all respects; and (iii) all other representations and warranties of Enzon set forth in the Merger Agreement being true and correct, except, in the case of this clause (iii), where the failure to be so true and correct (without giving effect to any “materiality” or “Material Adverse Effect” qualifiers) has not had a Material Adverse Effect on Enzon, in the case of each of the foregoing clauses (i) through (iii), when made and as of the Closing Date, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case as of such date).
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Covenants. Enzon having performed in all material respects and complied in all material respects with all agreements and covenants required to be performed or complied with by it under the Merger Agreement at or prior to the Effective Time.
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Officer’s Certificate. Viskase having received a certificate of an executive officer of Enzon, dated as of the Closing Date, certifying that the representations and conditions of Enzon described set forth in the foregoing two (2) bullets have been satisfied.
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Series C Preferred Actions. Each of the IEH Share Exchange and the Series C Exchange Offer having been consummated and effective.
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Reverse Stock Split. The Reverse Stock Split having been consummated and effective.
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Dissenting Viskase Stockholders. The period during which holders of Viskase Common Stock may exercise dissenters’ rights under Section 262 of the DGCL having expired, and holders representing not more than three percent (3%) of the issued and outstanding Viskase Common Stock having exercised (and not withdrawn or waived) such rights.
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Enzon’s Minimum Cash Condition. At the Closing, Enzon having Cash on Hand equal to or greater than $40,000,000.
No party may rely on the failure of any condition to be satisfied if such failure was caused by such party’s willful and material breach of the Merger Agreement.
Termination of the Merger Agreement
Termination by Enzon or Viskase
The Merger Agreement may be terminated at any time before the Effective Time by mutual written consent of Enzon and Viskase. The Merger Agreement may also be terminated at any time prior to the Effective Time by either Enzon or Viskase, if:
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the Merger has not been consummated on or before 11:59 p.m., Eastern Time, on March 31, 2026 (the “Termination Date”); provided that such right to terminate the Merger Agreement is not available to any party whose material breach of any obligation under the Merger Agreement has been the primary cause of the failure to consummate the Merger by the Termination Date; or
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any legal restraint permanently restraining, enjoining or otherwise prohibiting or making illegal the Merger or otherwise prohibiting the consummation of the Merger has become final and nonappealable; provided that the right to terminate the Merger Agreement will not be available to any party whose material breach of any obligation under the Merger Agreement has been the primary cause of the imposition of such legal restraint or the failure of such legal restraint to be resisted, resolved or lifted.
Termination by Enzon
The Merger Agreement may be terminated at any time prior to the Effective Time by Enzon, if:
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prior to the receipt of the Enzon Stockholder Approval, each of the following conditions are met: (i) the Enzon Board or Enzon Special Committee authorizes Enzon to enter into a definitive agreement providing for an Enzon Superior Proposal; (ii) none of Enzon, the Enzon Board or the Enzon Special Committee breached in any material respect its obligations under the Merger Agreement with respect to such Enzon Superior Proposal; (iii) concurrently with such termination, Enzon enters into a definitive agreement providing for an Enzon Superior Proposal; and (iv) prior to or concurrently with such termination, Enzon pays the Enzon Termination Fee to Viskase, as further described in the section titled “— Effect of Termination; Termination Fees” in this prospectus/consent solicitation statement;
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Viskase has breached or failed to perform any of its representations, warranties, covenants or agreements under the Merger Agreement, or if any representation or warranty of Viskase has become untrue, in a way that results in the failure to satisfy a closing condition of the Merger, and such
breach is not reasonably capable of being cured prior to (i) the Termination Date or, (ii) if such breach is reasonably capable of being cured prior to the Termination Date, such breach is not cured prior to the earlier of (A) 30 days after written notice of such breach or (B) the Termination Date (provided that Enzon is not then in material breach of any of its representations, warranties, covenants or agreements under the Merger Agreement, which breach would result in the failure to satisfy a closing condition of the Merger); or
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the Viskase Stockholder Approval has not been delivered to Enzon within 24 hours following the execution of the Merger Agreement; however, this termination provision expired following the delivery of the Viskase Stockholder Approval on November 11, 2025.
Termination by Viskase
The Merger Agreement may be terminated at any time prior to the Effective Time by Viskase, if:
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prior to the receipt of the Enzon Stockholder Approval, there has been an Enzon Adverse Recommendation Change; or
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Enzon has breached or failed to perform any of its representations, warranties, covenants or agreements under the Merger Agreement or if any representation or warranty of Enzon has become untrue in a way that results in the failure to satisfy a closing condition of the Merger, and such breach is not reasonably capable of being cured prior to (i) the Termination Date or, (ii) if such breach is reasonably capable of being cured prior to the Termination Date, such breach is not cured prior to the earlier of (A) 30 days after written notice of such breach or (B) the Termination Date (provided that Viskase is not then in material breach of any of its representations, warranties, covenants or agreements under the Merger Agreement, which breach would result in the failure to satisfy a closing condition of the Merger).
Effect of Termination; Termination Fees
In the event of the valid termination of the Merger Agreement in accordance with its terms, the Merger Agreement will be of no further force or effect, and neither party will have any further liability to the other, except that certain provisions, including those relating to termination effects and other general provisions together with the Confidentiality Agreement, will survive any such termination. If an Enzon Termination Fee is payable, such payment, together with any applicable expenses, will constitute the sole and exclusive remedy of Viskase, its Subsidiaries and any of their respective Representatives for any losses, damages or claims arising from the failure to consummate the Merger or the termination of the Merger Agreement. Notwithstanding the foregoing, all legal and equitable remedies remain available in cases involving fraud or an intentional breach of the Merger Agreement.
Enzon is required to pay Viskase a termination fee of $1,000,000 (the “Enzon Termination Fee”) if the Merger Agreement is terminated under any of the following circumstances:
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by Viskase following an Enzon Adverse Recommendation Change;
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by Enzon in order to enter into a definitive agreement with respect to an Enzon Superior Proposal (as discussed in the section titled “— Adverse Recommendation Change; Enzon Superior Proposal Termination” in this prospectus/consent solicitation statement); and
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(i) by either party because the Merger has not been completed by the Termination Date; (ii) after the execution of the Merger Agreement, an Enzon Acquisition Proposal has been publicly disclosed or announced or has become public (A) prior to the Termination Date (if the Merger Agreement is terminated as a result of the foregoing clause (i)) or (B) prior to termination of the Merger Agreement, if such termination is by Viskase because Enzon has breached or failed to perform any of its representations, warranties, covenants or agreements under the Merger Agreement or if any representation or warranty of Enzon has become untrue in a way that results in the failure to satisfy a closing condition of the Merger, which breach or failure is uncured or uncurable; and (iii) within 12 months following such termination, (1) an Enzon Acquisition Proposal is consummated or a definitive agreement providing for an Enzon Acquisition Proposal is entered into and is subsequently consummated (whether or not consummated within such 12 month period) or (2) any
Person commences a tender or exchange offer in respect of an Enzon Acquisition Proposal that is thereafter consummated (whether during or after such 12 month period).
Viskase is required to pay Enzon a termination fee of $1,000,000 if the Merger Agreement is terminated by Enzon due to the failure of the Viskase Board to deliver the Viskase Stockholder Approval within 24 hours following the execution of the Merger Agreement. The Viskase Stockholder Approval was delivered to Enzon by Viskase on June 20, 2025 and subsequently on November 11, 2025, within the time period required under the Merger Agreement. Accordingly, this requirement under the Merger Agreement has been satisfied.
All termination fee payments must be made by wire transfer of immediately available funds. Each party acknowledges that the termination fees are not penalties but represent reasonable liquidated damages in light of the efforts and resources expended in connection with the transaction. If a party fails to make a required payment, it will also be responsible for the other party’s costs of enforcement and interest on the unpaid amount.
Amendments; Waivers
The Merger Agreement may be amended by an instrument in writing signed by each of Enzon and Viskase at any time before or after the Enzon Stockholder Approval or the Viskase Stockholder Approval, but, after any such approval, no amendment may be made which by law requires further approval by such stockholders, without the approval of such stockholders.
Any agreement on the part of a party to the Merger Agreement to any waiver will be valid only if set forth in a written instrument signed on behalf of such party. The failure or delay of any party to the Merger Agreement to assert any of its rights under the Merger Agreement or otherwise will not constitute a waiver of those rights nor will any single or partial exercise thereof preclude any other or further exercise of any other right under the Merger Agreement.
Specific Performance
The parties to the Merger Agreement are entitled to an injunction, specific performance and other equitable relief to prevent breaches or threatened breaches of the Merger Agreement and to specifically enforce the terms and provisions of the Merger Agreement.
Third-Party Beneficiaries
The Merger Agreement is not intended to confer, and does not confer, any rights or remedies under or by reason of the Merger Agreement on any Person other than Enzon and Viskase and their respective successors and permitted assigns, other than (i) to Persons entitled to indemnification and insurance as described in the section titled “— D&O Insurance and Indemnification” in this prospectus/consent solicitation statement and (ii) the rights for former directors and officers of Enzon to consent to certain settlements, compromises and other arrangements regarding certain transaction litigation, as discussed in the section titled “— Other Covenants of the Parties” in this prospectus/consent solicitation statement.
Governing Law
The Merger Agreement is governed by the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.
SERIES C EXCHANGE OFFER
No Recommendation
None of Enzon, the Enzon Board, officers or employees of Enzon, the Information Agent, the Exchange Agent, any of Enzon’s financial advisors or any other Person is making any recommendation to any holder of Enzon Series C Preferred Stock as to whether such holder should tender shares of Enzon Series C Preferred Stock in the Series C Exchange Offer.
Accordingly, you must make your own decision as to whether to tender shares of Enzon Series C Preferred Stock in the Series C Exchange Offer and, if so, the number of shares of Enzon Series C Preferred Stock to tender. Participation in the Series C Exchange Offer is voluntary, and you should carefully consider whether to participate before you make your decision. Enzon urges you to carefully read this prospectus/consent solicitation statement in its entirety, including the information set forth in the section titled “Risk Factors — Risks Related to the Series C Exchange Offer” in this prospectus/consent solicitation statement. Enzon also urges you to consult your own financial and tax advisors in making your own decisions on what action, if any, to take in light of your own particular circumstances.
Reasons for the Series C Exchange Offer
Under the terms of the Merger Agreement, Enzon is required to use commercially reasonably efforts to commence the Series C Exchange Offer no less than twenty-five (25) business days prior to the Closing, which resulted from negotiations with Viskase regarding the treatment of the Enzon Series C Preferred Stock in connection with the Merger. Enzon understood that the redemption or other disposition of the Enzon Series C Preferred Stock was an important factor in Viskase’s decision to enter into the Merger Agreement. In addition, concurrently with the execution of the Merger Agreement, Enzon, Viskase and the IEH Parties entered into the IEH Support Agreement, pursuant to which the IEH Parties agreed to, among other things and subject to certain exceptions, immediately prior to the Closing, effectuate the conversion of each issued and outstanding share of Enzon Series C Preferred Stock into shares of Enzon Common Stock based upon the Enzon 20-day VWAP. The IEH Parties’ agreement to contribute additional value to the holders of Enzon Common Stock, other than the IEH Parties, in connection with the IEH Share Exchange pursuant to the IEH Support Agreement, was an important factor in the Enzon Board’s and the Enzon Special Committee’s determination that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of, Enzon and the Enzon stockholders. Enzon, the Enzon Board and the Enzon Special Committee determined that, because the IEH Parties agreed to exchange their shares of Enzon Series C Preferred Stock for shares of Enzon Common Stock in connection with the Merger, the other holders of Enzon Series C Preferred Stock should be offered the same opportunity to exchange their shares of Enzon Series C Preferred Stock for shares of Enzon Common Stock at the same price as the IEH Parties.
Terms of the Series C Exchange Offer
Enzon is offering to exchange, upon the terms and subject to the conditions set forth in this prospectus/consent solicitation statement and the accompanying letter of transmittal, any and all shares of Enzon Series C Preferred Stock validly tendered in the Series C Exchange Offer for newly issued shares of Enzon Common Stock (the “Series C Exchange Offer Consideration”).
The Series C Exchange Offer will expire at the Series C Exchange Time, unless extended or earlier terminated by us in Enzon’s discretion. Tendered shares of Enzon Series C Preferred Stock may be withdrawn at any time prior to the Series C Exchange Time. In addition, Enzon stockholders may withdraw any tendered shares of Enzon Series C Preferred Stock if Enzon has not accepted them for exchange within 60 days from the commencement of the Series C Exchange Offer on [•], 2026.
Enzon will issue shares of Enzon Common Stock in exchange for properly tendered (and not validly withdrawn) shares of Enzon Series C Preferred Stock that are accepted for exchange promptly after the Series C Exchange Time.
All of the shares of Enzon Series C Preferred Stock are held in book-entry form through the facilities of DTC in New York City. This prospectus/consent solicitation statement and the letter of transmittal are
being sent to all registered holders and beneficial holders of shares of Enzon Series C Preferred Stock identified by DTC participants as of the day preceding the date of this prospectus/consent solicitation statement. The record date for determining registered holders of Enzon Series C Preferred Stock entitled to participate in the Series C Exchange Offer is the Enzon Record Date. The Series C Exchange Offer will be available to each holder of Enzon Series C Preferred Stock.
Any shares of Enzon Series C Preferred Stock that are accepted for exchange in the Series C Exchange Offer will be retired. Shares of Enzon Series C Preferred Stock tendered but not accepted because they were not properly tendered shall remain outstanding upon completion of the Series C Exchange Offer. If any tendered shares of Enzon Series C Preferred Stock are not accepted for exchange because of an invalid tender, the occurrence of other events set forth in this prospectus/consent solicitation statement or otherwise, all unaccepted shares of Enzon Series C Preferred Stock will be returned, without expense, to the tendering holder promptly after the Series C Exchange Time.
Enzon’s obligation to accept shares of Enzon Series C Preferred Stock tendered pursuant to the Series C Exchange Offer is limited by the conditions listed below under the section titled “Series C Exchange Offer — Conditions of the Series C Exchange Offer” in this prospectus/consent solicitation statement.
Holders who tender shares of Enzon Series C Preferred Stock in the Series C Exchange Offer will not be required to pay brokerage commissions or fees to the Information Agent, the Exchange Agent or Enzon. If an Enzon stockholder’s shares of Enzon Series C Preferred Stock are held through a brokerage firm, bank or other nominee who tenders the shares of Enzon Series C Preferred Stock on his, her or its behalf, such holder’s broker or nominee may charge the holder a commission for doing so.
Additionally, subject to the instructions in the letter of transmittal, holders who tender shares of Enzon Series C Preferred Stock in the Series C Exchange Offer will not be required to pay transfer taxes with respect to the exchange of shares of Enzon Series C Preferred Stock. Please see the sections titled “Series C Exchange Offer — Fees and Expenses” and “Summary Of The Material Terms Of The Series C Exchange Offer — Material U.S. Federal Income Tax Considerations of the Series C Exchange Offer” in this prospectus/consent solicitation statement for further information regarding fees and expenses and taxes relating to the Series C Exchange Offer.
Enzon intends to conduct the Series C Exchange Offer in accordance with the applicable requirements of the Securities Act, the Exchange Act and the rules and regulations of the SEC. Shares of Enzon Series C Preferred Stock that are not accepted for exchange in the Series C Exchange Offer will remain outstanding. Please see the section titled “Series C Exchange Offer — Consequences of Failure to Exchange Enzon Series C Preferred Stock in the Series C Exchange Offer” in this prospectus/consent solicitation statement for further information. Holders of Enzon Series C Preferred Stock will not have appraisal rights, or any contract right to petition for fair value, with respect to the Series C Exchange Offer. Enzon will not independently provide such a right.
Enzon shall be deemed to have accepted for exchange properly tendered shares of Enzon Series C Preferred Stock when Enzon has given oral or written notice of the acceptance to the Exchange Agent. The Exchange Agent will act as agent for the holders of Enzon Series C Preferred Stock who tender their shares in the Series C Exchange Offer for the purposes of receiving the Series C Exchange Offer Consideration from Enzon and delivering the Series C Exchange Offer Consideration to the exchanging holders. Enzon expressly reserves the right to amend or terminate the Series C Exchange Offer, and not to accept for exchange any shares of Enzon Series C Preferred Stock not previously accepted for exchange, upon the occurrence of any of the conditions specified below under the section titled “Series C Exchange Offer — Conditions of the Series C Exchange Offer” in this prospectus/consent solicitation statement.
Fees and Expenses
The expenses of soliciting tenders of the shares of Enzon Series C Preferred Stock will be borne by Enzon. The principal solicitations are being made by mail; however, additional solicitations may be made by electronic communication, personally or by telephone or in Person by Enzon and the Information Agent, as well as by Enzon’s executive officer and other Affiliates.
Enzon stockholders will not be required to pay any fees or commissions to Enzon, the Exchange Agent or the Information Agent in connection with the Series C Exchange Offer. If an Enzon stockholder’s shares of Enzon Series C Preferred Stock are held through a brokerage firm, bank or other nominee that tenders such holder’s shares of Enzon Series C Preferred Stock on his, her or its behalf, such brokerage firm, bank or other nominee may charge such holder a commission or service fee for doing so. Enzon stockholders should consult their broker, dealer, commercial bank, trust company or other nominee to determine whether any charges will apply.
Fractional Shares of Enzon Common Stock
Enzon will not issue fractional shares of Enzon Common Stock in the Series C Exchange Offer.
Resale of Enzon Common Stock Received Pursuant to the Series C Exchange Offer
The offer and issuance of the shares of Enzon Common Stock pursuant to the Series C Exchange Offer is being registered under the Securities Act, and the Enzon Common Stock will be freely tradable, except by Enzon’s Affiliates.
Consequences of Failure to Exchange Enzon Series C Preferred Stock in the Series C Exchange Offer
Shares of Enzon Series C Preferred Stock that are not accepted for exchange in the Series C Exchange Offer will remain outstanding and continue to be entitled to the rights and benefits holders have under the DGCL and the Enzon Organizational Documents. The Enzon Common Stock will rank, with respect to dividend rights and rights on the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of the Combined Company, junior to the Enzon Series C Preferred Stock.
Further, if a sufficiently large number of shares of Enzon Series C Preferred Stock does not remain outstanding after the Series C Exchange Offer, the trading market for the remaining outstanding shares of Enzon Series C Preferred Stock may be less liquid and more sporadic and market prices may fluctuate significantly depending on the volume of trading of the shares of Enzon Series C Preferred Stock.
Series C Exchange Time; Extension; Termination; Amendment
The Series C Exchange Offer will expire at the Series C Exchange Time, unless extended or earlier terminated by Enzon in its sole discretion. The term “Series C Exchange Time” means 5:00 p.m., Eastern Time, on [•], 2026, and if Enzon extends the period of time for which the Series C Exchange Offer remains open, the term “Series C Exchange Time” means the latest time and date to which the Series C Exchange Offer is so extended.
Tendered shares of Enzon Series C Preferred Stock may be withdrawn prior to the Series C Exchange Time. Enzon stockholders must validly tender their shares of Enzon Series C Preferred Stock for exchange prior to the Series C Exchange Time to receive the Series C Exchange Offer Consideration. The Series C Exchange Time will be at least 20 business days from the commencement of the Series C Exchange Offer as required by Rule 14e-1(a) under the Exchange Act.
Enzon reserves the right, in its sole discretion, to extend the period of time that the Series C Exchange Offer is open, and delay acceptance for exchange of any shares of Enzon Series C Preferred Stock, by giving oral or written notice to the Exchange Agent and by timely public announcement no later than 9:00 a.m., Eastern Time, on the next business day after the previously scheduled Series C Exchange Time. During any extension, all shares of Enzon Series C Preferred Stock previously tendered pursuant to the extended Exchange Offer will remain subject to the Series C Exchange Offer unless properly withdrawn.
In addition, Enzon reserves the right to:
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terminate the Series C Exchange Offer and not accept for exchange any shares of Enzon Series C Preferred Stock not previously accepted for exchange upon the occurrence of any of the events specified below under the section titled “Series C Exchange Offer — Conditions of the Series C Exchange Offer” in this prospectus/consent solicitation statement that have not been waived by Enzon; and
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amend the terms of the Series C Exchange Offer in any manner permitted or not prohibited by law.
If Enzon terminates or amends the Series C Exchange Offer, Enzon will notify the Exchange Agent by oral or written notice (with any oral notice to be promptly confirmed in writing) and will issue a timely press release or other public announcement regarding the termination or amendment.
In the event that the Series C Exchange Offer is terminated, withdrawn or otherwise not consummated prior to the Series C Exchange Time, no consideration will be paid or become payable to holders who have properly tendered their shares of Enzon Series C Preferred Stock pursuant to the Series C Exchange Offer. In any such event, the shares of Enzon Series C Preferred Stock previously tendered pursuant to the Series C Exchange Offer will be promptly returned to the tendering holders.
If Enzon makes a material change in the terms of the Series C Exchange Offer or the information concerning the Series C Exchange Offer or waives a material condition of the Series C Exchange Offer, Enzon will promptly disseminate disclosure regarding the changes to the Series C Exchange Offer as required by law. In addition, Enzon will take steps to ensure that the Series C Exchange Offer remains open for the minimum number of days, as required by law, following the date Enzon disseminates disclosure regarding the changes.
Procedures for Tendering Shares of Enzon Series C Preferred Stock
Enzon has forwarded to its stockholders, along with this prospectus/consent solicitation statement, the letter of transmittal relating to the Series C Exchange Offer. A holder need not submit the letter of transmittal if the holder validly tenders shares of Enzon Series C Preferred Stock in accordance with the procedures mandated by DTC’s ATOP.
To tender in the Series C Exchange Offer through ATOP, a holder must comply with the procedures described below under the section titled “Series C Exchange Offer — The Depository Trust Company Book-Entry Transfer Procedures” in this prospectus/consent solicitation statement.
The Depository Trust Company Book-Entry Transfer Procedures
The Exchange Agent will establish accounts with respect to the shares of Enzon Series C Preferred Stock at DTC for purposes of the Series C Exchange Offer promptly following the Series C Exchange Time.
Holders who tender (and do not validly withdraw) their shares of Enzon Series C Preferred Stock to the Exchange Agent prior to the Series C Exchange Time will be entitled to receive the Series C Exchange Offer Consideration on the settlement date; provided that the remaining conditions to the Series C Exchange Offer have been satisfied or waived. It is each stockholder’s responsibility to validly tender such stockholder’s shares of Enzon Series C Preferred Stock. Enzon has the right to waive any defects. However, Enzon is not required to waive defects and is not required to notify a stockholder of defects in such stockholder’s tender.
Any beneficial holder whose shares of Enzon Series C Preferred Stock are registered in the name of a brokerage firm, bank or other nominee who wishes to tender should contact such brokerage firm, bank or other nominee promptly and instruct such brokerage firm, bank or other nominee to tender the shares of Enzon Series C Preferred Stock on such beneficial owner’s behalf.
If you need help in tendering your shares of Enzon Series C Preferred Stock, please contact the Exchange Agent, whose address and telephone number are listed in the response to “Who can answer my questions” in the section titled “Questions and Answers About the Series C Exchange Offer” in this prospectus/consent solicitation statement.
All of the shares of Enzon Series C Preferred Stock are held in book-entry form and are currently represented by one (1) or more global certificates registered in the name of a nominee of DTC. Enzon has confirmed with DTC that the shares of Enzon Series C Preferred Stock may be exchanged by using ATOP procedures instituted by DTC. DTC participants may electronically transmit their acceptance of the Series C Exchange Offer by causing DTC to transfer their outstanding shares of Enzon Series C Preferred Stock to the Exchange Agent using the ATOP procedures. In connection with each book-entry transfer of
shares of Enzon Series C Preferred Stock to the Exchange Agent, DTC will send an “agent’s message” to the Exchange Agent, which, in turn, will confirm its receipt of the book-entry transfer. The term “agent’s message” means a message transmitted by DTC to, and received by, the Exchange Agent and forming a part of a book-entry confirmation, stating that DTC has received an express acknowledgement from the participant in DTC tendering shares of Enzon Series C Preferred Stock that such participant has received and agrees to be bound by the terms of the Series C Exchange Offer and that the Company may enforce such agreement against the participant. By using the ATOP procedures to tender shares of Enzon Series C Preferred Stock, you will not be required to deliver the letter of transmittal to the Information Agent. However, you will be bound by the terms of the letter of transmittal just as if you had signed it.
You must allow sufficient time for completion of the ATOP procedures during the normal business hours of DTC to tender your shares of Enzon Series C Preferred Stock or follow the procedures described under the section titled “— Guaranteed Delivery Procedures” below in this prospectus/consent solicitation statement.
Guaranteed Delivery Procedures
If a holder of Enzon Series C Preferred Stock desires to tender his, her or its shares of Enzon Series C Preferred Stock for exchange pursuant to the Series C Exchange Offer, but (i) the procedure for book-entry transfer cannot be completed on a timely basis or (ii) time will not permit all required documents to reach the Exchange Agent prior to the Series C Exchange Time, the holder can still tender his, her or its shares of Enzon Series C Preferred Stock if all of the following conditions are met:
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the tender is made by or through a bank, broker dealer, credit union, savings association or other entity that is a member in good standing of the Securities Transfer Agents Medallion Program or a bank, broker, dealer, credit union, savings association or other entity that is an “eligible guarantor institution,” as that term is defined in Rule 17Ad-15 promulgated under the Exchange Act (an “Eligible Institution”);
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the Exchange Agent receives by hand, mail, overnight courier or electronic mail transmission, prior to the Series C Exchange Time, a properly completed and duly executed Notice of Guaranteed Delivery in the form attached as an exhibit to the Registration Statement (of which this prospectus/consent solicitation statement is a part), with signatures guaranteed by an Eligible Institution; and
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a confirmation of a book-entry transfer into the Exchange Agent’s account at DTC of all shares of Enzon Series C Preferred Stock delivered electronically, together with a properly completed and duly executed letter of transmittal with any required signature guarantees (or, in the case of a book-entry transfer, an “agent’s message” in accordance with ATOP), and any other documents required by the letter of transmittal, must be received by the Exchange Agent within two (2) days that the OTCQB is open for trading after the date the Exchange Agent receives such Notice of Guaranteed Delivery.
In any case where the guaranteed delivery procedure is utilized for the tender of shares of Enzon Series C Preferred Stock pursuant to the Series C Exchange Offer, the issuance of Enzon Common Stock in exchange for those shares of Enzon Series C Preferred Stock accepted for exchange pursuant to the Series C Exchange Offer will be made only if the Exchange Agent has timely received the applicable foregoing items.
Withdrawal Rights
You may withdraw your tender of shares of Enzon Series C Preferred Stock at any time before the Series C Exchange Time. In addition, if not previously returned, you may withdraw shares of Enzon Series C Preferred Stock that you tender that are not accepted by Enzon for exchange after expiration of 60 days from the commencement of the Series C Exchange Offer. For a withdrawal of shares tendered through ATOP to be effective, the Exchange Agent must receive a computer-generated notice of withdrawal, transmitted by DTC on behalf of the holder in accordance with the standard operating procedure of DTC, or a written notice of withdrawal, sent by electronic transmission, receipt confirmed by telephone or letter, before the Series C Exchange Time. Any notice of withdrawal must:
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specify the name of the Person that tendered the shares of Enzon Series C Preferred Stock to be withdrawn;
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identify the shares of Enzon Series C Preferred Stock to be withdrawn;
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specify the number of shares of Enzon Series C Preferred Stock to be withdrawn;
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include a statement that the holder is withdrawing its election to have the shares of Enzon Series C Preferred Stock exchanged;
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be signed by the holder in the same manner as the original signature on the letter of transmittal by which the shares of Enzon Series C Preferred Stock were tendered, including any required signature guarantees, or be accompanied by documents of transfer sufficient to have the transfer agent register the transfer of such shares of Enzon Series C Preferred Stock into the name of the Person withdrawing the tender; and
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specify the name in which any shares of Enzon Series C Preferred Stock are to be registered, if different from that of the Person that tendered the shares of Enzon Series C Preferred Stock.
Any notice of withdrawal of shares tendered through ATOP must specify the name and number of the account at DTC to be credited with the withdrawn shares of Enzon Series C Preferred Stock or otherwise comply with DTC’s procedures.
Any shares of Enzon Series C Preferred Stock withdrawn will not have been properly tendered for exchange for purposes of the Series C Exchange Offer. Any shares of Enzon Series C Preferred Stock that have been tendered for exchange through ATOP but which are not accepted for exchange for any reason will be credited to an account with DTC specified by the holder, promptly after withdrawal, rejection of tender or termination of the Series C Exchange Offer. Properly withdrawn shares of Enzon Series C Preferred Stock may be re-tendered by following one (1) of the procedures described under the section titled “Series C Exchange Offer Procedures for Tendering Shares of Enzon Series C Preferred Stock” in this prospectus/consent solicitation statement at any time on or before the Series C Exchange Time.
Acceptance of Shares of Enzon Series C Preferred Stock for Exchange; Delivery of Exchange Offer Consideration
Upon satisfaction or waiver of all of the conditions to the Series C Exchange Offer, Enzon will accept the shares of Enzon Series C Preferred Stock properly tendered that have not been validly withdrawn pursuant to the Series C Exchange Offer and will pay the Series C Exchange Offer Consideration in exchange for such shares of Enzon Series C Preferred Stock promptly following the Series C Exchange Time, in the manner required by Rule 14e-1(c) promulgated under the Exchange Act. Please see the section titled “Series C Exchange Offer — Conditions of the Series C Exchange Offer” in this prospectus/consent solicitation statement for further information regarding the Conditions of the Series C Exchange Offer. For purposes of the Series C Exchange Offer, Enzon will be deemed to have accepted properly tendered shares of Enzon Series C Preferred Stock for exchange when Enzon gives notice of acceptance to the Exchange Agent.
In all cases, Enzon will pay the Series C Exchange Offer Consideration in exchange for shares of Enzon Series C Preferred Stock that are accepted for exchange pursuant to the Series C Exchange Offer only after the Exchange Agent timely receives a book-entry confirmation of the transfer of the shares of Enzon Series C Preferred Stock into the Exchange Agent’s account at DTC, and a properly completed and duly executed letter of transmittal and all other required documents or a properly transmitted “agent’s message.”
Enzon will not be liable for any interest as a result of a delay by the Exchange Agent or DTC in distributing the Series C Exchange Offer Consideration in the Series C Exchange Offer.
Conditions of the Series C Exchange Offer
Notwithstanding any other provision of this prospectus/consent solicitation statement to the contrary, Enzon will not be required to accept for exchange shares of Enzon Series C Preferred Stock tendered pursuant to the Series C Exchange Offer and may terminate or amend the Series C Exchange Offer if any condition to the Series C Exchange Offer is not satisfied. Such conditions to the Series C Exchange Offer include: (i) the absence of any applicable law or order of a governmental authority prohibiting, rending illegal or enjoining the consummation of the Exchange Offer or the other transactions contemplated by the Merger Agreement; (ii) the satisfaction or, to the extent permissible by applicable Law, waiver of the conditions in
Article VIII of the Merger Agreement (except for (A) consummation of the Exchange Offer or (B) those conditions that by their nature are to be satisfied following the consummation of the Exchange Offer or at the Closing (the conditions referenced in this clause (B), the “Applicable Conditions”); and (iii) each of Viskase and Enzon has provided a written notice to the other party confirming that (A) following due inquiry, such party is not aware of any fact or circumstance that would lead such party to believe that the Applicable Conditions would not be satisfied within three (3) Business Days and (B) on the basis thereof, such party is ready, willing and able to consummate the Merger within three (3) Business Days. Enzon may also, subject to Rule 14e-1(c) under the Exchange Act, which requires that an offeror pay the consideration offered or return the securities deposited by or on behalf of the holders thereof promptly after the termination or withdrawal of a tender offer, postpone the acceptance for exchange of shares of Enzon Series C Preferred Stock properly tendered (and not validly withdrawn) prior to the Series C Exchange Time, if any one (1) of the closing conditions in the Merger Agreement, except for those that (i) reference the Series C Exchange Offer or (ii) cannot be satisfied prior to (A) the Closing or (B) the consummation of the Series C Exchange Offer, has not occurred or been waived by us. Please see the section titled “The Merger Agreement — Conditions to the Completion of the Merger” in this prospectus/consent solicitation statement for further information regarding the closing conditions in the Merger Agreement.
Enzon expressly reserves the right to amend or terminate the Series C Exchange Offer and to reject for exchange any shares of Enzon Series C Preferred Stock not previously accepted for exchange, upon the occurrence of any of the conditions to the Series C Exchange Offer specified above. In addition, Enzon expressly reserves the right, at any time or at various times, to waive certain of the conditions to the Series C Exchange Offer, in whole or in part. Enzon will give oral or written notice (with any oral notice to be promptly confirmed in writing) of any amendment, non-acceptance, termination or waiver to the Exchange Agent as promptly as practicable, followed by a timely press release or other public announcement to the extent required by law.
These conditions are for Enzon’s sole benefit and may be asserted by Enzon with respect to all or any portion of the Series C Exchange Offer in Enzon’s reasonable discretion, regardless of the circumstances giving rise to the condition (other than any action or failure to act by Enzon). Each such right will be deemed an ongoing right that Enzon may assert at any time or at various times with respect to the Series C Exchange Offer prior to its expiration. All conditions to the Series C Exchange Offer (except with respect to the consummation of the Merger) must be satisfied or waived prior to the Series C Exchange Time.
Settlement
Promptly after tender, the holders of any tendered shares of Enzon Series C Preferred Stock that Enzon deems not accepted for payment, whether for improper tender procedure or otherwise, will be notified. All shares of Enzon Series C Preferred Stock for which such notification is not provided promptly following the Series C Exchange Time will be deemed accepted for payment, subject only to the closing conditions of the Series C Exchange Offer.
If any tendered shares of Enzon Series C Preferred Stock are not accepted for exchange pursuant to the terms and conditions of the Series C Exchange Offer for any reason, certificates for such unexchanged shares of Enzon Series C Preferred Stock will be returned to the tendering holder promptly following the Series C Exchange Time.
Upon the terms and subject to the conditions of the Series C Exchange Offer, the delivery of the Series C Exchange Offer Consideration in exchange for properly tendered and accepted shares of Enzon Series C Preferred Stock pursuant to the Series C Exchange Offer will be made by Enzon promptly following the Series C Exchange Time, in the manner required by Exchange Act Rule 14e-1(c) under the Exchange Act.
Under no circumstances will interest be paid by Enzon by reason of any delay in making such exchange.
Future Purchases
Following the completion of the Series C Exchange Offer, Enzon may conduct repurchases of shares of Enzon Series C Preferred Stock that remain outstanding in the open market, redemptions, privately negotiated transactions, tender or exchange offers or otherwise.
Future purchases of shares of Enzon Series C Preferred Stock that remain outstanding after the Series C Exchange Offer may be on terms that are more or less favorable than the Series C Exchange Offer. However, Exchange Act Rules 14e-5 and 13e-4 generally prohibit Enzon and its Affiliates from purchasing any shares of Enzon Series C Preferred Stock other than pursuant to the Series C Exchange Offer until ten (10) business days after the Series C Exchange Time, although there are some exceptions. Future purchases, if any, will depend on many factors, which will include market conditions and the condition of Enzon’s business.
No Appraisal Rights
Holders of Enzon Series C Preferred Stock will not have appraisal rights, or any contract right to petition for fair value, with respect to the Series C Exchange Offer. Enzon will not independently provide such a right.
Schedule TO
The Schedule TO for the Series C Exchange Offer, including the exhibits and any amendments and supplements thereto, may be examined, and copies may be obtained, at the same places and in the same manner as are set forth under the section titled “How to Obtain Additional Information” in this prospectus/consent solicitation statement. Enzon will amend the Schedule TO to report any material changes in the terms of the Series C Exchange Offer and to report the final results of the Series C Exchange Offer as required by Exchange Act Rules 13e-3(d)(3), 13e-4(c)(3) and 13e-4(c) (4).
“Blue Sky” Compliance
Enzon is making the Series C Exchange Offer to Eligible Stockholders only. Enzon is not aware of any jurisdiction in which the making of this Exchange Offer is not in compliance with applicable law. If Enzon becomes aware of any jurisdiction in which the making of this Exchange Offer would not be in compliance with applicable law, Enzon will make a good faith effort to comply with any such law. If, after such good faith effort, Enzon cannot comply with any such law, this Exchange Offer will not be made to, nor will tenders of shares of Enzon Series C Preferred Stock be accepted from or on behalf of, the holders of Enzon Series C Preferred Stock residing in such jurisdiction.
Comparison of Enzon Series C Preferred Stock and Enzon Common Stock
Through the Series C Exchange Offer holders of shares of Enzon Series C Preferred Stock will have the right to exchange their shares of Enzon Series C Preferred Stock for shares of Enzon Common Stock in connection with the Closing. Holders of Enzon Series C Preferred Stock who do not elect exchange or redeem their shares of Enzon Series C Preferred Stock will hold shares of Enzon Series C Preferred Stock following the Closing of the Merger. The following chart compares the rights of Enzon Series C Preferred Stock to the rights of Enzon Common Stock following Closing of the Merger.
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Feature
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Enzon Series C Preferred Stock
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Enzon Common Stock
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Voting Rights
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The holders of Enzon Series C Preferred Stock shall have no special voting rights, and their consent shall not be required for taking any corporate action.
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Each holder of Enzon Common Stock is entitled to one (1) vote per share on all matters submitted to a vote of stockholders.
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Conversion Rights
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The Enzon Series C Preferred Stock shall not be convertible or exchangeable for shares of Common Stock or any other security.
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Not applicable.
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Dividend Rights
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On December 31 of each year during which any shares of Enzon Series C Preferred Stock are outstanding, the Enzon Board may cause a dividend to
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Subordinate to Enzon Series C Preferred Stock for dividends.
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Feature
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Enzon Series C Preferred Stock
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Enzon Common Stock
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be paid in cash to the holders of Enzon Series C Preferred Stock in an amount equal to three percent (3)% of the Liquidation Preference per share as in effect at such time.
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Liquidation Preference
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On the issue date, the Liquidation Preference shall be $1,000 per share. On December 31 of each year during which any shares of Enzon Series C Preferred Stock are outstanding for which a dividend payment is not paid in cash to holders of Enzon Series C Preferred Stock, the Liquidation Preference shall be increased by an amount equal to five percent (5%) of the then current Liquidation Preference per share.
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Paid after the holders of Enzon Series C Preferred Stock are paid the Liquidation Preference per share.
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IEH SUPPORT AGREEMENT
The following describes certain material provisions of the IEH Support Agreement. This description may not contain all of the information that may be important to you. The description in this section and elsewhere in this prospectus/consent solicitation statement is qualified in its entirety by reference to (i) the IEH Support Agreement, a copy of which is attached to this prospectus/consent solicitation statement as Annex B, and (ii) the IEH Support Agreement Amendment, a copy of which is attached as Annex B-1 to this prospectus/consent solicitation statement. This summary does not purport to be complete and may not provide all of the information about the IEH Support Agreement that may be important to you. We encourage you to read the IEH Support Agreement carefully and in its entirety. This section is not intended to provide you with any factual information about Enzon or Viskase. Such information can be found elsewhere in this prospectus/consent solicitation statement and in the public filings Enzon and Viskase make with the SEC, as described in the sections titled “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference” in this prospectus/consent solicitation statement.
Concurrently with the execution and delivery of the original Merger Agreement on June 20, 2025, Enzon, Viskase and the IEH Parties entered into the original IEH Support Agreement and concurrently with the execution and delivery of the Merger Agreement Amendment on October 24, 2025, Enzon, Viskase and the IEH Parties entered into the IEH Support Agreement Amendment. As of the Enzon Record Date, IEH — through its control of the IEH Parties — Beneficially Owns approximately (i) [48.6]% of the issued and outstanding shares of Enzon Common Stock, (ii) [98.2] % of the issued and outstanding shares of Enzon Series C Preferred Stock and (iii) [91.76]% of the issued and outstanding shares of Viskase Common Stock.
Rights and Obligations of the IEH Parties
Pursuant to the IEH Support Agreement, the IEH Parties agreed, during the term of the IEH Support Agreement to, among other things, upon the terms and subject to the conditions and exceptions therein:
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within one (1) business day after this prospectus/consent solicitation statement is declared effective by the SEC, unless an Enzon Adverse Recommendation Change has occurred prior to such time and has not been rescinded, execute and deliver a written consent with respect to all shares of Enzon Common Stock and Enzon Series C Preferred Stock Beneficially Owned by such IEH Party approving the Merger Agreement and the transactions contemplated thereby, including the Merger and the Reverse Stock Split;
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not transfer any shares of Enzon Common Stock or Series C Preferred Stock to any Person other than an Affiliate of an IEH Party who agrees in writing to be bound by the terms of the Support Agreement;
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vote or cause to be voted all shares of Enzon Common Stock and Enzon Series C Preferred Stock, as applicable, Beneficially Owned by such IEH Party against any (i) Enzon Acquisition Proposal, (ii) amendment to the Enzon Organizational Documents that would impede or adversely affect the Merger or other transactions contemplated by the Merger Agreement (except as otherwise contemplated by the Merger Agreement) and (iii) other action or transaction involving Enzon that is intended or reasonably expected to impede or adversely affect the Merger, the Reverse Stock Split or other transactions contemplated by the Merger Agreement; provided that the foregoing clauses (i)-(iii) will not apply to any transaction, proposal or action that is the subject of an Enzon Adverse Recommendation Change made in accordance with the Merger Agreement that has not been rescinded;
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not solicit, initiate or knowingly encourage any inquiry or proposal that could reasonably be expected to lead to an Enzon Acquisition Proposal;
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exchange all shares of Enzon Series C Preferred Stock Beneficially Owned by each IEH Party for a number of shares of Enzon Common Stock equal to (i) the aggregate Liquidation Preference of such shares of Enzon Series C Preferred Stock, divided by (ii) the Enzon 20-Day VWAP (collectively, the “IEH Share Exchange”);
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promptly notify Enzon and Viskase of any stockholder litigation or claim against any IEH Party relating to the Merger, the Merger Agreement or any of the transactions contemplated thereby and, subject to applicable law, provide copies of all material pleadings with respect thereto. Additionally, if either Enzon or Viskase (or any of their respective directors or officers) is also a party to such litigation, such IEP Party will consult with Enzon or Viskase, as applicable, in good faith regarding the defense and settlement of such matters and will not settle such matters without Enzon’s or Viskase’s, as applicable, prior written consent (not to be unreasonably withheld, conditioned or delayed);
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on behalf of itself and its Representatives, not to initiate or pursue any legal proceedings against Enzon, Merger Sub, Viskase, the Surviving Corporation or their respective Affiliates, and their respective Representatives (collectively, the “Covered Persons”) in connection with the Merger Agreement or the transactions contemplated thereby, except with respect to (i) the rights or obligations of any Covered Person under the Merger Agreement or (ii) in the event of actual fraud or willful misconduct; and
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terminate, effective as of the Effective Time, the Private Placement Agreement between Viskase and IEH.
Rights and Obligations of Enzon and Viskase
Pursuant to the IEH Support Agreement, each of Enzon and Viskase agreed, during the term of the IEH Support Agreement to, among other things, upon the terms and subject to the conditions therein:
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promptly notify IEH of any Viskase Transaction Litigation or Enzon Transaction Litigation, as applicable, and, subject to applicable law, provide copies of all material pleadings with respect thereto. Additionally, if any IEH Party (or any of its directors, officers or managers) is also a party to such litigation, Viskase or Enzon, as applicable, will consult with IEH in good faith regarding the defense and settlement of such matters and will not settle such matters without IEH’s prior written consent (not to be unreasonably withheld, conditioned or delayed);
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provide IEH with an opportunity to review and comment on this prospectus/consent solicitation statement to be filed with the SEC;
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with respect to Viskase only, Viskase agreed to terminate the Private Placement Agreement with IEH; and
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with respect to Enzon only:
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in connection with the IEH Share Exchange, Enzon agreed to:
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retire and cancel the shares of Enzon Series C Preferred Stock delivered by the IEH Parties to Enzon;
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cause Enzon’s transfer agent to issue to the IEH Parties, in book-entry form, the Enzon Exchange Stock issuable to the IEH Parties pursuant to the IEH Share Exchange; and
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use commercially reasonable efforts to ensure that its Cash on Hand at Closing is not less than $40,000,000; and
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commence the Series C Exchange Offer no less than 25 business days prior to the anticipated Closing Date and use commercially reasonable efforts to (i) complete the Series C Exchange Offer prior to Closing, (ii) seek maximum participation from holders of Series C Preferred Stock and (iii) provide IEH a reasonable opportunity to review and comment on any documents to be filed with any governmental entity in connection with the Series C Exchange Offer.
Termination of the IEH Support Agreement
The IEH Support Agreement will automatically terminate, without any further action required by any Person, upon the earliest of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with its terms or (iii) any modification, waiver or amendment to the Merger Agreement without IEH’s prior written consent that is adverse to the IEH Parties.
INFORMATION ABOUT ENZON’S BUSINESS
Enzon, together with Merger Sub, is positioned as a public company acquisition vehicle that has sought to become an acquisition platform. Enzon was incorporated on May 11, 1983.
In September 2020, Enzon initiated a rights offering (the “Rights Offering”) for its common and preferred stock, which closed in October 2020, and Enzon realized $43.6 million in gross proceeds from the Rights Offering. Enzon embarked on a plan to potentially realize the value of its approximately $101.4 million in net operating loss (“NOLs”) carryforwards by acquiring businesses or assets.
Acquisition Activities
The Enzon Board and its Representatives have been actively pursuing, sourcing, reviewing and evaluating various potential acquisition transactions consistent with Enzon’s strategy to potentially realize the value of its approximately $101.4 million in NOLs. While continuing to evaluate such potential transactions, the Enzon Board and its Representatives have originated a number of potential acquisition opportunities and engaged in discussions with certain potential acquisition targets and their Representatives, including those transactions that could result in a change of control of Enzon.
In December 2024, Enzon was contacted with respect to exploring a potential business combination transaction with an Affiliate of Enzon’s significant stockholder, IEH. After careful consideration, the Enzon Special Committee unanimously, among other things, (i) determined that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of, Enzon and its stockholders, without regard to the IEH Parties, and (ii) recommended that the Enzon Board (A) approve the Merger Agreement and the transactions contemplated thereby, including the Reverse Stock Split and (B) recommend that the Enzon stockholders entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal. Upon the unanimous recommendation of the Enzon Special Committee, the Enzon Board unanimously, among other things, (1) determined that the Merger Agreement and the transactions contemplated thereby are fair to, and in the best interests of, Enzon and its stockholders, (2) approved the Merger Agreement and the transactions contemplated thereby, including the Reverse Stock Split and (3) recommended that the holders of Enzon Common Stock entitled to vote thereon approve the Reverse Stock Split Proposal and the Merger Proposal.
On October 24, 2025, Enzon entered into (i) the Merger Agreement Amendment and (ii) the IEH Support Agreement Amendment (together with the Merger Agreement Amendment, the “Amendments”). The Amendments were entered into in order to reflect recent developments in the operations of Viskase during the past several months and its expected operations in the near term. For more information on the Merger Agreement, the Merger Agreement Amendment and the potential consummation of the Merger, please see the sections titled “The Merger” and “The Merger Agreement” in this prospectus/consent solicitation statement.
Each of the Merger Agreement and the Merger Agreement Amendment was unanimously recommended by the Enzon Special Committee and, acting upon such recommendations, was unanimously approved by the Enzon Board.
Royalty and Milestone Agreements and Revenues
Historically, Enzon has received milestone and royalty revenues from licensing arrangements with other companies primarily related to sales of certain drug products that utilized Enzon’s proprietary technology. In recent years, Enzon has had no clinical operations and limited corporate operations. Enzon had a marketing agreement relating to the drug Vicineum, which, if approved, will potentially generate milestone and royalty payments to Enzon in the future. Pursuant to the agreement, Amgen, Enzon’s licensee, sublicenced Vicineum to a predecessor of Carisma Therapeutics, Inc. (“Carisma”) for the development of Vicineum. The predecessor, Sesen Bio, voluntarily paused the development of Vicineum and Carisma announced that it was terminating the agreement. Enzon’s patent for Vicineum has expired and no future revenue will be earned from this product.
Prior to 2017, Enzon received royalty revenues from sales of PegIntron, which is marketed by Merck & Co., Inc. (“Merck”). The related patents have expired in all jurisdictions, and Enzon has received no royalties
in recent years and expects to receive none in the future. There is an ongoing dispute with Merck regarding royalties. Enzon also has a licensing agreement regarding SC Oncaspar and certain other drugs.
Enzon had an agreement with Servier Pharmaceuticals, Inc. (“Servier”) for PEG-SCAsparginase (“Asparlas”). The FDA approved Asparlas on December 20, 2018 for treating acute lymphoblastic leukemia for patients in the US aged one month to 21 years, This resulted in a $7 million milestone payment in 2019. The drug has not been approved in Europe and Servier has not sought such approval. Enzon is monitoring activities regarding a potential application in Europe and is in contact with Servier regarding its plans. If Servier receives approval for the use of Asparlas in Europe, Enzon would be entitled to an additional milestone payment of $10 million. Servier has given no indication that it intends to file for approval of Asparlas in Europe.
Pursuant to an agreement with Micromet, now part of Amgen, Enzon and Amgen have an ongoing relationship, collaborating on a joint SCA technology portfolio and monitoring third-party development progress. The collaboration is aware of a number of SCA-based products for sale in Canada that may infringe on SCA patents jointly owned by Enzon and Amgen. Enzon continues to monitor potential acts of infringement and remains in contact with Amgen regarding remedies and options going forward. Amgen has given no indication that it is interested in pursuing any potential remedy.
Enzon and Amgen continue to monitor the clinical development portfolios of SCA licensing partner, including a Swedish company, Alligator Bioscience, which currently has two drugs in late-stage clinical trials. The collaboration also tracks unlicensed use of its remaining patents, with the possibility of potential future enforcement actions. However, Amgen has not indiciated that it would proceed with any such action.
In the three and nine-month periods ended September 30, 2025, Enzon had no revenue from royalties and milestones. During the years ended December 31, 2024 and 2023, Enzon received a license maintenance fee of approximately $26,000 and $0, respectively, from Amgen, Inc. in payment of a worldwide, royalty-free non-exclusive right to license Vicineum.
Patents and Intellectual Property Rights
Enzon has a portfolio of issued Canadian patents, many of which have other foreign counterparts. None of these patents have generated significant royalties in recent years, except for two (2) milestone payments received in connection with Vicineum. The patent related to PegIntron (Ppeginterferon alfa-2b) expired in all jurisdictions as of December 31, 2024. Enzon does not expect to generate material royalties from any of its existing patents.
Employees and Executive Officers
Enzon currently has no employees. Its executive officer, Mr. Feinstein, provides services to Enzon on a consulting basis.
INFORMATION ABOUT VISKASE’S BUSINESS
General
Viskase Companies, Inc. is a Delaware corporation organized in 1970. Viskase, together with its subsidiaries, operates in the casing product segment of the food industry. Viskase is a worldwide leader in the production and sale of cellulosic, fibrous and plastic casings for the processed meat and poultry industry. Viskase currently operates eight (8) significant manufacturing facilities throughout North America, Europe, South America and Asia. Viskase provides value-added support services relating to these products for some of the world’s largest global consumer products companies. Viskase is one (1) of the two (2) largest worldwide producers of non-edible cellulosic casings for processed meats and one (1) of the three (3) largest manufacturers of non-edible fibrous casings.
Viskase’s business strategy is to continue to improve operational efficiencies, product quality and throughput by upgrading existing production facilities and adding resources in high growth markets through new capital investments. Viskase has been successful in implementing production cost-savings initiatives and will continue to pursue similar opportunities that enhance its profitability and competitive position as a leader in the casing market. Viskase is focused on reducing extrusion, shirring and printing waste through equipment upgrades and an ongoing effort to redefine product mix. In addition, Viskase seeks entry into new value added lines of business.
Recent Developments
During 2024, Viskase combined the operations of its manufacturing facility in Świecie, Poland into the operations at is Legnica, Poland facility,
On April 30, 2025, Viskase closed its manufacturing facility in Osceola, Arkansas as part of its efforts to enhance manufacturing efficiencies by consolidating its U.S. manufacturing operations into its Loudon, Tennessee facility. The winddown activities continued through June 2025.
On June 20, 2025, Viskase entered into the Merger Agreement.
On October 24, 2025, Viskase entered into the Merger Agreement Amendment. For a description of the Merger, please see the section titled “The Merger Agreement” of this prospectus/consent solicitation statement.
Products
Viskase’s main product lines are as follows:
NOJAX® casings — Small-diameter cellulosic casings designed for the production of hot dogs, wieners, frankfurters, viennas, cocktail sausages, coarse ground dinner sausages and other small-diameter processed meats.
Large cellulosic casings — Large-diameter cellulosic casings used for bologna, mortadella, bierwurst and dry sausages.
Fibrous casings — Paper-reinforced cellulosic casings utilized in the manufacture of a wide variety of cooked, smoked and dried processed meats, including pepperoni, salami, luncheon meats, boneless hams and other deli-style processed meats and smoked cheese. Viskase’s Fibrous Transfer casing products include Color Master™ and Smoke Master® technology, which impart desired color and flavor characteristics to processed meats for enhanced flavor and appearance for the end-consumer.
VISCOAT® and Viscoat NXT®casings — Casings made with either a combination of a multi-layer film with an inner paper layer or extruded as a multi-layer tube. These casings are treated with smokes, colorants and/or flavors which are imported to the finished product for enhanced flavor and appearance for the end-consumer. These can be used for a wide range of applications, including turkey, ham and roast beef.
VISFLEX®, VISMAX®, Vislon, and POLYJAX® plastic casings — Plastic (polyamide) casings, each designed with distinct performance characteristics targeted at a wide range of sausage, deli meat and other processed meat and poultry applications.
MembraCel — Seamless cellulose membrane sold in tubes and sheets which are used in filtration equipment for dialysis treatment. These products boast a sharp molecular weight cut off which control the exclusion of macromolecules with molecular radii from 35 to 50 angstroms.
International Operations
As of December 31, 2024, Viskase had seven (7) manufacturing facilities located outside the continental United States: Monterrey, Mexico; Beauvais, France; Thâon-les-Vosges, France; Bomlitz, Germany; Legnica, Poland; Clark Freeport Zone, Philippines; and Atibaia, Brazil. Viskase continues to explore opportunities to expand in emerging markets. Net sales from customers located outside the United States represented approximately 68% of Viskase’s total net sales for the year ended December 31, 2024, and 70% of Viskase’s total net sales for the year ended December 31, 2023. While overall consumption of processed meat products in North America and Western Europe is stable, market growth is driven by increasing demand in Eastern Europe, South America and the Asia Pacific region.
Sales and Distribution
Viskase has a broad base of customers, with no single customer accounting for more than six percent (6%) of net sales for the year ended December 31, 2024. Viskase sells its products in most countries throughout the world. In the United States, Viskase has a staff of technical sales teams responsible for sales and service to processed meat and poultry producers. Viskase sells its products both through distribution arrangements and direct to customers. Viskase’s products are marketed through its own subsidiaries in France, Germany, Italy, Poland, Spain, the Philippines, Brazil, and Mexico.
Competition
Viskase is one of the world’s leading producers of cellulosic casings. While Viskase’s industry generally competes based on volume and price, Viskase seeks to maintain a competitive advantage and differentiate itself from competitors by manufacturing products that have higher quality and superior performance characteristics when compared to some of Viskase’s competitors’ products; by responding quickly to customer product requirements; by providing technical support services to Viskase’s customers for production and formulation requirements; and by producing niche products to satisfy individual customer needs.
Viskase’s principal competitors in the cellulosic casing market are Viscofan, S.A., located in Spain with additional facilities in Germany, the Czech Republic, the United States, Mexico and Brazil; Kalle GmbH, located in Germany; Visko Teepak located in Finland and Belgium; Vicel Packaging, LLC, located in Weifang City, Shandong Province, China; and two (2) Japanese manufacturers, Futamura Chemical, marketed by Meatlonn, and Toho. In recent years, overcapacity in Viskase’s industry has led to intense competition based on price.
Research and Development
Viskase believes its continuing emphasis on research and development is central to its ability to maintain industry leadership. In particular, Viskase has focused on the development of new products that increase its customers’ operating efficiencies, reduce Viskase’s operating costs and expand its markets. Viskase’s research and development projects also include the development of new processes and products to improve Viskase’s manufacturing efficiencies. Viskase’s research scientists, engineers and technicians are engaged in continuous product and equipment development, and also provide direct technical and educational support to its customers. Viskase believes it has achieved and maintained its position as a leading producer of cellulosic casings for packaging meats through significant expenditures on research and development. Viskase expects to continue its research and development efforts.
Seasonality
Historically, Viskase’s domestic sales and profits have been somewhat seasonal in nature, increasing in the spring and summer months. Sales outside of the United States follow a relatively stable pattern throughout the year.
Customer Contracts
Viskase generates net revenue from sales of its products, including cellulosic, fibrous and plastic casings for the processed meat and poultry industry. Viskase serves the majority of its natural channel customers through meat manufacturers, which purchase, store, sell and deliver Viskase’s products to consumers. Viskase’s casings are sold to customers at a premium price point, and when prices for competitor casings fall relative to the price of Viskase’s casings (including due to any price increases Viskase may implement), price-sensitive customers may choose to purchase casings offered by Viskase’s competitors instead of Viskase’s products. Viskase’s revenues will vary based upon the pricing for each customer, the volume and mix of Viskase products sold, and the channels through which Viskase’s products are sold (i.e., through distributors or direct to meat manufacturers).
Viskase sells its products pursuant to contracts varying in length from one (1) to three (3) years as well as through purchase orders. Viskase is a party to several supply, distribution, and customer contracts. Sales to Viskase’s largest customer accounted for approximately six percent (6%) of consolidated gross sales during the year ended December 31, 2024. Viskase’s top five (5) customers collectively represented approximately 18% percent of consolidated gross sales during the year ended December 31, 2024. While Viskase does not believe any individual customer contract is material, the loss of any customer could adversely impact Viskase’s revenue.
Raw Materials
The raw materials Viskase uses includes cellulose (derived from wood pulp and/or cotton linters), specialty fibrous paper, polyamide resins and various other chemicals. Viskase generally purchases its raw materials from a single source or small number of suppliers with whom it maintains good relations. Certain primary and alternative sources of supply are located outside the United States. Viskase believes, but there can be no assurance, that adequate alternative sources of supply currently exist for all of its raw materials or that raw material substitutes are available, which Viskase could modify its processes to utilize.
Human Capital
Viskase believes it maintains productive and amicable relationships with Viskase’s approximately 2,400 employees worldwide, approximately 2,300 of which are full time employees. Approximately sixty-six percent (66%) of Viskase’s employees are represented by unions or works’ councils. We believe that our relations with employees, unions and works’ councils are good.
Viskase’s talent strategy and philosophy are focused on attracting the best talent, recognizing and rewarding performance, while continually developing, engaging and retaining team members. Viskase focuses on team member experience, removing barriers to engagement, further modernizing the human resources process, focusing on frontline team member retention and continually improving equity and effectiveness of all talent practices. Viskase welcomes diversity, unique skills, thoughts and experiences from its team members, customers, and consumers. By fostering an inclusive culture, Viskase enables every member of its workforce to leverage unique talents and high-performance standards to drive innovation and success. Additionally, Viskase has employee resource groups that support its mission to create a workplace where all people feel welcomed, respected, and valued. These employee-driven groups play a critical role in Viskase’s efforts to create an inclusive environment and provide professional development and mentorship opportunities.
Patents and Trademarks
Viskase holds 75 patents and eight (8) patent applications on its major technologies, including those used in its manufacturing processes and those embodied in products sold to its customers. Viskase believes its ongoing position as one of the market leaders is derived, in part, from its technology. Viskase vigorously protects and defends its patents against infringement on an international basis. As part of its research and development program, Viskase has developed and expects to continue to develop new proprietary technology. Viskase believes these activities will enable it to maintain its competitive position. However, Viskase does not believe that any single patent or group of patents is material to it. Viskase also owns numerous trademarks and registered trade names that are used actively in marketing its products.
Environmental Regulations
In manufacturing its products, Viskase employs certain hazardous chemicals and generates toxic and hazardous wastes. The use of these chemicals and the disposal of such wastes are subject to stringent regulation by several governmental entities, including the United States Environmental Protection Agency (“EPA”) and similar state, local and foreign environmental control entities. Viskase is subject to various environmental, health and safety laws, rules and regulations, including those of the United States Occupational Safety and Health Administration and the EPA. These laws, rules and regulations are subject to amendment and to future changes in public policy or interpretation, which may affect Viskase’s operations. Certain of Viskase’s facilities are or may become potentially responsible parties with respect to on-site and off-site waste disposal facilities and remediation of environmental contamination.
Greenhouse Gas Emissions
Various federal, state, regulatory agencies, and non-U.S. governments continue to consider and adopt programs to regulate, report, and control greenhouse gas emissions. Although Viskase has not incurred significant costs or capital expenditures specific to greenhouse gas emission compliance, these requirements are continually evolving and increasing. As the exact impact of new or additional greenhouse gas emission controls and requirements remains in flux, it cannot be determined whether such impacts would have a material adverse effect.
Viskase closely monitors developments in this area and strives to mitigate risks related to greenhouse gas emissions through environmental compliance and climate-related initiatives. For example, Viskase collects and monitors greenhouse gas emissions data, which can be used to inform greenhouse gas emission reduction and removal interventions in Viskase’s operations and supply chain. Viskase continues to evaluate its climate-related goals and initiatives, including corresponding costs, evolving legal landscapes, stakeholder expectations, and customer and consumer understanding of climate action.
Business Segment Information and Geographic Area Information
For additional business segment information and geographic area information, see Note 17 to Viskase’s audited consolidated financial statements for the year ended December 31, 2024, included elsewhere in this prospectus/consent solicitation statement.
Properties
Viskase operates eight (8) significant manufacturing facilities throughout North America, Europe, South America and Asia, four (4) of which are cellulose extrusion facilities and four (4) of which are finishing facilities focused on plastic, or non-cellulose materials.
|
Location
|
|
|
Type of Facility
|
|
|
Owned or Leased
|
|
|
Atibaia, Brazil
|
|
|
Finishing facility
|
|
|
Leased
|
|
|
Beauvais, France
|
|
|
Extrusion facility
|
|
|
Leased
|
|
|
Bomlitz, Germany
|
|
|
Extrusion facility
|
|
|
Leased
|
|
|
Clark Freeport Zone, Philippines
|
|
|
Finishing facility
|
|
|
Subject to a ground lease
|
|
|
Legnica, Poland
|
|
|
Finishing facility
|
|
|
Leased
|
|
|
Loudon, Tennessee
|
|
|
Extrusion facility
|
|
|
Owned
|
|
|
Monterrey, Mexico
|
|
|
Finishing facility
|
|
|
Leased
|
|
|
Thâon-les-Vosges, France
|
|
|
Extrusion facility
|
|
|
Owned
|
|
In addition, Viskase maintains leased locations in Lombard, Illinois (worldwide headquarters), Beauvais, France (European headquarters), Clark Freeport Zone, Philippines (Asia-Pacific headquarters), and Atibaia, Brazil (South American headquarters). Viskase believes that it would be able to find alternative space if necessary to accommodate its operations and that its properties are generally suitable and adequate to satisfy its present and anticipated needs. With respect to the leased locations, none of the annual lease payment obligations are individually material. Viskase’s subsidiaries, except for Viskase Brasil Embalagens
Ltda., our Subsidiary located in Brazil, collateralize Viskase’s obligations under its financing arrangements. For a discussion of these financing arrangements, see Note 8 to Viskase’s audited consolidated financial statements for the year ended December 31, 2024, included elsewhere in this prospectus/consent solicitation statement.
Insurance
Viskase maintains insurance in what it believes are adequate amounts and coverages that are customary in the industry in which it operates.
Legal Proceedings
Viskase from time to time is involved in various legal proceedings, none of which is expected to have a material adverse effect on Viskase’s results of operations, cash flows or financial condition.
Other Information
Viskase’s internet website is www.viskase.com. Information contained on or accessible through Viskase’s website, including any reports available therein, is not a part of, and is not incorporated by reference into, this prospectus/consent solicitation statement or any other report or document that is filed with the SEC.
ENZON MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion and analysis of Enzon’s financial condition and results of operations together with Enzon’s audited financial statements for the year ended December 31, 2024, together with related notes thereto (the “Enzon FY 2024 Financial Statements and Notes”), and unaudited financial statements for the nine (9) months ended September 30, 2025 (the “Enzon Q3 2025 Financial Statements and Notes”), together with related notes thereto, included elsewhere in this prospectus/consent solicitation statement. The discussion and analysis should also be read together with the section titled “Information about Enzon’s Business” in this prospectus/consent solicitation statement and the unaudited pro forma combined financial information as of and for the nine (9) months ended September 30, 2025, and for the year ended December 31, 2024 (in the section titled “Selected Unaudited Pro Forma Combined Financial Information” in this prospectus/consent solicitation statement).
Forward-Looking Information and Factors That May Affect Future Results
Certain statements contained in this discussion may be considered forward-looking statements within the meaning of the U.S. Private Securities Litigation Reform Act of 1995. Forward-looking statements generally include statements that are predictive in nature and depend upon or refer to future events or conditions, and include words such as “may,” “will,” “should,” “would,” “expect,” “anticipate,” “plan,” “likely,” “believe,” “estimate,” “project,” “intend,” and other similar expressions. Statements that are not historical facts are forward-looking statements. Forward-looking statements are based on current beliefs and assumptions that are subject to risks and uncertainties and are not guarantees of future performance. These and other forward-looking statements are not guarantees of future results and are subject to risks, uncertainties and assumptions that could cause actual results to differ materially from those expressed in any forward-looking statements, including, without limitation, those that are set forth in the section titled “Risk Factors” in this prospectus/consent solicitation statement and in Enzon’s periodic public filings with the SEC. These risks and uncertainties should be considered carefully and readers are cautioned not to place undue reliance on such forward-looking statements. As such, Enzon cannot make any assurances that the future results covered by the forward-looking statements will be achieved.
The percentage changes throughout the following discussion are based on amounts stated in thousands of dollars.
Overview
Historically, Enzon had received royalty revenues from licensing arrangements with other companies primarily related to sales of certain drug products that utilized Enzon’s proprietary technology. For more than ten years, Enzon has had no clinical operations and limited corporate operations. In the last two years, Enzon has received only minimal payments on its licenses. Enzon had a marketing agreement with Micromet AG, now part of Amgen, Inc., pursuant to which Enzon may have been entitled to certain milestone and royalty payments if Vicineum, a drug that was being developed by Sesen, Inc. (subsequently acquired by Carisma Therapeutics, Inc.), was approved for the treatment of non-muscle invasive bladder cancer. That agreement has been canceled. Enzon cannot make any assurances that it will receive any future royalties or milestones.
Results of Operations (in thousands of dollars):
For the three (3) months ended September 30, 2025, compared to the nine (9) months ended September 30, 2024
| |
|
|
Three months ended
September 30,
|
|
|
Nine months ended
September 30,
|
|
| |
|
|
2025
|
|
|
2024
|
|
|
2025
|
|
|
2024
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Royalties and milestones, net
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
26 |
|
|
|
Total revenues
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
26 |
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General and administrative expenses
|
|
|
|
|
229 |
|
|
|
|
|
351 |
|
|
|
|
|
1,038 |
|
|
|
|
|
1,028 |
|
|
|
Transaction expenses
|
|
|
|
|
1,075 |
|
|
|
|
|
— |
|
|
|
|
|
2,801 |
|
|
|
|
|
— |
|
|
|
Total operating expenses
|
|
|
|
|
1,304 |
|
|
|
|
|
351 |
|
|
|
|
|
3,839 |
|
|
|
|
|
1,028 |
|
|
|
Operating loss:
|
|
|
|
|
(1,304) |
|
|
|
|
|
(351) |
|
|
|
|
|
(3,839) |
|
|
|
|
|
(1,002) |
|
|
|
Interest and dividend income
|
|
|
|
|
496 |
|
|
|
|
|
654 |
|
|
|
|
|
1,494 |
|
|
|
|
|
1,906 |
|
|
|
(Loss) income before income (expense) tax benefit
|
|
|
|
|
(808) |
|
|
|
|
|
303 |
|
|
|
|
|
(2,345) |
|
|
|
|
|
904 |
|
|
|
Income tax (expense) benefit
|
|
|
|
|
(16) |
|
|
|
|
|
(49) |
|
|
|
|
|
7 |
|
|
|
|
|
(54) |
|
|
|
Net (loss) income
|
|
|
|
$ |
(824) |
|
|
|
|
$ |
254 |
|
|
|
|
$ |
(2,338) |
|
|
|
|
$ |
850 |
|
|
Revenues
Royalties and Milestones Revenues (in thousands of dollars):
In the three and nine-month periods ended September 30, 2025, Enzon had no revenue from royalties and milestones. In both the three and nine-month periods ended September 30, 2024, Enzon earned approximately $26,000 in royalties and milestones.
Interest and Dividend Income (in thousands of dollars):
| |
|
|
Three Months Ended
September 30,
|
|
|
Nine Months Ended
September 30,
|
|
| |
|
|
2025
|
|
|
%
Change
|
|
|
2024
|
|
|
2025
|
|
|
%
Change
|
|
|
2024
|
|
|
Interest and dividend income
|
|
|
|
$ |
496 |
|
|
|
|
|
(24)% |
|
|
|
|
$ |
654 |
|
|
|
|
$ |
1,494 |
|
|
|
|
|
(22)% |
|
|
|
|
$ |
1,906 |
|
|
Interest and dividend income is attributable to the interest and dividends received on the invested cash and cash equivalents received by Enzon from the $43.6 million of proceeds from the Rights Offering (See Note 11 to the Enzon FY 2024 Financial Statements and Notes) and other cash and cash equivalents. Interest and dividend income decreased by approximately $158,000, or 24%, to $496,000 for the three (3) months ended September 30, 2025 from $654,000 for the comparable period in 2024. The decrease in interest and dividend income is attributable to the reduced cash and cash equivalent balances and lower rates of interest in the 2025 period compared to the same period in 2024.
Interest and dividend income decreased by approximately $412,000, or 22%, to $1,494,000 for the nine (9) months ended September 30, 2025 from $1,906,000 for the nine (9) months ended September 30, 2024. The decrease in interest and dividend income is primarily attributable to the reduced cash and cash equivalent balances and lower interest rates in 2025 period compared to the same period in 2024.
OPERATING EXPENSES
General and Administrative Expenses (in thousands of dollars):
| |
|
|
Three Months Ended
September 30,
|
|
|
Nine Months Ended
September 30,
|
|
| |
|
|
2025
|
|
|
%
Change
|
|
|
2024
|
|
|
2025
|
|
|
%
Change
|
|
|
2024
|
|
|
General and administrative
|
|
|
|
$ |
229 |
|
|
|
|
|
(35)% |
|
|
|
|
$ |
351 |
|
|
|
|
$ |
1,038 |
|
|
|
|
|
(1)% |
|
|
|
|
$ |
1,028 |
|
|
General and administrative expenses, decreased by approximately $122,000, or 35%, to approximately $229,000 for the three (3) months ended September 30, 2025 from $351,000 for the three (3) months ended September 30, 2024. The decrease in general and administrative expense is substantially attributable to a decrease in professional and consulting fees not associated with the Merger.
General and administrative expenses were comparable for the nine-month periods ended September 30, 2025 and 2024.
TRANSACTION EXPENSES
Transaction expenses incurred in connection with the Merger were approximately $1,075,000 and $2,801,000, respectively, for the three and nine-month periods ended September 30, 2025. These expenses were, primarily, for legal, consulting and professional fees. There were no comparable amounts during the corresponding periods in 2024. (See Note 14 to the Enzon FY 2024 Financial Statements and Notes).
Tax Expense:
Under the asset and liability method of accounting for income taxes, deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. A valuation allowance on net deferred tax assets is provided for when it is more likely than not that some portion or all of the deferred tax assets will not be realized. As of September 30, 2025, Enzon believes, based on its projections, that a partial reversal of the valuation allowance is necessary and, accordingly, Enzon has partially reversed the valuation allowances as of September 30, 2025. A deferred tax benefit of $9,000 and deferred tax expense of $53,000, respectively, were recorded during the nine-month periods ended September 30, 2025 and 2024. In the three-month periods ended September 30, 2025 and 2024, a deferred tax benefit of $16,000 and deferred tax expense of $50,000, respectively, were recorded. (See Note 8 to the Enzon FY 2024 Financial Statements and Notes).
Results of Operations (in thousands of dollars):
For the year ended December 31, 2024, compared to the year ended December 31, 2023
| |
|
|
For the Year Ended
December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Royalties and milestones, net
|
|
|
|
$ |
26 |
|
|
|
|
$ |
— |
|
|
|
Total revenues
|
|
|
|
|
26 |
|
|
|
|
|
— |
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General and administrative
|
|
|
|
|
1,353 |
|
|
|
|
|
1,044 |
|
|
|
Operating loss
|
|
|
|
|
(1,327) |
|
|
|
|
|
(1,044) |
|
|
|
Interest and dividend income
|
|
|
|
|
2,452 |
|
|
|
|
|
2,261 |
|
|
|
Income tax (expense) benefit
|
|
|
|
|
(347) |
|
|
|
|
|
156 |
|
|
|
Net income
|
|
|
|
$ |
778 |
|
|
|
|
$ |
1,373 |
|
|
Revenue
The following table summarizes the royalties earned by Enzon in 2024 and 2023:
Royalties and Milestones Revenues (in thousands of dollars):
| |
|
|
For the Year Ended
December 31,
|
|
| |
|
|
2024
|
|
|
%
Change
|
|
|
2023
|
|
|
Royalties and milestones revenues
|
|
|
|
|
26 |
|
|
|
|
|
100 |
|
|
|
|
|
— |
|
|
The revenues in 2024 and 2023 were approximately $26,000 and $0, respectively, from license fees from Amgen, Inc. in payment of a worldwide, royalty-free non-exclusive right to license Vicineum. Enzon’s right to receive royalties on U.S. and European sales of PegIntron have expired in all jurisdictions as of December 31, 2024.
As of December 31, 2024 and 2023, Enzon recorded a liability to Merck of approximately $331,000, which is based primarily on Merck’s assertions regarding recoupments related to prior returns and rebates, as discussed in Note 4 in the Enzon FY 2024 Financial Statements and Notes.
Enzon will receive no additional royalties from Merck.
Interest and Dividend Income (in thousands of dollars):
| |
|
|
For the Year Ended
December 31,
|
|
| |
|
|
2024
|
|
|
%
Change
|
|
|
2023
|
|
|
Interest and dividend income
|
|
|
|
$ |
2,452 |
|
|
|
|
|
8 |
|
|
|
|
$ |
2,261 |
|
|
Interest and dividend income is attributable to the interest and dividends received on the invested cash and cash equivalents Enzon received from the approximately $46.9 million worth of proceeds from the Rights Offering (See Note 13 in the Enzon FY 2024 Financial Statements and Notes). Interest and dividend income increased by approximately $191,000, or eight percent (8%), to $2,452,000 for 2024 from $2,261,000 for 2023. The increase in interest and dividends income is primarily attributable to the higher interest rates in 2024 as compared with 2023.
Operating Expenses
General and Administrative Expenses (in thousands of dollars):
| |
|
|
For the Year Ended
December 31,
|
|
| |
|
|
2024
|
|
|
%
Change
|
|
|
2023
|
|
|
General and administrative expenses
|
|
|
|
$ |
1,353 |
|
|
|
|
|
30 |
|
|
|
|
$ |
1,044 |
|
|
For the year ended December 31, 2024, general and administrative expenses were approximately $1,353,000, an increase of approximately $309,000, or 30%, from $1,044,000 in the prior year, primarily attributable to an increase in professional fees.
In 2024 and 2023, general and administrative expenses consisted primarily of consulting fees for executive services and outside professional services for accounting, audit, tax and legal services.
Operating Losses
Income Taxes
As a result of Enzon’s income, primarily from interest, exceeding Enzon’s expenses for the year ended December 31, 2024, Enzon realized approximately $1,125,000 in pre-tax book income before utilization of
any net operating loss carryforwards (“NOLs”). Enzon utilized approximately $1.1 million of its NOLs. Under the asset and liability method of accounting for income taxes, deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which such temporary differences are expected to be recovered or settled. A valuation allowance on net deferred tax assets is provided when it is more likely than not that some portion or all of the deferred tax assets will not be realized. As of December 31, 2024, based on Enzon’s projections and upon review of positive and negative evidence in determining a partial reversal of the valuation allowance, Enzon has concluded that a partial reversal of the valuation allowance is necessary.
Enzon does not expect interest rates to return to the low rates of the past in the near term, which would create a projected taxable income position. Therefore, Enzon has partially reversed the valuation allowances as of December 31, 2024. A deferred tax expense of $342,000 was recorded during the year ended December 31, 2024. Enzon is positioned as a public company acquisition vehicle where Enzon can become an acquisition platform.
Enzon’s management will continue to assess the need for this valuation allowance and will make adjustments when appropriate. Enzon’s management believes that its NOLs was not limited by any changes in Enzon’s ownership as a result of the successful completion of the Rights Offering (see Note 13 in the Enzon FY 2024 Financial Statements and Notes). In addition, Enzon intends that the Merger should not result in an ownership change of Enzon under Section 382 of the Code such that the Combined Company’s ability to utilize Enzon’s NOL carryforwards, certain credits and other tax attributes to offset taxable income in a single year should not be limited; however, notwithstanding the foregoing, due to the existence of a valuation allowance for substantially all of the deferred tax assets for both Enzon and Viskase, the effect of having an ownership change under Section 382 of the Code may not be significant.
These projections and beliefs are based upon a variety of estimates and numerous assumptions made by Enzon’s management with respect to, among other things, the closing of the Merger, interest rates, forecasted sales of the drug products for which Enzon has the right to receive royalties, Enzon’s ability to acquire businesses, entities or revenue streams that could generate sufficient income against which Enzon can utilize its NOLs and other matters, many of which are difficult to predict, are subject to significant uncertainties and are beyond Enzon’s control. As a result, Enzon cannot make any assurances that the estimates and assumptions upon which these projections and beliefs are based will prove accurate, that the projected results will be realized or that the actual results will not be substantially higher or lower than projected.
Enzon recognizes the benefit of an uncertain tax position that Enzon has taken or expect to take on the income tax returns Enzon files if it is more likely than not that Enzon will be able to sustain Enzon’s position.
Section 382 Rights Plan
On August 14, 2020, in an effort to protect stockholder value by attempting to protect against a possible limitation on Enzon’s ability to use its NOLs, the Enzon Board adopted the 382 Rights Agreement and declared a dividend distribution of one right for each outstanding share of Enzon Common Stock to stockholders of record as of the close of business on August 24, 2020. Accordingly, holders of Enzon Common Stock own one preferred stock purchase right for each share of Enzon Common Stock owned by such holder. The rights are not immediately exercisable and will become exercisable only upon the occurrence of certain events as set forth in the 382 Rights Agreement.
On June 4, 2021, effective as of June 2, 2021, Enzon entered into the First Amendment to the 382 Rights Agreement, which extended the final expiration date therein. On May 16, 2024, Enzon entered into the Second Amendment to the 382 Rights Agreement, which further extended the final expiration date therein. On March 31, 2025, Enzon entered into the Third Amendment to the 382 Rights Agreement, which further extended the final expiration date therein to the close of business on June 30, 2026. On August 13, 2025, Enzon entered into the Fourth Amendment to the 382 Rights Agreement, which amended the final expiration date therein to the close of business on September 30, 2025. However, the Merger Agreement requires that
the Section 382 Rights Agreement be terminated prior to the Effective Time of the Merger. Accordingly, on September 30, 2025, Enzon amended the 382 Rights Agreement to provide that the rights issued thereunder will terminate as of the close of business on December 31, 2025. Once the 382 Rights Agreement terminates, the protections afforded by the 382 Rights Agreement will no longer be in effect.
It is intended that Enzon should not undergo an ownership change under Section 382 of the Code due to the Merger such that the Combined Company’s ability to utilize Enzon’s NOL carryforwards, certain credits and other tax attributes to offset taxable income in a single year should not be limited.
Rights Offering
On September 1, 2020, the Enzon Board approved a rights offering consisting of shares of Enzon Series C Preferred Stock and shares of Enzon Common Stock (the “Rights Offering”). On October 9, 2020, the Rights Offering was completed and, as a result, Enzon (i) realized gross proceeds of approximately $43.6 million, (ii) issued 40,000 shares of Enzon Series C Preferred Stock and (iii) issued 30,000,000 shares of Enzon Common Stock. For more information on the Rights Offering, see Note 12 in the Enzon FY 2024 Financial Statements and Notes. As of September 30, 2025, there were 40,000 shares of Enzon Series C Preferred Stock issued and outstanding and 74,214,603 shares of Enzon Common Stock issued and outstanding.
On an annual basis, the Enzon Board may, at its sole discretion, cause a dividend with respect to the Enzon Series C Preferred Stock to be paid in cash to the holders in an amount equal to 3% of the Liquidation Preference as in effect at such time (initially $1,000 per share). If the dividend is not so paid in cash, the Liquidation Preference is adjusted and increased annually by an amount equal to 5% of the Liquidation Preference per share as in effect at such time, that is not paid in cash to the holders of Enzon Series C Preferred Stock on such date. Holders of Enzon Series C Preferred Stock do not have any voting rights and the Enzon Series C Preferred Stock is not convertible into shares of Enzon Common Stock. The initial liquidation value of the Enzon Series C Preferred Stock was $1,000 per share. On December 18, 2024, the Enzon Board declared a cash dividend of three percent (3%) of the Liquidation Preference at December 31, 2023 ($42,483,286) of the Enzon Series C Preferred Stock, aggregating approximately $1,275,000 ($31.86 per share). Such dividend was paid on January 9, 2025 to the holders of record of Enzon Series C Preferred Stock as of January 2, 2025.
Enzon believes that the completion of the Rights Offering did not limit the use of its NOL carryforwards, certain credits and other tax attributes due to any restrictions imposed by Section 382 of the Code.
As the Enzon Board declared dividends on the Enzon Series C Preferred Stock as of December 31, 2024 and 2023, the liquidation value at both December 31, 2024 and 2023 was $1,062 per share. (See Note 13 in the Enzon FY 2024 Financial Statements and Notes.)
Since November 1, 2022, Enzon has been able to redeem shares of Enzon Series C Preferred Stock at any time, in whole or in part, for an amount based on the Liquidation Preference per share as in effect at such time. Holders of Enzon Series C Preferred Stock have the right to demand that Enzon redeem their shares in the event that Enzon undergoes a change of control. Pursuant to the terms of the Merger Agreement, Enzon has agreed to conduct the Series C Exchange Offer and, pursuant to the terms of the IEH Support Agreement, the IEH Parties have agreed to the IEH Share Exchange. For additional information regarding the Series C Exchange Offer, please see the section titled “Questions and Answers about the Series C Exchange Offer” in this prospectus/consent solicitation statement and for more information about the IEH Share Exchange, please see the section titled “IEH Support Agreement” in this prospectus/consent solicitation statement. Under the terms of the Enzon Series C Preferred Stock, following the Merger, Enzon may, and at this time intends to, redeem any outstanding shares of Enzon Series C Preferred Stock for a cash amount equal to the aggregate Liquidation Preference of such shares.
Liquidity and Capital Resources
Enzon’s current source of liquidity is its existing cash on hand, which includes the approximately $43.6 million of gross proceeds from its Rights Offering and the interest earned on that amount. See Note 11 in the Enzon Q3 2025 Financial Statements and Notes for additional information about the Rights
Offering. While Enzon no longer has any research and development activities, Enzon continues to retain rights to receive fees, royalties and milestone payments from existing licensing arrangements with other companies and, accordingly, Enzon may be entitled to a share of milestone and royalty payments from its few remaining licensed patents. Enzon believes that its existing cash and cash equivalents on hand will be sufficient to fund its operations, at least, through November 2026. Enzon’s future royalty revenues are expected to be de minimis over the foreseeable future and Enzon cannot make any assurances that it will receive any royalty, milestone or other revenues.
Enzon has entered into the Merger Agreement with Viskase for an all-stock transaction with an anticipated closing by the end of the fiscal year. Should the Merger not successfully close, Enzon will continue to be positioned as a public company acquisition vehicle.
Cash used in operating activities, as adjusted for certain non-cash items including the effect of changes in operating assets and liabilities, during the nine (9) months ended September 30, 2025 was approximately $2,328,000, as compared to cash provided by operating activities of approximately $896,000 during the comparable period in 2024. The decrease of approximately $3,324,000 was primarily attributable to the transaction costs of approximately $2,801,000 in the 2025 period related to the Merger for which there was no corresponding amount in 2024 and the decrease in interest and dividend income of approximately $412,000, decreasing to approximately $1,494,000 during the nine (9) months ended September 30, 2025, from approximately $1,906,000 during the comparable period in 2024.
Cash used in financing activities represents cash dividends of approximately $1,275,000 paid to holders of the Company’s Series C Preferred Stock in each of the periods.
The net effect of the foregoing was a decrease of cash and cash equivalents of approximately $3,603,000 from approximately $46,859,000 at December 31, 2024 to approximately $43,256,000 at September 30, 2025.
Off-Balance Sheet Arrangements
Enzon does not participate in transactions that generate relationships with unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or special purpose entities, which would have been established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow limited purposes. As of December 31, 2024 and as of September 30, 2025, Enzon was not involved in any off-balance sheet special purpose entity transactions.
Critical Accounting Policies and Estimates
A critical accounting policy is one that is both important to the portrayal of a company’s financial condition and results of operations and requires management’s most difficult, subjective or complex judgments, often as a result of the need to make estimates about the effect of matters that are inherently uncertain.
Enzon’s consolidated financial statements are presented in accordance with U.S. GAAP. All applicable U.S. GAAP accounting standards effective as of December 31, 2024 have been taken into consideration in preparing the consolidated financial statements. The preparation of the consolidated financial statements requires estimates and assumptions that affect the reported amounts of assets, liabilities, revenues, expenses and related disclosures. Some of those estimates are subjective and complex, and, consequently, actual results could differ from those estimates. The following accounting policies and estimates have been highlighted as significant because changes to certain judgments and assumptions inherent in these policies could affect Enzon’s consolidated financial statements.
Enzon bases its estimates, to the extent possible, on historical experience. Historical information is modified as appropriate based on current business factors and various assumptions that Enzon believes are necessary to form a basis for making judgments about the carrying value of assets and liabilities. Enzon evaluates its estimates on an ongoing basis and make changes when necessary. Actual results could differ from Enzon’s estimates.
Subsequent Events
On August 11, 2025, the Company was notified by the OTCQX Markets Group (the “OTCQX”), the marketplace for the over-the-counter trading of its stock, that it no longer met the standards for continued qualification for the OTCQX, in that its stock bid price had fallen below $0.10 per share for 30 consecutive calendar days. On August 12, 2025, the Company began trading on the OTCQB Market.
As noted above, on September 30, 2025, Enzon entered into an amendment to the Rights Agreement to provide that the Final Expiration Date (as defined in the Rights Agreement) of the rights issued thereunder would be the close of business on December 31, 2025. Once the Rights Agreement terminates, the protections afforded by the Rights Agreement will no longer be in effect.
On October 24, 2025, Enzon and Viskase entered into the Merger Agreement Amendment as more fully discussed herein.
VISKASE MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion and analysis of Viskase’s financial condition and results of operations together with Viskase’s audited financial statements for the year ended December 31, 2024, together with related notes thereto (the “Viskase FY 2024 Financial Statements and Notes”), and unaudited financial statements for the three and nine months ended September 30, 2025, together with related notes thereto (the “Viskase Q3 2025 Financial Statements and Notes”), included elsewhere in this prospectus/consent solicitation statement. The discussion and analysis should also be read together with the section titled “Information about Viskase’s Business” in this prospectus/consent solicitation statement and the unaudited pro forma combined financial information as of and for the three and nine months ended September 30, 2025, and for the year ended December 31, 2024 (in the section titled “Selected Unaudited Pro Forma Combined Financial Information” in this prospectus/consent solicitation statement).
Forward-Looking Information and Factors That May Affect Future Results
Certain statements contained in this discussion may be considered forward-looking statements within the meaning of the U.S. Private Securities Litigation Reform Act of 1995. Forward-looking statements generally include statements that are predictive in nature and depend upon or refer to future events or conditions, and include words such as “may,” “will,” “should,” “would,” “expect,” “anticipate,” “plan,” “likely,” “believe,” “estimate,” “project,” “intend,” and other similar expressions. Statements that are not historical facts are forward-looking statements. Forward-looking statements are based on current beliefs and assumptions that are subject to risks and uncertainties and are not guarantees of future performance. These and other forward-looking statements are not guarantees of future results and are subject to risks, uncertainties and assumptions that could cause actual results to differ materially from those expressed in any forward-looking statements, including, without limitation, those that are set forth in the section titled “Risk Factors” in this prospectus/consent solicitation statement and in Viskase’s annual and quarterly reports posted to Viskase’s website. These risks and uncertainties should be considered carefully and readers are cautioned not to place undue reliance on such forward-looking statements. As such, Viskase cannot assure you that the future results covered by the forward-looking statements will be achieved.
Overview
Viskase Companies, Inc. is a Delaware corporation organized in 1970. Viskase, together with its subsidiaries, operates in the casing product segment of the food industry. Viskase is a worldwide leader in the production and sale of cellulosic, fibrous and plastic casings for the processed meat and poultry industry. Viskase currently operates eight significant manufacturing facilities throughout North America, Europe, South America and Asia. Viskase provides value-added support services relating to these products for some of the world’s largest global consumer products companies. Viskase is one of the two largest worldwide producers of non-edible cellulosic casings for processed meats and one of the three largest manufacturers of non-edible fibrous casings.
Viskase’s net sales are driven by consumer demand for meat products and the level of demand for casings by processed meat manufacturers, as well as the average selling prices of Viskase’s casings. Specifically, demand for Viskase’s casings is dependent on population growth, overall consumption of processed meats and the types of meat products purchased by consumers. Average selling prices are dependent on overall supply and demand for casings and Viskase’s product mix.
Viskase’s cellulose, fibrous and plastic casing extrusion operations are capital-intensive and are characterized by high fixed costs. Viskase’s finishing operations are labor intensive. The industry’s operating results have historically been sensitive to the global balance of capacity and demand. The industry’s extrusion facilities produce casings under a timed chemical process and operate continuously.
Viskase’s contribution margin varies with changes in selling price, input material costs, labor costs and manufacturing efficiencies. The total contribution margin increases as demand for Viskase’s casings increases. Viskase’s financial results benefit from increased volume because Viskase does not have to increase its fixed cost structure in proportion to increases in demand. For certain products, Viskase operates at near
capacity in its existing facilities. Viskase regularly evaluates its capacity and projected market demand. Viskase believes the current and planned cellulosic production capacity in Viskase’s industry is in balance with global demand.
Net sales were approximately $91.1 million for the three months ended September 30, 2025, and $101.5 million for the three months ended September 30, 2024. Viskase reported approximately $13.0 million of net loss, or $(0.12) per share, for the three months ended September 30, 2025, compared to approximately $144 thousand of net loss, or $(0.00) per share for the three months ended September 30, 2024. As of September 30, 2025, Viskase ended the period with approximately $7.7 million of cash and cash equivalents, and approximately $10.1 million in positive working capital.
Net sales were approximately $282.6 million for the nine months ended September 30, 2025, and $307.5 million for the nine months ended September 30, 2024. Viskase reported approximately $46.9 million of net loss, or $(0.43) per share, for the nine months ended September 30, 2025, compared to approximately $3.8 million of net income, or $0.04 per share for the nine months ended September 30, 2024.
Net sales were approximately $403.8 million, $446.0 million and $430.8 million for the years ended December 31, 2024, 2023 and 2022, respectively. Viskase reported approximately $5.5 million of net loss, or $(0.05) per share, in 2024, compared to approximately $13.4 million of net income, or $0.13 per share, in 2023 and approximately $2.3 million of net income, or $0.02 per share, in 2022. As of December 31, 2024, Viskase ended the year with approximately $5.7 million of cash and cash equivalents, approximately $5.0 million for the borrowing availability under its senior credit facility, and approximately $128.2 million in positive working capital.
Operating loss was approximately $9.1 million for the three months ended September 30, 2025, compared to operating income of approximately $3.5 million for the three months ended September 30, 2024, a decrease of $12.6 million driven primarily by lower volumes of product demand, higher costs for raw materials and manufacturing waste expenses as well as lower product prices and mix. Viskase also incurred approximately $0.8 million in restructuring expense to close two of its manufacturing facilities which negatively impacted Viskase’s total operating income for the three months ended September 30, 2025.
Operating loss was approximately $26.1 million for the nine months ended September 30, 2025, compared to operating income of approximately $18.4 million for the nine months ended September 30, 2024, a decrease of $44.5 million driven primarily by lower volumes of product demand, higher costs for raw materials and manufacturing waste expenses as well as lower product prices and mix. Viskase also incurred approximately $6.6 million in restructuring expenses to close two of its manufacturing facilities and approximately $12.1 million of asset impairment expense in association with the closing of the Osceola, Arkansas facility and the removal of assets prior to the end of their useful lives, which negatively impacted Viskase’s total operating income for the nine months ended September 30, 2025.
Operating income was approximately $15.4 million for the year ended December 31, 2024 and approximately $39.4 million for the year ended December 31, 2023, representing a decrease of $24.0 million driven primarily by lower volumes of product demand, higher costs for raw materials and manufacturing waste expenses as well as lower product prices and mix. Viskase also incurred approximately $1.9 million in restructuring expenses to close one of its European manufacturing facilities during the year, which negatively impacted Viskase’s total operating income for the year ended December 31, 2024. Operating income was approximately $39.4 million for the year ended December 31, 2023, and $22.2 million for 2022, representing an increase of $17.2 million driven primarily by higher volumes of product demand, lower costs for raw materials and manufacturing waste expenses as well as higher product prices and mix.
Viskase’s business strategy is to continue to improve operational efficiencies, product quality and throughput by upgrading existing production facilities and adding resources in high growth markets through new capital investments. Viskase has been successful in implementing production cost-savings initiatives and will continue to pursue similar opportunities that enhance its profitability and competitive positioning as a leader in the casing market. Viskase is focused on reducing extrusion, shirring and printing waste through equipment upgrades and an ongoing effort to redefine product mix. In addition, Viskase seeks entry into new value-added lines of business.
Recent Developments
The Merger
On June 20, 2025, the Company entered into an Agreement and Plan of Merger (“Merger Agreement”) that was further amended on October 23, 2025 by and between Enzon Pharmaceuticals, Inc. (“Enzon”), and EPSC Acquisition Corp. (“ESPC”). Under the terms of the Merger Agreement, EPSC will merge with and into the Company, with the Company surviving as a wholly owned subsidiary of Enzon, (the “Merger”). Immediately following the Merger, the Company will convert into a limited liability company under Delaware law. Enzon is expected to change its name to Viskase Holdings, and trade on the over the counter (“OTC”) market.
Additionally, on September 20, 2025, the Company entered into a support agreement (“Support Agreement”). In accordance with the Support Agreement, the owners of Enzon and the Company will exchange their beneficially owned shares of Enzon Series C Preferred Stock for shares of Enzon common stock. Enzon will use commercially reasonable efforts to facilitate the exchange of Enzon Series C Preferred Stock held by non-related ownership parties for shares of Enzon common stock through the Series C Exchange Offer.
Enzon will effectuate a reverse stock split of the outstanding Enzon Common Stock to effect the consolidation of the issued and outstanding shares of Enzon Common Stock at a ratio of 1 for 100. In addition, each share of the Company’s common stock issued and outstanding prior to the merger will automatically be converted into the right to receive shares of Enzon Common Stock at a certain exchange ratio. All shares of EPSC common stock will be automatically converted into shares of the surviving company.
The transaction is expected to close February 10, 2026, pending standard closing requirements and regulatory approvals.
The Restructuring Plans
2025 Restructuring Plan — Arkansas Plant Closure
On March 26, 2025, Viskase announced and began implementing a restructuring plan to maintain its existing fibrous and nojax extrusion capacities while increasing cost competitiveness (the “2025 Restructuring Plan”). The 2025 Restructuring Plan originally included: (i) reducing Viskase employee headcount within its North America segment; (ii) closing its manufacturing facility in Osceola, Arkansas, and (iii) consolidating its Osceola, Arkansas capacity with existing manufacturing facilities, including transferring equipment and employees to its manufacturing facilities in Loudon, Tennessee and Thaon, France; resulting in restructuring and related obsolescence expenses of approximately $0.8 million and $6.6 million for the three and nine months ended September 30, 2025. The closure of the facility was effective as of April 30, 2025 with wind down operations taking place through June 2025. Additionally, Viskase recognized approximately $12.1 million of non-cash charges, primarily composed of non-inventory asset impairment charges on machinery in association with the closing of the Osceola, Arkansas plant; the majority of which are expected to be incurred by the end of fiscal year 2025.
Viskase believes that the 2025 Restructuring Plan will better position Viskase for sustained, positive free cash flow, while enabling Viskase to continue to invest in technology, and machinery to improve productivity and efficiencies at its extrusion facilities and optimizations to marketing efforts to scale the business. The 2025 Restructuring Plan includes: (i) a reduction in global headcount by approximately 8%, which impacted roughly 210 Viskase team members; and (ii) closure of its manufacturing facility in Osceola, Arkansas. Viskase expects the majority of the 2025 Restructuring Plan to be implemented by the end of fiscal year 2025. The facility was marketed for approximately $5.0 million, and Viskase expects that it will take longer than one year to complete the sale of the facility.
The following table summarizes the total charges related to the 2025 Restructuring Plan for the periods presented (in thousands):
| |
|
|
Three Months
Ended
September 30,
2025
|
|
|
Nine Months
Ended
September 30,
2025
|
|
|
Cash restructuring charges:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Severance and other personnel costs
|
|
|
|
$ |
— |
|
|
|
|
$ |
4,543 |
|
|
|
Total cash charges
|
|
|
|
|
— |
|
|
|
|
|
4,543 |
|
|
|
Non-cash charges:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Write-offs of inventory due to restructuring plan
|
|
|
|
|
819 |
|
|
|
|
|
2,063 |
|
|
|
Total non-cash charges
|
|
|
|
|
819 |
|
|
|
|
|
2,063 |
|
|
|
Total
|
|
|
|
$ |
819 |
|
|
|
|
$ |
6,606 |
|
|
Viskase has made progress in achieving goals in its restructuring initiatives. For example, total cost of sales decreased approximately $0.6 million and $1.0 million for the three and nine months ended September 30, 2025 compared to the three and nine months ended September 30, 2024, and Viskase continues its work in looking for additional efficiencies. Throughout fiscal year 2025, Viskase expects further improvements in the above as well as a number of other measures by which Viskase measures the success of its restructuring initiatives.
In connection with the 2025 Restructuring Plan, Viskase estimates that it will incur additional cash charges related to the closure of approximately $0.5 million for site closure and equipment removal costs. Viskase does not believe these cost-saving measures will impair its ability to conduct any of its key business functions. However, Viskase may not be able to realize the cost savings and benefits initially anticipated as a result of the 2025 Restructuring Plan, and costs may be greater than expected.
2024 Restructuring Plan — Poland Plant Closure
In August 2024, Viskase announced and began implementing a restructuring plan to realign its operational focus to support its multi-year growth, scale the business, and improve costs (the “2024 Restructuring Plan”). The 2024 Restructuring Plan originally included: (i) reducing Viskase employee headcount within its Europe, the Middle East, and Africa (“EMEA”) segment; (ii) closing its manufacturing facility in Swiecie, Poland, and (iii) transferring a portion of the machinery from its Swiecie facility to expand its production capabilities for its facility based in Legnica, Poland; resulting in restructuring expenses of approximately $1.9 million for the year ended December 31, 2024.
Viskase believes that the 2024 Restructuring Plan will better position Viskase for sustained, positive free cash flow, while enabling Viskase to continue to invest in technology, and machinery to improve productivity and efficiencies at its extrusion facilities and optimizations to marketing efforts to scale the business. The 2024 Restructuring Plan includes: (i) a reduction in global headcount which impacted roughly 50 Viskase team members; (ii) closure of its manufacturing facility in Swiecie, Poland, and (iii) transfer of machinery with a book value of approximately $1.6 million to its manufacturing facility in Legnica, Poland. Viskase has concluded all restructuring activities related to the 2024 Restructuring Plan as of December 31, 2024. The land, facility and machinery had a total net book value of approximately $0.4 million and were sold for approximately $0.7 million, resulting in a gain of $0.3 million related to the sale. There were no remaining assets or liabilities related to the facility as of December 31, 2024.
The following table summarizes the total charges related to the 2024 Restructuring Plan (in thousands):
| |
|
|
Year Ended
December 31,
2024
|
|
|
Cash restructuring charges:
|
|
|
|
|
|
|
|
|
Transfer and disposal costs and professional fees
|
|
|
|
$ |
1,059 |
|
|
|
Severance and other personnel costs
|
|
|
|
|
515 |
|
|
|
Capital expenditures
|
|
|
|
|
343 |
|
|
|
Total
|
|
|
|
$ |
1,917 |
|
|
Viskase has made progress in achieving goals in its restructuring initiatives. For example, total operating expenses decreased approximately $2.0 million, or (4)%, to $52.4 million in 2024, compared to $54.4 million in 2023 and Viskase continues its work in looking for additional efficiencies. Throughout fiscal year 2025, Viskase expects further improvements in the above as well as a number of other measures by which Viskase measures the success of its restructuring initiatives.
In connection with the 2024 Restructuring Plan, Viskase does not expect to incur any additional cash charges or expect to recognize any non-cash charges related to the closure. Viskase does not believe these cost-saving measures will impair its ability to conduct any of its key business functions. However, Viskase may not be able to realize the cost savings and benefits initially anticipated as a result of the 2024 Restructuring Plan, and costs may be greater than expected.
Impact of General Economic Risk Factors on Viskase’s Operations
Uncertainty in the global economy presents significant risks to Viskase’s business. Viskase is subject to continuing risks and uncertainties in connection with the current macroeconomic environment, including increases in inflation, fluctuating interest rates, new or increased tariffs and other barriers to trade, changes to fiscal and monetary policy or government budget dynamics (particularly in the product segment of the food industry), recent bank failures, geopolitical factors, including the ongoing conflicts between Russia and Ukraine and in the Middle East and the responses thereto, and supply chain disruptions. While Viskase is closely monitoring the impact of the current macroeconomic and geopolitical conditions on all aspects of Viskase’s business, the ultimate extent of the impact on Viskase’s business remains highly uncertain and will depend on future developments and factors that continue to evolve. Most of these developments and factors are outside of Viskase’s control and could exist for an extended period of time. Viskase will continue to evaluate the nature and extent of the potential impacts to its business, results of operations, liquidity and capital resources. For additional information, see the section titled “Risk Factors — Risk Factors Relating to Viskase’s Business” in this prospectus/consent solicitation for further information.
Components of Results of Operations
Net Sales
Viskase generates net sales from sales of its products, including cellulosic, fibrous and plastic casings for the processed meat and poultry industry. Viskase serves the majority of its natural channel customers through meat manufacturers, which purchase, store, sell and deliver Viskase’s products to consumers.
Viskase periodically offers promotional incentives to its customers, including customer rebates, temporary price reductions, off-invoice discounts, retailer advertisements, product coupons and other trade activities. At the end of each accounting period, Viskase recognizes a liability for an estimated promotional allowance reserve. Viskase periodically provides credits or discounts to its customers in the event that products do not conform to customer expectations upon delivery. Viskase treats these credits and discounts as a reduction of the sales price of the related transaction at the time of sale. Viskase anticipates that these promotional activities, credits and discounts could materially impact Viskase’s net revenue and that changes in such activities could impact period-over-period results.
Viskase’s casings are sold to customers at a premium price point, and when prices for competitor casings fall relative to the price of Viskase’s casings (including due to any price increases Viskase may
implement), price-sensitive customers may choose to purchase casings offered by Viskase’s competitors instead of Viskase’s products. As a result, competitor pricing may adversely affect Viskase’s net revenue. Net revenue may also vary from period to period depending on the purchase orders Viskase receives, the volume and mix of Viskase’s products sold, and the channels through which Viskase’s products are sold.
Cost of Sales
Cost of sales consists of the costs directly attributable to producing Viskase’s products, which include labor, raw material and packaging costs as well as overhead. The labor cost is comprised of wages and related costs for Viskase’s processing of crew members. The raw material is comprised of those items necessary to process Viskase’s finished casing products and the packaging costs are the cost of the packaging materials in which Viskase’s finished products are sold. Overhead costs in cost of goods sold include utilities, insurance, inbound freight, storage fees related to Viskase’s manufacturing facilities and depreciation and amortization expenses related to Viskase’s assets used in production.
Operating Expenses
Viskase’s operating expenses consist of selling, general and administrative expenses, amortization of intangibles, asset impairment expense, and restructuring and related expense, as further described below:
Selling, General and Administrative
Selling, general and administrative expenses consist primarily of personnel-related expenses, including recruiting costs, salaries, bonuses, benefits, and equity-based compensation, for individuals in Viskase’s executive, finance, operations, human resources, business development and other administrative functions. Other selling, general and administrative expenses include legal fees relating to corporate matters and patent-related activities, insurance costs, information technology, and professional and consulting fees associated with accounting, audit, tax and investor and public relations. Viskase expects selling, general and administrative expenses to increase in the future in connection with the expansion of the business and increased marketing costs.
Shipping and Distribution
Shipping and distribution expenses consist primarily of costs related to third-party freight for Viskase’s products. Viskase expects shipping and distribution expenses to increase in the medium-to-long term as Viskase continues to scale its business, and there is a risk that such expenses could continue to increase due to economic uncertainty, geopolitical tensions or wars.
Amortization of Intangibles
Viskase has recognized definite lived intangible assets for customer relationships, technologies, patents, trademarks, and in-place leases. Amortization of these intangibles are recognized on a straight-line basis over the respective estimated useful lives on the intangible assets.
Asset Impairment Expense
In connection with its 2025 Restructuring Plan and 2024 Restructuring Plan, Viskase took measures to close certain of its manufacturing facilities, resulting in asset impairment charges on its machinery in each respective location. These asset impairment charges are recorded as “asset impairment expense” within the consolidated statements of operations.
Restructuring and Related Expense
Any costs incurred related to the 2025 Restructuring Plan and 2024 Restructuring Plan, including transfer and disposal costs, professional fees, severance and other personnel costs, and capital expenditures were recorded as “restructuring and related expense” within the consolidated statements of operations.
Non-Operating Expenses
Viskase’s non-operating expenses interest expense, net and other income (expense), net, as further described below:
Interest Expense, Net
Viskase records interest expense on its long-term debt based on the terms within its Credit Agreement, as further discussed and defined below with “— Amended Senior Credit Facility.” This interest expense is partially offset by interest income earned on cash and cash equivalents.
Other Income (Expense), Net
Other income (expense), net primarily relates to foreign currency gains and losses and the expense related to the reversal of a receivable for an uncertain tax with offset running through the “income tax provision” within the consolidated statement of operations.
Income Taxes
Viskase determines its effective tax rate by estimating its permanent differences resulting from differing treatment of items for financial and income tax purposes. Viskase is periodically audited by taxing authorities and considers any adjustments made as a result of the audits in computing its income tax expense. Any audit adjustments affecting permanent differences could have an impact on Viskase’s effective tax rate.
Deferred income taxes relate primarily to depreciation expense and share-based compensation programs accounted for differently for financial and income tax purposes. Changes in tax laws and rates could materially affect recorded deferred tax assets and liabilities in the future. Valuation allowances are recorded when it is more likely than not that a tax benefit will not be realized for a deferred tax asset. Changes in projected future earnings could affect Viskase’s recorded valuation allowances, if any, in the future.
Viskase records unrecognized tax benefit liabilities for known or anticipated tax issues for which the benefit is more likely than not based on its analysis of whether, and the extent to which, additional taxes will be due. However, due to the complexity of some of these uncertainties, the ultimate resolution may result in a payment that is materially different from the current estimate of the tax liabilities. To the extent Viskase prevails in matters for which unrecognized tax benefit liabilities have been established or are required to pay amounts in excess of its recorded liability, Viskase’s effective tax rate in a given financial statement period could be materially affected.
A provision for income tax of approximately $1.9 million and $14.9 million were recorded for the three and nine months ended September 30, 2025, respectively. An income tax benefit of approximately $0.7 million was recorded for the 12 months ended December 31, 2024. Viskase believes it is more likely than not that its net deferred tax assets will be realized based on the weight of positive evidence and future income except with respect to a portion of the losses in Germany and the deferred tax assets in the U.S. Viskase maintains a full valuation allowance for its Brazilian operations of approximately $7.9 million and $4.4 million for the years ended December 31, 2024 and 2023, respectively. Viskase recorded a partial valuation allowance for its U.S. operations of approximately $0.6 million and $0.3 million for the years ended December 31, 2024 and 2023, respectively. Additionally, Viskase recorded a valuation allowance against a majority of the U.S. deferred tax assets for approximately $11.5 million and a valuation allowance for $1.3 million on German deferred tax assets as of September 30, 2025. Viskase recorded a partial valuation allowance for its Poland operations of approximately $1.0 million for the year ended December 31, 2024, and did not record a valuation allowance for its Poland operations for the year ended December 31, 2023.
Results of Operations — Comparison of Three Months Ended September 30, 2025 and 2024
The following table summarizes Viskase’s annual condensed consolidated statement of operations for the periods presented (in thousands):
| |
|
|
Three Months
Ended
30-Sep-25
|
|
|
Three Months
Ended
30-Sep-24
|
|
|
Change
|
|
|
Net sales
|
|
|
|
$ |
91,162 |
|
|
|
|
$ |
101,504 |
|
|
|
|
$ |
(10,342) |
|
|
|
Cost of sales
|
|
|
|
|
85,297 |
|
|
|
|
|
85,911 |
|
|
|
|
|
(614) |
|
|
|
Gross margin
|
|
|
|
|
5,865 |
|
|
|
|
|
15,593 |
|
|
|
|
|
(9,728) |
|
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative
|
|
|
|
|
13,522 |
|
|
|
|
|
11,563 |
|
|
|
|
|
1,959 |
|
|
|
Amortization of intangibles
|
|
|
|
|
398 |
|
|
|
|
|
404 |
|
|
|
|
|
(6) |
|
|
|
Asset impairment expense
|
|
|
|
|
— |
|
|
|
|
|
77 |
|
|
|
|
|
(77) |
|
|
|
Restructuring and related expense
|
|
|
|
|
1,009 |
|
|
|
|
|
— |
|
|
|
|
|
1,009 |
|
|
|
Total operating expenses
|
|
|
|
|
14,929 |
|
|
|
|
|
12,044 |
|
|
|
|
|
2,885 |
|
|
|
(Loss) income from operations
|
|
|
|
|
(9,064) |
|
|
|
|
|
3,549 |
|
|
|
|
|
(12,613) |
|
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense, net
|
|
|
|
|
2,948 |
|
|
|
|
|
2,860 |
|
|
|
|
|
88 |
|
|
|
Other expense (income), net
|
|
|
|
|
(965) |
|
|
|
|
|
1,024 |
|
|
|
|
|
(1,989) |
|
|
|
Total other expense, net
|
|
|
|
|
1,983 |
|
|
|
|
|
3,884 |
|
|
|
|
|
(1,901) |
|
|
|
(Loss) income before income tax provision
|
|
|
|
|
(11,047) |
|
|
|
|
|
(335) |
|
|
|
|
|
(10,712) |
|
|
|
Income tax provision
|
|
|
|
|
1,949 |
|
|
|
|
|
(191) |
|
|
|
|
|
2,140 |
|
|
|
Net (loss) income
|
|
|
|
$ |
(12,996) |
|
|
|
|
$ |
(144) |
|
|
|
|
$ |
(12,852) |
|
|
Net Sales
Net sales decreased by approximately $10.3 million, or (10.2)%, to $91.2 million for the three months ended September 30, 2025, compared to $101.5 million for the three months ended September 30, 2024. The decrease in net sales was primarily driven by volume-related decreases of approximately $11.0 million, partially offset by price and mix-related increases of approximately $1.0 million.
Cost of Sales
Cost of sales decreased by approximately $0.6 million to $85.3 million for the three months ended September 30, 2025, compared to $85.9 million for the three months ended September 30, 2024. The decrease in cost of sales was primarily driven by lower volumes of product demand of approximately $3.5 million, offset by increased costs for raw materials plus manufacturing inefficiencies from waste, and lower absorption of manufacturing costs at Viskase’s manufacturing facilities totaling approximately $2.9 million.
Gross Margin
Gross margin decreased by approximately $9.7 million, or (62.4)%, to $5.9 million for the three months ended September 30, 2025, compared to $15.6 million for the three months ended September 30, 2024. The decrease in gross margin was primarily driven by volume-related decreases of approximately $7.5 million and by increased costs for raw materials plus manufacturing inefficiencies from waste, and lower absorption of manufacturing costs at Viskase’s manufacturing facilities totaling approximately $2.9 million.
Operating Expenses
Selling, General and Administrative
Selling, general and administrative expenses increased by approximately $1.9 million, or 16.9%, to $13.5 million for the three months ended September 30, 2025, compared to $11.6 million for the three months ended September 30, 2024. The increase was primarily driven by higher costs for consulting fees and approximately $1.7 million in strategic initiative costs for the three months ended September 30, 2025.
Amortization of Intangibles
Amortization of intangible assets totaled approximately $0.4 million for the three months ended September 30, 2025 and 2024 on the amortization of intangible assets recognized with acquisitions.
Restructuring and Related Expenses
Restructuring and related expense totaled approximately $1.0 million for the three months ended September 30, 2025, compared to an expense of $1.3 million for the three months ended September 30, 2024.
Income from Operations
Loss from operations totaled approximately $9.1 million for the three months ended September 30, 2025, compared to income from operations of approximately $3.5 million for the three months ended September 30, 2024. The decrease of $12.6 million in income from operations loss was primarily driven by lower volumes of product demand of approximately $7.5 million, higher costs for raw materials and manufacturing waste/efficiency expenses of approximately $2.9 million as well as lower product prices and mix. Viskase also incurred approximately $1.7 million in strategic initiative costs, which negatively impacted Viskase’s total operating income for the three months ended September 30, 2025.
Other Income (Expense):
Interest Expense, Net
Interest expense, net of interest income totaled approximately $2.9 million for the three months ended September 30, 2025 and 2024 in connection with Viskase’s term loan with its Amended Senior Credit Facility (as defined and described below).
Other (Expense) Income, Net
Other income, net totaled approximately $1.0 million for the three months ended September 30, 2025, compared to other expense, net of approximately $1.0 million for the three months ended September 30, 2024. The increase was primarily driven by foreign currency gains or losses recognized during the period.
Income Taxes:
Income Tax Provision
During the three months ended September 30, 2025, an income tax provision of approximately $1.9 million was recognized on the loss before income taxes of $11.0 million compared to an income tax benefit of approximately $0.2 million for the three months ended September 30, 2024 on loss before income taxes of $0.3 million. Our effective income tax rate was (17.6)% and 57% for the three months ended September 30, 2025 and 2024, respectively. For the three months ended September 30, 2025, the effective tax rate was lower than the statutory federal rate of 21%, for corporations, primarily due to valuation allowance established for German deferred tax assets of $1.3 million during Q3.
Results of Operations — Comparison of Nine Months Ended September 30, 2025 and 2024
The following table summarizes Viskase’s annual condensed consolidated statement of operations for the periods presented (in thousands):
| |
|
|
Nine Months
Ended
30-Sep-25
|
|
|
Nine Months
Ended
30-Sep-24
|
|
|
Change
|
|
|
Net sales
|
|
|
|
$ |
282,629 |
|
|
|
|
$ |
307,543 |
|
|
|
|
$ |
(24,914) |
|
|
|
Cost of sales
|
|
|
|
|
250,724 |
|
|
|
|
|
251,701 |
|
|
|
|
|
(977) |
|
|
|
Gross margin
|
|
|
|
|
31,905 |
|
|
|
|
|
55,842 |
|
|
|
|
|
(23,937) |
|
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative
|
|
|
|
|
38,146 |
|
|
|
|
|
34,776 |
|
|
|
|
|
3,370 |
|
|
|
Amortization of intangibles
|
|
|
|
|
1,148 |
|
|
|
|
|
1,208 |
|
|
|
|
|
(60) |
|
|
|
Asset impairment expense
|
|
|
|
|
12,100 |
|
|
|
|
|
77 |
|
|
|
|
|
12,023 |
|
|
|
Restructuring expense
|
|
|
|
|
6,606 |
|
|
|
|
|
1,396 |
|
|
|
|
|
5,210 |
|
|
|
Total operating expenses
|
|
|
|
|
58,000 |
|
|
|
|
|
37,457 |
|
|
|
|
|
20,543 |
|
|
|
(Loss) income from operations
|
|
|
|
|
(26,095) |
|
|
|
|
|
18,385 |
|
|
|
|
|
(44,480) |
|
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense, net
|
|
|
|
|
8,545 |
|
|
|
|
|
8,385 |
|
|
|
|
|
160 |
|
|
|
Other (income) expense, net
|
|
|
|
|
(2,682) |
|
|
|
|
|
2,909 |
|
|
|
|
|
(5,591) |
|
|
|
Total other expense, net
|
|
|
|
|
5,863 |
|
|
|
|
|
11,294 |
|
|
|
|
|
(5,431) |
|
|
|
(Loss) income before income tax provision
|
|
|
|
|
(31,958) |
|
|
|
|
|
7,091 |
|
|
|
|
|
(39,049) |
|
|
|
Income tax provision
|
|
|
|
|
14,890 |
|
|
|
|
|
3,380 |
|
|
|
|
|
11,510 |
|
|
|
Net (loss) income
|
|
|
|
$ |
(46,848) |
|
|
|
|
$ |
3,711 |
|
|
|
|
$ |
(50,559) |
|
|
Net Sales
Net sales decreased by approximately $25.0 million, or (8.1)%, to $282.6 million for the nine months ended September 30, 2025, compared to $307.5 million for the nine months ended September 30, 2024. The decrease in net sales was primarily driven by volume-related decreases of approximately $18.0 million and price-related decreases of approximately $7.0 million.
Cost of Sales
Cost of sales decreased by approximately $1.0 million to $250.7 million for the nine months ended September 30, 2025, compared to $251.7 million for the nine months ended September 30, 2024. The decrease in cost of sales was primarily driven by lower volumes of product demand totaling approximately $7.6 million, offset by increased costs for raw materials plus manufacturing inefficiencies from waste, and lower absorption of manufacturing costs at Viskase’s manufacturing facilities totaling approximately $6.6 million.
Gross Margin
Gross margin decreased by approximately $24.0 million, or (42.9)%, to $31.9 million for the nine months ended September 30, 2025, compared to $55.8 million for the nine months ended September 30, 2024. The decrease in gross margin was primarily driven by volume and price related decreases of approximately $17.4 million and unfavorable manufacturing performance of approximately $6.6 million for the nine months ended September 30, 2025.
Operating Expenses
Selling, General and Administrative
Selling, general and administrative expenses increased by approximately $3.4 million, or 9.7%, to $38.1 million for the nine months ended September 30, 2025, compared to $34.8 million for the nine months ended September 30, 2024. The increase was primarily driven by higher costs for consulting fees and approximately $3.3 million in strategic initiative costs for the three months ended September 30, 2025.
Amortization of Intangibles
Amortization of intangible assets totaled approximately $1.2 million for the nine months ended September 30, 2025 and 2024 on the amortization of intangible assets recognized with acquisitions.
Asset Impairment Expense
Asset impairment expense totaled approximately $12.1 million for the nine months ended September 30, 2025, in association with the closing of the Osceola, Arkansas facility and the removal of assets prior to the end of their useful lives.
Restructuring and related expenses
Restructuring and related expense totaled approximately $6.6 million for the nine months ended September 30, 2025, compared to $1.4 million for the nine months ended September 30, 2024.
(Loss) Income from Operations
Loss from operations totaled approximately $26.1 million for the nine months ended September 30, 2025, compared to income from operations of approximately $18.4 million for the nine months ended September 30, 2024. The decrease of $44.5 million in income from operations was primarily driven by lower volumes of product demand and lower product prices and mix as well as higher costs for raw materials and manufacturing waste/efficiency expenses of approximately $24 million. Viskase also incurred approximately $5.2 million in higher restructuring expenses, $3.2 million in special transaction costs, and approximately $12.1 million of asset impairment charges in association with the closing of the Osceola, Arkansas facility, which negatively impacted Viskase’s total operating income for the nine months ended September 30, 2025.
Other Income (Expense):
Interest Expense, Net
Interest expense, net of interest income, increased marginally by approximately $0.1 million to $8.5 million for the nine months ended September 30, 2025, compared to $8.4 million for the nine months ended September 30, 2024.
Other (Income) Expense, Net
Other income totaled approximately $2.7 million for the nine months ended September 30, 2025, compared to approximately $2.9 million of other expense for the nine months ended September 30, 2024. The decrease was primarily driven by foreign currency gains or losses recognized during the period.
Income Taxes:
Income Tax Provision
During the nine months ended September 30, 2025, an income tax provision of approximately $14.9 million was recorded on the loss before income taxes of $32.0 million compared to the income tax provision of approximately $3.4 million for the nine months ended September 30, 2024 on approximately
$7.1 million of income. Our effective income tax rate was (46.5)% and 47.6% for the nine months ended September 30, 2025 and 2024, respectively. For the nine months ended September 30, 2025, the effective tax rate was lower than the statutory federal rate of 21%, for corporations, primarily due to a valuation allowance established for US deferred tax assets during Q2, due to delays with modifications of certain operating lines in the US resulting in lower projections for the year, and the jurisdictional mix of earnings and operating losses expected for the year.
Results of Operations — Comparison of Fiscal Years Ended December 31, 2024 and 2023
| |
|
|
Year Ended
31-Dec-24
|
|
|
Year Ended
31-Dec-23
|
|
|
Change
|
|
|
Net sales
|
|
|
|
$ |
403,775 |
|
|
|
|
$ |
445,984 |
|
|
|
|
$ |
(42,209) |
|
|
|
Cost of sales
|
|
|
|
|
335,945 |
|
|
|
|
|
352,221 |
|
|
|
|
|
(16,276) |
|
|
|
Gross margin
|
|
|
|
|
67,830 |
|
|
|
|
|
93,763 |
|
|
|
|
|
(25,933) |
|
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative
|
|
|
|
|
48,421 |
|
|
|
|
|
52,436 |
|
|
|
|
|
(4,015) |
|
|
|
Amortization of intangibles
|
|
|
|
|
1,609 |
|
|
|
|
|
1,606 |
|
|
|
|
|
3 |
|
|
|
Asset impairment expense
|
|
|
|
|
448 |
|
|
|
|
|
338 |
|
|
|
|
|
110 |
|
|
|
Restructuring expense
|
|
|
|
|
1,917 |
|
|
|
|
|
— |
|
|
|
|
|
1,917 |
|
|
|
Total operating expenses
|
|
|
|
|
52,395 |
|
|
|
|
|
54,380 |
|
|
|
|
|
(1,985) |
|
|
|
Income from operations
|
|
|
|
|
15,435 |
|
|
|
|
|
39,383 |
|
|
|
|
|
(23,948) |
|
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense, net
|
|
|
|
|
11,032 |
|
|
|
|
|
12,018 |
|
|
|
|
|
(986) |
|
|
|
Other expense, net
|
|
|
|
|
10,532 |
|
|
|
|
|
10,395 |
|
|
|
|
|
137 |
|
|
|
Total other expense, net
|
|
|
|
|
21,564 |
|
|
|
|
|
22,413 |
|
|
|
|
|
(849) |
|
|
|
(Loss) income before income tax provision
|
|
|
|
|
(6,129) |
|
|
|
|
|
16,970 |
|
|
|
|
|
(23,099) |
|
|
|
Income tax (benefit) provision
|
|
|
|
|
(670) |
|
|
|
|
|
3,534 |
|
|
|
|
|
(4,204) |
|
|
|
Net (loss) income
|
|
|
|
$ |
(5,459) |
|
|
|
|
$ |
13,436 |
|
|
|
|
$ |
(18,895) |
|
|
Net Sales
Net sales decreased by approximately $42.2 million, or (9.5)%, to $403.8 million in 2024, compared to $446.0 million in 2023. The decrease in net sales was primarily driven by volume-related decreases of approximately $17.2 million and price-related decreases of approximately $25.0 million.
Cost of Sales
Cost of sales decreased by approximately $16.3 million, or (4.6)%, to $336.0 million in 2024, compared to $352.2 million in 2023. The decrease in cost of sales was primarily driven by lower volumes of product demand, offset by increased costs for raw materials plus manufacturing inefficiencies from waste, and lower absorption of manufacturing costs at Viskase’s manufacturing facilities totaling approximately $10.0 million.
Gross Margin
Gross margin decreased by approximately $25.9 million, or (27.7)%, to $67.8 million for the year ended December 31, 2024, compared to $93.8 million for the year ended December 31, 2023. The decrease in gross margin was primarily driven by volume and price related decreases of approximately $42.2 million, offset by decreases in cost of sales totaling approximately $16.3 million.
Operating Expenses:
Selling, General and Administrative
Selling, general and administrative expenses decreased by approximately $4.0 million, or (7.6)%, to $48.4 million in 2024, compared to $52.4 million in 2023. The decrease was primarily driven by lower costs for employee compensation plans of approximately $6.0 million.
Amortization of Intangibles
Amortization of intangible assets totaled approximately $1.6 million in 2024 and 2023 on the amortization of intangible assets recognized with acquisitions.
Asset Impairment Expense
Asset impairment charges increased by approximately $0.1 million, or 33.3%, to $0.4 million in 2024, compared to $0.3 million in 2023. The increase was primarily due to the write down of assets related to Viskase’s Swiecie, Poland plant closure.
Income from Operations
Income from operations decreased by approximately $24.0 million, or (61.2)%, to $15.4 million in 2024, compared to $39.4 million in 2023. The decrease was primarily driven by lower volumes of product demand, higher costs for raw materials and unfavorable production variances of approximately $11.0 million as well as lower product prices and mix. Viskase also incurred approximately $1.9 million in restructuring expenses to close one of its European manufacturing facilities, which negatively impacted Viskase’s total operating income for the year ended December 31, 2024.
Other Income (Expense):
Interest Expense, Net
Interest expense, net of interest income, decreased by approximately $1.0 million, or (8.3)%, to $11.0 million in 2024, compared to $12.0 million in 2023. The decrease is a result of a lower interest rate of 6.94% for 2024, compared to 7.49% in 2023, for Viskase’s term loan with its Amended Senior Credit Facility.
Other Expense, Net
Other expense increased by approximately $0.1 million, or 1.0%, to $10.5 million in 2024, compared to $10.4 million in 2023. The increase is primarily due to higher foreign currency translation loss of approximately $7.3 million in 2024, compared to a foreign currency translation gain of approximately $5.3 million in 2023, primarily offset by the higher expense of approximately $6.8 million in 2023 due to reversal of a receivable on an uncertain tax position with the benefit accounted for through the income tax provision.
Income Taxes:
Income Tax Provision
During 2024, an income tax benefit of approximately $0.7 million was recognized on the loss before income taxes of $6.2 million compared to income tax expense of approximately $3.5 million in 2023. The 2024 effective income tax rate was (10.7%) compared to 20.7% for 2023. The income tax rate benefited from the jurisdictional mix of earnings, reversal of an uncertain tax position, offset by valuation allowances on deferred tax assets in Poland of approximately $1.0 million and Brazil of approximately $4.0 million.
Results of Operations — Comparison of Fiscal Years Ended December 31, 2023 and 2022
The following table summarizes Viskase’s annual condensed consolidated statement of operations for the periods presented (in thousands):
| |
|
|
Year Ended
31-Dec-23
|
|
|
Year Ended
31-Dec-22
|
|
|
Change
|
|
|
Net sales
|
|
|
|
$ |
445,984 |
|
|
|
|
$ |
430,834 |
|
|
|
|
$ |
15,150 |
|
|
|
Cost of sales
|
|
|
|
|
352,221 |
|
|
|
|
|
356,701 |
|
|
|
|
|
(4,480) |
|
|
|
Gross margin
|
|
|
|
|
93,763 |
|
|
|
|
|
74,133 |
|
|
|
|
|
19,630 |
|
|
|
Operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative
|
|
|
|
|
52,436 |
|
|
|
|
|
50,283 |
|
|
|
|
|
2,153 |
|
|
|
Amortization of intangibles
|
|
|
|
|
1,606 |
|
|
|
|
|
1,576 |
|
|
|
|
|
30 |
|
|
|
Asset impairment expense
|
|
|
|
|
338 |
|
|
|
|
|
27 |
|
|
|
|
|
311 |
|
|
|
Total operating expenses
|
|
|
|
|
54,380 |
|
|
|
|
|
51,886 |
|
|
|
|
|
2,494 |
|
|
|
Income from operations
|
|
|
|
|
39,383 |
|
|
|
|
|
22,247 |
|
|
|
|
|
17,136 |
|
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense, net
|
|
|
|
|
12,018 |
|
|
|
|
|
8,428 |
|
|
|
|
|
3,590 |
|
|
|
Other expense (income), net
|
|
|
|
|
10,395 |
|
|
|
|
|
4,396 |
|
|
|
|
|
5,999 |
|
|
|
Total other expense, net
|
|
|
|
|
22,413 |
|
|
|
|
|
12,824 |
|
|
|
|
|
9,589 |
|
|
|
Loss before income tax provision
|
|
|
|
|
16,970 |
|
|
|
|
|
9,423 |
|
|
|
|
|
7,547 |
|
|
|
Income tax provision
|
|
|
|
|
3,534 |
|
|
|
|
|
7,139 |
|
|
|
|
|
(3,605) |
|
|
|
Net income
|
|
|
|
$ |
13,436 |
|
|
|
|
$ |
2,284 |
|
|
|
|
$ |
11,152 |
|
|
Net Sales
Net sales increased by approximately $15.2 million, or 3.5%, to $446.0 million in 2023, compared to $430.8 million in 2022. The increase in net sales was primarily driven by approximately $40.0 million dollar increase from price and mix, and approximately $2.2 million dollar increase due to foreign currency translation, partially offset by volume-related decreases of approximately $27.0 million.
Cost of Sales
Cost of sales decreased by approximately $4.5 million, or (1.3)%, to $352.2 million in 2023, compared to $356.7 million in 2022. The decrease in cost of sales was primarily driven by lower volumes of product demand, increased costs for raw materials, manufacturing waste expenses of approximately $9.0 million and lower absorption of manufacturing costs at Viskase’s manufacturing facilities.
Gross Margin
Gross margin increased by approximately $19.6 million, or 26.5%, to $93.8 million for the year ended December 31, 2023, compared to $74.1 million for the year ended December 31, 2022. The increase in gross margin was primarily driven by price and mix-related increases of approximately $40.0 million, offset by volume related decreases of approximately $27.0 million and decreases in costs of sales totaling approximately $4.5 million.
Operating Expenses
Selling, General and Administrative Expenses
Selling, general and administrative expenses increased by approximately $2.2 million, or 4.3%, to $52.4 million in 2023, compared to $50.3 million in 2022. The increase was primarily driven by increased costs for employee compensation plans of approximately $5.0 million.
Amortization of Intangibles
Amortization of intangible assets totaled approximately $1.6 million in both 2023 and 2022 on the amortization of intangible assets recognized with acquisitions.
Asset Impairment Expense
Asset impairment charges increased by approximately $0.3 million, to $0.3 million in 2023, compared to $27,000 in 2022. The increase was primarily due to a number of assets removed from service during the year as part of normal cost improvement initiatives.
Income from Operations
Income from operations increased by approximately $17.2 million, or 77%, to $39.4 million in 2023, compared to $22.2 million in 2022. The increase was primarily driven by higher price and mix on product revenue, decreased costs for raw materials and distribution expenses, offset by manufacturing waste and inefficiencies of approximately $9.0 million.
Other Income (Expense):
Interest Expense
Interest expense, net of interest income, increased by approximately $3.6 million, or 43%, to $12.0 million in 2023, compared to $8.4 million in 2022. The increase is a result of a higher interest rate of 7.49% for 2023, compared to 6.15% in 2022, for Viskase’s term loan with its Amended Senior Credit Facility.
Other Expense
Other expenses increased by approximately $6.0 million, or 136%, to $10.4 million in 2023, compared to $4.4 million in 2022. The increase is primarily due to higher foreign currency translation gain of approximately $1.0 million in 2023, compared to a foreign currency translation loss of approximately $3.5 million in 2022, partially offset by the higher expense of approximately $6.8 million in 2023 due to reversal of a receivable on an uncertain tax position with the benefit accounted for through the income tax provision.
Income Taxes:
Income Tax Provision
During 2023, income tax expense decreased by approximately $3.6 million, or (50)%, to $3.5 million in 2023, compared to $7.1 million in 2022. The decrease was due to the 2023 effective income tax rate being 20.7% compared to 75.8% for 2022. The income tax rate also benefited from the reversal of an uncertain tax position in 2023 of approximately $6.8 million.
Liquidity and Capital Resources
Sources and Uses of Cash
Viskase’s primary sources of liquidity are net cash provided by operating activities and available borrowing capacity under its Amended Senior Credit Facility and Foreign Lines of Credit (as further discussed and defined below). As of September 30, 2025, Viskase had approximately $7.7 million of cash and cash equivalents. As of December 31, 2024, Viskase had approximately $5.7 million of cash and cash equivalents and approximately $5.0 million of unused borrowing capacity under the Amended Senior Credit Facility, net of letters of credit.
Currently, Viskase’s primary uses of cash are for operations, capital expenditures, acquisitions, and debt service. Viskase believes that net cash generated from operating activities, cash on hand, available borrowings under its Amended Senior Credit Facility and available capital through access to capital markets
will be adequate to meet Viskase’s liquidity and capital requirements, including payments of any declared common stock dividends, for the foreseeable future. As Viskase’s debt or credit facilities become due, Viskase will need to repay, extend or replace such facilities. Viskase’s ability to do so will be subject to future economic conditions and financial, business, and other factors, many of which are beyond Viskase’s control.
Going Concern
The assessment of liquidity and going concern requires Viskase to make judgments about its ability to meet its obligations as they fall due for at least one year after the date that its condensed consolidated financial statements for the three months ended and nine months ended September 30, 2025 are issued.
Viskase’s financial statements are prepared using accounting principles generally accepted in the United States of America applicable to a going concern which contemplates the realization of assets and liquidation of liabilities in the normal course of business. The ability of Viskase to continue as a going concern is dependent on Viskase obtaining adequate refinancing of its Senior Credit Facility before its maturity in August 2026.
Viskase fully expects the refinancing will be completed after completion of the Merger, but before the maturity of the Senior Credit Facility. However, there is no assurance that Viskase will be able to obtain sufficient additional funds to refinance these maturities occurring within 12 months of the date of the issuance of its financials or that such funds, if available, will be obtainable on terms satisfactory to Viskase, and therefore substantial doubt exists about Viskase’s ability to continue as a going concern.
The condensed consolidated financial statements do not include any adjustments that might result from Viskase being unable to continue as a going concern.
Cash Flows — Comparison of Nine Months Ended September 30, 2025 and 2024
The following table summarizes Viskase’s cash flows for the periods presented (in thousands):
| |
|
|
Nine Months
Ended
September 30,
2025
|
|
|
Nine Months
Ended
September 30,
2024
|
|
|
Net cash provided by operating activities
|
|
|
|
$ |
12,491 |
|
|
|
|
$ |
325 |
|
|
|
Net cash used in investing activities
|
|
|
|
|
(25,590) |
|
|
|
|
|
(9,742) |
|
|
|
Net cash provided by financing activities
|
|
|
|
|
14,774 |
|
|
|
|
|
8,063 |
|
|
|
Foreign currency translation
|
|
|
|
|
315 |
|
|
|
|
|
(260) |
|
|
|
Net increase (decrease) in cash and cash equivalents
|
|
|
|
$ |
1,990 |
|
|
|
|
$ |
(1,614) |
|
|
Net Cash Provided by Operating Activities
Viskase’s operating cash flow is primarily driven by Viskase’s earnings and changes in operating assets and liabilities, such as accounts receivable, inventories, accounts payable and other accrued liabilities, as well as other factors described below. Cash requirements for operating activities are subject to Viskase’s operating needs and the timing of collection of receivables and payments of payables and expenses.
For the nine months ended September 30, 2025, net cash provided by operating activities was approximately $12.5 million, compared to approximately $0.3 million for the nine months ended September 30, 2024. The increase in generated cash was primarily attributable to decrease in inventory and other current assets as well as increase in accounts payable during the nine months ended September 30, 2025. The decrease in inventories and other current assets was primarily due to volume and market demand. The decrease in accounts payable was primarily due to the timing and payments of vendors.
Net Cash Used in Investing Activities
For the nine months ended September 30, 2025, net cash used in investing activities was approximately $25.6 million, compared to $9.7 million for the nine months ended September 30, 2024, an increase of
$15.9 million. The change in cash used in investing activities was primarily due to an increase in capital expenditures relating to Viskase’s manufacturing facilities and production equipment.
Net Cash Provided by Financing Activities
For the nine months ended September 30, 2025, net cash provided by financing activities was approximately $14.8 million, compared to $8.1 million for the nine months ended September 30, 2024, an increase of $6.7 million. The change in cash provided by financing activities during the year was primarily due to proceeds of $20 million from private placement of Viskase’s common stock and additional borrowing of $4.8 million from our amended credit facility, partially offset by repayment of our short term-debt in the amount of $9.4 million.
Cash Flows — Comparison of Fiscal Years Ended December 31, 2024 and 2023
The following table summarizes Viskase’s cash flows for the periods presented (in thousands):
| |
|
|
Year Ended
December 31,
2024
|
|
|
Year Ended
December 31,
2023
|
|
|
Net cash provided by operating activities
|
|
|
|
$ |
3,369 |
|
|
|
|
$ |
44,165 |
|
|
|
Net cash used in investing activities
|
|
|
|
|
(15,279) |
|
|
|
|
|
(14,460) |
|
|
|
Net cash provided by (used in) financing activities
|
|
|
|
|
10,250 |
|
|
|
|
|
(29,292) |
|
|
|
Foreign currency translation
|
|
|
|
|
(498) |
|
|
|
|
|
(1,334) |
|
|
|
Net decrease in cash and cash equivalents
|
|
|
|
$ |
(2,158) |
|
|
|
|
$ |
(921) |
|
|
Net Cash Provided by Operating Activities
Viskase’s operating cash flow is primarily driven by Viskase’s earnings and changes in operating assets and liabilities, such as accounts receivable, inventories, accounts payable and other accrued liabilities, as well as other factors described below. Cash requirements for operating activities are subject to Viskase’s operating needs and the timing of collection of receivables and payments of payables and expenses.
During 2024, net cash provided by operating activities was approximately $3.4 million, compared to $44.2 million for 2023, a decrease of $40.8 million or 92%. The decrease was primarily attributable to a net loss of approximately $5.5 million due to lower sales, and a decrease in gross margin, partially offset by positive non-cash adjustments of approximately $25.7 million and negative changes in operating assets and liabilities of approximately $16.9 million. Non-cash adjustments consisted of approximately $23.7 million of depreciation and amortization expense related to Viskase’s global manufacturing facilities and associated machinery and equipment for the year ended December 31, 2024. Net cash provided by changes in Viskase’s operating activities consisted of approximately a $11.9 million decrease in receivables, a $5.2 million increase in other current assets, offset by approximately a $8.0 million decrease in accounts payable, $16.0 million decrease in accrued liabilities and $4.7 million decrease in other assets. The increase in other current assets was primarily due to advances to suppliers and increased prepaid expenses. The decrease in receivables was primarily due to volume and price mix. The decreases in accounts payable, accrued liabilities, and other assets was primarily due to lower purchasing volume, accelerated payments to suppliers, and accruals that were settled during the year ended December 31, 2024.
Net Cash Used in Investing Activities
For the year ended December 31, 2024, net cash used in investing activities was approximately $15.3 million, compared to $14.5 million for 2023, an increase of $0.8 million or 6%. The change in cash used in investing activities during the year was primarily due to an increase in capital expenditures relating to Viskase’s manufacturing facilities and production equipment.
Net Cash Provided by Financing Activities
For the year ended December 31, 2024, net cash provided by financing activities was approximately $10.3 million, compared to $29.3 million of cash used in financing activities during 2023, an increase of
$39.6 million. The change in cash provided by financing activities during the year was primarily due to repayment of long-term debt, offset by proceeds received from entering into a short-term loan with the Amended Senior Credit Facility.
Cash Flows — Comparison of Fiscal Years Ended December 31, 2023 and 2022
The following table summarizes Viskase’s cash flows for the periods presented (in thousands):
| |
|
|
Year Ended
December 31,
2023
|
|
|
Year Ended
December 31,
2022
|
|
|
Net cash provided by operating activities
|
|
|
|
$ |
44,165 |
|
|
|
|
$ |
10,379 |
|
|
|
Net cash used in investing activities
|
|
|
|
|
(14,460) |
|
|
|
|
|
(22,187) |
|
|
|
Net cash (used in) provided by financing activities
|
|
|
|
|
(29,292) |
|
|
|
|
|
6,194 |
|
|
|
Foreign currency translation
|
|
|
|
|
(1,334) |
|
|
|
|
|
4,521 |
|
|
|
Net decrease in cash and cash equivalents
|
|
|
|
|
(921) |
|
|
|
|
$ |
(1,093) |
|
|
Net Cash Provided by Operating Activities
Viskase’s operating cash flow is primarily driven by Viskase’s earnings and changes in operating assets and liabilities, such as accounts receivable, inventories, accounts payable and other accrued liabilities, as well as other factors described below. Cash requirements for operating activities are subject to Viskase’s operating needs and the timing of collection of receivables and payments of payables and expenses.
During 2023, net cash provided by operating activities was approximately $44.2 million, compared to $10.4 million for 2022, an increase of $33.8 million. The increase was primarily attributable to an increase in net income of approximately $11.2 million, as well as positive non-cash adjustments of approximately $29.6 million and positive changes in operating assets and liabilities of approximately $1.2 million. Non-cash adjustments primarily consisted of approximately $25.2 million of depreciation and amortization expense related to Viskase’s global manufacturing facilities and associated machinery and equipment for the year ended December 31, 2023. Viskase also had a project that was fully depreciated during 2023 that contributed to the increase in overall depreciation and amortization expense for the year ended December 31, 2023. Net cash provided by changes in Viskase’s operating activities consisted of approximately a $5.9 million increase in inventories, a $1.1 million increase in other current assets, and a $6.5 million increase in accrued liabilities. The increase in inventories, and other current assets was primarily due to volume and market demand. The increase in accrued liabilities was primarily due to the timing and payments of vendors, as well as the overall increase in Viskase’s business activities during the year ended December 31, 2023.
Net Cash Used in Investing Activities
For the year ended December 31, 2023, net cash used in investing activities was approximately $14.5 million, compared to $22.2 million for 2022, a decrease of $7.7 million. The change in cash used in investing activities during the year was primarily due to a decrease in capital expenditures relating to Viskase’s manufacturing facilities and production equipment.
Net Cash Used in Financing Activities
For the year ended December 31, 2023, net cash used in financing activities was approximately $29.3 million, compared to $6.2 million of cash provided by financing activities during 2022, an increase of $35.5 million. The change in cash used in financing activities during the year was primarily due to repayment of long-term debt, partially offset by proceeds received from entering into a short-term loan with the Amended Senior Credit Facility.
Future Funding Requirements
In order for Viskase to meet its ongoing debt obligations, which include the repayment of Viskase’s Amended Senior Credit Facility that is due for repayment within the next 12 months, Viskase must
successfully amend and/or refinance the Amended Senior Credit Facility, or obtain sufficient additional funds to repay borrowings under the Amended Senior Credit Facility, before its scheduled maturity in August 2026. Viskase intends to adequately amend and/or refinance the Amended Senior Credit Facility, or obtain sufficient additional funds to repay borrowings under the Amended Senior Credit Facility, after completion of the Merger but before the scheduled maturity of the Amended Senior Credit Facility to continue as a going concern. However, there is no assurance that Viskase will be able to adequately amend and/or refinance the Amended Senior Credit Facility, or obtain sufficient additional funds to repay borrowings under the Amended Senior Credit Facility, or that such funds, if available, will be obtainable on terms satisfactory to Viskase. The existence of this event indicates that there is substantial doubt on Viskase’s ability to continue as a going concern.
Viskase’s future capital requirements will depend on many factors, including its pace of new and existing customer growth, its investments in innovation, its investments in acquisitions, partnerships and unexplored channels and the potential costs associated with future expansion of its production capacity. As of September 30, 2025 and December 31, 2024, future minimum lease payments under non-cancelable operating leases totaled approximately $21.9 million and $21.7 million, respectively.
Contractual Obligations and Other Commitments
Amended Senior Credit Facility
On October 9, 2020, Viskase entered into a Credit Agreement (the “Credit Agreement”) with the various lenders named therein and Bank of America, N.A., as administrative agent for the lenders (the “Administrative Agent”), providing for a $150.0 million term loan and a $30.0 million revolving credit facility (the “Revolving Credit Facility” and together with the term loan, the “Senior Credit Facility”) as amended by the First Amendment to Credit Agreement dated as of August 13, 2021, the Second Amendment to Credit Agreement dated as of August 10, 2022 and as further amended by the Limited Waiver and Third Amendment to Credit Agreement dated as of February 14, 2025 (the “Third Amendment”, and as further amended by the Fourth Amendment to Credit Agreement dated as of July 25, 2025, as described below, collectively known as the “Amended Senior Credit Facility”).
The Second Amendment to the Credit Agreement increased the commitment of the Credit Agreement to $37.0 million and transitioned term loans on September 30, 2022 and revolving loans on August 30,2022 from LIBOR Loans to SOFR Loans.
The Third Amendment includes a waiver on covenants for the year ended December 31, 2024, and a relief period for year 2025 (the “Covenant Relief Period”). During the Covenant Relief Period, the consolidated leverage ratio will be increased to 4.00X through December 31, 2025. The consolidated fixed charge coverage ratio will be modified to include only maintenance capital expenditures and a year-to-date build basis for quarter end calculation. On December 31, 2025, the consolidated fixed charge coverage ratio will return to an LTM basis. During the Covenant Relief Period, restricted payments, permitted acquisitions and other investments as defined by the Credit Agreement are not allowed and the accordion feature of the credit facility, which allowed for an increase in borrowings under the facility has been suspended.
The Fourth Amendment requires Viskase to repay 10% of scheduled amortization payments suspended through maturity after mandatory prepayment from financing raised as part of the merger reorganization. Viskase is required to pay $15.0 million in repayments for its term loan administered by its Amended Senior Credit Facility if the merger closes by December 31, 2025, and is required to pay $11.3 million if the merger closes after December 31, 2025.
The Fourth and Fifth Amendment allow the Company to include equity infusions through private placements into the calculation of LTM EBITDA for covenant purposes.
The interest rates per annum applicable to the Amended Senior Credit Facility (other than in respect of swingline loans) will be SOFR, but in any event, not less than 0.00%, plus the Applicable Rate (as defined below), or, for U.S. dollar denominated loans only, made to Viskase at the option of Viskase, the Base Rate, defined as the highest of: (a) the Federal Funds Rate plus one-half percent (0.50%); (b) the Bank of America prime rate; and (c) the one month SOFR (adjusted daily) plus one percent (1.00%), but in any case
not less than 1.00%, plus the Applicable Rate. “Applicable Rate” means, with respect to the Amended Senior Credit Facility, a percentage per annum to be determined in accordance with the applicable pricing grid set forth in the Viskase Credit Agreement based upon Viskase’s Consolidated Coverage Ratio as reflected in a quarterly Compliance Certificate. Each swingline loan shall bear interest at the Base Rate plus the Applicable Rate for Base Rate loans under the new revolving credit facility. As of September 30, 2025 and December 31, 2024, Viskase’s interest rate was 7.40% and 6.94%, respectively.
The Amended Senior Credit Facility requires Viskase to repay principal of the new term loan at the rate of 5% of the original principal balance during each of the first two years, 7.5% during the third and fourth years and 10% of the original principal balance during the fifth year. The maturity date on the Amended Senior Credit Facility is August 13, 2026. Viskase may prepay the Amended Senior Credit Facility, in whole or in part, at any time without premium or penalty, subject to reimbursement of the Lenders’ breakage and redeployment costs in the case of prepayment of LIBOR borrowings and foreign currency borrowings bearing interest at a rate other than LIBOR. Each such prepayment of the New Term Facility shall be applied as directed by Viskase. The unutilized portion of the commitments under the Amended Senior Credit Facility may be irrevocably reduced or terminated by Viskase at any time without penalty.
The Amended Senior Credit Facility is guaranteed by each existing and future direct and indirect wholly owned material domestic Restricted Subsidiary and foreign Restricted Subsidiary of Viskase (other than any Brazilian subsidiary). The Amended Senior Credit Facility is secured by substantially all assets of Viskase and its material domestic Restricted Subsidiaries, with the exception of real property.
The Amended Senior Credit Facility contains various covenants which restrict Viskase’s ability to, among other things, incur indebtedness, create liens on Viskase’s assets, make investments, enter into merger, consolidation or acquisition transactions, dispose of assets (other than in the ordinary course of business), make certain restricted payments, enter into sale and leaseback transactions and transactions with affiliates, in each case subject to permitted exceptions. The Amended Senior Credit Facility also requires that Viskase comply with certain financial covenants, including meeting a consolidated leverage ratio and consolidated fixed charge coverage ratio. Viskase was not in compliance with the consolidated leverage ratio and consolidated fixed charge coverage ratio for the period ending September 30, 2025. The noncompliance constituted an event of default that, absent a waiver, could have resulted in the debt becoming callable by the lender and reclassified as a current liability in accordance with ASC 470-10-45. Subsequent to the balance sheet date in October 2025, but prior to the issuance of the financial statements, Viskase entered into the Fifth Amendment to Credit Agreement. Among other provisions, the amendment included a waiver of the covenant violations existing as of September 30, 2025, and modified certain covenant terms going forward. Viskase is in compliance with the amended covenants as of the date the financial statements were issued. Viskase received a waiver of covenants as of December 31, 2024.
Foreign Lines of Credit
In its foreign operations, Viskase has entered into unsecured lines of credit with various banks providing approximately $12 million of availability. There were borrowings of $11.6 million under the lines of credit as of September 30, 2025, and approximately $9.9 million under the lines of credit as of December 31, 2024. As of September 30, 2025 and December 31, 2024, Viskase’s interest rates were 4.32% and 4.81%, respectively.
Operating Leases
Viskase has operating leases primarily for real estate, equipment, and vehicles. Viskase’s lease agreements do not contain any material residual value guarantees or material restrictive covenants. Right-of-use assets and related lease liabilities are recorded on the balance sheet for leases with an initial term in excess of 12 months.
See Note 10, “Commitments and Contingencies”, to our interim unaudited condensed consolidated financial statements and Note 6, “Leases”, to our audited consolidated financial statements, respectively, included elsewhere in this prospectus for additional information on our operating leases.
Critical Accounting Estimates
Our accounting estimates discussed below are important to the presentation of our results of operations and financial condition and require the application of judgment by our management in determining the appropriate assumptions and estimates. These assumptions and estimates are based on our previous experience, trends in the industry, the terms of existing contracts and information available from other outside sources and factors. Adjustments to our financial statements are recorded when our actual experience differs from the expected experience underlying these assumptions. These adjustments could be material if our experience is significantly different from our assumptions and estimates. Below are those policies applied in preparing our financial statements that management believes are the most dependent on the application of estimates and assumptions.
Pensions
Viskase accounts for defined benefit pension plans in accordance with Accounting Standards Codification 715, Compensation — Retirement Benefits. The calculation of pension expense and pension liabilities requires decisions about a number of key assumptions that can significantly affect expense and liability amounts, including discount rates, expected return on plan assets, expected rate of compensation increases, longevity and service lives of participants, expected contributions, and other factors.
Viskase recognizes the funded status of its pension plans on its consolidated Balance Sheet and recognizes the actuarial and experienced gains and losses and the prior service costs and credits as a component of “accumulated other comprehensive loss” in its consolidated statements of stockholders’ equity. Actual results that differ from assumptions are accumulated and amortized over future periods and, therefore, generally affect recognized expense in future periods. As of September 30, 2025 and December 31, 2024, Viskase had approximately $19.6 million and $20.9 million of actuarial losses and prior service costs, net of tax, recorded in “accumulated other comprehensive loss” on its consolidated balance sheet. Accumulated losses in excess of 10% of the greater of the projected benefit obligation or the market-related value of assets will be recognized on a straight-line basis over the average remaining service period of active employees in the plans and over the average remaining lifetime of inactive participants of the plan, to the extent that losses are not offset by gains in subsequent years. While Viskase believes that the assumptions used to measure its pension obligations are reasonable, differences in actual experience or changes in assumptions may materially affect its pension obligations and future expense.
Viskase believes that the accounting estimate related to pensions is a critical accounting estimate because it is highly susceptible to change from period to period. As discussed above, the future effects of pension plans on Viskase’s financial position and results of operations will depend on economic conditions, employee demographics, mortality rates, retirement rates, investment performance, and funding decisions, among other factors. The following tables present selected assumptions used and expected to be used in the measurement of pension expense for Viskase’s U.S. pension plans in the following periods (in thousands):
| |
|
|
Three Months
Ended,
September 30,
2025
|
|
|
Three Months
Ended,
September 30,
2024
|
|
|
Pension expense
|
|
|
|
$ |
273 |
|
|
|
|
$ |
250 |
|
|
|
Assumptions
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discount rate
|
|
|
|
|
5.70% |
|
|
|
|
|
5.70% |
|
|
|
Expected rate of return on plan assets
|
|
|
|
|
5.65% |
|
|
|
|
|
6.00% |
|
|
| |
|
|
Nine Months
Ended,
September 30,
2025
|
|
|
Nine Months
Ended,
September 30,
2024
|
|
|
Pension expense
|
|
|
|
$ |
818 |
|
|
|
|
$ |
742 |
|
|
|
Assumptions
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discount rate
|
|
|
|
|
5.70% |
|
|
|
|
|
5.70% |
|
|
|
Expected rate of return on plan assets
|
|
|
|
|
5.65% |
|
|
|
|
|
6.00% |
|
|
| |
|
|
Year Ended
2024
|
|
|
Year Ended
2023
|
|
|
Year Ended
2022
|
|
|
Pension expense
|
|
|
|
$ |
3,099 |
|
|
|
|
$ |
2,236 |
|
|
|
|
$ |
75 |
|
|
|
Assumptions
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discount rate
|
|
|
|
|
5.70% |
|
|
|
|
|
5.48% |
|
|
|
|
|
5.55% |
|
|
|
Expected rate of return on plan assets
|
|
|
|
|
6.00% |
|
|
|
|
|
6.00% |
|
|
|
|
|
5.00% |
|
|
Expected rate of return on plan assets: The required use of the expected long-term rate of return on plan assets may result in recognized returns that are greater or less than the actual returns on those plan assets in any given year. Over time, however, the expected long-term rate of return on plan assets is designed to approximate actual earned long-term returns. Viskase uses long-term historical actual return information, the mix of investments that comprise plan assets, and future estimates of long-term investment returns by reference to external sources to develop an assumption of the expected long-term rate of return on plan assets. The expected long-term rate of return is used to calculate net periodic pension cost. In determining its pension obligations, Viskase is using a long-term rate of return on U.S. plan assets of 6.00% for fiscal years ended December 31, 2024 and 2023; and a rate of 5.00% for fiscal year ended December 31, 2022. Viskase is using a long-term rate of return on U.S. plan assets of 5.65% for the three and nine months ended September 30, 2025.
Discount rate: The discount rate is used to calculate future pension and post-retirement obligations. Viskase is using a Mercer Bond yield curve in determining its pension obligations. Viskase is using a discount rate of 5.70% for fiscal year ended December 31, 2024, 5.48% for fiscal year ended December 31, 2023, and 5.55% for fiscal year ended December 31, 2022. Viskase is using a discount rate of 5.70% for the three and nine months ended September 30, 2025.
For more information related to Viskase’s pension benefit plans, see Note 7, Retirement Plans, within Viskase’s Q3 2025 Financial Statements and Notes and within Viskase’s FY 2024 Financial Statements and Notes.
Income Taxes
Viskase determines its effective tax rate by estimating its permanent differences resulting from differing treatment of items for financial and income tax purposes. Viskase is periodically audited by taxing authorities and considers any adjustments made as a result of the audits in computing its income tax expense. Any audit adjustments affecting permanent differences could have an impact on Viskase’s effective tax rate.
Deferred income taxes relate primarily to depreciation expense and share-based compensation programs accounted for differently for financial and income tax purposes. Changes in tax laws and rates could materially affect recorded deferred tax assets and liabilities in the future. Valuation allowances are recorded when it is more likely than not that a tax benefit will not be realized for a deferred tax asset. Changes in projected future earnings could affect Viskase’s recorded valuation allowances, if any, in the future.
Viskase records unrecognized tax benefit liabilities for known or anticipated tax issues for which the benefit is more likely than not based on its analysis of whether, and the extent to which, additional taxes will be due. However, due to the complexity of some of these uncertainties, the ultimate resolution may result in a payment that is materially different from the current estimate of the tax liabilities. To the extent Viskase prevails in matters for which unrecognized tax benefit liabilities have been established or are required to pay amounts in excess of Viskase’s recorded liability, Viskase’s effective tax rate in a given financial statement period could be materially affected.
Recent Accounting Pronouncements
See Note 1, “Summary of significant accounting policies”, to our interim unaudited condensed consolidated financial statements and audited consolidated financial statements, respectively, included elsewhere in this prospectus for a description of recent accounting pronouncements, if any, including the expected dates of adoption and the anticipated impact on our unaudited condensed consolidated and audited consolidated financial statements.
Off-Balance Sheet Arrangements
As of September 30, 2025, Viskase did not have any off-balance sheet arrangements that have, or are reasonably likely to have, a material effect on its current and future financial condition, results of operations, liquidity, capital expenditures or capital resources.
VISKASE QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Interest Rate Risk
Viskase is subject to interest rate risk in connection with the Amended Senior Credit Facility, or the Senior Credit Facility. See the section titled “— Liquidity and Capital Resources — Amended Senior Credit Facility” in this prospectus/consent solicitation statement for further information related to the Amended Senior Credit Facility. Viskase monitors its cost of borrowings, taking into account its funding requirements, and expectations for short-term rates in the future. A hypothetical 10% change in the interest rates of Viskase’s outstanding debt would not have a material effect on its results of operations or financial condition for the three and nine months ended September 30, 2025. Viskase does not currently hedge certain exposure to changes in interest rates.
Foreign Currency Risk
Viskase’s international sales are primarily denominated in foreign currencies and any unfavorable movement in the exchange rate between U.S. dollars and the currencies in which Viskase conducts sales in foreign countries could have an adverse impact on Viskase’s revenue. A portion of Viskase’s operating expenses is incurred outside the United States and are denominated in foreign currencies, which are also subject to fluctuations due to changes in foreign currency exchange rates. While Viskase is not currently contractually obligated to pay increased costs due to changes in exchange rates, to the extent that exchange rates move unfavorably for Viskase’s suppliers, the suppliers may seek to pass these additional costs on to Viskase, which could have a material impact on Viskase’s gross margins. Viskase’s operating results and cash flows are, therefore, subject to fluctuations due to changes in foreign currency exchange rates. Viskase does not currently hedge certain exposures to fluctuations in foreign currency exchange rates.
Inflation Risk
Viskase’s results of operations and financial condition are presented based on historical cost. While it is difficult to accurately measure the impact of inflation due to the imprecise nature of the estimates required, Viskase believes the effects of inflation, if any, on its business, results of operations, financial condition or financial statements have been immaterial. Viskase cannot assure you that its business will not be affected in the future by inflation.
CERTAIN RELATIONSHIPS BETWEEN ENZON AND VISKASE
As of [•], 2026, IEH — through its control of the IEH Parties — Beneficially Owns approximately (i) [48.6]% of the issued and outstanding shares of Enzon Common Stock, (ii) [98.2]% of the issued and outstanding shares of Enzon Series C Preferred Stock and (iii) [91.76]% of the issued and outstanding shares of Viskase Common Stock. Upon completion of the Merger, Enzon expects that the IEH Parties will hold a substantial majority of the voting power of the Combined Company. Following the Merger, it is expected that the IEH Parties will Beneficially Own approximately from [•]% to [•]% of the outstanding shares of the Combined Company Common Stock, depending on the amount of Enzon Series C Preferred Stock that is exchanged for shares of Enzon Common Stock. Mr. Icahn is the controlling stockholder and chairman of the board of the general partner of IEH. Because of their substantial ownership and voting power, Mr. Icahn and the IEH Parties may exert significant influence over the management and strategic direction of the Combined Company, including, but not limited to, (i) the declaration of any future dividends, (ii) the ability to control the election, removal or replacement of any one or more members of the board of directors of the Combined Company, (iii) the voting on decisions relating to fundamental corporate actions, consolidations or sales or all or substantially all of the Combined Company’s assets and (iv) the ability to control the approval of various transactions. This concentration of ownership may also discourage or prevent a third party from seeking to acquire control of the Combined Company, even if such a transaction might be beneficial to other stockholders. As a result, the interests of Mr. Icahn and the IEH Parties may not always align with the interests of the Combined Company or its other stockholders.
Given the significant ownership of the IEH Parties in both Enzon and Viskase, and the potential for conflicts of interest, (i) the Enzon Board established the Enzon Special Committee of independent and disinterested directors and (ii) the Viskase Board established the Viskase Special Committee of independent and disinterested directors, in each case to, among other things, analyze, evaluate and oversee a potential transaction with the other party. Each member of the Enzon Special Committee and the Viskase Special Committee, as applicable, satisfied the applicable criteria for (A) determining director independence from Enzon stockholders and Viskase stockholders, as applicable, under the listing standards of the DGCL and (B) being a “disinterested director” (as defined in Section 144(e)(4) of the DGCL).
The Enzon Board has adopted a formal written policy that Enzon will not enter into any “related party transaction” (defined consistent with Item 404 of Regulation S-K under the Exchange Act) unless the Finance and Audit Committee of Enzon or a comparable committee of disinterested directors of Enzon approves such transaction. No member of the Finance and Audit Committee or comparable committee of Enzon shall participate in the review or approval of any related party transaction or any material amendment thereto where that member is a related party in that transaction. In reviewing and approving any related party transaction or any material amendment thereto, the Finance and Audit Committee or comparable committee of Enzon shall satisfy itself that it has been fully informed as to the related party’s relationship and interest and as to the material facts of the proposed related party transaction or material amendment, and shall determine that the related party transaction or material amendment thereto is fair to Enzon. As previously disclosed, in January 2025, the Enzon Board formed the Enzon Special Committee and delegated full authority to the Enzon Special Committee to consider, negotiate and vote upon the Merger Agreement, as well as any strategic alternatives that may be put forth with regard to the Merger Agreement. The Enzon Special Committee is comprised of Messrs. Randolph C. Read and Stephen T. Wills. Please see the section titled “The Merger — Background of the Merger” in this prospectus/consent solicitation statement for further information regarding the background of the Merger.
DIRECTORS AND EXECUTIVE OFFICERS OF THE COMBINED COMPANY
As of the Effective Time, the board of directors of the Combined Company will consist of two current Enzon directors, Jordan Bleznick and Randolph C. Read, together with [•]. Each such director will hold office until his or her respective successor is duly elected or appointed and qualified or until his or her earlier death, resignation or removal in accordance with the Enzon Organizational Documents and applicable law. As of the Effective Time, the officers of Viskase immediately prior to the Effective Time shall be the officers of the Combined Company until his or her respective successor is duly elected or appointed and qualified or until his or her earlier death, resignation or removal in accordance with the Enzon Organizational Documents and applicable law.
The following Persons are expected to be elected or appointed to serve as executive officers and directors following the Merger.
Information regarding the executive officers and directors that are expected to serve as of the Effective Time is set forth below:
|
Name
|
|
|
Age
|
|
|
Position(s)
|
|
|
Thomas D. Davis
|
|
|
70
|
|
|
President, Chief Executive Officer
|
|
|
Michael Blecic
|
|
|
57
|
|
|
Chief Accounting Officer
|
|
|
Jordan Bleznick
|
|
|
70
|
|
|
Director
|
|
|
Randolph C. Read
|
|
|
73
|
|
|
Director
|
|
|
Armando Herrera Jr.
|
|
|
48
|
|
|
Vice President of Global Human Resources
|
|
|
Joseph D. King
|
|
|
58
|
|
|
Senior Vice President, General Counsel & Secretary
|
|
|
Joseph Marigliano
|
|
|
63
|
|
|
Vice President of Business Management
|
|
|
John Plescia
|
|
|
63
|
|
|
Vice President, General Manager, Americas
|
|
|
Mackenzie Stender
|
|
|
40
|
|
|
Interim Chief Financial Officer
|
|
|
Jan Stevens
|
|
|
64
|
|
|
Vice President of Quality and Technology
|
|
|
Robert Schouten
|
|
|
48
|
|
|
Vice President and General Manager, EMEA and Asia
|
|
Executive Officers
Thomas D. Davis, age 70, has served as the President and Chief Executive Officer of Viskase since December 2025. Prior to joining Viskase, Mr. Davis served as the President of North America at Kalle GmbH, a manufacturer of casings and nets for food packaging and technical applications, from July 2020 to July 2025. Prior to joining Kalle, Mr. Davis served as President and Chief Executive Officer of Viskase from 2007 to 2019 and also as Chairman from 2012 until 2019. Before joining Viskase in 2007, Mr. Davis served as President and Chief Executive Officer of Specialty Foods Group, Inc., a producer of premium meat products (January 2000 to December 2006). He also served in various executive positions with Smithfield Foods, Inc. (December 1996 to December 1999), and in various operational and financial roles with John Morrell & Company from 1980 until it was acquired by Smithfield Foods in 1995. Mr. Davis also served on the Board of Directors of Welbilt, Inc. from 2018 until 2019, which is partially owned indirectly by Carl C. Icahn. Mr. Davis holds a B.S. in Chemistry from The State University of New York at Plattsburgh and an M.B.A. from Benedictine University.
Michael Blecic, age 57, has served as the Chief Accounting Officer of Viskase since February 2013. Mr. Blecic joined Viskase in 1995 and has served in numerous positions over his tenure with Viskase. From 2019 to 2023, Mr. Blecic served as the chief financial officer of Viskase and as the director of accounting for Viskase from 2005 to 2013. Mr. Blecic received a BA from the University of Illinois, Chicago.
Armando Herrera Jr., age 48, has been the Vice President of Global Human Resources of Viskase since April 2024. Mr. Herrera has over 25 years of human resources experience with 15 of those years serving in related leadership roles including, but not limited to, Head of Human Resources from April 2021 to March 2024 at Smithfield Foods, a global processor of protein, Senior Director of Human Resources from November 2018 to October 2020 at Voyant Beauty, an integrated network of innovation and contract
manufacturing capabilities for beauty and personal care products, and Director of Human Resources from August 2017 to November 2018 at Sloan Valve Company, a manufacturer of water-efficient solutions for commercial and residential buildings. He received a BA from Robert Morris University and a Masters Degree in Human Resource Management from DeVry University.
Joseph D. King, age 58, has been the Senior Vice President, General Counsel and Secretary of Viskase since May 2022. From 2004 to 2022, Mr. King was the Vice President, General Counsel and Secretary of PSC Metals, Inc., a scrap metal processor that provides services to both generators and consumers of scrap with 14 facilities located in the U.S. and Canada. PSC Metals was a Subsidiary of Icahn Enterprises, LP until it was acquired by SA Recycling LLC in December 2021. He received his BA from The Ohio State University and a JD from Cleveland-Marshall College of Law.
Joseph Marigliano, age 63, has served as the Vice President of Business Management at Viskase since March 2025. Before his time at Viskase, Mr. Marigliano was the Director of Pricing Analytics at Justrite Safety Group, a global manufacturer and supplier of safety products which simplify workplace safety and regulatory compliance, from March 2022 to March 2025, and the Head of Global Pricing at Stanley Black and Decker (NYSE:SWK), a manufacturer of end-user inspired power tools, hand tools, storage, digital jobsite solutions, outdoor and lifestyle products, and engineered fasteners to support the world’s builders, tradespeople and DIYers, from March 2015 to December 2021. Mr. Marigliano received a Bachelor of Science degree from the United States Military Academy at West Point, a Master’s Degree in Operations Research from Stanford University, and an MBA from Temple University.
John Plescia, CPA, age 63, has served as the Vice President, General Manager, Americas for Viskase since rejoining Viskase in December 2025. Prior to rejoining Viskase, Mr. Plescia was the Vice President of Finance and Operations at Prairie City Bakery, wholly owned subsidiary of Mckee Foods, from 2018 to 2024. Prairie City Bakery is a national frozen baked goods supplier to convenient retailers and foodservice operators. From 2006 to 2017 at Viskase, Mr. Plescia held positions as Chief Financial Officer (2012 – 2017) and Flobal Finance Director (2006 – 2012). Mr. Plescia previously spent 24 years at Sara Lee Corporation in Finance, Operations, and Commercial leadership roles. Mr. Plescia received a Bachelor of Science in Accountancy from Northern Illinois University and MBA from Lake Forest Graduate School of Management.
Mackenzie Stender, age 40, was appointed to serve as Viskase’s Interim Chief Financial Officer on November 1, 2025 through Silverman Consulting, Inc. In 2025, Mr. Stender joined Silverman Consulting, Inc., bringing 17 years of finance and executive leadership experience to support clients across financial, operational, and advisory functions. From July 2024 to April 2025, he served as chief financial officer of Homewerks Worldwide LLC, a global home-goods distributor backed by H.I.G. Capital, overseeing financial operations. From February 2019 to May 2024, he held progressive leadership roles at Iceberg Enterprises LLC, a family-owned office products and contract blow-mold manufacturer and distributor. His responsibilities at Iceberg Enterprises LLC expanded over time, serving as Director of Finance and Controller (2019), Chief Financial Officer (2020 – 2023), President and Chief Operating Officer (2023), and ultimately Chief Executive Officer (2023 – 2024). From October 2014 to February 2019, he worked in the transaction advisory practice at FGMK, advising clients on buy- and sell-side transactions across manufacturing, industrial, CPG, health care, and consumer sectors. Earlier, he was a derivatives trader with proprietary firms in Chicago from 2008 to 2012, and from 2013 to 2014 he worked in PricewaterhouseCoopers’ audit practice serving clients in private equity, health care, mutual funds, and real estate. Mr. Stender is a Certified Public Accountant and holds a Bachelor of Science in Business with a concentration in Finance from the University of Colorado.
Jan Stevens, age 64, has served as the Vice President of Quality and Technology at Viskase since July 2024. From 2020 to 2024, Mr. Stevens served as the Global Vice President of Quality and Technology at Voyant Beauty, an integrated network of innovation and contract manufacturing capabilities for beauty and personal care products. Prior to that, Mr. Stevens served as the Vice President of Quality and Regulatory at KIK Custom Products, a private label manufacturer of consumer products, including those in the household, pool, and auto categories, from 2018 to 2020. Mr. Stevens received a Doctor of Pharmacy degree from the University of Ghent in Belgium.
Robert Schouten, age 48, has served as Viskase GmbH’s Vice President and General manager for EMEA and Asia since September 2025. Mr. Schouten has over 20 years of experience in the natural casings industry, having held senior leadership roles in purchasing, sales and business development. Before joining Viskase, from May 2002 to June 2025, he served as Managing Director for North America and as global Chief Commercial Officer at Van Hessen B.V., a producter and distributor of natural casings and meat products. Mr. Schouten holds a Master of Science in Business Administration from the University of Groningen in the Netherlands.
Board of Directors
As noted above, as of the Effective Time, the board of directors of the Combined Company will consist of two current Enzon directors, Jordan Bleznick and Randolph C. Read, together with [•].
Jordan Bleznick, age 70, has been a director of Enzon since August 2020. From April 2002 through his retirement in April 2023, Mr. Bleznick was the Vice President/Taxes of Starfire Holding Corporation, a privately held holding company controlled by Carl C. Icahn. From April 2002 through his retirement in April 2023, Mr. Bleznick was the Chief Tax Counsel for various Affiliates of Mr. Icahn. From March 2023 until October 2025, Mr. Bleznick was a director and Chairman of the Board, and member of the compensation committee, of the general partner of CVR Partners, LP, a nitrogen fertilizer company controlled by Mr. Icahn. From April 2021 until April 2023, Mr. Bleznick was a director for various other Affiliates of Mr. Icahn, including American Entertainment Properties Corp., which is the primary operating Subsidiary of Icahn Enterprises L.P. From March 2000 through March 2002, Mr. Bleznick was a partner in the New York City office of the law firm DLA Piper. From March 1984 until February 2000, Mr. Bleznick was an associate and then a partner in the New York City law firm Gordon Altman Weitzen Shalov and Wein. Mr. Bleznick received a B.A. in Economics from the University of Cincinnati, a J.D. from The Ohio State University College of Law and an L.L.M. in Taxation from the New York University School of Law. Mr. Bleznick’s qualifications to serve as a director include his significant experience in tax law, executive management and corporate governance.
Randolph C. Read, age 73, has been a director of Enzon since August 2020, and since that time has served as Enzon’s Chairman of the Board and Chairman of the Finance and Audit Committee. Mr. Read has been President and Chief Executive Officer of Nevada Strategic Credit Investments, LLC for more than five years and has been President and Chief Executive Officer of International Capital Markets Group, Inc. for more than five years. Mr. Read has served since November 2018 as an independent manager/director and Chairman of the Board of Managers of New York REIT Liquidating, LLC, a successor to New York REIT, Inc., a publicly traded (NYSE) real estate investment trust, where Mr. Read served as an independent director from December 2014 to November 2018, including as Chairman of its Board of Directors from June 2015 to November 2018. Mr. Read has served as an independent Director of SandRidge Energy, Inc. (NYSE), an oil and natural gas exploration and production company, since June 2018. Mr. Read previously served as an independent director of Luby’s Inc. (NYSE) from August 2019 to August 2021. Mr. Read has previously served as President of a variety of other companies and has previously served on a number of public and private company boards. Mr. Read is admitted as a Certified Public Accountant and has an M.B.A. in Finance from the Wharton Graduate School of the University of Pennsylvania and a B.S. from Tulane University. Mr. Read’s qualifications to serve as a director include his significant business experience as a director and an executive officer of entities in a variety of industries, as well as capital markets, governance, and operations experience, in addition to his knowledge, financial expertise and leadership qualities and roles, including his experience as Chairman of the Enzon Board.
[•]
COMPENSATION DISCUSSION AND ANALYSIS OF VISKASE
This section describes the 2024 compensation program established by the Viskase Board for its named executive officers. Viskase’s named executive officers for 2024 were: Timothy Feast, President and Chief Executive Officer, Thomas Holz, Chief Financial Officer, Joseph D. King, Senior Vice President, General Counsel and Secretary, Michael Blecic, Vice President, Chief Accounting Officer and Wolfgang Seitz, Vice President and General Manager — EMEA and APAC. On June 10, 2025, Mr. Holz’s service as Chief Financial Officer terminated. Mr. Seitz resigned from Viskase effective as of August 31, 2025. As of September 23, 2025, Robert Schouten was appointed as Vice President and General Manager, EMEA and Asia. On November 1, 2025, Viskase appointed Mackenzie Stender as the Company’s Interim Chief Financial Officer. As of December 9, 2025, Mr. Passos is no longer an employee of Viskase and John D. Plescia was appointed as the Vice President and General Manager — Amercias. The following is a summary of the total direct compensation opportunities — consisting of base salary, short-term incentive opportunities and long-term incentive opportunities — for Viskase’s named executive officers.
Annual Base Salaries
Viskase provides a base salary to retain and attract key executive talent and to align its compensation with market practices. Base salaries are reviewed and established by the Viskase Board on a competitive basis each year to align with market levels. During the annual performance review process in 2024, the named executive officers received merit increases ranging from approximately 3% to 11%.
Short-Term Incentive Compensation
Viskase maintains a management incentive plan (the “Management Incentive Plan”), which provides designated employees, including its named executive officers, with an opportunity to earn short-term incentives based on the achievement of annual business plan objectives and individual goals.
To the extent a short-term incentive for a year is earned, a participant must be employed at the time of payment to receive the award. If the Viskase compensation committee (the “Compensation Committee”), in its sole and absolute discretion, determines that a participant engaged in certain misconduct then, to the extent not prohibited by applicable law, the Compensation Committee, in its sole and absolute discretion, may seek reimbursement from such participant (and such participant shall be obligated to repay) all or any portion of the short-term incentive received within the three-year period prior to such determination. Moreover, if the Compensation Committee determines, in its sole and absolute discretion, that calculations underlying the performance measures and targets, including but not limited to mistakes in Viskase’s financial statements with respect to a fiscal year, were incorrect (or in the event of a restatement), then the Compensation Committee may, in its sole and absolute discretion, seek to recover the amount of any payment made to the participant that exceeded the amount that would have been paid based on the corrected calculations; provided that this provision only applies to short-term incentives received within the three-year period prior to such determination.
Each year the Compensation Committee establishes a short-term incentive award opportunity for Viskase’s named executive officers under the Management Incentive Plan, expressed as a percentage of base salary. For 2024, these opportunities ranged from 60% to 130% of base salary. The payout under the 2024 short-term incentive program was based on the extent to which Viskase achieve certain EBITDA and cash flow goals, as set forth below:
Goal
(Millions)
|
|
|
Weight
|
|
|
Threshold
(0%)
|
|
|
Target
(100%)
|
|
|
Maximum
(200%)
|
|
|
EBITDA
|
|
|
|
|
80% |
|
|
|
|
$ |
60.2 |
|
|
|
|
$ |
70.8 |
|
|
|
|
$ |
81.4 |
|
|
|
Cash Flow
|
|
|
|
|
20% |
|
|
|
|
$ |
10.0 |
|
|
|
|
$ |
23.3 |
|
|
|
|
$ |
29.1 |
|
|
Based on results for the 2024 fiscal year, Viskase’s named executive officers did not receive a payout under the 2024 short-term incentive program.
Long-Term Incentive Program
Viskase did not grant any option or stock awards to the named executive officers in 2024.
In 2022, Viskase granted awards to Mr. Feast, Mr. King and Mr. Holz under the 2022 Long-Term Performance Plan (the “Performance Plan”). Each award provides a payout opportunity equal to the product of (i) the participant’s “award payout percentage”, and (ii) the excess, if any, of (a) the “net asset value” of Viskase as of September 5, 2027 (or an earlier sale of Viskase), over (b) the base value of $36,729,000. The “award payout percentage” is 1.75% for Mr. Feast, 0.48% for Mr. King and 0.53% for Mr. Holz. The Merger will not constitute a sale of Viskase for purposes of the Performance Plan. Mr. Holz’s award was forfeited upon his termination of employment on June 10, 2025.
For purposes of these awards, “Net asset value” generally means 5.0 times Viskase’s EBITDA measured for the twelve-month period ending on the last day of the most recently completed quarter as of the end of the performance period, subject to positive adjustments for cash balances, equity or other stockholder distributions occurring at any time over the course of the performance period and negative adjustments for debt, pension plan underfunding and other debt-like items, and stockholder contributions of capital over the course of the performance period. Different rules apply to calculate net asset value in the event of a sale of Viskase. For this purpose, EBITDA generally means the consolidated net income before interest income and expense, provision for income and other taxes, depreciation and amortization expense, legacy pension and other defined benefit expenses, OPEB curtailment gains or losses, non-cash foreign-exchange adjustments, and the accrual for certain award payments, and subject to equitable adjustments for unusual or non-recurring events.
In general, a participant must be employed on the last day of the performance period to receive an award payout. If, however, Viskase terminates a participant’s employment for any reason other than cause, death or disability, or the participant resigns for good reason, in each case prior to the end of the performance period (and prior to a sale of Viskase), the participant would be entitled to receive an award payout determined as if the performance period ended on the date of termination. If earned, the award is payable shortly following the end of the performance period. If, however, the award becomes payable on a sale of Viskase, then up to 25% of the amount payable will be held back to secure indemnity claims.
The Viskase Board has the right to cancel, declare forfeited, rescind, or require the return of any outstanding award, or recover from the participant at any time, and the participant will pay over to Viskase upon request, an amount up to the amount of any award that has been paid under the Performance Plan to the participant in the event: (i) there is a restatement of Viskase’s consolidated financial statements (or the Viskase Board otherwise determines that Viskase’s financial statements were incorrect) and the amount of the payment that would have been received by the participant had the financial results been properly reported would have been lower than the amount actually received; (ii) the Compensation Committee determines that the participant has, at any time (whether before or after the grant date of the award), committed a “breach of conduct” or engaged in imprudent conduct with respect to inventory management, capital expenditures, investments and/or engaged in operating behavior which is detrimental to the long-term value of Viskase, for the purpose of increases the amount of an award, or (iii) Viskase or any of its affiliates is required to make an indemnification payment with respect to a sale of Viskase and the indemnification payment was included in the calculation of the award.
Employment Agreements
On August 4, 2022, Viskase entered into an employment agreement with Mr. Feast to serve as President and Chief Executive Officer. The employment agreement had an initial term that expires on September 5, 2027, with successive automatic monthly renewals. The employment agreement provides for (i) base salary at an annual rate of $540,000, (ii) a target short-term incentive opportunity equal to 100% of base salary (pro-rated for 2022), (iii) an award under the Performance Plan, with an “award payout percentage” of 1.75% and (iv) a signing bonus of $250,000. The employment agreement also provides for certain severance benefits in the event of a termination by Viskase other than for cause, death or disability, or a resignation by Mr. Feast for good reason. The severance benefits generally include continued base salary for six (6) months and a pro-rated bonus for the year of termination, based on actual results for the entire year. Mr. Feast must sign a release of claims in favor of Viskase to receive these severance benefits. The employment agreement also contains standard confidentiality, non-competition, non-solicitation and non-disparagement covenants.
Effective May 1, 2020, Mr. Seitz entered into an employment agreement with Viskase GmbH. The employment agreement has an indefinite term with a three-month notice period (subject to immediate termination if “good cause” exists). The employment agreement provides for a base salary at an annual rate of EUR 225,000 and a company car per local policy. The employment agreement also contains standard confidentiality, non-competition and non-solicitation covenants. Upon a termination of employment, Mr. Seitz would be entitled to continued payment of 50% of his base salary for 12 months, which is the duration of the applicable non-competition covenant, subject to set-off in the event he obtains other employment. If the company waives the non-competition covenant, then Mr. Seitz would be entitled to continued payment of 50% of his base salary for 6 months after the waiver is granted. Mr. Seitz resigned from Viskase effective as of August 31, 2025.
Offer Letters
On December 19, 2022, Viskase entered into an offer letter with Mr. Holz to serve as Vice President and Chief Financial Officer. The offer letter provides for (i) base salary at an annual rate of $390,000, (ii) a target short-term incentive opportunity equal to 60% of base salary (commencing with the 2023 fiscal year) and (iii) an award under the Performance Plan. The offer letter also provides for certain severance benefits in the event of a termination by Viskase other than for cause after the first 90 days of employment. The severance benefits generally include 26 weeks’ of base pay under the Viskase Severance Pay Plan (the “Severance Plan”). The offer letter also incorporates standard confidentiality, non-competition, non-solicitation and non-disparagement covenants. On June 10, 2025, Mr. Holz’s service as Chief Financial Officer terminated.
On May 4, 2022, Viskase entered into an offer letter with Mr. King to serve as Senior Vice President, General Counsel and Secretary. The offer letter provides for (i) base salary at an annual rate of $375,000, (ii) a target short-term incentive opportunity equal to 75% of base salary (pro-rated for 2022), (iii) an award under the Performance Plan, with an “award payout percentage” of 0.48% and (iv) reimbursement of travel and living expenses for his commute between his personal residence and company headquarters, subject to a cap of $35,000 per year after 2022 (however, the parties subsequently agreed to change his primary work location and therefore he never received these reimbursements). The offer letter also provides for certain severance benefits in the event of a termination by Viskase other than for cause after the first 90 days of employment. The severance benefits generally include 26 weeks’ of base pay under the Severance Plan and an amount equal to 50% of his target bonus for the year of termination. The offer letter also incorporates standard confidentiality, non-competition, non-solicitation and non-disparagement covenants.
On November 1, 2025, Viskase entered into an offer letter (the “Silverman Agreement”) with Silverman Consulting, Inc. (“Silverman”) through which Mr. Mackenzie Stender will serve as Viskase’s interim chief financial officer with support from additional Silverman employees until Viskase retains a full-time chief financial officer. The offer letter provides that (i) Mr. Stender’s hourly rate will be $370 and (ii) Viskase will pay Silverman for all reasonable out-of-pocket expenses incurred with the assignment, such as travel and lodging. Invoices will be provided weekly to Viskase with actual time and expenses incurred. The agreement contains standard indemnification covenants. The Silverman Agreement may be terminated with or without cause upon written notice to Silverman. Upon termination of employment, Silverman will be entitled to any unpaid fees and expenses performed prior to the termination.
Severance Plan
Viskase maintains a broad-based Severance Plan that generally covers its U.S.-based workforce, include Mr. Holz, Mr. King and Mr. Blecic. Under the Severance Plan, participating named executive officers generally are entitled to 26 weeks’ of pay upon an involuntary termination without cause after the first 90 days of employment, paid in a single lump sum. A participating named executive officer must sign a release of claims in favor of Viskase to receive these severance benefits.
2024 Summary Compensation Table
The following Summary Compensation Table provides information regarding the compensation earned in 2024, 2023 and 2022 by Viskase’s named executive officers.
|
Name and Principal Position
|
|
|
Year
|
|
|
Salary
($)
|
|
|
Bonus
($)(1)
|
|
|
Non-Equity
Incentive Plan
Compensation
($)(2)
|
|
|
Change in
Pension
Value and
Nonqualified
Deferred
Compensation
Earnings
($)(3)
|
|
|
All Other
Compensation
($)(4)
|
|
|
Total
($)
|
|
|
Timothy Feast
Former President & Chief
Executive Officer
|
|
|
|
|
2024 |
|
|
|
|
|
614,433 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
13,263 |
|
|
|
|
|
627,696 |
|
|
| |
|
|
2023 |
|
|
|
|
|
556,200 |
|
|
|
|
|
— |
|
|
|
|
|
672,797 |
|
|
|
|
|
— |
|
|
|
|
|
12,856 |
|
|
|
|
|
1,241,853 |
|
|
| |
|
|
2022 |
|
|
|
|
|
174,115 |
|
|
|
|
|
423,096 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
68 |
|
|
|
|
|
597,279 |
|
|
|
Thomas Holz
Former Chief Financial
Officer(5)
|
|
|
|
|
2024 |
|
|
|
|
|
402,285 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
14,714 |
|
|
|
|
|
416,999 |
|
|
| |
|
|
2023 |
|
|
|
|
|
384,250 |
|
|
|
|
|
— |
|
|
|
|
|
280,332 |
|
|
|
|
|
— |
|
|
|
|
|
13,879 |
|
|
|
|
|
678,461 |
|
|
| |
|
|
2022 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Joseph D. King
Senior Vice President, General
Counsel and Secretary
|
|
|
|
|
2024 |
|
|
|
|
|
402,285 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
14,114 |
|
|
|
|
|
416,399 |
|
|
| |
|
|
2023 |
|
|
|
|
|
386,250 |
|
|
|
|
|
— |
|
|
|
|
|
347,046 |
|
|
|
|
|
— |
|
|
|
|
|
14,135 |
|
|
|
|
|
747,431 |
|
|
| |
|
|
2022 |
|
|
|
|
|
241,586 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
3,688 |
|
|
|
|
|
245,274 |
|
|
|
Michael Blecic
Vice President, Chief
Accounting Officer
|
|
|
|
|
2024 |
|
|
|
|
|
307,563 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
6,200 |
|
|
|
|
|
13,874 |
|
|
|
|
|
327,637 |
|
|
| |
|
|
2023 |
|
|
|
|
|
299,310 |
|
|
|
|
|
— |
|
|
|
|
|
215,144 |
|
|
|
|
|
6,300 |
|
|
|
|
|
13,544 |
|
|
|
|
|
534,298 |
|
|
| |
|
|
2022 |
|
|
|
|
|
294,480 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
13,391 |
|
|
|
|
|
307,871 |
|
|
|
Wolfgang Seitz(6)
Vice President, General
Manager – EMEA and APAC
|
|
|
|
|
2024 |
|
|
|
|
|
279,451 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
13,053 |
|
|
|
|
|
292,504 |
|
|
| |
|
|
2023 |
|
|
|
|
|
282,380 |
|
|
|
|
|
— |
|
|
|
|
|
190,832 |
|
|
|
|
|
— |
|
|
|
|
|
12,166 |
|
|
|
|
|
485,378 |
|
|
| |
|
|
2022 |
|
|
|
|
|
260,144 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
10,080 |
|
|
|
|
|
270,244 |
|
|
(1)
For 2022, represents a signing bonus paid to Mr. Feast within 30 days after his start date.
(2)
Represents the short-term incentive earned in the applicable year under the Management Incentive Plan.
(3)
Represents the change in the present value of the accumulated benefits under the pension plan. Mr. Blecic is the only named executive officer who participates in a pension plan, which was frozen as to service accruals in 2006. The change in present value of Mr. Blecic’s pension benefit decreased by $18,200 in 2022; however pursuant to SEC rules were are not permitted to report negative numbers in this column and have reported the change for 2022 as $0.
(4)
For 2024, represents (i) matching contributions to the 401(k) plan as follows: Mr. Feast — $11,891; Mr. Holz — $13,342; Mr. King — $13,342; and Mr. Blecic — $12,302 ; (ii) payments of life insurance premiums as follows: Mr. Feast — $772; Mr. Holz — $772; Mr. King — $772; and Mr. Blecic — $772; (iii) contributions to a health savings account as follows: Mr. Feast — $600; Mr. Holz — $600; Mr. King — $0; and Mr. Blecic — $800; and (iv) for Mr. Seitz, a car allowance of $13,053.
(5)
On June 10, 2025, Mr. Holz’s service as Chief Financial Officer terminated.
(6)
Amounts in foreign currency were converted from local currency to U.S. dollars based on exchange rates as of December 31, 2024. Mr. Seitz resigned from Viskase effective as of August 31, 2025.
2024 Grants of Plan-Based Awards
The following table sets forth information for each named executive officer regarding short-term incentive granted during 2024. Viskase did not grant any option or stock awards to the named executive officers in 2024.
| |
|
|
Estimated Possible Payouts
Under Non-Equity Incentive
Plan Awards(1)
|
|
|
Name
|
|
|
Threshold
($)
|
|
|
Target
($)
|
|
|
Maximum
($)
|
|
|
Timothy Feast
|
|
|
|
|
— |
|
|
|
|
|
798,764 |
|
|
|
|
|
1,597,527 |
|
|
|
Thomas Holz
|
|
|
|
|
— |
|
|
|
|
|
241,371 |
|
|
|
|
|
482,742 |
|
|
|
Joseph D. King
|
|
|
|
|
— |
|
|
|
|
|
301,714 |
|
|
|
|
|
603,428 |
|
|
|
Michael Blecic
|
|
|
|
|
— |
|
|
|
|
|
184,538 |
|
|
|
|
|
369,076 |
|
|
|
Wolfgang Seitz(2)
|
|
|
|
|
— |
|
|
|
|
|
167,671 |
|
|
|
|
|
335,342 |
|
|
(1)
Represents the short-term incentive opportunities granted in 2024. The “Threshold,” “Target” and “Maximum” columns reflect the range of potential payouts when the performance goals were established. The “Target” column reflects payout at the 100% level; the threshold payout level is 0% of target and the maximum payout level is 200%. The actual short-term incentive award earned for 2024 by each named executive officer is set forth in the “Non-Equity Incentive Plan Compensation” column of the “2024 Summary Compensation Table” of this registration statement.
(2)
Amounts in foreign currency were converted from local currency to U.S. dollars based on exchange rates as of December 31, 2024.
2024 Outstanding Equity Awards at Fiscal Year-End
The named executive officers did not hold any option or stock awards in Viskase as of December 31, 2024.
2024 Option Exercises and Stock Vested
The named executive officers did not hold any option or stock awards in Viskase during 2024.
2024 Pension Benefits
The following table sets forth information regarding the pension benefits for Mr. Blecic. Mr. Blecic is the only named executive officer who participates in a pension plan, which was frozen as to service accruals in 2006.
|
Name
|
|
|
Plan Name
|
|
|
Number of Years
Credited Service
(#)(1)
|
|
|
Present Value of
Accumulated
Benefit
($)(1)
|
|
|
Payments
During Last
Fiscal Year
($)
|
|
|
Michael Blecic
|
|
|
Retirement Program for Employees
|
|
|
|
|
28 |
|
|
|
|
$ |
78,500 |
|
|
|
|
|
— |
|
|
(1)
The number of years of credited service and the present value of accumulated benefit are calculated as of December 31, 2024. The present value of accumulated benefit was calculated using a discount rate of 5.7%.
(2)
Amounts in foreign currency were converted from local currency to U.S. dollars based on exchange rates as of December 31, 2024.
Description of Pension Plan
The Retirement Program for Employees of Viskase Companies, Inc. provides benefits to certain employees of Viskase who were hired before March 31, 2004. Benefits under the retirement plan were
frozen on December 31, 2006. The regular benefit formula under the retirement plan provides a monthly retirement benefit determined as follows: 1.2% of the employee’s average straight-time monthly earnings (as of the earlier of the employee’s termination date or the date the plan was frozen), multiplied by the number of years and months of service, plus $12.00. Normal retirement age is 65 under the retirement plan. However, employees may be eligible to retire with a reduced benefit as early as age 50. An employee is vested in the retirement plan after 5 years of service.
2024 Nonqualified Deferred Compensation
Viskase does not maintain a nonqualified deferred compensation plan.
Potential Payments Upon Termination or Change in Control
Viskase has entered into agreements and maintains plans and arrangements that require it to pay or provide compensation and benefits to the named executive officers in the event of certain terminations of employment or a change in control. The estimated amount payable or provided to each of these executives in each situation is summarized below. These estimates are based on the assumption that the various triggering events occurred on the last day of 2024, along with other material assumptions noted below. The actual amounts that would be paid to these executives upon termination or a change in control (CIC) can only be determined at the time the actual triggering event occurs.
|
Name and Triggering Event
|
|
|
Cash
Severance
Payment
($)
|
|
|
Payout of
Short-Term
Incentive
($)
|
|
|
Payout of
Long-Term
Incentive
($)(1)
|
|
|
Total
($)(5)
|
|
|
Timothy Feast
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
• Voluntary termination
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
• Involuntary termination without cause
|
|
|
|
|
307,217 |
|
|
|
|
|
798,764 |
|
|
|
|
|
— |
|
|
|
|
|
1,105,981 |
|
|
|
• CIC
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
• Involuntary or good reason termination after a CIC
|
|
|
|
|
307,217 |
|
|
|
|
|
798,764 |
|
|
|
|
|
— |
|
|
|
|
|
1,105,981 |
|
|
|
• Death
|
|
|
|
|
153,609 |
|
|
|
|
|
399,382 |
|
|
|
|
|
— |
|
|
|
|
|
552,991 |
|
|
|
• Disability
|
|
|
|
|
153,609 |
|
|
|
|
|
399,382 |
|
|
|
|
|
— |
|
|
|
|
|
552,991 |
|
|
|
Thomas Holz
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
• Voluntary termination
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
• Involuntary termination without cause
|
|
|
|
|
203,190 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
203,190 |
|
|
|
• CIC
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
• Involuntary or good reason termination after a CIC
|
|
|
|
|
203,190 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
203,190 |
|
|
|
• Death
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
• Disability
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
Joseph D. King
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
• Voluntary termination(6)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
• Involuntary termination without cause
|
|
|
|
|
201,143 |
|
|
|
|
|
150,857 |
|
|
|
|
|
— |
|
|
|
|
|
352,000 |
|
|
|
• CIC
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
• Involuntary or good reason termination after a CIC
|
|
|
|
|
201,143 |
|
|
|
|
|
150,857 |
|
|
|
|
|
— |
|
|
|
|
|
352,000 |
|
|
|
• Death
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
• Disability
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
Name and Triggering Event
|
|
|
Cash
Severance
Payment
($)
|
|
|
Payout of
Short-Term
Incentive
($)
|
|
|
Payout of
Long-Term
Incentive
($)(1)
|
|
|
Total
($)(5)
|
|
|
Michael Blecic
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
• Voluntary termination(6)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
• Involuntary termination without cause
|
|
|
|
|
153,782 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
153,782 |
|
|
|
• CIC
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
• Involuntary or good reason termination after a CIC
|
|
|
|
|
153,782 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
153,782 |
|
|
|
• Death
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
• Disability
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Wolfgang Seitz(2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
• Voluntary termination
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
• Involuntary termination without cause
|
|
|
|
|
139,726 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
139,726 |
|
|
|
• CIC
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
• Involuntary or good reason termination after a CIC
|
|
|
|
|
139,726 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
139,726 |
|
|
|
• Death
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
• Disability
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
(1)
The long-term incentive was “underwater” as of December 31, 2024, and therefore no amount would have been payable had a triggering event occurred on that date.
(2)
Amounts in foreign currency were converted from local currency to U.S. dollars based on exchange rates as of December 31, 2024.
CEO Pay Ratio
As required by Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and Item 402(u) of Regulation S-K, Viskase is providing the following information with respect to the last completed fiscal year. The pay ratio information provided below is a reasonable estimate calculated in a manner consistent with Item 402(u) of Regulation S-K.
For 2024 fiscal year, the median of the annual total compensation of all of Viskase’s employees, excluding the Chief Executive Officer, was estimated to be $31,640; the annual total compensation of the Chief Executive Officer was $627,696 which, as described below, represents the sum of the compensation earned by Mr. Feast for the year; and the ratio of the annual total compensation of the Chief Executive Officer to the median of the annual total compensation of all other employees was estimated to be approximately 19.8 to 1.
In determining the pay ratio information provided above, Viskase first identified the median employee for the 2024 fiscal year by using the following methodology, assumptions, adjustments and estimates, as permitted by Item 402(u) of Regulation S-K, Viskase selected December 31, 2024, as the date upon which Viskase would identify the median employee, and, from the tax and payroll records, Viskase compiled a list of all full-time, part-time, temporary and seasonal employees who were employed on that date. As of December 31, 2024, Viskase’s global employee population for purposes of the CEO pay ratio consisted of 2,320 employees, with 764 employees, or approximately 33 percent, located in the United States, and 1,556 employees, or approximately 67 percent, located outside of the United States.
Viskase used total cash compensation during the 2024 fiscal year as a consistently applied compensation measure to identify the median employee from the employees on the list. For this purpose, Viskase defined total cash compensation as the sum of base wages and annual incentives payable in cash during the fiscal year. Viskase did not annualize the total cash compensation of any permanent employees who were employed for less than the full 2024 fiscal year. Amounts in foreign currency were converted from local currency to U.S. dollars based on exchange rates as of December 31, 2024.
Once the median employee was identified in the manner described above, Viskase calculated the annual total compensation of the median employee using the same methodology that Viskase used to determine the annual total compensation of Viskase’s named executive officers, as reported in the “2024 Summary Compensation Table”.
2024 Director Compensation
Viskase’s non-employee directors generally receive an annual cash retainer of $20,000 and an additional per-meeting attendance fee of $1,000. Viskase’s non-employee directors do not receive any option or stock awards. The following table sets forth information regarding the cash compensation paid in 2024 to non-employee directors, other than Robert Flint, Colin Kwak and Dustin DeMaria, who have elected not to receive any compensation for service as a director.
|
Name
|
|
|
Fees Earned or
Paid in Cash
($)
|
|
|
Total
($)
|
|
|
Peter K. Shea
|
|
|
|
$ |
34,500 |
|
|
|
|
$ |
34,500 |
|
|
|
Kenneth Shea
|
|
|
|
$ |
33,000 |
|
|
|
|
$ |
33,000 |
|
|
|
Stephen T. Maurer
|
|
|
|
$ |
35,000 |
|
|
|
|
$ |
35,000 |
|
|
Peter Shea is entitled to an additional fee of $85,000, and each of Kenneth Shea and Stephen T. Maurer is entitled to an additional fee of $80,000, in each case for their service on a special committee related to the Merger. The additional fee is payable upon the Closing.
INTERESTS OF EXECUTIVE OFFICERS AND DIRECTORS IN THE MERGER
Interests of Enzon’s Executive Officers and Directors in the Merger Proposal
The executive officers and directors of Enzon have interests in the Merger Proposal that are different from, or in addition to, the interests of the Enzon stockholders generally. The Enzon Special Committee and the members of the Enzon Board who recommended that holders of Enzon Common Stock adopt the Merger Proposal were aware of and considered these interests to the extent such interests existed at the time, among other matters, in evaluating and negotiating the Merger Proposal and in making the Enzon Board’s recommendation that the holders of Enzon Common Stock vote to approve the Merger Proposal. Additional interests of the executive officers and directors of Enzon in the Merger include:
•
the designation of Jordan Bleznick as a member of the board of directors of the Combined Company and certain protections afforded to him pursuant to the Enzon Charter and Enzon Bylaws;
•
the designation of Randolph C. Read as a member of the board of directors of the Combined Company and certain protections afforded to him pursuant to the Enzon Charter and Enzon Bylaws; and
•
the designation of [•] as a member of the board of directors of the Combined Company and certain protections afforded to him pursuant to the Enzon Charter and Enzon Bylaws; and
•
the continued provision of indemnification for current and former executive officers and directors of Enzon in accordance with the Merger Agreement.
Enzon stockholders should take these and other potential interests into account in deciding whether to deliver a written consent “FOR” the Merger Proposal.
Interests of Viskase’s Executive Officers and Directors in the Merger
The executive officers and directors of Viskase have interests in the Merger that are different from, or in addition to, the interests of the Viskase stockholders generally. The Viskase Special Committee and the members of the Viskase Board who recommended that holders of Viskase Common Stock adopt the Merger Agreement were aware of and considered these interests to the extent such interests existed at the time, among other matters, in evaluating and negotiating the Merger Agreement and in making the Viskase Board’s recommendation that the holders of Viskase Common Stock vote to adopt Merger Agreement. Additional interests of the executive officers and directors of Viskase in the Merger include:
•
the board of directors of the Combined Company will include two current Enzon directors, Randolph C. Read and Jordan Bleznick;
•
the officers of Viskase immediately prior to the Effective Time will be the officers of the Combined Company and certain protections afforded to officers pursuant to the Enzon Charter and Enzon Bylaws;
•
the designation of Timothy P. Feast as the Chief Executive Officer of the Combined Company and certain protections afforded to him pursuant to the Enzon Charter and Enzon Bylaws; and
•
the continued provision of indemnification for current and former executive officers and directors of Viskase in accordance with the Merger Agreement.
DESCRIPTION OF THE CAPITAL STOCK OF ENZON
This section of the prospectus/consent solicitation statement summarizes certain terms of Enzon’s capital stock in effect as of September 30, 2025. The following description is subject to the detailed provisions of, and is qualified in its entirety by reference to the Enzon Charter and the Enzon Bylaws, attached, respectively, as Annex E and Annex F hereto and are incorporated by reference herein.
Authorized Share Capital
The authorized capital stock of Enzon is 173,000,000 shares, consisting of:
•
170,000,000 shares of Enzon Common Stock; and
•
3,000,000 shares of preferred stock.
As of the close of business on the Enzon Record Date, [•], there were [74,214,603] shares of Enzon Common Stock issued and outstanding and [40,000] shares of Enzon Series C Preferred Stock issued and outstanding.
Enzon Common Stock
The holders of all issued and outstanding shares of the Enzon Common Stock are entitled to the rights and powers as provided in the Enzon Organizational Documents as described in the section titled “Comparison of the Rights of Stockholders” in this prospectus/consent solicitation statement.
Listing of Combined Company Common Stock
Enzon Common Stock trades on the “OTCQB” tier of the OTC. Enzon will use its commercially reasonable efforts to cause the shares of Enzon Common Stock to be issued in connection with the Merger to be quoted on the OTC, subject to official notice of issuance, prior to the Effective Time.
Transfer Agent and Registrar
The transfer agent and registrar for the Enzon Common Stock is Continental Stock Transfer & Trust Company. Continental Stock Transfer & Trust Company’s address is 1 State St, 30th Floor, New York, New York 10004, and its telephone number is (800) 509-5586.
DESCRIPTION OF THE CAPITAL STOCK OF VISKASE
This section of the prospectus/consent solicitation statement summarizes certain terms of Viskase’s capital stock in effect as of [•].
Authorized Share Capital
The authorized capital stock of Viskase is 200,000,000 shares, consisting of:
•
150,000,000 shares of Viskase Common Stock; and
•
50,000,000 shares of Viskase Preferred Stock.
As of the close of business on [the Enzon Record Date], [•], there were 117,375,777 shares of Viskase Common Stock issued and outstanding and no shares of Viskase Preferred Stock issued and outstanding.
Viskase Common Stock
The holders of all issued and outstanding shares of the Viskase Common Stock are entitled to the rights and powers as described in the section titled “Comparison of the Rights of Stockholders” in this prospectus/consent solicitation statement.
Listing of Viskase Common Stock
Viskase Common Stock trades on the “OTC Pink” tier of the OTC under the symbol “VKSC”.
DESCRIPTION OF THE CAPITAL STOCK OF THE COMBINED COMPANY
This section of the prospectus/consent solicitation statement summarizes certain terms of the Combined Company’s capital stock that will be in effect if the Merger is completed. The following description is subject to the detailed provisions of, and is qualified in its entirety by reference to the Enzon Charter and the Enzon Bylaws, attached, respectively, as Annex E and Annex F hereto and are incorporated by reference herein.
Authorized Share Capital
The authorized capital stock of the Combined Company will be 173,000,000 shares, consisting of:
•
170,000,000 shares of Enzon Common Stock; and
•
3,000,000 shares of Enzon Series C Preferred Stock.
Following the Closing, we expect that there will be approximately 14,391,156 shares of Combined Company Common Stock outstanding (after giving effect to the Reverse Stock Split).
Combined Company Common Stock
The holders of all issued and outstanding shares of the Combined Company Common Stock are entitled to the rights and powers as provided in the Enzon Organizational Documents. Please see the section titled “Comparison of the Rights of Stockholders” in this prospectus/consent solicitation statement for further information.
Listing of Combined Company Common Stock
Following the Closing, we expect that the Combined Company Common Stock will be quoted on the “OTCQB” tier of the OTC.
Transfer Agent and Registrar
The transfer agent and registrar for the Combined Company Common Stock is Continental Stock Transfer & Trust Company. Continental Stock Transfer & Trust Company’s address is 1 State St, 30th Floor, New York, New York 10004 and its telephone number is (800) 509-5586.
COMPARISON OF STOCKHOLDER RIGHTS
The rights of Enzon stockholders are governed by the Enzon Organizational Documents, as well as the DGCL. The rights of Viskase stockholders are governed by the Viskase Organizational Documents as well as the DGCL. From and after the Effective Time, all shares of Viskase Common Stock converted into the right to receive the Merger Consideration will no longer be outstanding and will automatically be cancelled and will cease to exist and the rights of the holders of Viskase Common Stock will be governed by the Enzon Organizational Documents.
The following is a summary discussion of the material differences, as of the date of this prospectus/consent solicitation statement, between the current rights of Enzon stockholders and the current rights of Viskase stockholders. Please consult the DGCL, the Enzon Organizational Documents and the Viskase Organizational Documents for a more complete understanding of these differences.
The following description does not purport to be a complete statement of all the differences, or a complete description of the specific provisions referred to in this summary. The identification of specific differences is not intended to indicate that other equally or more significant differences do not exist. Stockholders should read carefully the relevant provisions of the DGCL, the Enzon Organizational Documents and the Viskase Organizational Documents.
Capitalization
Enzon
The currently authorized shares of capital stock of Enzon consist of:
•
170,000,000 shares of Enzon Common Stock; and
•
3,000,000 shares of preferred stock.
As of the close of business on [•], there were [74,214,603] shares of Enzon Common Stock issued and outstanding and [40,000] shares of Enzon Series C Preferred Stock outstanding. Based on the number of shares of Enzon Common Stock outstanding as of [•], a total of approximately 36,345,955 shares of Enzon Common Stock (after giving effect to Reverse Stock Split) and no shares of Enzon Series C Preferred Stock are expected to be outstanding immediately after the completion of the Merger (assuming that all of the Enzon Series C Preferred Stock is exchanged for Enzon Common Stock in full pursuant to the Series C Exchange Offer).
Viskase
The currently authorized shares of capital stock of Viskase consist of:
•
150,000,000 shares of Viskase Common Stock; and
•
50,000,000 shares of Viskase Preferred Stock.
As of the close of business on [•], there were [117,375,777] shares of Viskase Common Stock issued and outstanding and no shares of Viskase Preferred Stock outstanding.
Voting Rights
Enzon
Each holder of Enzon Common Stock is entitled to one (1) vote per share on all matters submitted to a vote of stockholders. A matter submitted for stockholder action is approved if a majority of the votes cast at such meeting by the holders of Enzon Common Stock present in Person or represented by proxy and entitled to vote thereon are cast “for” the matter, unless a greater or different vote is required by any applicable law or regulation, the rights of any authorized series of preferred stock or the Enzon Organizational Documents. Subject to any rights of the holders of any series of preferred stock pursuant to applicable law or the certificate of designations creating that series, all voting rights are vested in the holders of shares of Enzon Common Stock.
Other than a contested election where directors are elected by a plurality vote, a director nominee is elected if the votes cast “for” such nominee’s election exceed the votes cast “against” such nominee’s election.
Viskase
Each holder of Viskase Common Stock is entitled to one (1) vote per share on all matters submitted to a vote of stockholders. A matter submitted for stockholder action is approved if a majority of the votes cast at such meeting by the holders of Viskase Common Stock present in person or represented by proxy and entitled to vote thereon are cast “for” the matter, unless a greater or different vote is required by any applicable law or the Viskase Organizational Documents.
Quorum
Enzon
The holders of one-third of the shares of stock entitled to vote at any meeting of the Enzon stockholders, present in person or represented by proxy, constitutes a quorum at all meetings of the Enzon stockholders for the transaction of business.
Viskase
The holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, constitutes a quorum at all meetings of the Viskase stockholders for the transaction of business.
Exclusive Forum Provision
Enzon
The Enzon Organizational Documents do not contain an exclusive forum provision.
Viskase
A state court located within the State of Delaware (or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware) will be the sole and exclusive forum for:
•
any derivative action or proceeding brought on behalf of Viskase;
•
any action asserting a claim of breach of a fiduciary duty owned by any director or officer or other employee of Viskase to Viskase or the Viskase stockholders;
•
any action asserting a claim against Viskase or any director or officer or other employee of Viskase arising pursuant to any provision of the DGCL, the Viskase Charter or Viskase Bylaws; or
•
any action asserting a claim against Viskase or any director or officer or other employee of Viskase governed by the internal affairs doctrine.
Anti-Takeover Provisions
Enzon
Provisions of the Enzon Bylaws that may have anti-takeover effects include, among others:
•
other than a special meeting for the election of directors, only the Enzon Board, the President or the Secretary may call a special meeting of Enzon stockholders;
•
for business to be properly brought before an annual meeting or a nomination to be made at an annual meeting or special meeting by an Enzon stockholder, such Enzon stockholder must have given timely notice to the Secretary thereof, which must be delivered to or mailed and received at the principal executive offices of Enzon (i) in the case of an annual meeting, not less than 90 days nor
more than 120 days prior to the anniversary date of the immediately preceding annual meeting and (ii) in the case of nominations of Persons for election as directors at a special meeting, not later than the close of business on the tenth (10th) day following the day on which notice of the date of the special meeting was mailed or public disclosure of the date of the special meeting was made, whichever first occurs;
•
allowing vacancies on the Enzon Board to be filled solely by a majority vote of the directors then in office, whether or not a quorum;
•
the ability of the Enzon Board to authorize issuance of “blank check” preferred stock to increase the number of outstanding shares;
•
Articles 3.2 (Number of Directors), 3.3 (No Classification of the Board), 3.4 (Election), 3.5 (Term), 3.6 (Vacancies), 3.7 (Resignations) and 3.8 (Removal of Directors) of the Enzon Bylaws may only be amended by a vote of the holders of not less than two-thirds of the outstanding voting shares of capital stock entitled to vote generally in the election of directors. With the exception of Articles 3.2 (Number of Directors), 3.3 (No Classification of the Board), 3.4 (Election), 3.5 (Term), 3.6 (Vacancies), 3.7 (Resignations) and 3.8 (Removal of Directors), the Enzon Bylaws may also be altered, amended, supplemented or repealed, or new Enzon Bylaws may be adopted by the Enzon Board, which Enzon Bylaws may be altered, amended, supplemented or repealed by the Enzon stockholders entitled to vote thereon;
•
Enzon is subject to Section 203 of the DGCL, which prohibits certain business combinations such as mergers or assets sales between Enzon and an interested stockholder owning 15% or more of the outstanding voting stock of Enzon; provided that such restriction does not apply if the Enzon Board approved the transaction that made the Person an interested stockholder, the interested stockholder acquired at least 85% of the voting stock in the transaction, or if the business combination is approved by the Enzon Board and two-thirds of the voting stock not owned by the interested stockholder; and
Viskase
Provisions that may have anti-takeover effects include, among others:
•
the Viskase Bylaws may be amended by a vote of at least 80% of the Viskase Board or by a majority of the Viskase stockholders entitled to vote;
•
Viskase is subject to Section 203 of the DGCL, which prohibits certain business combinations such as mergers or assets sales between Viskase and an interested stockholder owning 15% or more of the outstanding voting stock of Viskase; provided that such restriction does not apply if the Viskase Board approved the transaction that made the Person an interested stockholder, the interested stockholder acquired at least 85% of the voting stock in the transaction, or if the business combination is approved by the Viskase Board and two-thirds of the voting stock not owned by the interested stockholder; and
•
vacancies on the Viskase Board that result from an increase in the number of directors may be filled by the affirmative vote of a majority of the directors then in office; provided that a quorum is present, and any other vacancy may be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum, or by a sole remaining director.
Rights Plan Policy
Enzon
The Enzon Organizational Documents do not contain a rights plan policy.
Viskase
Viskase will not adopt any new stockholder rights or similar plan without the affirmative vote of not less than (i) 90% of the then outstanding shares of Viskase Common Stock and Viskase Preferred Stock, if any, entitled to vote thereon and (ii) 80% of the Viskase Board, including authorized but vacant directorships,
except that in response to an unsolicited tender offer, the Viskase Board may adopt a stockholder rights or similar plan having a term of not more than 60 days.
Stockholder Action by Written Consent
Enzon
The Enzon Bylaws allow any action which could be taken at any annual or special meeting of Enzon stockholders to be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding stock entitled to vote thereon having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
Viskase
Pursuant to Section 228 of the DGCL, action which could be taken at any annual or special meeting of Viskase stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
Special Meetings
Enzon
Enzon allows special meetings of the Enzon stockholders to be called at any time by the Enzon Board, the President or the Secretary.
Viskase
Viskase allows special meetings of the Viskase stockholders to be called at any time by the President, a majority of the members of the Viskase Board or by the holders of ten percent (10%) or more of the total combined voting power of the outstanding capital stock of Viskase having voting power for the election of directors.
Vacancies on Board of Directors
Enzon
The Enzon Bylaws allow vacancies on the Enzon Board to be filled solely by a majority vote of the directors then in office, whether or not a quorum.
Viskase
Viskase allows vacancies on the Viskase Board that result from an increase in the number of directors to be filled by the affirmative vote of a majority of the directors then in office, provide that a quorum is present, and any other vacancy may be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum, or by a sole remaining director.
Indemnification
Enzon
The Enzon Bylaws provide that Enzon will indemnify any current or former director or officer who is involved in civil, criminal, administrative or investigative legal proceedings because of their role at Enzon. This indemnification covers expenses such as attorneys’ fees, judgments, fines and settlement amounts, as long as they were reasonably incurred and permitted under the DGCL and other applicable laws. Additionally, Enzon may choose to indemnify employees, agents or individuals serving at Enzon’s request in similar roles
at other organizations under the same conditions. These indemnification rights are not exclusive and may exist alongside other legal protections available to the individual.
Viskase
Viskase will indemnify its current and former directors and officers involved in civil, criminal, administrative or investigative legal proceedings arising from their service to the company or at its request to another entity. This indemnification covers expenses, judgments, fines and settlements, provided the individual acted in good faith, in a manner reasonably believed to be in or not opposed to the company’s best interests, and, in criminal cases, without knowledge of wrongdoing. In derivative suits brought by or on behalf of Viskase, indemnification is limited and subject to court approval if the individual is found liable. Eligibility for indemnification must be determined by disinterested directors, independent counsel or stockholders, though successful defense guarantees reimbursement. Viskase will advance legal expenses before the case is resolved as long as the individual agrees to repay if ultimately found ineligible for indemnification. These indemnification rights are not exclusive and may exist alongside other legal protections available to the individual.
Corporate Opportunity
Enzon
The Enzon Organizational Documents have no corresponding provisions relating to corporate or business opportunities.
Viskase
To the fullest extent permitted by Section 122(17) of the DGCL and except as may be otherwise expressly agreed in writing by Viskase and Icahn Enterprises L.P. (“IELP”), Viskase, on behalf of itself and its Subsidiaries, renounces any interest or expectancy of Viskase and its Subsidiaries in, or in being offered an opportunity to participate in, business opportunities that are from time to time present to IELP or its Affiliates or Subsidiaries or any of their respective employees, officers, directors, agents, stockholders, members or partners (other than Viskase and its Subsidiaries), even if the opportunity is one that Viskase or its Subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so, and no such Person shall be liable to Viskase or any of its Subsidiaries for breach of any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such Person pursues or acquires such business opportunity, or information regarding such business opportunity, to Viskase or its Subsidiaries, unless, in the case of any such Person who is a director or officer of Viskase, such business opportunity is expressly offered to such director or officer in writing solely in his or her capacity as a director or officer of Viskase.
Amendment of Certificate of Incorporation
Enzon
The Enzon Charter may be amended upon the adoption of a resolution by the Enzon Board setting forth the proposed amendment and approval by vote of holders of the majority of shares entitled to vote in the election of directors.
The affirmative vote of holders of not less than two-thirds of the outstanding voting shares of capital stock entitled to vote generally in the election of directors is required to amend, alter, change, repeal or adopt any provisions inconsistent with Article 9 (Number of Directors) of the Enzon Charter.
Viskase
Pursuant to Section 242 of the DGCL, the Viskase Board must adopt a resolution declaring the amendment advisable and such amendment must then be approved by a majority of the outstanding shares entitled to vote. If the Amendment changes the rights, preferences, or number of authorized shares of Viskase Common Stock, the holders of a majority of the outstanding Viskase Common Stock must approve the amendment.
Amendment of Bylaws
Enzon
Articles 3.2 (Number of Directors), 3.3 (No Classification of the Board), 3.4 (Election), 3.5 (Term), 3.6 (Vacancies), 3.7 (Resignations) and 3.8 (Removal of Directors) of the Enzon Bylaws may only be amended by a vote of the holders of not less than two-thirds of the outstanding voting shares of capital stock entitled to vote generally in the election of directors. With the exception of Articles 3.2 (Number of Directors), 3.3 (No Classification of the Board), 3.4 (Election), 3.5 (Term), 3.6 (Vacancies), 3.7 (Resignations) and 3.8 (Removal of Directors), the Enzon Bylaws may also be altered, amended, supplemented or repealed, or new Enzon Bylaws may be adopted by the Enzon Board, which Enzon Bylaws may be altered, amended, supplemented or repealed by the Enzon stockholders entitled to vote thereon.
Viskase
The Viskase Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the Viskase Board by a vote of at least 80% of the Viskase Board or by a majority of the Viskase stockholders entitled to vote.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS OF ENZON
The following table sets forth, as of [ ], 2025, the beneficial ownership information of Enzon Common Stock by:
•
each Person known to Enzon to be the beneficial owner of more than five percent (5%) of Enzon Common Stock as of [ ], 2025;
•
each named executive officer of Enzon;
•
each of Enzon’s directors; and
•
all of Enzon’s executive officers and directors as a group.
The calculation of the percentage of beneficial ownership is based on 74,214,603 shares of Enzon Common Stock outstanding on [ ], 2025.
The SEC has defined “beneficial ownership” of a security to mean the possession, directly or indirectly, of voting power and/or investment power over such security. A stockholder is also deemed to be, as of any date, the beneficial owner of all securities that such stockholder has the right to acquire within 60 days after that date through (i) the exercise of any option, warrant or right, (ii) the conversion of a security, (iii) the power to revoke a trust, discretionary account or similar arrangement or (iv) the automatic termination of a trust, discretionary account or similar arrangement. In computing the number of shares Beneficially Owned by a Person and the percentage ownership of that Person, ordinary shares subject to options or other rights (as set forth above) held by that Person that are currently exercisable, or will become exercisable within 60 days thereafter, are deemed outstanding, while such shares are not deemed outstanding for purposes of computing percentage ownership of any other Person.
Unless otherwise indicated, Enzon believes that all Persons named in the table below have sole voting and investment power with respect to all shares of capital stock Beneficially Owned by them. To Enzon’s knowledge, no shares of Enzon Common Stock Beneficially Owned by any executive officer, director or director nominee have been pledged as security.
|
Name of Beneficial Owner
|
|
|
Shares of
Beneficially
Owned
|
|
|
Percentage of
Shares
Beneficially
Owned
|
|
|
5% Stockholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carl C. Icahn and affiliated entities
|
|
|
|
|
36,056,636(1) |
|
|
|
|
|
48.6% |
|
|
|
Jonathan Couchman and affiliated entities
|
|
|
|
|
7,743,954(2) |
|
|
|
|
|
10.4% |
|
|
|
Directors and Named Executive Officers(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Randolph C. Read
|
|
|
|
|
200,000 |
|
|
|
|
|
* |
|
|
|
Jordan Bleznick
|
|
|
|
|
100,000 |
|
|
|
|
|
* |
|
|
|
Jaffery (Jay) A. Firestone
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Stephen T. Wills
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Richard L. Feinstein
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
All directors and executive officers as a group (5 Persons)
|
|
|
|
|
300,000 |
|
|
|
|
|
* |
|
|
*
Represents beneficial ownership of less than one percent (1%) of the shares of Enzon Common Stock.
(1)
Information concerning stock ownership was obtained from Amendment No. 17 to the Schedule 13D filed with the SEC on October 24, 2025, by Carl C. Icahn and various entities affiliated with him. Mr. Icahn was reported to share voting and dispositive power over all 36,056,636 shares of Enzon Common Stock with entities affiliated with him. The principal business address for Carl C. Icahn and entities affiliated with him is 16690 Collins Avenue, Suite PH-1, Sunny Isles Beach, FL 33160.
(2)
Information concerning stock ownership was obtained from Amendment No. 2 to the Schedule 13D filed with the SEC on September 17, 2020 and the Form 4 filed August 17, 2021 by Jonathan Couchman, Couchman Family Fund, Xstelos Corp. and Myrexis, Inc. Mr. Couchman reported sole voting and
dispositive power over 4,717,666 shares and shared voting and dispositive power over the shares directly held by Couchman Family Fund, Xstelos Corp. and Myrexis, Inc. The Form 4 reported that Couchman Family Fund directly held 350,000 shares, Xstelos Corp. directly held 2,043,024 shares and Myrexis, Inc. directly held 633,264 shares, and each reported shared voting and dispositive power over such shares. The principal business address for Mr. Couchman, Couchman Family Fund and Myrexis, Inc. is c/o Couchman Management LLC, 600 Fifth Avenue, 2nd Floor, New York, New York 10020. The principal business address for Xstelos Corp. is 1105 North Market Street, Suite 1300, Wilmington, DE 19801.
(3)
The address for each of the named executive officers and directors listed in this table is c/o Enzon Pharmaceuticals, Inc., 20 Commerce Drive, Suite 135, Cranford, New Jersey, 07016.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS OF VISKASE
The following table sets forth, as of [ ], 2025, the beneficial ownership information of Viskase Common Stock by:
•
each Person known to Viskase to be the beneficial owner of more than five percent (5%) of Viskase Common Stock as of [ ], 2025;
•
each named executive officer of Viskase;
•
each of Viskase’s directors; and
•
all of Viskase’s executive officers and directors as a group.
The calculation of the percentage of beneficial ownership is based on 117,375,777 shares of Viskase Common Stock outstanding on [ ], 2025.
The SEC has defined “beneficial ownership” of a security to mean the possession, directly or indirectly, of voting power and/or investment power over such security. A stockholder is also deemed to be, as of any date, the beneficial owner of all securities that such stockholder has the right to acquire within 60 days after that date through (i) the exercise of any option, warrant or right, (ii) the conversion of a security, (iii) the power to revoke a trust, discretionary account or similar arrangement or (iv) the automatic termination of a trust, discretionary account or similar arrangement. In computing the number of shares Beneficially Owned by a Person and the percentage ownership of that Person, ordinary shares subject to options or other rights (as set forth above) held by that Person that are currently exercisable, or will become exercisable within 60 days thereafter, are deemed outstanding, while such shares are not deemed outstanding for purposes of computing percentage ownership of any other Person.
Unless otherwise indicated, Viskase believes that all Persons named in the table below have sole voting and investment power with respect to all shares of capital stock Beneficially Owned by them. To Viskase’s knowledge, no shares of Viskase Common Stock Beneficially Owned by any executive officer, director or director nominee have been pledged as security.
|
Name of Beneficial Owner
|
|
|
Shares of
Beneficially
Owned
|
|
|
Percentage of
Shares
Beneficially
Owned
|
|
|
5% Stockholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
American Entertainment Properties Corp.
|
|
|
|
|
107,706,629 |
|
|
|
|
|
91.76% |
|
|
|
Directors and Named Executive Officers(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas D. Davis
|
|
|
|
|
339,558 |
|
|
|
|
|
* |
|
|
|
Robert E. Flint
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Dustin DeMaria
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Colin Kwak
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Stephen T. Mauer
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Peter K. Shea
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Kenneth Shea
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Michael Blecic
|
|
|
|
|
2,009 |
|
|
|
|
|
— |
|
|
|
Joseph D. King
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Thomas Holtz
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Wolfgang Seitz
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Robert Schouten
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Mackenzie Stender
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Joseph Plescia
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Timothy P. Feast(2)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Name of Beneficial Owner
|
|
|
Shares of
Beneficially
Owned
|
|
|
Percentage of
Shares
Beneficially
Owned
|
|
|
Wolfgang Seitz(2)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Marcelo Passos(4)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Carolyn Zhang(5)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All directors and current executive officers as a group (17 Persons)
|
|
|
|
|
341,567 |
|
|
|
|
|
* |
|
|
*
Represents beneficial ownership of less than one percent (1%) of the shares of Viskase Common Stock.
(1)
The address for each of the named executive officers and directors listed in this table is c/o Viskase Companies, Inc., 333 E Butterfield Road, Suite 400, Lombard, Illinois 60148.
(2)
Effective December 1, 2025, Mr. Feast is no longer an employee of Viskase.
(3)
Effective August 31, 2025 Mr. Seitz resigned from Viskase.
(4)
Effective December 9, 2025, Mr. Passos is no longer an employee of Viskase.
(5)
Effective November 7, 2025, Ms. Zhang is no longer an employee of Viskase.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS OF POST-MERGER COMBINED COMPANY
The following table sets forth information regarding the expected beneficial ownership of the Combined Company immediately following the consummation of the Merger by:
•
each Person expected by the Combined Company to be the beneficial owner of more than five percent (5%) of the Combined Company Common Stock as of [ ], 2025;
•
each named executive officer of the Combined Company;
•
each of the Combined Company’s directors; and
•
all of the Combined Company’s executive officers and directors as a group.
The SEC has defined “beneficial ownership” of a security to mean the possession, directly or indirectly, of voting power and/or investment power over such security. A stockholder is also deemed to be, as of any date, the beneficial owner of all securities that such stockholder has the right to acquire within 60 days after that date through (i) the exercise of any option, warrant or right, (ii) the conversion of a security, (iii) the power to revoke a trust, discretionary account or similar arrangement or (iv) the automatic termination of a trust, discretionary account or similar arrangement. In computing the number of shares Beneficially Owned by a Person and the percentage ownership of that Person, ordinary shares subject to options or other rights (as set forth above) held by that Person that are currently exercisable, or will become exercisable within 60 days thereafter, are deemed outstanding, while such shares are not deemed outstanding for purposes of computing percentage ownership of any other Person.
The expected beneficial ownership of shares of the Combined Company Common Stock following the consummation of the Merger has been determined based upon the following assumptions: (i) there will be an aggregate of 14,391,156 shares of Combined Company Common Stock issued and outstanding at the Closing, (after giving effect to the Reverse Stock Split), assuming a Closing Date of [•], (ii) prior to the Merger, each share of Enzon Series C Preferred Stock held by the IEH Parties will be exchanged for Enzon Common Stock pursuant to the Support Agreement and each share of Series C Preferred Stock held by non-Affiliates of IEH will be exchanged for Enzon Common Stock and (iii) the Liquidation Preference of the Enzon Preferred Stock is calculated as of [•].
Unless otherwise indicated, all Persons named in the table below have sole voting and investment power with respect to all shares of capital stock Beneficially Owned by them. No shares of the Combined Company Common Stock Beneficially Owned by any executive officer, director or director nominee have been pledged as security.
|
Name and Address of Beneficial Owner
|
|
|
Shares of
Combined
Company
Common Stock
|
|
|
% of Combined
Company
Common Stock(1)
|
|
|
% of Combined
Company
Voting Power(2)
|
|
|
Directors and Executive Officers of Combined Company(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas D. Davis
|
|
|
|
|
22,886 |
|
|
|
|
|
*% |
|
|
|
|
|
*% |
|
|
|
Michael Blecic
|
|
|
|
|
135 |
|
|
|
|
|
*% |
|
|
|
|
|
*% |
|
|
|
Jordan Bleznick
|
|
|
|
|
1,000 |
|
|
|
|
|
*% |
|
|
|
|
|
*% |
|
|
|
Randolph C. Read
|
|
|
|
|
2,000 |
|
|
|
|
|
*% |
|
|
|
|
|
*% |
|
|
|
Armando Herrera Jr.
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Joseph D. King
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Joseph Marigliano
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Joseph Plescia
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Mackenzie Stender
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Jan Stevens
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Robert Schouten
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Name and Address of Beneficial Owner
|
|
|
Shares of
Combined
Company
Common Stock
|
|
|
% of Combined
Company
Common Stock(1)
|
|
|
% of Combined
Company
Voting Power(2)
|
|
|
All Combined Company directors and executive officers as a
group (11 individuals)
|
|
|
|
|
26,022 |
|
|
|
|
|
*% |
|
|
|
|
|
*% |
|
|
|
5% Holders of Combined Company Common Stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carl C. Icahn and affiliated entities
|
|
|
|
|
13,253,906 |
|
|
|
|
|
92.10% |
|
|
|
|
|
92.10% |
|
|
*
Represents beneficial ownership of less than one (1%) percent of the shares of the Combined Company Common Stock.
(1)
The address for each of the named executive officers and directors listed in this table is c/o 333 East Butterfield Road, Suite 400, Lombard, Illinois 60148, Attention: Joseph D. King, Secretary, Email: joe.king@viskase.com.
(2)
Effective December 1, 2025, Mr. Feast is no longer an employee of Viskase.
(3)
Effective November 7, 2025, Ms. Zhang is no longer an employee of Viskase.
(4)
Effective December 9, 2025, Mr. Passos is no longer an employee of Viskase.
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material U.S. federal income tax consequences of the Series C Exchange Offer, the Reverse Stock Split, and the Merger generally applicable to a “U.S. Holder” (as defined below) of Enzon Stock and Viskase Common Stock and is based on the Code, final, temporary, and proposed Treasury regulations thereunder, and published administrative rulings and judicial decisions, all as currently in effect as of the date of this prospectus/consent solicitation statement, and all of which are subject to change or different interpretations, possibly with retroactive effect. This summary is not a comprehensive description of all U.S. federal income tax considerations that may be relevant to a stockholder and their decision to participate in the Series C Exchange Offer, the Reverse Stock Split, and the Merger. The U.S. federal income tax consequences set forth below are based on current law. Because individual circumstances may differ, each holder should consult such holder’s own tax advisor to determine the applicability of the rules discussed below to such holder and the particular tax effects of the Series C Exchange Offer, the Reverse Stock Split, and the Merger to such holder, including the application and effect of U.S. federal estate and gift, state, local and other tax laws.’
Except as otherwise specifically set forth below, this summary addresses only those holders of Enzon Stock and Viskase Common Stock who are “U.S. Holders” (as defined below) and hold their stock as a capital asset within the meaning of Section 1221 of the Code (generally, property held for investment). In addition, this summary does not address all of the U.S. federal income tax consequences that may be relevant to particular stockholders in light of their individual circumstances or to stockholders that are subject to special rules such as, but not limited to: financial institutions; retirement plans, pensions, and employee stock ownership plans; pass-through entities or investors in pass-through entities; insurance companies; corporations that accumulate earnings to avoid U.S. federal income tax; tax-exempt organizations; regulated investment companies; real estate investment trusts; dealers in securities; traders in securities that elect to use a mark-to-market method of accounting; brokers; persons that hold stock as part of a straddle, hedge, constructive sale, conversion or other risk reduction transaction; persons that purchased or sell their shares of stock as part of a wash sale; U.S. expatriates and former citizens or long-term residents of the United States; persons that have a functional currency other than the U.S. dollar; stockholders who acquired their shares of stock through the exercise of an employee stock option or otherwise as compensation or through a tax-qualified retirement plan; and persons who actually or constructively own more than 5% of the outstanding shares of stock of either Enzon or Viskase. This discussion does not address any aspect of the alternative minimum tax, the Medicare tax on net investment income, the U.S. federal gift or estate tax, or state, local or foreign taxation.
If a partnership (or any other entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds Enzon Stock or Viskase Common Stock, the tax treatment of a partner in the partnership generally will depend on the status of the partner, the tax activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships that hold Enzon Stock or Viskase Comon Stock and partners in such partnerships should consult their tax advisors with regard to the U.S. federal income tax consequences of the Series C Exchange Offer, the Reverse Stock Split, and the Merger.
For purposes of this discussion, a “U.S. Holder” is a beneficial owner of Enzon Stock or Viskase Common Stock who for U.S. federal income tax purposes is (i) a citizen or individual resident of the United States; (ii) a corporation (or any other entity treated as a corporation for these purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia; (iii) an estate whose income is subject to U.S. federal income taxation regardless of its source; or (iv) a trust if (A) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (B) the trust has validly elected to be treated as a “United States person” under applicable Treasury regulations.
Neither Enzon nor Viskase intends to request a ruling from the IRS or an opinion from counsel regarding the statements made in the following discussion. Accordingly, there can be no assurance that the IRS will not take a position contrary to such statements, or that any such contrary position would not be sustained by a court if contested by the IRS.
ALL HOLDERS OF ENZON STOCK AND VISKASE COMMON STOCK SHOULD CONSULT THEIR TAX ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM OF
PARTICIPATING IN THE SERIES C EXCHANGE OFFER, THE REVERSE STOCK SPLIT, AND THE MERGER, AS APPLICABLE, INCLUDING THE APPLICABILITY AND EFFECT OF THE ALTERNATIVE MINIMUM TAX AND ANY STATE, LOCAL, FOREIGN AND OTHER TAX LAWS, AND OF HOLDING AND DISPOSING OF THE ENZON COMMON STOCK.
U.S. Federal Income Tax Consequences of the Series C Exchange Offer
Subject to the discussions below under “— Treatment of Accumulated and Unpaid Dividends on Series C Preferred Stock” and “Treatment of Cash in Lieu of Fractional Shares,” a U.S. Holder that receives Enzon Common Stock in exchange for its Enzon Series C Preferred Stock in the Series C Exchange Offer should generally be treated as having exchanged its Enzon Series C Preferred Stock for Enzon Common Stock in a “recapitalization” pursuant to Section 368(a)(1)(E) of the Code, and such U.S. Holder should generally not recognize gain or loss for U.S. federal income tax purposes. The U.S. Holder’s aggregate tax basis in the Enzon Common Stock received in the exchange should equal such U.S. Holder’s aggregated adjusted tax basis in such portion of the Enzon Series C Preferred Stock exchanged (subject to potential reduction in the tax basis due to the receipt of a taxable stock dividend, as discussed below). The holding period of the Enzon Common Stock received in the exchange should include such U.S. Holder’s holding period for such portion of the Enzon Series C Preferred Stock exchanged therefor. A U.S. Holder that acquired shares of Enzon Series C Preferred Stock on different dates and at different prices should consult their tax advisors regarding the allocation of the tax basis and holding period from the Enzon Series C Preferred Stock exchanged in the Series C Exchange Offer for Enzon Common Stock received in the exchange.
In the event the Series C Exchange Offer fails to qualify as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Code, for U.S. federal income tax purpose, a U.S. Holder who exchanges Enzon Series C Preferred Stock solely for Enzon Common Stock pursuant to the Series C Exchange Offer generally would recognize gain or loss, as applicable, equal to the difference between (1) the fair market value of the Enzon Common Stock received in the exchange and (2) such holder’s adjusted tax basis in the Enzon Series C Preferred Stock surrendered in the exchange. Such gain or loss generally would be long-term capital gain or loss provided the U.S. Holder’s holding period in such Enzon Series C Preferred Stock exceeds one year at the time of the Series C Exchange Offer. Long-term capital gain of certain non-corporate U.S. Holders (including individuals) is currently eligible for U.S. federal income taxation at preferential rates. The deductibility of capital losses is subject to limitations. U.S. Holders that realize a loss should consult their tax advisors regarding any limitations on the deductibility of such losses. Under Section 302 of the Code, however, special rules may recharacterize the amount of cash received by a non-tendering U.S. Holder as a distribution that is taxable as a dividend under Section 301 of the Code to the extent of Enzon’s current or accumulated earnings and profits if the redemption is treated as economically equivalent to a dividend. Such recharacterization is most likely to result where a holder has a significant percentage ownership in Enzon (taking into account Enzon Common Stock actually owned and certain ownership attribution rules) and the redemption does not result in a meaningful reduction in such percentage interest. Holders should consult their own tax advisors regarding the possible application of Section 302 of the Code and whether the redemption results in sale or exchange treatment or dividend treatment to them.
Following the Merger, Enzon may, and at this time intends to, redeem any outstanding shares of Enzon Series C Preferred Stock for an amount of cash equal to the liquidation preference of such shares. As a result, if Enzon redeems such shares, non-tendering U.S. Holders of Enzon Series C Preferred Stock generally will recognize gain or loss equal to the difference between the amount of cash received and such holder’s adjusted tax basis in the Enzon Series C Preferred Stock redeemed. Such gain or loss would be long-term capital gain or loss provided the U.S. Holder’s holding period in such Enzon Series C Preferred Stock exceeds one year at the time of the redemption. Long-term capital gain of certain non-corporate U.S. Holders (including individuals) is currently eligible for U.S. federal income taxation at preferential rates. The deductibility of capital losses is subject to limitations. Under Section 302 of the Code, however, special rules may recharacterize the amount of cash received by a non-tendering U.S. Holder as a distribution that is taxable as a dividend under Section 301 of the Code to the extent of Enzon’s current or accumulated earnings and profits if the redemption is treated as economically equivalent to a dividend. Such a recharacterization is most likely to result where a holder has a significant percentage ownership in Enzon (taking into account Enzon Common Stock actually owned and certain ownership attribution rules) and the redemption does not result in a meaningful reduction in such percentage interest. Holders should consult
their own tax advisors regarding the possible application of Section 302 of the Code and whether the redemption results in sale or exchange treatment or dividend treatment to them.
Treatment of Accumulated and Unpaid Dividends on Enzon Series C Preferred Stock. As noted above, the receipt of Enzon Common Stock in exchange for Enzon Series C Preferred Stock in the Series C Exchange Offer generally will be treated as a “recapitalization” pursuant to Section 368(a)(1)(E) of the Code. At the time of the exchange, the Enzon Series C Preferred Stock is expected to have accumulated but unpaid dividends. With respect to the portion of a U.S. Holder’s Enzon Series C Preferred Stock that is attributable to accumulated but unpaid distributions, the receipt of Enzon Common Stock attributable to such Enzon Series C Preferred Stock could be treated as a taxable stock distribution under Sections 305(b) and (c) of the Code. The amount of such taxable stock distribution would equal the lesser of (i) the amount by which the fair market value of the Enzon Common Stock received in exchange for such Enzon Series C Preferred Stock exceeds the initial liquidation preference of such Enzon Series C Preferred Stock, and (ii) the amount of the accumulated but unpaid distributions to which such Enzon Series C Preferred Stock is attributable. Such taxable stock distribution would be taxable as a dividend to the extent of Enzon’s current and accumulated earnings and profits, if any, for the taxable year of the Series C Exchange Offer. Provided that certain holding period requirements are satisfied, any dividend amounts generally will constitute “qualified dividend income” of non-corporate U.S. Holders (including individuals) who are currently subject to reduced rates of U.S. federal income tax in respect of “qualified dividend income”. The amount of any distribution in excess of Enzon’s current and accumulated earnings and profits would be treated as a tax-free return of the U.S. Holder’s adjusted tax basis in its Enzon Series C Preferred Stock, and any excess after the U.S. Holder’s tax basis is reduced to zero will be treated as capital gain from the sale or exchange of the Enzon Series C Preferred Stock. The tax basis in the Enzon Common Stock received for the portion of the U.S. Holder’s Enzon Series C Preferred Stock that is attributable to accumulated but unpaid distributions would equal the amount of the taxable stock distribution, calculated as described above. The holding period for such Enzon Common Stock would begin a day after the U.S. Holder receives the Enzon Common Stock. U.S. Holders are urged to consult their tax advisors regarding the potential implications of these rules.
U.S. Federal Tax Consequences of the Ownership and Disposition of the Enzon Common Stock received pursuant to the Series C Exchange Offer
Distributions. If distributions are made with respect to the Enzon Common Stock, such distributions will be treated as dividends to the extent of Enzon’s current and accumulated earnings and profits as determined under U.S. federal income tax principles. Provided that certain holding period requirements are satisfied, any dividend amounts generally will constitute “qualified dividend income”. Non-corporate U.S. Holders (including individuals) are currently subject to reduced rates of U.S. federal income tax in respect of “qualified dividend income”. Any portion of a distribution that exceeds Enzon’s current and accumulated earnings and profits will first be applied to reduce a U.S. Holder’s tax basis in the Enzon Common Stock, and the excess will be treated as gain from the disposition of the Enzon Common Stock.
Disposition of Stock. In general, upon a sale or other taxable disposition of the Enzon Common Stock, a U.S. Holder will recognize gain or loss in an amount equal to the difference between the sum of the fair market value of any property and the amount of cash received in such disposition and the U.S. Holder’s adjusted tax basis in the Enzon Common Stock. Any such gain or loss will be capital gain or loss. Such capital gain or loss will be long-term capital gain or loss if the U.S. Holder’s holding period in the Enzon Common Stock at the time of the disposition is more than one year. Long-term capital gains recognized by certain non-corporate U.S. Holders (including individuals) are generally subject to a reduced rate of U.S. federal income tax. The deductibility of capital losses is subject to limitations.
U.S. Federal Income Tax Consequences of the Reverse Stock Split
The Reverse Stock Split is intended to constitute a “recapitalization” pursuant to Section 368(a)(1)(E) of the Code and/or an exchange described in Section 1036(a) of the Code. If it so qualifies, subject to the discussion below under “Treatment of Cash in Lieu of Fractional Shares,” a U.S. Holder of Enzon Common Stock generally should not recognize gain or loss as a result of the Reverse Stock Split for U.S. federal income tax purposes. A U.S. Holder’s aggregate adjusted tax basis in the shares of Enzon Common Stock received pursuant to the Reverse Stock Split should equal the aggregate adjusted tax basis of the shares of
Enzon Common Stock exchanged therefor (subject to adjustments regarding the receipt of cash in lieu of a fractional share, as discussed below). The U.S. Holder’s holding period in the shares of Enzon Common Stock received pursuant to the Reverse Stock Split should include the holding period in the shares of Enzon Common Stock exchanged therefor. U.S. Treasury Regulations provide detailed rules for allocating the tax basis and holding period of shares of stock surrendered in an exchange such as the Reverse Stock Split to shares received in such an exchange. A U.S. Holder that acquired shares of Enzon Common Stock on different dates and at different prices should consult their tax advisors regarding the allocation of the tax basis and holding period from shares of common stock surrendered in the Reverse Stock Split to shares received in the Reverse Stock Split.
U.S. Federal Income Tax Consequences of the Merger
The Merger, taken together with the conversion of Viskase into a limited liability company promptly after the Merger, is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. If it so qualifies, subject to the discussion below under “Treatment of Cash in Lieu of Fractional Shares,” a U.S. Holder of Viskase Common Stock generally will not recognize gain or loss as a result of the Merger which for U.S. federal income tax purposes would be treated as a deemed exchange of Viskase Common Stock for Enzon Common Stock. A U.S. Holder’s aggregate tax basis in the Enzon Common Stock received pursuant to the Merger generally will equal the U.S. Holder’s aggregate tax basis in the Viskase Common Stock exchanged therefor. A U.S. Holder’s holding period in Enzon Common Stock received pursuant to the Merger generally will include the holding period for its Viskase Common Stock surrendered in exchange therefor. U.S. Holders who hold shares of Viskase Common Stock with differing tax bases or holding periods should consult their tax advisors with regard to identifying the tax bases or holding periods of the particular shares of Enzon Common Stock received in the Merger.
If the Merger, taken together with the conversion of Viskase into a limited liability company promptly after the Merger, does not qualify as a “reorganization” within the meaning of Section 368(a) of the Code, for U.S. federal income tax purposes, a U.S. Holder of Viskase Common Stock generally would be treated as selling its Viskase Common Stock in exchange for Enzon Common Stock in a taxable transaction. In such event, a U.S. Holder of Viskase Common Stock that receives Enzon Common Stock generally would recognize capital gain or loss in an amount equal to the difference, if any, between (1) the fair market value of the Enzon Common Stock received in the Merger and (2) such holder’s adjusted tax basis in the Viskase Common Stock surrendered. Such gain or loss generally would be long-term capital gain or loss provided the U.S. Holder’s holding period in such Viskase Common Stock exceeds one year at the time of the Merger. Long-term capital gain of certain non-corporate U.S. Holders (including individuals) is currently eligible for U.S. federal income taxation at preferential rates. The deductibility of capital losses is subject to limitations. U.S. Holders that realize a loss should consult their tax advisors regarding any limitations on the deductibility of such losses. If the Merger is treated as a taxable sale of Viskase Common Stock, a U.S. Holder’s initial tax basis in the Enzon Common Stock received in the Merger will equal the fair market value of such stock upon receipt, and the holding period for such stock will begin on the day following the Merger. U.S. Holders of Viskase Common Stock should consult their tax advisors about the U.S. federal income tax consequences of the Merger in the event that the Merger does not qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
No Enzon Stock will be transferred or exchanged pursuant to the Merger. As such, a U.S. Holder of Enzon Stock will not recognize any gain or loss pursuant to the Merger. This should be the case regardless as to whether or not the Merger, taken together with the conversion of Viskase into a limited liability company after the Merger, qualifies as a “reorganization” within the meaning of Section 368(a) of the Code.
Treatment of Cash in Lieu of Fractional Shares
A U.S. Holder who receives cash in lieu of a fractional share of Enzon Common Stock in the Series C Exchange Offer, the Reverse Stock Split, or the Merger will generally be treated as having received the fractional share of Enzon Common Stock pursuant to the Series C Exchange Offer, the Reverse Stock Split, or the Merger, subject to the tax-free treatment described above, and then as having sold to Enzon such fractional share for cash. As a result, a U.S. Holder will generally recognize gain or loss equal to the difference between the amount of cash received and the tax basis allocated to such fractional share of Enzon Common
Stock. Gain or loss recognized with respect to cash received in lieu of a fractional share of Enzon Common Stock will generally be capital gain or loss, and will be long-term capital gain or loss if, as of the effective time of the Series C Exchange Offer, the Reverse Stock Split, or the Merger, the holding period for such shares is greater than one year. The deductibility of capital losses is subject to limitations.
Information Reporting
A U.S. Holder who receives Enzon Common Stock in the Series C Exchange Offer, the Reverse Stock Split, and/or the Merger in a tax-free exchange under Section 368 of the Code may be required to retain in its records, and file with its U.S. federal income tax return for the taxable year in which the exchange takes place, a statement setting forth all of the relevant facts in respect of the nonrecognition of gain or loss upon such exchange including: (a) tax basis in the Enzon Stock or Viskase Common Stock tendered in the exchange; and (b) the fair market value of the Enzon Common Stock received in the exchange as of the effective time of the exchange. Each U.S. Holder is urged to consult its own tax advisor concerning any information reporting requirements applicable to the Series C Exchange Offer, the Reverse Stock Split, and/or the Merger.
With respect to the ownership and taxable disposition of the Enzon Common Stock, information reporting requirements generally will apply to distributions on the Enzon Common Stock and the proceeds of a taxable disposition of such stock paid to a U.S. Holder unless the U.S. Holder is an exempt recipient and, if requested, certifies as to that status. Backup withholding generally will also apply if the U.S. Holder fails to provide an appropriate certification with its correct taxpayer identification number or certification of exempt status. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a U.S. Holder’s U.S. federal income tax liability provided the required information is timely furnished to the IRS.
THE PRECEDING DISCUSSION IS INTENDED ONLY AS A GENERAL DISCUSSION OF U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE SERIES C EXCHANGE OFFER, THE REVERSE STOCK SPLIT, AND/OR THE MERGER AND IS NOT A COMPLETE ANALYSIS OR DISCUSSION OF ALL POTENTIAL TAX EFFECTS THAT MAY BE IMPORTANT TO YOU. THUS, YOU ARE STRONGLY ENCOURAGED TO CONSULT YOUR TAX ADVISOR AS TO THE SPECIFIC TAX CONSEQUENCES OF SUCH TRANSACTIONS TO YOU IN LIGHT OF YOUR PARTICULAR CIRCUMSTANCES, INCLUDING THE APPLICABILITY AND EFFECT OF FEDERAL, STATE, LOCAL AND OTHER TAX LAWS.
LEGAL MATTERS
The validity of the shares of Enzon Common Stock to be issued pursuant to the Merger will be passed upon for Enzon by Thompson Hine LLP, counsel to Enzon.
EXPERTS
Enzon
The consolidated balance sheets of Enzon Pharmaceuticals, Inc. and Subsidiaries as of December 31, 2024 and 2023, and the related consolidated statements of operations, mezzanine equity and stockholders’ equity, and cash flows for each of the years then ended, have been audited by EisnerAmper LLP, independent registered public accounting firm, as stated in their report which is incorporated herein. Such financial statements have been incorporated herein in reliance on the report of such firm given upon their authority as experts in accounting and auditing.
Viskase
The financial statements of Viskase as of and for the years ended December 31, 2023 and December 31, 2024 included in this prospectus and elsewhere in the registration statement have been so included in reliance upon the report of Grant Thorton LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
FUTURE STOCKHOLDER PROPOSALS
Enzon has not yet determined the date for its 2025 annual meeting of stockholders. The date for Enzon’s 2025 annual meeting of stockholders will be more than 30 days from the one (1) -year anniversary of Enzon’s 2024 annual meeting of stockholders (i.e., September 26, 2025). Enzon will disclose the date of its 2025 annual meeting by filing a Current Report on Form 8-K with the SEC when the date of such meeting has been determined. Stockholder proposals intended for inclusion in Enzon’s proxy statement for its 2025 annual meeting of stockholders pursuant to Rule 14a-8 under the Exchange Act must be directed to the Secretary, Enzon Pharmaceuticals, Inc., at 20 Commerce Drive, Suite 135, Cranford, New Jersey 07016.
As Enzon’s 2025 annual meeting date will be more than 30 days from the one (1) -year anniversary of the 2024 annual meeting (i.e., September 26, 2025), the deadline for submitting stockholder proposals pursuant to Rule 14a-8 under the Exchange Act is a reasonable time before Enzon begins to print and send proxy materials for such annual meeting. In order for proposals of stockholders made outside of Rule 14a-8 under the Exchange Act to be considered timely in accordance with the Enzon By-laws, as Enzon’s 2025 annual meeting date will be more than 30 days from the one (1) -year anniversary of the 2024 annual meeting (i.e., September 26, 2025), such proposals must be received by the Secretary at the above address by the close of business on the tenth (10th) day following the day on which notice of the date of the annual meeting was mailed or public disclosure of the date of the annual meeting was made, whichever first occurs.
To comply with the universal proxy rules, stockholders who intend to solicit proxies in support of director nominees other than Enzon’s nominees must provide notice that sets forth the information required by Rule 14a-19 under the Exchange Act and such notice must be postmarked or transmitted electronically to Enzon by the later of (i) 60 calendar days prior to the date of the 2025 annual meeting or (ii) the tenth (10th) calendar day following the day on which public announcement of the date of the 2025 annual meeting is first made by Enzon. Such notice may be mailed to the Secretary at the address above or emailed to investor@enzon.com.
If the Merger is consummated, any such stockholder proposals made after the Effective Time should be sent to the Combined Company’s Secretary at Viskase Holdings, Inc., 333 East Butterfield Road, Suite 400, Lombard, Illinois 60148, Attention: Joseph D. King, Secretary, Email: joe.king@viskase.com, by the close of business on the required deadline.
HOUSEHOLDING OF CONSENT SOLICITATION MATERIALS
The SEC permits companies to send a single consent solicitation statement to any household at which two (2) or more stockholders reside, unless contrary instructions have been received, but only if the applicable company provides advance notice and follows certain procedures.
If you hold your shares of Enzon Common Stock in “street name,” your brokerage firm, bank or other nominee may have instituted householding. If your household has multiple accounts holding Enzon Common Stock, you may have already received householding notification from your bank, brokerage firm or other nominee. Please contact your brokerage firm, bank or other nominee directly if you have any questions or require additional copies of this prospectus/consent solicitation statement. The brokerage firm, bank or other nominee will arrange for delivery of a separate copy of this prospectus/consent solicitation statement promptly upon your written or oral request. You may decide at any time to revoke your decision to household, and thereby receive multiple copies. Not all brokerage firms, brokers or other nominees may offer the opportunity to permit beneficial owners to participate in householding. If you want to participate in householding and eliminate duplicate mailings in the future, you must contact your brokerage firm, bank or other nominee directly.
WHERE YOU CAN FIND MORE INFORMATION
Enzon files annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy these documents at the SEC’s Public Reference Room at 100 F Street, N.E. Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. The SEC also maintains a website that contains reports, proxy and information statements and other information regarding issuers, including Enzon, who file electronically with the SEC. The address of that website is www.sec.gov.
Enzon’s SEC filings are also available at https://investor.enzon.com under the tab “SEC Filings” and Viskase’s OTC filings are also available at https://www.otcmarkets.com/stock/VKSC/disclosure. By referring to Enzon’s website, Viskase’s website and the SEC’s website, Enzon and Viskase do not incorporate any such website or its contents into this prospectus/consent solicitation statement. The Enzon Common Stock is quoted on the OTC under the trading symbol of “ENZN” and the Viskase Common Stock is quoted on the OTC under the trading symbol of “VKSC.”
This information is available to you without charge upon your request in writing, by email or by telephone from Enzon or Viskase at their respective addresses and telephone numbers listed below or by accessing such documents on the websites listed below.
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For Enzon Stockholders:
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For Viskase Stockholders:
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Enzon Pharmaceuticals, Inc.
20 Commerce Drive, Suite 135
Cranford, New Jersey 07016
Phone: (732) 980-4500
investor@enzon.com
www.enzon.com
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Viskase Companies, Inc.
333 East Butterfield Road, Suite 400
Lombard, Illinois 60148
Phone: (630) 874-0700
joe.king@viskase.com
www.viskase.com
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ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Index
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Page
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F-2
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Consolidated Financial Statements:
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F-4
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F-5
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F-6
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F-7
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F-8
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Condensed Consolidated Financial Statements:
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F-17
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F-18
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F-19
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F-20
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F-21
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
Enzon Pharmaceuticals, Inc. and Subsidiaries
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Enzon Pharmaceuticals, Inc. and Subsidiaries (the “Company”) as of December 31, 2024 and 2023, and the related consolidated statements of operations, mezzanine equity and stockholders’ equity, and cash flows for each of the years then ended, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the consolidated financial position of the Company as of December 31, 2024 and 2023, and the consolidated results of their operations and their cash flows for each of the years then ended, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or required to be communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of the critical audit matter does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
As discussed in Note 9 to the consolidated financial statements, the Company records a valuation allowance based on the assessment of the realizability of the Company’s deferred tax assets. For the year-ended December 31, 2024, the Company had deferred tax assets before valuation allowances of approximately $32.4 million. As of December 31, 2024, the Company has recorded a valuation allowance of approximately $32.4 million on the deferred tax assets, resulting in a deferred tax asset of $17,000 as of December 31, 2024. In assessing the realizability of deferred tax assets the Company must assess its tax planning strategies, enacted and effective tax law considerations, and whether sufficient future taxable income will be generated to support the realization of the existing deferred tax assets before expiration, using assumptions about Company-specific conditions and events.
We identified the assessment of realizability of deferred tax assets as a critical audit matter due to the significant judgement and estimation required by management in their assessment. This in turn led to a high degree of auditor subjectivity and significant audit effort was required in performing our procedures and evaluating audit evidence relating to estimates and assumptions made by management.
Addressing the matter involved performing procedures and evaluating audit evidence, in connection with forming our overall opinion on the consolidated financial statements. We obtained an understanding and evaluated the design of controls over the valuation of deferred taxes. Our procedures also included, among others, an evaluation of: (a) the expiration dates of certain deferred tax assets, primarily federal and state net operating loss carryforwards, (b) whether the Company may have experienced an ownership change resulting in annual limitation of net operating loss carryforwards, and (c) the assumptions used by the Company to develop projections of future taxable income by income tax jurisdiction and tested the completeness and accuracy of the underlying data used in the projections. We compared the projections of future taxable income with the actual results of prior periods, as well as management’s consideration of current industry and economic trends. We also compared the projections of future taxable income with other forecasted financial information prepared by the Company. These procedures also included, among others, the involvement of professionals with specialized skill and knowledge to assist in considering whether management demonstrated their ability and intent in executing planned strategies, including the reasonableness of the application of enacted and effective tax law.
/s/ EisnerAmper LLP
We have served as the Company’s auditor since 2013.
EISNERAMPER LLP
Philadelphia, Pennsylvania
February 21, 2025
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands, except share and per share amounts)
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December 31,
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2024
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2023
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ASSETS
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Current assets:
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Cash and cash equivalents
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$ |
46,859 |
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$ |
47,012 |
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Other current assets
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293 |
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331 |
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Total current assets
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47,152 |
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47,343 |
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Deferred tax asset
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17 |
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359 |
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Total assets
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$ |
47,169 |
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$ |
47,702 |
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LIABILITIES AND STOCKHOLDERS’ EQUITY
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Current liabilities:
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Accounts payable
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$ |
331 |
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$ |
331 |
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Accrued expenses and other current liabilities
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72 |
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108 |
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Dividends payable on Series C preferred stock
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1,275 |
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1,275 |
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Total current liabilities
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1,678 |
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1,714 |
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Commitments and contingencies
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|
|
Mezzanine equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Series C preferred stock – $0.01 par value, 40,000 shares authorized, issued and
outstanding (liquidation value $1,062 per share) at December 31, 2024 and 2023
|
|
|
|
|
42,483 |
|
|
|
|
|
42,483 |
|
|
|
Stockholders’ equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock – $0.01 par value, authorized 2,960,000 shares; no shares issued and outstanding at December 31, 2024 and 2023
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Common stock – $0.01 par value, authorized 170,000,000 shares; issued and outstanding 74,214,603 shares at December 31, 2024 and 2023
|
|
|
|
|
742 |
|
|
|
|
|
742 |
|
|
|
Additional paid-in capital
|
|
|
|
|
72,158 |
|
|
|
|
|
73,433 |
|
|
|
Accumulated deficit
|
|
|
|
|
(69,892) |
|
|
|
|
|
(70,670) |
|
|
|
Total stockholders’ equity
|
|
|
|
|
3,008 |
|
|
|
|
|
3,505 |
|
|
|
Total liabilities, mezzanine equity and stockholders’ equity
|
|
|
|
$ |
47,169 |
|
|
|
|
$ |
47,702 |
|
|
The accompanying notes are an integral part of these consolidated financial statements.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
| |
|
|
Year Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Royalties and milestones, net
|
|
|
|
$ |
26 |
|
|
|
|
$ |
— |
|
|
|
Total revenues
|
|
|
|
|
26 |
|
|
|
|
|
— |
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General and administrative
|
|
|
|
|
1,353 |
|
|
|
|
|
1,044 |
|
|
|
Total operating expenses
|
|
|
|
|
1,353 |
|
|
|
|
|
1,044 |
|
|
|
Operating loss
|
|
|
|
|
(1,327) |
|
|
|
|
|
(1,044) |
|
|
|
Interest and dividend income
|
|
|
|
|
2,452 |
|
|
|
|
|
2,261 |
|
|
|
Income before income tax (expense) benefit
|
|
|
|
|
1,125 |
|
|
|
|
|
1,217 |
|
|
|
Income tax (expense) benefit
|
|
|
|
|
(347) |
|
|
|
|
|
156 |
|
|
|
Net income
|
|
|
|
|
778 |
|
|
|
|
|
1,373 |
|
|
|
Dividends on Series C preferred stock
|
|
|
|
|
(1,275) |
|
|
|
|
|
(1,275) |
|
|
|
Net (loss) income available to common shareholders
|
|
|
|
$ |
(497) |
|
|
|
|
$ |
98 |
|
|
|
(Loss) income per common share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
|
|
$ |
(0.01) |
|
|
|
|
$ |
0.00 |
|
|
|
Weighted average number of common shares
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
|
|
|
74,215 |
|
|
|
|
|
74,215 |
|
|
The accompanying notes are an integral part of these consolidated financial statements.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF MEZZANINE EQUITY AND STOCKHOLDERS’ EQUITY
(In thousands)
| |
|
|
Mezzanine Equity — Series C
Preferred Stock
|
|
|
Common Stock
|
|
|
Additional
Paid-in
Capital
|
|
|
Accumulated
Deficit
|
|
|
Total
Stockholders’
Equity
|
|
| |
Number of
Shares
|
|
|
Par
Value
|
|
|
Number of
Shares
|
|
|
Par
Value
|
|
|
Balance, December 31, 2022
|
|
|
|
|
40 |
|
|
|
|
$ |
42,483 |
|
|
|
|
|
74,215 |
|
|
|
|
$ |
742 |
|
|
|
|
$ |
74,708 |
|
|
|
|
$ |
(72,043) |
|
|
|
|
$ |
3,407 |
|
|
|
Net income
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
1,373 |
|
|
|
|
|
1,373 |
|
|
|
Preferred stock dividend declared
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,275) |
|
|
|
|
|
— |
|
|
|
|
|
(1,275) |
|
|
|
Balance, December 31, 2023
|
|
|
|
|
40 |
|
|
|
|
|
42,483 |
|
|
|
|
|
74,215 |
|
|
|
|
|
742 |
|
|
|
|
|
73,433 |
|
|
|
|
|
(70,670) |
|
|
|
|
|
3,505 |
|
|
|
Net income
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
778 |
|
|
|
|
|
778 |
|
|
|
Preferred stock dividend declared
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,275) |
|
|
|
|
|
— |
|
|
|
|
|
(1,275) |
|
|
|
Balance, December 31, 2024
|
|
|
|
|
40 |
|
|
|
|
$ |
42,483 |
|
|
|
|
|
74,215 |
|
|
|
|
$ |
742 |
|
|
|
|
$ |
72,158 |
|
|
|
|
$ |
(69,892) |
|
|
|
|
$ |
3,008 |
|
|
The accompanying notes are an integral part of these consolidated financial statements.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
| |
|
|
Year Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
$ |
778 |
|
|
|
|
$ |
1,373 |
|
|
|
Adjustments to reconcile net income to net cash provided by in operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred income taxes
|
|
|
|
|
342 |
|
|
|
|
|
(157) |
|
|
|
Changes in operating assets and liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Decrease in other current assets
|
|
|
|
|
38 |
|
|
|
|
|
74 |
|
|
|
(Decrease) increase in accrued expenses and other current liabilities
|
|
|
|
|
(36) |
|
|
|
|
|
15 |
|
|
|
Net cash provided by operating activities
|
|
|
|
|
1,122 |
|
|
|
|
|
1,305 |
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock dividend payments
|
|
|
|
|
(1,275) |
|
|
|
|
|
(1,275) |
|
|
|
Net cash used in financing activities
|
|
|
|
|
(1,275) |
|
|
|
|
|
(1,275) |
|
|
|
Net (decrease) increase in cash
|
|
|
|
|
(153) |
|
|
|
|
|
30 |
|
|
|
Cash and cash equivalents at beginning of year
|
|
|
|
|
47,012 |
|
|
|
|
|
46,982 |
|
|
|
Cash and cash equivalents at end of year
|
|
|
|
$ |
46,859 |
|
|
|
|
$ |
47,012 |
|
|
|
Non-cash financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Declaration of dividend for Series C Preferred Stock
|
|
|
|
$ |
1,275 |
|
|
|
|
$ |
1,275 |
|
|
The accompanying notes are an integral part of these consolidated financial statements.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1)
Description of Business
Enzon Pharmaceuticals, Inc. (together with its subsidiaries, the “Company,” “Enzon,” “we” or “us”) is positioned as a public company acquisition vehicle, where it can become an acquisition platform and potentially utilize its net operating loss carryforwards (“NOLs”) in an effort to enhance stockholder value.
In September 2020, the Company initiated a rights offering for its common and preferred stock (see below and Note 13 to our Condensed Consolidated Financial Statements), which closed in October 2020, and it realized $43.6 million in gross proceeds. This has enabled the Company to embark on its plan to potentially realize the value of its more than $100 million NOLs by acquiring businesses or assets. To protect the NOLs, in August 2020, the Company’s Board of Directors (the “Board”) adopted a Section 382 rights plan (see Note 12 to our Condensed Consolidated Financial Statements).
Historically, the Company had received royalty revenues from licensing arrangements with other companies primarily related to sales of certain drug products that utilized Enzon’s proprietary technology. In recent years, the Company has had no clinical operations and limited corporate operations. Enzon has a marketing agreement in the drug Vicineum, which, if approved, will, potentially, generate milestone and royalty payments to it in the future. Enzon cannot assure you that it will earn material future royalties or milestones.
The Board and the Company’s management are actively involved in pursuing, sourcing, reviewing and evaluating various potential acquisition transactions consistent with its strategy. The Company’s management and Board have made a number of contacts and engaged in discussions with principals of individual companies and financial advisors on behalf of various individual companies, while continuing to evaluate potential transactions. To date, no actionable transactions have been initiated.
The Company has a marketing agreement with Micromet AG, now part of Amgen, Inc. (the “Micromet Agreement”), pursuant to which it may be entitled to certain milestone and royalty payments if Vicineum, a drug that was being developed by Sesen, Inc., (Sesen”) is approved for the treatment of non-muscle invasive bladder cancer. Sesen announced that it had completed a merger with Carisma Therapeutics Inc. (“Carisma”) and that the combined company will focus on the advancement of Carisma’s proprietary cell therapy for the treatment of cancer and other disorders and that that it intends to seek a partner for the further development of Vicineum.
During the 2nd quarter of 2024, we received a license maintenance fee of approximately $26,000 from Amgen, Inc. in payment of a worldwide, royalty-free non-exclusive right to license Vicineum. The fee represents half of the amount paid by Viventia Biotech (Barbados) Inc. (“Viventia”), part of Sesen, on an annual basis for the continued right to license Vicineum. The Company did not receive any license maintenance fees in 2023.
In August 2020, the Board adopted a Section 382 rights plan and declared a dividend distribution of one right for each outstanding share of the Company’s common stock to stockholders of record at the close of business on August 24, 2020. (See Note 11 to the Consolidated Financial Statements.)
In September 2020, the Board approved a Rights Offering (the “Rights Offering”), by which the Company distributed, at no charge to all holders of its common stock on September 23, 2020 (the “Record Date”), transferable subscription rights to purchase units (“Units”) at a subscription price per Unit of $1,090. In the Rights Offering, each stockholder on the Record Date received one subscription right for every share of common stock owned on the Record Date. For every 1,105 subscription rights held, a stockholder was entitled to purchase one Unit at the subscription price. Each Unit consisted of one share of newly designated Series C Preferred Stock, par value $0.01 per share, and 750 shares of the Company’s common stock. The subscription period for the Rights Offering ended on October 9, 2020.
As a result of the sale of all 40,000 Units available for purchase in the Rights Offering, the Company received approximately $43.6 million of gross proceeds and had 40,000 shares of Series C Preferred Stock outstanding and an aggregate of 74,214,603 shares of common stock outstanding following the Rights Offering. (See Note 12 to the Consolidated Financial Statements.)
On an annual basis, the Board may, at its sole discretion, cause a dividend with respect to the Series C Preferred Stock to be paid in cash to the holders in an amount equal to 3% of the liquidation preference as in effect at such time (initially $1,000 per share). If the dividend is not so paid in cash, the liquidation preference is adjusted and increased annually by an amount equal to 5% of the liquidation preference per share as in effect at such time, that is not paid in cash to the holders on such date. The Board did not declare a dividend as of December 31, 2021 and, at December 31, 2021 the liquidation value of the Series C Preferred Stock was $1,062 per share. On December 29, 2022, the Board declared a cash dividend of 3% on the Series C Preferred Stock, aggregating $1,275,000 or $31.86 per share. Accordingly, the cumulative liquidation value of the Series C Preferred Stock remained at approximately $42,483,000 ($1,062 per share) on December 31, 2022. On December 28, 2023, the Board declared a cash dividend of 3% on the Series C Preferred Stock, aggregating approximately $1,275,000 or $31.86 per share. Accordingly, the cumulative liquidation value of the Series C Preferred Stock remained at approximately $42,483,000 ($1,062 per share) on December 31, 2023. The dividend was paid on January 17, 2024 to the holders of record of the Company’s Series C Preferred Stock as of January 10, 2024. (See Note 13 to the Consolidated Financial Statements.) On December 20, 2024, the Board declared a cash dividend of 3% on the Series C Preferred Stock, aggregating approximately $1,275,000 or $31.86 per share. Accordingly, the cumulative liquidation value of the Series C Preferred Stock remained at approximately $42,483,000 ($1,062 per share) on December 31, 2024. The dividend was paid on January 9, 2025 to the holders of record of the Company’s Series C Preferred Stock as of January 2, 2025. (See Note 13 to the Consolidated Financial Statements.)
The Company maintains its principal executive offices at 20 Commerce Drive, Suite 135, Cranford, New Jersey 07016 through a service agreement with Regus Management Group, LLC.
(2)
Summary of Significant Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of Enzon Pharmaceuticals, Inc. and its wholly owned subsidiaries. All intercompany balances and transactions have been eliminated as part of the consolidation.
Use of Estimates
The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States of America (“U.S. GAAP”) requires management to make estimates and assumptions that affect reported amounts of assets and liabilities, disclosures of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period. These estimates include legal and contractual contingencies and income taxes. Although management bases its estimates on historical experience, relevant current information and various other assumptions that are believed to be reasonable under the circumstances, actual results could differ from these estimates.
Financial Instruments and Fair Value
The carrying values of cash and cash equivalents, royalty receivable, other current assets, accounts payable, accrued expenses and other current liabilities in the Company’s consolidated balance sheets approximated their fair values at December 31, 2024 and 2023 due to their short-term nature. As of December 31, 2024 and 2023, the Company held cash equivalents aggregating approximately $46.8 million and $46.5 million, respectively.
Revenue Recognition
Royalty revenues from the Company’s agreements with third parties and pursuant to the sale of the Company’s former specialty pharmaceutical business are recognized when the Company can reasonably determine the amounts earned. In most cases, this will be upon notification from the third-party licensee, which is typically during the quarter following the quarter in which the sales occurred. The Company does not participate in the selling or marketing of products for which it receives royalties. Because the Company records revenue only when collection is assured, no provision for uncollectible accounts is established upon recognition of revenues.
Contingent payments with third parties and pursuant to the sale of the Company’s former specialty pharmaceutical business are recognized as income when the milestone has been achieved and collection is assured, such payments are non-refundable and no further effort is required on the part of the Company or the other party to complete the earnings process.
Income Taxes
Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be realized. The effect of a change in tax rates or laws on deferred tax assets and liabilities is recognized in operations in the period that includes the enactment date of the rate change. A valuation allowance is established to reduce the deferred tax assets to the amounts that are more likely than not to be realized from operations.
Tax benefits of uncertain tax positions are recognized only if it is more likely than not that the Company will be able to sustain a position taken on an income tax return. The Company has no liability for uncertain tax positions. Interest and penalties, if any, related to unrecognized tax benefits would be recognized as income tax expense.
(3)
Recent Accounting Pronouncements
In November 2023, the FASB issued ASU 2023-07, Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosures, requiring public entities to disclose information about their reportable segments’ significant expenses and other segment items on an interim and annual basis. Public entities with a single reportable segment are required to apply the disclosure requirements in ASU 2023-07, as well as all existing segment disclosures and reconciliation requirements in ASC 280 on an interim and annual basis. The Company adopted ASU 2023-07 during the year ended December 31, 2024. See Note 14 in the accompanying notes to the consolidated financial statements.
(4)
Accounts Payable, Accrued Expenses and Dividends Payable on Series C Preferred Stock
Prior to 2017, the Company’s primary source of royalty revenues was derived from sales of PegIntron, which is marketed by Merck & Co., Inc. (“Merck”). At December 31, 2022, we recorded a liability to Merck of approximately $331,000, based primarily on Merck’s assertions regarding recoupments related to prior returns and rebates. During the years ended December 31, 2024 and 2023, no additional royalties or recoupments related to PegIntron were reported by Merck. As such, as asserted by Merck, the Company’s recorded liability to Merck remained at $331,000 at December 31, 2024 and 2023. The Company will receive no future royalties or chargebacks from Merck.
Accrued expenses and other current liabilities consisted of the following as of December 31, 2024 and 2023 (in thousands):
| |
|
|
December 31,
2024
|
|
|
December 31,
2023
|
|
|
Professional and consulting fees
|
|
|
|
$ |
67 |
|
|
|
|
$ |
92 |
|
|
|
Other
|
|
|
|
|
5 |
|
|
|
|
|
16 |
|
|
| |
|
|
|
$ |
72 |
|
|
|
|
$ |
108 |
|
|
On December 20, 2024, the Board declared a cash dividend of 3% of the liquidation preference ($42,483,286) of the Series C Preferred Stock, aggregating approximately $1,275,000 ($31.86 per share). Such dividend was accrued at December 31, 2024 and paid on January 9, 2025.
(5)
Stockholders’ Equity
Preferred Stock
The Company has authorized 3,000,000 shares of preferred stock in one or more series of which, at December 31, 2024 and 2023, 40,000 shares have been issued, are outstanding and are designated as Series C Preferred Stock in connection with the Rights Offering discussed in Note 14 and 100,000 shares have been designated as Series A-1 Junior Participating Preferred Stock in connection with the August 2020 Section 382 rights plan discussed in Note 11.
Common Stock
As of December 31, 2024, the Company reserved 9,818,392 shares of its common stock for the non-qualified and incentive stock plans.
(6)
Cash Dividend
No dividend on the shares of the Company’s common stock has been paid or declared during the years ended December 31, 2024 and 2023.
On December 20, 2024, the Board declared a cash dividend of 3% on the Series C Preferred Stock, aggregating approximately $1,275,000 or $31.86 per share. Accordingly, the cumulative liquidation value of the Series C Preferred Stock was approximately $42,483,000 ($1,062 per share) on December 31, 2024. The dividend was paid on January 9, 2025 to the holders of record of the Company’s Series C Preferred Stock as of January 2, 2025 (See Note 13 to the Consolidated Financial Statements).
On December 28, 2023, the Board declared a cash dividend of 3% on the Series C Preferred Stock, aggregating approximately $1,275,000 or $31.86 per share. Accordingly, the cumulative liquidation value of the Series C Preferred Stock was approximately $42,483,000 ($1,062 per share) on December 31, 2023. The dividend was paid on January 17, 2024 to the holders of record of the Company’s Series C Preferred Stock as of January 10, 2024 (See Note 13 to the Consolidated Financial Statements).
(7)
Income (Loss) Per Common Share
Basic earnings (loss) per common share (EPS) is calculated by dividing net income (loss), less any dividends, accretion or reduction or redemption on the Company’s Series C Preferred Stock, by the weighted average number of common shares outstanding during the reported period. Restricted stock awards and restricted stock units (collectively, “nonvested shares”) are not considered to be outstanding shares until the service or performance vesting period has been completed.
The diluted earnings per common share calculation would normally involve adjusting both the denominator and numerator as described here if the effect is dilutive.
For purposes of calculating diluted earnings per common share, the denominator normally includes both the weighted-average number of shares of common stock outstanding and the number of common
stock equivalents if the inclusion of such common stock equivalents is dilutive. Dilutive common stock equivalents potentially include stock options and nonvested shares using the treasury stock method and shares issuable under the employee stock purchase plan. During each of the years ended December 31, 2024 and 2023, there were no common stock equivalents. Because there were no stock options or other equity — based incentives outstanding in the 2024 and 2023 periods the Company had no common stock equivalents during the years ended December 31, 2024 and 2023. Income (loss) per common share information was as follows (in thousands, except per share amounts) for the years ended December 31, 2024 and 2023:
| |
|
|
2024
|
|
|
2023
|
|
|
(Loss) Income per Common Share – Basic and Diluted
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income for year
|
|
|
|
$ |
778 |
|
|
|
|
$ |
1,373 |
|
|
|
Dividends on Series C preferred stock
|
|
|
|
|
(1,275) |
|
|
|
|
|
(1,275) |
|
|
|
Net (loss) income available to common shareholders
|
|
|
|
$ |
(497) |
|
|
|
|
$ |
98 |
|
|
|
Weighted-average number of common shares outstanding
|
|
|
|
|
74,215 |
|
|
|
|
|
74,215 |
|
|
|
Basic and diluted (loss) income per common share
|
|
|
|
$ |
(0.01) |
|
|
|
|
$ |
0.00 |
|
|
(8)
Stock Options
All of the Company’s incentive, stock options and equity-based compensation plans were terminated effective February 24, 2022 and, as such, there will be no further grants made pursuant these plans. There were no options outstanding at December 31, 2024 and 2023.
(9)
Income Taxes
The components of the income tax provision (benefit) are summarized as follows (in thousands):
| |
|
|
Year Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
Current:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
State and foreign
|
|
|
|
|
5 |
|
|
|
|
|
1 |
|
|
|
Total current
|
|
|
|
|
5 |
|
|
|
|
|
1 |
|
|
|
Deferred:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
|
|
|
255 |
|
|
|
|
|
(117) |
|
|
|
State
|
|
|
|
|
87 |
|
|
|
|
|
(40) |
|
|
|
Total deferred
|
|
|
|
|
342 |
|
|
|
|
|
(157) |
|
|
|
Income tax expense (benefit)
|
|
|
|
$ |
347 |
|
|
|
|
$ |
(156) |
|
|
The following table represents the reconciliation between the reported income taxes and the income taxes that would be computed by applying the federal statutory rate (21% for years ended December 31, 2024 and 2023) to income before taxes (in thousands):
| |
|
|
Year Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
Income tax provision at federal statutory rate
|
|
|
|
$ |
236 |
|
|
|
|
$ |
256 |
|
|
|
Add (deduct) effect of:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
State income taxes, net of federal tax
|
|
|
|
|
84 |
|
|
|
|
|
87 |
|
|
|
Expiration of federal research and development credits
|
|
|
|
|
1,694 |
|
|
|
|
|
1,637 |
|
|
|
Change in valuation allowance
|
|
|
|
|
(1,667) |
|
|
|
|
|
(2,136) |
|
|
|
Income tax expense (benefit)
|
|
|
|
$ |
347 |
|
|
|
|
$ |
(156) |
|
|
No federal income tax expense was incurred in relation to normal operating results.
As of December 31, 2024 and 2023, the cumulative tax effects of temporary differences that give rise to the deferred tax assets were as follows (in thousands):
| |
|
|
December 31,
2024
|
|
|
December 31,
2023
|
|
|
Deferred tax assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal and state net operating loss carryforward
|
|
|
|
$ |
22,983 |
|
|
|
|
$ |
23,297 |
|
|
|
Research and development credits carryforward
|
|
|
|
|
9,426 |
|
|
|
|
|
11,121 |
|
|
|
Total gross deferred tax assets
|
|
|
|
|
32,409 |
|
|
|
|
|
34,418 |
|
|
|
Less valuation allowance
|
|
|
|
|
(32,392) |
|
|
|
|
|
(34,059) |
|
|
|
Net deferred tax assets
|
|
|
|
$ |
17 |
|
|
|
|
$ |
359 |
|
|
ASC 740 requires the reduction of deferred tax assets by a valuation allowance if, based on the weight of available evidence, it is more likely than not that some or all of the deferred tax assets will not be realized. Because of the inherent uncertainties, including future interest rates, whether or when an acquisition of a profitable entity will come to fruition and other factors, projecting long-term future performance of the Company is problematical. Accordingly, the Company is only projecting 2025 pre-tax book income due to interest rates on its short-term cash investments and the absence of any potentially actionable acquisitions at this time.
Upon review of positive and negative evidence in determining a partial reversal of the valuation allowance, the Company increased the valuation allowance due to decreased income projections in comparison to the prior year. The Company is projecting increased expenses while interest rates may fluctuate slightly throughout 2025. Additionally, due to the valuation allowance placed on the Company’s deferred tax assets, the expiration of research and development credits during the year caused a corresponding reduction in valuation allowance. As a result, the valuation allowance for the Company decreased during the year ended December 31, 2024.
In 2024, the Company generated approximately $1.1 million in taxable income before utilization of NOLs. The Company utilized approximately $1.2 million of the NOLs during 2023. The Company may acquire businesses, entities or revenue streams that could generate sufficient income so that it can utilize its approximately $101.4 million NOL. To date, no actionable acquisition candidates have been identified and, while the Company may ultimately be successful in realizing some or all of the value of its NOLs, the Company cannot provide assurance that it will be able to realize any value of its NOLs.
Management of the Company will continue to assess the need for this valuation allowance and will make adjustments when appropriate.
At December 31, 2024, the Company had federal NOLs of approximately $101.4 million, of which approximately $98.3 million will expire in the years 2025 through 2036, and New Jersey state NOLs of approximately $23.7 million that expire in the years 2031 through 2042. Under the Tax Cuts and Jobs Act, federal net operating losses generated in tax years beginning after December 31, 2017 have an unlimited carryforward period, and the amount of net operating loss allowed to be utilized each year is limited to 80% of taxable income.
The Company also had federal research and development (“R&D”) credit carryforwards of approximately $1.7 million that expired in 2024 and $1.6 million that expired in 2023. The Company has remaining R&D credit carryforwards of approximately $9.4 million that expire in the years 2025 through 2029. These deferred tax assets were subject to a valuation allowance such that the deferred tax expense incurred as a result of the expiration of the capital loss and R&D credit carryforwards was offset by a corresponding deferred tax benefit for the related reduction in valuation allowance.
The Company’s ability to use the NOLs and R&D tax credit carryforwards may be limited, as they are subject to certain limitations due to ownership changes as defined by rules pursuant to Section 382 of the Internal Revenue Code of 1986, as amended. However, management of the Company believes that the
Company’s NOLs will not be limited by any changes in the Company’s ownership as a result of the successful completion of the Rights Offering. (See Note 13 to the Consolidated Financial Statements.) Additionally, in an effort to protect stockholder value by attempting to protect against a possible limitation on the Company’s ability to use its NOLs, the Board adopted a Section 382 rights plan. (See Note 11 to the Consolidated Financial Statements.)
The Company has not recorded a liability for unrecognized income tax benefits.
(10)
Commitments and Contingent Liabilities
The Company has been involved in various claims and legal actions arising in the ordinary course of business. In the opinion of management, the ultimate disposition of these matters will not have a material effect on the Company’s consolidated financial position, results of operations, or liquidity.
(11)
Section 382 Rights Plan
On August 14, 2020, in an effort to protect stockholder value by attempting to protect against a possible limitation on the Company’s ability to use its NOLs, the Board adopted a Section 382 rights plan and declared a dividend distribution of one right for each outstanding share of the Company’s common stock to stockholders of record at the close of business on August 24, 2020. Accordingly, holders of the Company’s common stock own one preferred stock purchase right for each share of common stock owned by such holder. The rights are not immediately exercisable and will become exercisable only upon the occurrence of certain events as set forth in the Section 382 rights plan. If the rights become exercisable, each right would initially represent the right to purchase from the Company one one-thousandth of a share of the Company’s Series A-1 Junior Participating Preferred Stock, par value $0.01 per share, for a purchase price of $1.20 per right. If issued, each fractional share of Series A-1 Junior Participating Preferred Stock would give the stockholder approximately the same dividend, voting and liquidation rights as does one share of the Company’s common stock. However, prior to exercise, a right does not give its holder any rights as a stockholder of the Company, including any dividend, voting or liquidation rights. The rights will expire on the earliest of (i) the close of business on June 2, 2024 (unless that date is advanced or extended by the Board), (ii) the time at which the rights are redeemed or exchanged under the Section 382 rights plan, (iii) the close of business on the day of repeal of Section 382 of the Code or any successor statute or (iv) the close of business on the first day of a taxable year of the Company to which the Company’s Board of Directors determines that no NOLs may be carried forward.
On May 16, 2024, the Company entered into the Second Amendment to the Section 382 Rights Agreement, which extends the expiration date to the close of business on March 31, 2025.
(12)
Rights Offering
On September 1, 2020, the Board approved a Rights Offering. For every 1,105 subscription rights held, a stockholder was entitled to purchase one Unit at the subscription price of $1,090. Each Unit consisted of one share of newly designated Series C Preferred Stock, par value $0.01 per share, and 750 shares of the Company’s common stock. On October 9, 2020, the Rights Offering expired and, as a result of the sale of all 40,000 Units, the Company received approximately $43.6 million in gross proceeds and issued shares of Series C Preferred Stock and shares of common stock such that, following the closing of the Rights Offering, there was an aggregate of 40,000 shares of Series C Preferred Stock outstanding and 74,214,603 shares of common stock outstanding.
On an annual basis, the Board may, at its sole discretion, cause a dividend with respect to the Series C Preferred Stock to be paid in cash to the holders in an amount equal to 3% of the liquidation preference as in effect at such time (initially $1,000 per share). If the dividend is not so paid in cash, the liquidation preference is adjusted and increased annually by an amount equal to 5% of the liquidation preference per share as in effect at such time, that is not paid in cash to the holders on such date. Holders of Series C Preferred Stock do not have any voting rights and the Series C Preferred Stock is not convertible into shares of the Company’s common stock. The initial liquidation value of the Series C Preferred Stock was $1,000 per share. At December 31, 2021 the liquidation value of the Series C Preferred Stock was $1,062 per share, inasmuch as no dividend was declared or paid in cash. On December 29, 2022, the Board declared a cash dividend of 3%
on the Series C Preferred Stock, aggregating approximately $1,275,000 or $31.86 per share. Accordingly, the liquidation value of the Series C Preferred Stock was $1,062 per share on December 31, 2022. The dividend was paid on January 17, 2023 to the holders of record of the Company’s Series C Preferred Stock as of January 10, 2023. On December 28, 2023, the Board declared a cash dividend of 3% on the Series C Preferred Stock, aggregating approximately $1,275,000 or $31.86 per share. Accordingly, the liquidation value of the Series C Preferred Stock remained at $1,062 per share on December 31, 2023. The dividend was paid on January 17, 2024 to the holders of record of the Company’s Series C Preferred Stock as of January 10, 2024. On December 20, 2024, the Board declared a cash dividend of 3% on the Series C Preferred Stock, aggregating approximately $1,275,000 or $31.86 per share. Accordingly, the liquidation value of the Series C Preferred Stock remained at $1,062 per share on December 31, 2024. The dividend was paid on January 9, 2025 to the holders of record of the Company’s Series C Preferred Stock as of January 2, 2025.
As of November 1, 2022, the Company is able to redeem the Series C Preferred Stock at any time, in whole or in part, for an amount based on the liquidation preference per share as in effect at such time. Holders of Series C Preferred Stock have the right to demand that the Company redeem their shares in the event that the Company undergoes a change of control as defined in the Certificate of Designation of the Series C Preferred Stock.
(13)
Series C Preferred Stock
In October 2020, the Company issued 40,000 shares of Series C Preferred Stock for an aggregate purchase price of $40.0 million.
There is no prohibition on the repurchase or redemption of Series C Preferred Shares while there is any arrearage in the payment of dividends.
Since the redemption of the Series C Preferred Stock is contingently or optionally redeemable, unless and until we undertake a change of control the Series C Preferred Stock has been classified in mezzanine equity on the Consolidated Balance Sheets.
(14)
Segment Reporting
Accounting Standards Codification (“ASC”) 280, Segment Reporting, establishes standards for reporting operating segments on a basis consistent with the Company’s internal organization structure as well as information about services categories, business segments and major customers in financial statements.
The Company’s chief operating decision maker (“CODM”) is its chief executive officer, who is also its chief financial officer. As the Company is a public company acquisition vehicle, where it can become an acquisition platform, has no operating activities and derives the majority of its income from interest, our CODM evaluates performance and makes operating decisions about allocating resources based on financial data presented on a consolidated basis. As such, the Company operates as one reportable segment. The CODM uses consolidated net income to assess financial performance and allocate resources. The significant expenses within net income are separately presented on the Company’s Consolidated Statements of Operations.
(15)
Subsequent Event
On December 19, 2024, a member of the special committee of the Board of Directors of Viskase Companies, Inc. (“Viskase”) contacted the Chairman of the Board to explore interest in a potential business combination transaction involving Viskase and the Company through a negotiated merger transaction or otherwise (a “Potential Transaction”) and to indicate that Viskase may formulate and submit a proposal with respect to a potential structure and terms for a Potential Transaction. The Viskase special committee member further indicated that it is the expectation of Viskase’s special committee that a special committee of independent directors of the Company will be established to consider Viskase’s proposal and such other terms of the Potential Transaction as may be considered and negotiated in the future.
On January 7, 2025, in addition to the appointment of a new director, Stephen T. Wills, the Board formed a special committee of independent directors (the “Special Committee”) and delegated full authority to the Special Committee to consider, negotiate and vote upon any Potential Transaction proposed, as well
as any strategic alternatives that may be put forth with regard to the Potential Transaction. The Special Committee is comprised of Randolph Read and Stephen T. Wills. The Special Committee continues to consider the Potential Transaction and no assurances can be given that a definitive agreement will be reached or that a Potential Transaction will be consummated.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except share and per share amounts)
| |
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
| |
|
|
(Unaudited)
|
|
|
|
|
|
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
$ |
43,256 |
|
|
|
|
$ |
46,859 |
|
|
|
Other current assets
|
|
|
|
|
411 |
|
|
|
|
|
293 |
|
|
|
Total current assets
|
|
|
|
|
43,667 |
|
|
|
|
|
47,152 |
|
|
|
Deferred tax asset
|
|
|
|
|
26 |
|
|
|
|
|
17 |
|
|
|
Total assets
|
|
|
|
$ |
43,693 |
|
|
|
|
$ |
47,169 |
|
|
|
LIABILITIES, MEZZANINE EQUITY AND STOCKHOLDERS’ (DEFICIT) EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
|
|
$ |
331 |
|
|
|
|
$ |
331 |
|
|
|
Accrued expenses and other current liabilities
|
|
|
|
|
209 |
|
|
|
|
|
72 |
|
|
|
Dividends payable on Series C preferred stock
|
|
|
|
|
— |
|
|
|
|
|
1,275 |
|
|
|
Total current liabilities
|
|
|
|
|
540 |
|
|
|
|
|
1,678 |
|
|
|
Commitments and contingencies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mezzanine equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Series C preferred stock – $0.01 par value, 40,000 shares authorized, issued and outstanding (liquidation value $1,102 and $1,062 per share) at September 30, 2025 and December 31, 2024
|
|
|
|
|
44,076 |
|
|
|
|
|
42,483 |
|
|
|
Stockholders’ (deficit) equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock – $0.01 par value, authorized 2,960,000 shares; no shares issued and outstanding at September 30, 2025 and December 31, 2024
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Common stock – $0.01 par value, authorized 170,000,000 shares; issued and outstanding 74,214,603 shares at September 30, 2025 and December 31, 2024
|
|
|
|
|
742 |
|
|
|
|
|
742 |
|
|
|
Additional paid-in capital
|
|
|
|
|
70,565 |
|
|
|
|
|
72,158 |
|
|
|
Accumulated deficit
|
|
|
|
|
(72,230) |
|
|
|
|
|
(69,892) |
|
|
|
Total stockholders’ (deficit) equity
|
|
|
|
|
(923) |
|
|
|
|
|
3,008 |
|
|
|
Total liabilities, mezzanine equity and stockholders’ (deficit) equity
|
|
|
|
$ |
43,693 |
|
|
|
|
$ |
47,169 |
|
|
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
(Unaudited)
| |
|
|
Three months ended
September 30,
|
|
|
Nine months ended
September 30,
|
|
| |
|
|
2025
|
|
|
2024
|
|
|
2025
|
|
|
2024
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Royalties and milestones, net
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
26 |
|
|
|
Total revenues
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
26 |
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General and administrative
|
|
|
|
|
229 |
|
|
|
|
|
351 |
|
|
|
|
|
1,038 |
|
|
|
|
|
1,028 |
|
|
|
Transaction expenses
|
|
|
|
|
1,075 |
|
|
|
|
|
— |
|
|
|
|
|
2,801 |
|
|
|
|
|
— |
|
|
|
Total operating expenses
|
|
|
|
|
1,304 |
|
|
|
|
|
351 |
|
|
|
|
|
3,839 |
|
|
|
|
|
1,028 |
|
|
|
Operating loss
|
|
|
|
|
(1,304) |
|
|
|
|
|
(351) |
|
|
|
|
|
(3,839) |
|
|
|
|
|
(1,002) |
|
|
|
Interest and dividend income
|
|
|
|
|
496 |
|
|
|
|
|
654 |
|
|
|
|
|
1,494 |
|
|
|
|
|
1,906 |
|
|
|
(Loss) income before income (expense) benefit
|
|
|
|
|
(808) |
|
|
|
|
|
303 |
|
|
|
|
|
(2,345) |
|
|
|
|
|
904 |
|
|
|
Income tax (expense) benefit
|
|
|
|
|
(16) |
|
|
|
|
|
(49) |
|
|
|
|
|
7 |
|
|
|
|
|
(54) |
|
|
|
Net (loss) income
|
|
|
|
|
(824) |
|
|
|
|
|
254 |
|
|
|
|
|
(2,338) |
|
|
|
|
|
850 |
|
|
|
Accretion of dividend on Series C preferred stock
|
|
|
|
|
(531) |
|
|
|
|
|
(531) |
|
|
|
|
|
(1,593) |
|
|
|
|
|
(1,593) |
|
|
|
Net loss available to common shareholders
|
|
|
|
$ |
(1,355) |
|
|
|
|
$ |
(277) |
|
|
|
|
$ |
(3,931) |
|
|
|
|
$ |
(743) |
|
|
|
Loss per common share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
|
|
$ |
(0.02) |
|
|
|
|
$ |
(0.00) |
|
|
|
|
$ |
(0.05) |
|
|
|
|
$ |
(0.01) |
|
|
|
Weighted-average number of shares – basic
|
|
|
|
|
74,215 |
|
|
|
|
|
74,215 |
|
|
|
|
|
74,215 |
|
|
|
|
|
74,215 |
|
|
|
Weighted-average number of shares – diluted
|
|
|
|
|
74,215 |
|
|
|
|
|
74,215 |
|
|
|
|
|
74,215 |
|
|
|
|
|
74,215 |
|
|
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF MEZZANINE EQUITY AND STOCKHOLDERS’ (DEFICIT) EQUITY
(In thousands)
(Unaudited)
| |
|
|
Mezzanine
Equity — Series C
Preferred Stock
|
|
|
|
Common Stock
|
|
|
Additional
Paid-in
Capital
|
|
|
Accumulated
Deficit
|
|
|
Total
Stockholders’
Equity
|
|
| |
|
|
Number of
Shares
|
|
|
Par
Value
|
|
|
|
Number of
Shares
|
|
|
Par
Value
|
|
|
Balance, December 31, 2023
|
|
|
|
|
40 |
|
|
|
|
$ |
42,483 |
|
|
|
|
|
|
74,215 |
|
|
|
|
$ |
742 |
|
|
|
|
$ |
73,433 |
|
|
|
|
$ |
(70,670) |
|
|
|
|
$ |
3,505 |
|
|
|
Net income
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
320 |
|
|
|
|
|
320 |
|
|
|
Preferred stock dividend accretion
|
|
|
|
|
— |
|
|
|
|
|
531 |
|
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(531) |
|
|
|
|
|
— |
|
|
|
|
|
(531) |
|
|
|
Balance, March 31, 2024
|
|
|
|
|
40 |
|
|
|
|
|
43,014 |
|
|
|
|
|
|
74,215 |
|
|
|
|
|
742 |
|
|
|
|
|
72,902 |
|
|
|
|
|
(70,350) |
|
|
|
|
|
3,294 |
|
|
|
Net income
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
276 |
|
|
|
|
|
276 |
|
|
|
Preferred stock dividend accretion
|
|
|
|
|
— |
|
|
|
|
|
531 |
|
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(531) |
|
|
|
|
|
— |
|
|
|
|
|
(531) |
|
|
|
Balance, June 30, 2024
|
|
|
|
|
40 |
|
|
|
|
|
43,545 |
|
|
|
|
|
|
74,215 |
|
|
|
|
|
742 |
|
|
|
|
|
72,371 |
|
|
|
|
|
(70,074) |
|
|
|
|
|
3,039 |
|
|
|
Net income
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
254 |
|
|
|
|
|
254 |
|
|
|
Preferred stock dividend accretion
|
|
|
|
|
— |
|
|
|
|
|
531 |
|
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(531) |
|
|
|
|
|
— |
|
|
|
|
|
(531) |
|
|
|
Balance, September 30, 2024
|
|
|
|
|
40 |
|
|
|
|
$ |
44,076 |
|
|
|
|
|
|
74,215 |
|
|
|
|
$ |
742 |
|
|
|
|
$ |
71,840 |
|
|
|
|
$ |
(69,820) |
|
|
|
|
$ |
2,762 |
|
|
| |
|
|
Mezzanine
Equity — Series C
Preferred Stock
|
|
|
|
Common Stock
|
|
|
Additional
Paid-in
Capital
|
|
|
Accumulated
Deficit
|
|
|
Total
Stockholders’
Equity
(Deficit)
|
|
| |
|
|
Number of
Shares
|
|
|
Par
Value
|
|
|
|
Number of
Shares
|
|
|
Par
Value
|
|
|
Balance, December 31, 2024
|
|
|
|
|
40 |
|
|
|
|
$ |
42,483 |
|
|
|
|
|
|
74,215 |
|
|
|
|
$ |
742 |
|
|
|
|
$ |
72,158 |
|
|
|
|
$ |
(69,892) |
|
|
|
|
$ |
3,008 |
|
|
|
Net loss
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(524) |
|
|
|
|
|
(524) |
|
|
|
Preferred stock dividend accretion
|
|
|
|
|
— |
|
|
|
|
|
531 |
|
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(531) |
|
|
|
|
|
— |
|
|
|
|
|
(531) |
|
|
|
Balance, March 31, 2025
|
|
|
|
|
40 |
|
|
|
|
|
43,014 |
|
|
|
|
|
|
74,215 |
|
|
|
|
|
742 |
|
|
|
|
|
71,627 |
|
|
|
|
|
(70,416) |
|
|
|
|
|
1,953 |
|
|
|
Net loss
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(990) |
|
|
|
|
|
(990) |
|
|
|
Preferred stock dividend accretion
|
|
|
|
|
— |
|
|
|
|
|
531 |
|
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(531) |
|
|
|
|
|
— |
|
|
|
|
|
(531) |
|
|
|
Balance, June 30, 2025
|
|
|
|
|
40 |
|
|
|
|
|
43,545 |
|
|
|
|
|
|
74,215 |
|
|
|
|
|
742 |
|
|
|
|
|
71,096 |
|
|
|
|
|
(71,406) |
|
|
|
|
|
432 |
|
|
|
Net loss
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(824) |
|
|
|
|
|
(824) |
|
|
|
Preferred stock dividend accretion
|
|
|
|
|
— |
|
|
|
|
|
531 |
|
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(531) |
|
|
|
|
|
— |
|
|
|
|
|
(531) |
|
|
|
Balance, September 30, 2025
|
|
|
|
|
40 |
|
|
|
|
$ |
44,076 |
|
|
|
|
|
|
74,215 |
|
|
|
|
$ |
742 |
|
|
|
|
$ |
70,565 |
|
|
|
|
$ |
(72,230) |
|
|
|
|
$ |
(923) |
|
|
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
| |
|
|
Nine months ended
September 30,
|
|
| |
|
|
2025
|
|
|
2024
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income
|
|
|
|
$ |
(2,338) |
|
|
|
|
$ |
850 |
|
|
|
Adjustments to reconcile net (loss) income to net cash (used in) provided by operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred income taxes
|
|
|
|
|
(9) |
|
|
|
|
|
53 |
|
|
|
Changes in operating assets and liabilities
|
|
|
|
|
19 |
|
|
|
|
|
(7) |
|
|
|
Net cash (used in) provided by operating activities
|
|
|
|
|
(2,328) |
|
|
|
|
|
896 |
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock dividend payments
|
|
|
|
|
(1,275) |
|
|
|
|
|
(1,275) |
|
|
|
Net cash used in financing activities
|
|
|
|
|
(1,275) |
|
|
|
|
|
(1,275) |
|
|
|
Net decrease in cash and cash equivalents
|
|
|
|
|
(3,603) |
|
|
|
|
|
(379) |
|
|
|
Cash and cash equivalents, beginning of period
|
|
|
|
|
46,859 |
|
|
|
|
|
47,012 |
|
|
|
Cash and cash equivalents, end of period
|
|
|
|
$ |
43,256 |
|
|
|
|
$ |
46,633 |
|
|
|
Non-cash financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accretion of dividend for Series C Preferred Stock
|
|
|
|
$ |
1,593 |
|
|
|
|
$ |
1,593 |
|
|
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(1) Description of Business
Enzon Pharmaceuticals, Inc. (together with its subsidiaries, the “Company,” “Enzon,” “we” or “us”) is positioned as a public company acquisition vehicle, where it can become an acquisition platform.
Historically, the Company had received royalty revenues from licensing arrangements with other companies primarily related to sales of certain drug products that utilized Enzon’s proprietary technology. For more than ten years, the Company has had no clinical operations and limited corporate operations. In the last two years the Company has received only minimal payments on its licenses. The Company had a marketing agreement with Micromet AG, now part of Amgen, Inc., pursuant to which it may have been entitled to certain milestone and royalty payments if Vicineum, a drug that was being developed by Sesen, Inc. (subsequently acquired by Carisma Therapeutics, Inc.) was approved for the treatment of non-muscle invasive bladder cancer. That agreement has been canceled. Enzon cannot assure you that it will receive any future royalties or milestone payments.
Previously, over the last few years, the Board of Directors of the Company (the “Board”) and the Company’s management have been actively involved in pursuing, sourcing, reviewing and evaluating various potential acquisition transactions consistent with its strategy. Over that time period, the Company’s management and members of the Board have engaged in numerous discussions with principals of individual companies and financial advisors on behalf of various individual companies relating to potential transactions with such parties, and have regularly evaluated the Company’s strategic alternatives.
On June 20, 2025, the Board entered into an Agreement and Plan of Merger, which was amended on October 24, 2025 (as amended, the “Merger Agreement”), pursuant to which Enzon plans to merge its wholly owned subsidiary, EPSC Acquisition Corp. (“EPSC”), with and into Viskase Companies, Inc. (“Viskase”), with Viskase continuing as the surviving entity following the merger (the “Merger”) (See Note 14). Enzon intends to file a registration statement on Form S-4 with the Securities and Exchange Commission (“SEC”) that will contain a consent solicitation statement and prospectus relating to the transactions contemplated by the Merger Agreement, including the Merger. Such registration statement will include financial information regarding proposed transaction and the combined company and stockholders of Enzon are encouraged to review such information once filed.
The Company maintains its principal executive offices at 20 Commerce Drive, Suite 135, Cranford, New Jersey 07016 through a service agreement with Regus Management Group, LLC.
(2) Summary of Significant Accounting Policies
Interim Financial Statements
The accompanying unaudited condensed consolidated financial statements have been prepared from the books and records of the Company in accordance with United States accounting principles generally accepted in the United States of America (“U.S. GAAP”) for interim financial information and Rule 10-01 of Regulation S-X promulgated by the SEC. Accordingly, these financial statements do not include all of the information and footnotes required for complete annual financial statements. Interim results are not necessarily indicative of the results that may be expected for the full year. Interim condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and the notes thereto included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2024, as amended.
Principles of Consolidation
The condensed consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries, SCA Ventures, Inc. and EPSC. All intercompany balances and transactions have been eliminated as part of the consolidation.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Use of Estimates
The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect reported amounts of assets and liabilities, disclosures of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period. These estimates include legal and contractual contingencies and income taxes. Although management bases its estimates on historical experience, relevant current information and various other assumptions that are believed to be reasonable under the circumstances, actual results could differ from these estimates.
Revenue Recognition
Royalty revenues from the Company’s agreements with third parties and pursuant to the sale of the Company’s former specialty pharmaceutical business are recognized when the Company can reasonably determine the amounts earned. In most cases, this will be upon notification from the third-party licensee, which is typically during the quarter following the quarter in which the sales occurred. The Company does not participate in the selling or marketing of products for which it receives royalties. Because the Company records revenue only when collection is assured, no provision for uncollectible accounts is established upon recognition of revenues.
Contingent payments with third parties and pursuant to the sale of the Company’s former specialty pharmaceutical business are recognized as income when the milestone has been achieved and collection is assured, such payments are non-refundable and no further effort is required on the part of the Company or the other party to complete the earning process.
Income Taxes
Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be realized. The effect of a change in tax rates or laws on deferred tax assets and liabilities is recognized in operations in the period that includes the enactment date of the rate change. A valuation allowance is established to reduce the deferred tax assets to the amounts that are more likely than not to be realized from operations.
Tax benefits of uncertain tax positions are recognized only if it is more likely than not that the Company will be able to sustain a position taken on an income tax return. The Company has no liability for uncertain tax positions. Interest and penalties, if any, related to unrecognized tax benefits, would be recognized as income tax expense.
Reclassifications
General and administrative expenses have been reclassified from the prior quarter ended March 31, 2025 to conform to the current period’s presentation for the nine months ended September 30, 2025. Such reclassifications had no effect on the Company’s prior quarter results of operations or financial position.
(3) Recent Accounting Pronouncements
In December 2023, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2023-09, Income Taxes (Topic 740): Improvements to Income Tax Disclosures. This ASU requires public entities, on an annual basis, to provide disclosure of specific categories in the rate reconciliation, as well as disclosure of income taxes paid disaggregated by jurisdiction. ASU 2023-09 is effective for
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
fiscal years beginning after December 15, 2024, with early adoption permitted. The Company is currently evaluating the impact the adoption of this standard on its financial statements but does not expect it to be material.
In November 2024, the FASB issued ASU 2024-03, Reporting Comprehensive Income (Topic 220): Disaggregation of Income Statement Expenses which requires disaggregated disclosure of income statement expenses for public entities. The ASU does not change the expense captions an entity presents on the face of the income statement; rather, it requires disaggregation of certain expense captions into specified categories in disclosures within the footnotes to the financial statements. ASU 2024-03 is effective for the Company in its annual reporting on January 1, 2027. The Company does not plan to adopt this standard early. The Company is currently evaluating the effect that the adoption of ASU 2024-03 will have on the Company’s disclosures.
Other recent Accounting Standards Updates issued by the FASB and guidance issued by the SEC did not, or are not believed by management to, have a material effect on the Company’s present or future condensed consolidated financial statements.
(4) Financial Instruments and Fair Value
The carrying values of cash and cash equivalents, other current assets, accounts payable, accrued expenses and other current liabilities in the Company’s consolidated balance sheets approximated their fair values at September 30, 2025 and December 31, 2024 due to their short-term nature. As of each of September 30, 2025 and December 31, 2024, the Company held cash equivalents aggregating approximately $43.2 million and $46.8 million, respectively.
(5) Supplemental Cash Flow Information
The Company made no income tax payments during each of the nine-month periods ended September 30, 2025 and 2024. There were no interest payments made during either of the nine-month periods ended September 30, 2025 or 2024.
(6) Accounts Payable and Accrued Expenses
Prior to 2017, the Company’s primary source of royalty revenues was derived from sales of PegIntron, which is marketed by Merck & Co., Inc. (“Merck”). At December 31, 2022, we recorded a liability to Merck of approximately $331,000, based primarily on Merck’s assertions regarding recoupments related to prior returns and rebates. Since then, no additional royalties or recoupments related to PegIntron were reported by Merck. As such, as asserted by Merck, the Company’s recorded liability to Merck remained at $331,000 at September 30, 2025 and December 31, 2024, included in accounts payable. The Company will receive no future royalties or chargebacks from Merck.
Accrued expenses and other current liabilities consisted of the following as of September 30, 2025 and December 31, 2024 (in thousands):
| |
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
|
Professional and consulting fees
|
|
|
|
$ |
67 |
|
|
|
|
$ |
67 |
|
|
|
Accrued transaction costs
|
|
|
|
|
128 |
|
|
|
|
|
— |
|
|
|
Other
|
|
|
|
|
14 |
|
|
|
|
|
5 |
|
|
| |
|
|
|
$ |
209 |
|
|
|
|
$ |
72 |
|
|
(7) Loss Per Common Share
Basic and diluted earnings (loss) per common share (EPS) is calculated by dividing net (loss) income, less any dividends, accretion or reduction or redemption on the Company’s Series C Preferred Stock, by the
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
weighted average number of common shares outstanding during the reported period. There are no restricted stock awards, stock options and/or any shares issuable under the employee stock purchase plan. During each of the quarters ended September 30, 2025 and 2024, there were no common stock equivalents. Nor are there any other equity-based incentives outstanding during any of the periods reported hereunder, and accordingly, basic and diluted EPS are the same throughout. Loss per common share information is as follows (in thousands, except per share amounts) for the three and nine months ended September 30, 2025 and 2024:
| |
|
|
Three months ended
September 30,
|
|
|
Nine months ended
September 30,
|
|
| |
|
|
2025
|
|
|
2024
|
|
|
2025
|
|
|
2024
|
|
|
(Loss) Income Per Common Share – Basic and Diluted:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income
|
|
|
|
$ |
(824) |
|
|
|
|
$ |
254 |
|
|
|
|
$ |
(2,338) |
|
|
|
|
$ |
850 |
|
|
|
Accretion of dividend on Series C preferred stock
|
|
|
|
|
(531) |
|
|
|
|
|
(531) |
|
|
|
|
|
(1,593) |
|
|
|
|
|
(1,593) |
|
|
|
Net loss available to common shareholders
|
|
|
|
$ |
(1,355) |
|
|
|
|
$ |
(277) |
|
|
|
|
|
(3,931) |
|
|
|
|
$ |
(743) |
|
|
|
Weighted-average number of common shares outstanding
|
|
|
|
|
74,215 |
|
|
|
|
|
74,215 |
|
|
|
|
|
74,215 |
|
|
|
|
|
74,215 |
|
|
|
Basic and diluted loss per common share
|
|
|
|
$ |
(0.02) |
|
|
|
|
$ |
(0.00) |
|
|
|
|
$ |
(0.05) |
|
|
|
|
$ |
(0.01) |
|
|
(8) Income Taxes
Income Taxes
During the nine-month period ended September 30, 2025 the Company recorded approximately $7,000 of income tax benefit. During the comparable period in 2024, the Company recorded approximately $54,000 of income tax expense. The income tax benefit in 2025 was mainly related to the partial reversal of the valuation allowance.
ASC 740 requires the reduction of deferred tax assets by a valuation allowance if, based on the weight of available evidence, it is more likely than not that some or all of the deferred tax assets will not be realized. Because of the inherent uncertainties, including future interest rates and other factors, including, but not limited to, if the Merger will close, projecting long-term future performance of the Company is problematic. Accordingly, the Company is only projecting pre-tax book income through the expected closing date of the pending transaction with Viskase. Upon review of positive and negative evidence in determining a partial reversal of the valuation allowance, the Company has concluded that a partial reversal of the valuation allowance is necessary. Accordingly, deferred tax expense of $16,000 and deferred tax expense of $50,000 was recorded during the quarters ended September 30, 2025 and 2024, respectively. A deferred tax benefit of $9,000 and deferred tax expense of $53,000, respectively were recorded during the nine-month periods ended September 30, 2025 and 2024.
Management of the Company will continue to assess the need for this valuation allowance and will make adjustments when or if appropriate.
At September 30, 2025, the Company had federal net operating loss carryforwards (“NOLs”) of approximately $101 million, of which approximately $97.8 million will expire in the years 2025 through 2036, and New Jersey state NOLs of approximately $23.2 million that expire in the years 2031 through 2042. Under the Tax Cuts and Jobs Act, net operating losses generated in tax years beginning after December 31, 2017 have an unlimited carryforward period, and the amount of net operating loss allowed to be utilized each year is limited to 80% of taxable income.
At September 30, 2025, the Company has federal research and development (“R&D”) credit carryforwards of approximately $9.4 million that expire in the years 2025 through 2029. These deferred tax
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
assets were subject to a valuation allowance such that the deferred tax expense incurred as a result of the expiration of the R&D credit carryforwards was offset by a corresponding deferred tax benefit for the related reduction in valuation allowance.
The Company’s ability to use the NOLs and R&D tax credit carryforwards may be limited, as they are subject to certain limitations due to ownership changes as defined by rules pursuant to Section 382 of the Internal Revenue Code of 1986 (“IRC”), as amended (“Section 382”), or may otherwise expire before the Company has the opportunity to use them. In an effort to protect stockholder value by attempting to protect against a possible limitation on the Company’s ability to use its NOLs, the Board adopted a Section 382 rights plan. (See Note 10 to the Condensed Consolidated Financial Statements.)
The Company has not recorded a liability for unrecognized income tax benefits.
On July 4, 2025, the U.S. government enacted the One Big Beautiful Bill Act, which includes several changes to U.S. federal income tax law, including the temporary and permanent extension, of expiring provisions of the Tax Cuts and Jobs Act of 2017. The Company accounted for the tax effects of the legislation, including NOLs and tax credits, in the period of enactment, which is the third quarter of 2025, and concluded that the impact was not material.
(9) Commitments and Contingent Liabilities
The Company may be involved in various claims and legal actions arising in the ordinary course of business. In the opinion of management, the ultimate disposition of these matters will not have a material effect on the Company’s consolidated financial position, results of operations, or liquidity.
(10) Section 382 Rights Plan
In 2020, in an effort to protect against certain acquisitions of the Company’s common stock (including unapproved third party initiated transactions), which could possibly limit the Company’s ability to utilize its NOLs if the overall transaction was not beneficial to shareholders, the Board adopted a Section 382 rights plan (referred to as the Rights Agreement). As noted above, the Company entered into the Merger Agreement, which requires that the Rights Agreement be terminated prior to the effective time of the Merger. On August 13, 2025, Enzon entered into an amendment to the Rights Agreement to provide that the Final Expiration Date (as defined in the Rights Agreement) of the rights issued thereunder would be the close of business on September 30, 2025. On September 30, 2025, Enzon entered into an amendment to the Rights Agreement to provide that the Final Expiration Date (as defined in the Rights Agreement) of the rights issued thereunder would be the close of business on December 31, 2025. If the Merger has not closed by December 31, 2025, Enzon may seek to further extend the Final Expiration Date under the Rights Agreement. Once the Rights Agreement terminates, the protections afforded by the Rights Agreement will no longer be in effect. Details of that plan are disclosed in summary in the Company’s Form 10-K for December 31, 2024, as amended, and in detail in Exhibits 4.2, 4.3, 4.4 and 4.5 thereto, and in Exhibit 4.1 and 4.2 hereto.
(11) Series C Preferred Stock and Rights Offering
On September 1, 2020, the Board approved a Rights Offering. As a result of the sale of all 40,000 Units, the Company received approximately $43.6 million in gross proceeds and issued shares of Series C Preferred Stock for $40 million and shares of common stock for $3.6 million. Details of the Series C Preferred Stock are disclosed in summary in the Company’s Form 10-K for December 31, 2024, as amended, and in detail in Exhibit 3.4 thereto.
On an annual basis, the Board may, at its sole discretion, cause a dividend with respect to the Series C Preferred Stock to be paid in cash to the holders in an amount equal to 3% of the liquidation preference as in effect at such time. If the dividend is not so paid in cash, the liquidation preference is adjusted and increased annually by an amount equal to 5% of the liquidation preference per share as in effect at such time, that is not paid in cash to the holders on such date.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Since November 1, 2022, the Company has been able to redeem the Series C Preferred Stock at any time, in whole or in part, for an amount based on the liquidation preference per share as in effect at such time. Holders of Series C Preferred Stock have the right to demand that the Company redeem their shares in the event that the Company undergoes a change of control as defined in the Certificate of Designation of the Series C Preferred Stock.
On December 20, 2024, the Board declared a cash dividend of 3% on the Series C Preferred Stock, aggregating approximately $1,275,000 or $31.86 per share. The dividend was paid on January 9, 2025 to the holders of record of the Company’s Series C Preferred Stock as of January 2, 2025.
As of September 30, 2025, the Board had not yet determined whether to declare a cash dividend at the end of 2025. Under the terms of the Merger Agreement, the Board cannot declare a cash dividend on the Series C Preferred Stock without the consent of Viskase. Accordingly, the Company accrued an accretion at 5% for the nine months ended September 30, 2025 on a pro rata basis (approximately $1,593,000 or $40 per share) and, as a result, the liquidation value of the Series C Preferred Stock was approximately $44,076,000 ($1,102 per share) at September 30, 2025.
The Series C Preferred Stock is currently redeemable solely at the option of the Company. Accordingly, the Series C Preferred Stock has been classified in mezzanine equity on the Condensed Consolidated Balance Sheets. If a change of control occurs, which would occur if the Merger is consummated, the Series C Preferred Stock would also become redeemable at the option of the holder. See Note 14 for the treatment of, and actions expected to be taken with respect to, the Series C Preferred Stock in connection with the Merger.
Since the redemption of the Series C Preferred Stock is contingently or optionally redeemable, unless and until the Company undertakes a change of control, the Series C Preferred Stock has been classified in mezzanine equity on the Company’s Condensed Consolidated Balance Sheets.
(12) Cash and Cash Equivalents
The Company defines cash equivalents as highly liquid, short-term investments with original maturities of three months or less. These financial instruments potentially subject the Company to concentrations of credit risk. The Company maintains deposit accounts with several financial institutions. These balances are partially insured by the Federal Deposit Insurance Corporation (“FDIC”) up to $250,000 per depositor, per FDIC-insured bank, per ownership category. Such deposits may exceed FDIC insurance limits. Although the Company currently believes that the financial institutions with whom it does business will be able to fulfill their commitments to the Company, there is no assurance that those institutions will be able to continue to do so. The Company has not experienced any credit losses associated with its balances in such accounts for the nine-month periods ended September 30, 2025 and 2024 and for the year ended December 31, 2024.
(13) Segment Reporting
Accounting Standards Codification (“ASC”) 280, Segment Reporting, establishes standards for reporting operating segments on a basis consistent with the Company’s internal organization structure as well as information about services categories, business segments and major customers in financial statements.
The Company’s chief operating decision maker (“CODM”) is its chief executive officer, who is also its chief financial officer. As the Company is a public company acquisition vehicle, where it can become an acquisition platform, has no operating activities and derives the majority of its income from interest, the Company’s CODM evaluates performance and makes operating decisions about allocating resources based on financial data presented on a consolidated basis. As such, the Company operates as one reportable segment. The CODM uses consolidated net (loss) income to assess financial performance and allocate resources. The significant expenses within net (loss) income are separately presented on the Company’s Condensed Consolidated Statements of Operations.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(14) Merger Agreement
On June 20, 2025, the Company, EPSC Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of the Company (“Merger Sub”), and Viskase entered into the Merger Agreement, which was amended on October 24, 2025 by the First Amendment to the Merger Agreement (the “Merger Agreement Amendment”). Upon the terms and subject to the satisfaction or waiver of the conditions described in the Merger Agreement, at the effective time of the Merger, Merger Sub will be merged with and into Viskase, with Viskase continuing as the surviving entity following the Merger as a wholly owned subsidiary of Enzon (the “Merger”). Following the Merger, Viskase will be converted into a limited liability company and will operate under the name “Viskase Companies, LLC.” The Merger is intended to qualify as a tax-free reorganization for U.S. federal income tax purposes. Following the consummation of the Merger, it is anticipated that Enzon Pharmaceuticals, Inc. will change its name to “Viskase Holdings, Inc.,” which will be the parent of Viskase Companies, LLC. Following consummation of the Merger, it is anticipated that Enzon’s current stockholders, including holders of Enzon’s Series C Preferred Stock, will hold approximately 45% of the outstanding shares of Enzon’s common stock following the Merger, and Viskase’s current stockholders will hold approximately 55% of the outstanding shares of Enzon’s common stock following the Merger.
On October 24, 2025, the Company and Viskase announced that they entered into the Merger Agreement Amendment, which was entered into to reflect recent developments in the operations of Viskase during the past several months and its expected operations in the near term.
Pursuant to the terms of the Merger Agreement Amendment, the parties agreed, among other things, to:
•
adjust the exchange ratio as calculated under the Merger Agreement for the exchange of each share of common stock, par value $0.01 per share, of Viskase, issued and outstanding immediately prior to the Merger into shares of the common stock of Enzon, such that current Viskase stockholders will own 55% of the combined company following the Merger;
•
adjust the exchange ratio for the exchange of each share of Enzon’s Series C Preferred Stock, for shares of Enzon’s common stock to be based upon the Volume Weighted Average Closing Price of the Company’s common stock for the twenty trading days prior to execution of the Merger Agreement Amendment (the “20-Day VWAP”);
•
reduce the minimum amount of cash that Enzon is required to have at the closing of the Merger;
•
determine that Enzon would effect a 1-for-100 reverse stock split with respect to all shares of Enzon’s common stock prior to the effective time of the Merger; and
•
extend the date on which either party may terminate the Merger Agreement if the Merger has not yet occurred from 11:59 p.m., Eastern Time, on December 31, 2025, to 11:59 p.m., Eastern Time, on March 31, 2026.
In connection with the execution and delivery of the Merger Agreement Amendment, Icahn Enterprises Holdings L.P., a Delaware limited partnership (“IEH”) and certain of its affiliates entered into an amendment to the Support Agreement (the “Support Agreement Amendment”) that was previously entered into between the Company, IEH and Viskase in connection with the execution of the Merger Agreement (the “Support Agreement”). Pursuant to the terms of the Support Agreement (as amended by the Support Agreement Amendment), IEH agreed to, among other things, (i) deliver or cause the delivery of written consents with respect to all of the issued and outstanding shares of Enzon’s common stock held by IEH and its affiliates approving the Merger and the amendment to Enzon’s certificate of incorporation, and (ii) exchange all of the shares of Series C Preferred Stock held by IEH and its affiliates for the Company’s common stock prior to the consummation of the Merger, based on the full liquidation preference of such shares of Series C Preferred Stock and the 20-Day VWAP of the Company’s common stock.
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The Company believes that the Merger pursuant to the terms of the Merger Agreement, as amended by the Merger Agreement Amendment, should not limit its NOL carryforwards and other tax attributes under Section 382 of the IRC. However, the Section 382 rules are complex and there is no assurance that the Company’s view is correct. If such an ownership change is found to have occurred, the amount of the combined company’s taxable income that could be offset by the Company’s pre-ownership change NOL carryforwards and other tax attributes would be severely limited.
The Merger must be approved by Enzon stockholders and is subject to receipt of required regulatory approvals and satisfaction or waiver of other certain closing conditions.
On June 27, 2025, Enzon and Viskase filed their respective Notification and Report Forms pursuant to the United States Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR”). On July 15, 2025, the Federal Trade Commission advised the Company that the Company’s request for early termination of the waiting period under HSR was granted effective July 15, 2025.
Each of the Merger Agreement and the Merger Agreement Amendment was unanimously recommended by the Company’s Special Committee and, acting upon such recommendations, was unanimously approved by the Board.
The foregoing summary is qualified in its entirety by reference to the full text of the Merger Agreement, which is filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the SEC on June 20, 2025, and the Merger Agreement Amendment, which is filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the SEC on October 24, 2025, each of which is incorporated herein by reference.
In connection with the Merger, Enzon intends to file a registration statement on Form S-4 with the SEC that will contain a consent solicitation statement and prospectus. Such registration statement will include financial information regarding the proposed transaction and the combined company and stockholders of Enzon are encouraged to review such information once filed.
(15) Common Stock and Trading Market
On August 11, 2025, the Company was notified by the OTCQX Markets Group (the “OTCQX”), the marketplace for the over-the-counter trading of its stock, that it no longer met the standards for continued qualification for the OTCQX, in that its stock bid price had fallen below $0.10 per share for 30 consecutive calendar days. On August 12, 2025, the Company began trading on the OTCQB Market.
(16) Subsequent Events
On October 24, 2025, the Company and Viskase entered into the Merger Agreement Amendment as more fully discussed above in Note 14.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS OF
VISKASE COMPANIES, INC. AND SUBSIDIARIES
VISKASE COMPANIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands, Except for Number of Shares and Per Share Amounts)
| |
|
|
September 30, 2025
(Unaudited)
|
|
|
December 31, 2024
(Audited)
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
$ |
7,692 |
|
|
|
|
$ |
5,704 |
|
|
|
Receivables, net
|
|
|
|
|
67,540 |
|
|
|
|
|
74,809 |
|
|
|
Inventories, net
|
|
|
|
|
91,776 |
|
|
|
|
|
108,968 |
|
|
|
Other current assets
|
|
|
|
|
46,995 |
|
|
|
|
|
46,204 |
|
|
|
Total current assets
|
|
|
|
|
214,003 |
|
|
|
|
|
235,685 |
|
|
|
Property, plant and equipment
|
|
|
|
|
471,975 |
|
|
|
|
|
438,086 |
|
|
|
Less accumulated depreciation
|
|
|
|
|
(338,160) |
|
|
|
|
|
(314,351) |
|
|
|
Property, plant and equipment, net
|
|
|
|
|
133,815 |
|
|
|
|
|
123,735 |
|
|
|
Operating Right of use assets, net
|
|
|
|
|
19,416 |
|
|
|
|
|
19,190 |
|
|
|
Other assets
|
|
|
|
|
11,155 |
|
|
|
|
|
10,899 |
|
|
|
Intangible assets, net
|
|
|
|
|
13,909 |
|
|
|
|
|
13,381 |
|
|
|
Goodwill
|
|
|
|
|
3,129 |
|
|
|
|
|
2,820 |
|
|
|
Deferred income taxes
|
|
|
|
|
4,409 |
|
|
|
|
|
16,011 |
|
|
|
Total Assets
|
|
|
|
$ |
399,836 |
|
|
|
|
$ |
421,721 |
|
|
|
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Short-term debt, net of deferred financing costs
|
|
|
|
$ |
140,464 |
|
|
|
|
$ |
44,313 |
|
|
|
Accounts payable
|
|
|
|
|
34,001 |
|
|
|
|
|
35,496 |
|
|
|
Accrued liabilities
|
|
|
|
|
24,907 |
|
|
|
|
|
23,167 |
|
|
|
Short-term portion operating lease liabilities
|
|
|
|
|
4,519 |
|
|
|
|
|
4,497 |
|
|
|
Total current liabilities
|
|
|
|
|
203,891 |
|
|
|
|
|
107,473 |
|
|
|
Long-term debt, net of current maturities and deferred
financing costs
|
|
|
|
|
0 |
|
|
|
|
|
99,281 |
|
|
|
Accrued employee benefits
|
|
|
|
|
25,820 |
|
|
|
|
|
25,418 |
|
|
|
Deferred income taxes
|
|
|
|
|
3,476 |
|
|
|
|
|
2,339 |
|
|
|
Long-term operating lease liabilities
|
|
|
|
|
17,334 |
|
|
|
|
|
17,220 |
|
|
|
Total Liabilities
|
|
|
|
|
250,521 |
|
|
|
|
|
251,731 |
|
|
|
Commitments and Contingencies (Note 10)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Stockholders’ equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock, $0.01 par value; 50,000,000 shares authorized, no shares issued and outstanding
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Common stock, $0.01 par value; 150,000,000 shares authorized, 118,181,047 shares issued and 117,375,777 outstanding at September 30, 2025 and 150,000,000 shares authorized 103,995,935 shares issued and 103,190,665 outstanding at December 31, 2024
|
|
|
|
|
1,183 |
|
|
|
|
|
1,040 |
|
|
|
Paid in capital
|
|
|
|
|
202,200 |
|
|
|
|
|
182,343 |
|
|
|
Retained earnings
|
|
|
|
|
6,797 |
|
|
|
|
|
53,613 |
|
|
|
Less 805,270 treasury shares, at cost
|
|
|
|
|
(298) |
|
|
|
|
|
(298) |
|
|
|
Accumulated other comprehensive loss
|
|
|
|
|
(59,212) |
|
|
|
|
|
(65,386) |
|
|
|
Total Viskase stockholders’ equity
|
|
|
|
|
150,670 |
|
|
|
|
|
171,312 |
|
|
|
Deficit attributable to non-controlling interest
|
|
|
|
|
(1,355) |
|
|
|
|
|
(1,322) |
|
|
|
Total stockholders’ equity
|
|
|
|
|
149,315 |
|
|
|
|
|
169,990 |
|
|
|
Total Liabilities and Stockholders’ Equity
|
|
|
|
$ |
399,836 |
|
|
|
|
$ |
421,721 |
|
|
See notes to the unaudited condensed consolidated financial statements.
VISKASE COMPANIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands, Except for Number of Shares and Per Share Amounts)
(Unaudited)
| |
|
|
Three Months
Ended
September 30,
2025
|
|
|
Three Months
Ended
September 30,
2024
|
|
|
Nine Months
Ended
September 30,
2025
|
|
|
Nine Months
Ended
September 30,
2024
|
|
|
NET SALES
|
|
|
|
$ |
91,162 |
|
|
|
|
$ |
101,504 |
|
|
|
|
$ |
282,629 |
|
|
|
|
$ |
307,543 |
|
|
|
Cost of sales
|
|
|
|
|
85,297 |
|
|
|
|
|
85,911 |
|
|
|
|
|
250,724 |
|
|
|
|
|
251,701 |
|
|
|
GROSS MARGIN
|
|
|
|
|
5,865 |
|
|
|
|
|
15,593 |
|
|
|
|
|
31,905 |
|
|
|
|
|
55,842 |
|
|
|
Selling, general and administrative
|
|
|
|
|
13,522 |
|
|
|
|
|
11,563 |
|
|
|
|
|
38,146 |
|
|
|
|
|
34,776 |
|
|
|
Amortization of intangibles
|
|
|
|
|
398 |
|
|
|
|
|
404 |
|
|
|
|
|
1,148 |
|
|
|
|
|
1,208 |
|
|
|
Asset impairment expense
|
|
|
|
|
— |
|
|
|
|
|
77 |
|
|
|
|
|
12,100 |
|
|
|
|
|
77 |
|
|
|
Restructuring and related expense
|
|
|
|
|
1,009 |
|
|
|
|
|
— |
|
|
|
|
|
6,606 |
|
|
|
|
|
1,396 |
|
|
|
OPERATING (LOSS) INCOME
|
|
|
|
|
(9,064) |
|
|
|
|
|
3,549 |
|
|
|
|
|
(26,095) |
|
|
|
|
|
18,385 |
|
|
|
Interest expense, net
|
|
|
|
|
2,948 |
|
|
|
|
|
2,860 |
|
|
|
|
|
8,545 |
|
|
|
|
|
8,385 |
|
|
|
Other expense (income), net
|
|
|
|
|
(965) |
|
|
|
|
|
1,024 |
|
|
|
|
|
(2,682) |
|
|
|
|
|
2,909 |
|
|
|
(LOSS) INCOME BEFORE INCOME TAXES
|
|
|
|
|
(11,047) |
|
|
|
|
|
(335) |
|
|
|
|
|
(31,958) |
|
|
|
|
|
7,091 |
|
|
|
Income tax provision
|
|
|
|
|
1,949 |
|
|
|
|
|
(191) |
|
|
|
|
|
14,890 |
|
|
|
|
|
3,380 |
|
|
|
NET (LOSS) INCOME
|
|
|
|
$ |
(12,996) |
|
|
|
|
|
(144) |
|
|
|
|
$ |
(46,848) |
|
|
|
|
$ |
3,711 |
|
|
|
Less: (loss) attributable to noncontrolling interests
|
|
|
|
|
(12) |
|
|
|
|
|
10 |
|
|
|
|
|
(33) |
|
|
|
|
|
(44) |
|
|
|
Net (loss) income attributable to Viskase Companies, Inc
|
|
|
|
$ |
(12,984) |
|
|
|
|
$ |
(154) |
|
|
|
|
$ |
(46,815) |
|
|
|
|
$ |
3,755 |
|
|
|
WEIGHTED AVERAGE COMMON SHARES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
– BASIC AND DILUTED
|
|
|
|
|
111,623,367 |
|
|
|
|
|
103,190,665 |
|
|
|
|
|
108,795,514 |
|
|
|
|
|
103,190,665 |
|
|
|
PER SHARE AMOUNTS:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EARNINGS PER SHARE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
– BASIC AND DILUTED
|
|
|
|
$ |
(0.12) |
|
|
|
|
$ |
0.00 |
|
|
|
|
$ |
(0.43) |
|
|
|
|
$ |
0.04 |
|
|
See notes to the unaudited condensed consolidated financial statements.
VISKASE COMPANIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE (LOSS) INCOME
(In Thousands)
(Unaudited)
| |
|
|
Three Months
Ended
September 30,
2025
|
|
|
Three Months
Ended
September 30,
2024
|
|
|
Nine Months
Ended
September 30,
2025
|
|
|
Nine Months
Ended
September 30,
2024
|
|
|
Net (loss) income
|
|
|
|
$ |
(12,996) |
|
|
|
|
$ |
(144) |
|
|
|
|
$ |
(46,848) |
|
|
|
|
$ |
3,711 |
|
|
|
Other comprehensive (loss) income, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension liability adjustment
|
|
|
|
|
26 |
|
|
|
|
|
139 |
|
|
|
|
|
1,312 |
|
|
|
|
|
156 |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
(2,532) |
|
|
|
|
|
4,198 |
|
|
|
|
|
4,863 |
|
|
|
|
|
(1,432) |
|
|
|
Other comprehensive income (loss), net of tax
|
|
|
|
|
(2,506) |
|
|
|
|
|
4,337 |
|
|
|
|
|
6,175 |
|
|
|
|
|
(1,276) |
|
|
|
Comprehensive (loss) income
|
|
|
|
$ |
(15,502) |
|
|
|
|
$ |
4,193 |
|
|
|
|
$ |
(40,673) |
|
|
|
|
$ |
2,435 |
|
|
|
Less: comprehensive (loss) attributable to noncontrolling interests
|
|
|
|
|
(12) |
|
|
|
|
|
10 |
|
|
|
|
|
(33) |
|
|
|
|
|
(44) |
|
|
|
Net comprehensive (loss) income attributable to Viskase Companies, Inc
|
|
|
|
$ |
(15,490) |
|
|
|
|
$ |
4,183 |
|
|
|
|
$ |
(40,640) |
|
|
|
|
$ |
2,479 |
|
|
See notes to the unaudited condensed consolidated financial statements.
VISKASE COMPANIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
(In Thousands, Except for Number of Shares)
(Unaudited)
| |
|
|
Common
stock
Issued (Shares)
|
|
|
Common
stock
|
|
|
Paid in
capital
|
|
|
Treasury
stock
|
|
|
Retained
earnings
|
|
|
Accumulated
other
comprehensive
loss
|
|
|
Total Viskase
stockholders’
equity
|
|
|
Non-controlling
Interest
|
|
|
Total
stockholders’
equity
|
|
|
Balance January 1, 2024
|
|
|
|
|
103,190,665 |
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
58,973 |
|
|
|
|
$ |
(59,200) |
|
|
|
|
$ |
182,858 |
|
|
|
|
$ |
(1,223) |
|
|
|
|
$ |
181,635 |
|
|
|
Net income (loss)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
2,029 |
|
|
|
|
|
— |
|
|
|
|
|
2,029 |
|
|
|
|
|
(43) |
|
|
|
|
|
1,986 |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,833) |
|
|
|
|
|
(1,833) |
|
|
|
|
|
— |
|
|
|
|
|
(1,833) |
|
|
|
Pension liability adjustment, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(6) |
|
|
|
|
|
(6) |
|
|
|
|
|
— |
|
|
|
|
|
(6) |
|
|
|
Balance March 31, 2024
|
|
|
|
|
103,190,665 |
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
61,002 |
|
|
|
|
$ |
(61,039) |
|
|
|
|
$ |
183,048 |
|
|
|
|
$ |
(1,266) |
|
|
|
|
$ |
181,782 |
|
|
|
Net income (loss)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
1,880 |
|
|
|
|
|
— |
|
|
|
|
|
1,880 |
|
|
|
|
|
(11) |
|
|
|
|
|
1,869 |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(3,797) |
|
|
|
|
|
(3,797) |
|
|
|
|
|
— |
|
|
|
|
|
(3,797) |
|
|
|
Pension liability adjustment, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
23 |
|
|
|
|
|
23 |
|
|
|
|
|
— |
|
|
|
|
|
23 |
|
|
|
Balance June 30, 2024
|
|
|
|
|
103,190,665 |
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
62,882 |
|
|
|
|
$ |
(64,813) |
|
|
|
|
$ |
181,154 |
|
|
|
|
$ |
(1,277) |
|
|
|
|
$ |
179,877 |
|
|
|
Net (loss) income
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(154) |
|
|
|
|
|
— |
|
|
|
|
|
(154) |
|
|
|
|
|
10 |
|
|
|
|
|
(144) |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
4,198 |
|
|
|
|
|
4,198 |
|
|
|
|
|
— |
|
|
|
|
|
4,198 |
|
|
|
Pension liability adjustment, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
139 |
|
|
|
|
|
139 |
|
|
|
|
|
— |
|
|
|
|
|
139 |
|
|
|
Balance September 30, 2024
|
|
|
|
|
103,190,665 |
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
62,728 |
|
|
|
|
$ |
(60,476) |
|
|
|
|
$ |
185,337 |
|
|
|
|
$ |
(1,267) |
|
|
|
|
$ |
184,070 |
|
|
|
Balance January 1, 2025
|
|
|
|
|
103,190,665 |
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
53,610 |
|
|
|
|
$ |
(65,386) |
|
|
|
|
$ |
171,309 |
|
|
|
|
$ |
(1,321) |
|
|
|
|
$ |
169,988 |
|
|
|
Net (loss)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(13,585) |
|
|
|
|
|
— |
|
|
|
|
|
(13,585) |
|
|
|
|
|
(9) |
|
|
|
|
|
(13,594) |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
2,157 |
|
|
|
|
|
2,157 |
|
|
|
|
|
— |
|
|
|
|
|
2,157 |
|
|
|
Pension liability adjustment, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
99 |
|
|
|
|
|
99 |
|
|
|
|
|
— |
|
|
|
|
|
99 |
|
|
|
Private placement of common
stock
|
|
|
|
|
7,142,858 |
|
|
|
|
|
71 |
|
|
|
|
|
14,929 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
15,000 |
|
|
|
|
|
— |
|
|
|
|
|
15,000 |
|
|
|
Balance March 31, 2025
|
|
|
|
|
110,333,523 |
|
|
|
|
$ |
1,111 |
|
|
|
|
$ |
197,272 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
40,025 |
|
|
|
|
$ |
(63,130) |
|
|
|
|
$ |
174,980 |
|
|
|
|
$ |
(1,330) |
|
|
|
|
$ |
173,650 |
|
|
|
Net (loss)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(20,244) |
|
|
|
|
|
— |
|
|
|
|
|
(20,244) |
|
|
|
|
|
(12) |
|
|
|
|
|
(20,256) |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
5,237 |
|
|
|
|
|
5,237 |
|
|
|
|
|
— |
|
|
|
|
|
5,237 |
|
|
|
Pension liability adjustment, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
1,187 |
|
|
|
|
|
1,187 |
|
|
|
|
|
— |
|
|
|
|
|
1,187 |
|
|
|
Balance June 30, 2025
|
|
|
|
|
110,333,523 |
|
|
|
|
$ |
1,111 |
|
|
|
|
$ |
197,272 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
19,781 |
|
|
|
|
$ |
(56,706) |
|
|
|
|
$ |
161,160 |
|
|
|
|
$ |
(1,342) |
|
|
|
|
$ |
159,818 |
|
|
|
Net (loss)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(12,984) |
|
|
|
|
|
— |
|
|
|
|
|
(12,984) |
|
|
|
|
|
(12) |
|
|
|
|
|
(12,996) |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(2,532) |
|
|
|
|
|
(2,532) |
|
|
|
|
|
— |
|
|
|
|
|
(2,532) |
|
|
|
Pension liability adjustment, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
26 |
|
|
|
|
|
26 |
|
|
|
|
|
— |
|
|
|
|
|
26 |
|
|
|
Private placement of common
stock
|
|
|
|
|
7,042,254 |
|
|
|
|
|
72 |
|
|
|
|
|
4,928 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
5,000 |
|
|
|
|
|
— |
|
|
|
|
|
5,000 |
|
|
|
Balance September 30, 2025
|
|
|
|
$ |
117,375,777 |
|
|
|
|
$ |
1,183 |
|
|
|
|
$ |
202,200 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
6,797 |
|
|
|
|
$ |
(59,212) |
|
|
|
|
$ |
150,670 |
|
|
|
|
$ |
(1,354) |
|
|
|
|
$ |
149,316 |
|
|
See notes to the unaudited condensed consolidated financial statements.
VISKASE COMPANIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands)
(Unaudited)
| |
|
|
Nine Months
Ended
September 30, 2025
|
|
|
Nine Months
Ended
September 30, 2024
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income
|
|
|
|
$ |
(46,848) |
|
|
|
|
$ |
3,711 |
|
|
|
Adjustments to reconcile net (loss) income to net cash used in operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation
|
|
|
|
|
13,263 |
|
|
|
|
|
16,645 |
|
|
|
Amortization of intangibles
|
|
|
|
|
1,148 |
|
|
|
|
|
1,208 |
|
|
|
Amortization of deferred financing fees
|
|
|
|
|
552 |
|
|
|
|
|
362 |
|
|
|
Deferred income taxes
|
|
|
|
|
12,753 |
|
|
|
|
|
— |
|
|
|
Loss on impairment of assets
|
|
|
|
|
12,100 |
|
|
|
|
|
77 |
|
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Receivables
|
|
|
|
|
9,767 |
|
|
|
|
|
5,467 |
|
|
|
Inventories
|
|
|
|
|
18,112 |
|
|
|
|
|
(351) |
|
|
|
Other current assets
|
|
|
|
|
895 |
|
|
|
|
|
(3,488) |
|
|
|
Other assets
|
|
|
|
|
(295) |
|
|
|
|
|
2,731 |
|
|
|
Accounts payable
|
|
|
|
|
(3,625) |
|
|
|
|
|
(14,008) |
|
|
|
Accrued liabilities
|
|
|
|
|
377 |
|
|
|
|
|
(9,696) |
|
|
|
Accrued employee benefits
|
|
|
|
|
(2,240) |
|
|
|
|
|
(2,776) |
|
|
|
Other
|
|
|
|
|
(3,468) |
|
|
|
|
|
443 |
|
|
|
Total adjustments
|
|
|
|
|
59,339 |
|
|
|
|
|
(3,386) |
|
|
|
Net cash provided by operating activities
|
|
|
|
|
12,491 |
|
|
|
|
|
325 |
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital expenditures
|
|
|
|
|
(25,590) |
|
|
|
|
|
(9,742) |
|
|
|
Net cash used in investing activities
|
|
|
|
|
(25,590) |
|
|
|
|
|
(9,742) |
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from short term borrowing
|
|
|
|
|
4,758 |
|
|
|
|
|
16,500 |
|
|
|
Deferred financing costs
|
|
|
|
|
(609) |
|
|
|
|
|
— |
|
|
|
Proceeds from private placement of common stock
|
|
|
|
|
20,000 |
|
|
|
|
|
— |
|
|
|
Repayment of short-term debt
|
|
|
|
|
(9,375) |
|
|
|
|
|
(8,437) |
|
|
|
Net cash provided by financing activities
|
|
|
|
|
14,774 |
|
|
|
|
|
8,063 |
|
|
|
Effect of currency exchange rate changes on cash
|
|
|
|
|
315 |
|
|
|
|
|
(260) |
|
|
|
Net (increase) decrease in cash and equivalents
|
|
|
|
|
1,990 |
|
|
|
|
|
(1,614) |
|
|
|
Cash, equivalents and restricted cash at beginning of period
|
|
|
|
|
5,704 |
|
|
|
|
|
7,862 |
|
|
|
Cash, equivalents and restricted cash at end of period
|
|
|
|
$ |
7,694 |
|
|
|
|
$ |
6,248 |
|
|
|
Supplemental cash flow information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest paid less capitalized interest
|
|
|
|
$ |
7,993 |
|
|
|
|
$ |
7,992 |
|
|
|
Income taxes paid
|
|
|
|
$ |
1,029 |
|
|
|
|
$ |
2,803 |
|
|
See notes to the unaudited condensed consolidated financial statements.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands)
(Unaudited)
1. Summary of Significant Accounting Policies
Nature of Operations
Viskase Companies, Inc. together with its subsidiaries (“we” or the “Company”) is a producer of non-edible cellulosic, fibrous and plastic casings used to prepare and package processed meat products, and provides value-added support services relating to these products, for some of the largest global consumer products companies. We were incorporated in Delaware in 1970. The Company operates eight manufacturing facilities in North America, Europe, South America, and Asia and, as a result, is able to sell its products in nearly one hundred countries throughout the world.
Going Concern
The Company’s financial statements are prepared using accounting principles generally accepted in the United States of America applicable to a going concern which contemplates the realization of assets and liquidation of liabilities in the normal course of business. The ability of the Company to continue as a going concern is dependent on the Company obtaining adequate refinancing of its Senior Credit Facility before its maturity in August 2026.
We fully expect the refinancing will be completed after completion of the Merger (defined below), but before the maturity of Senior Credit Facility. However, there is no assurance that the Company will be able to obtain sufficient additional funds to refinance these maturities occurring within 12 months of the date of the issuance of our financials or that such funds, if available, will be obtainable on terms satisfactory to the Company, and therefore substantial doubt exists about the Company’s ability to continue as a going concern.
The condensed consolidated financial statements do not include any adjustments that might result from the Company being unable to continue as a going concern.
Seasonality
Historically, our domestic sales and profits have been seasonal in nature, increasing in the spring and summer months. Sales outside of the United States follow a relatively stable pattern throughout the year.
Basis of Presentation and Principles of Consolidation
The condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States (“U.S. GAAP”). The consolidated financial statements include the accounts of the Company, its subsidiaries and variable interest entity (“VIE”) for which the Company is the primary beneficiary. All inter-company accounts and transactions have been eliminated in consolidation.
Some details and footnotes required under U.S. GAAP have been reduced or omitted to meet regulatory guidelines in the interim financial statements, but the Company believes the information remains clear and accurate. For a more complete understanding, these interim financial statements should be considered alongside the consolidated financial statements and notes included in the Company’s annual report for the year ending December 31, 2024.
The Company believes that the accompanying unaudited condensed consolidated financial statements include all necessary adjustments, comprising routine recurring accruals, to accurately reflect the financial position as of September 30, 2025, as well as the operating results and cash flows for the periods presented. However, the operating results for the period ended September 30, 2025 may not be representative of the results expected for the full year ending December 31, 2025.
NONCONTROLLING INTERESTS
The Company consolidated its variable interest in a joint venture, VE Netting, LLC, as the Company is identified as the primary beneficiary. Noncontrolling interests reflect the equity ownership held by third parties. These noncontrolling interests are presented as a separate component of equity within the consolidated financial statements, distinct from the Company’s stockholders’ equity. The portion of net (loss) income attributable to noncontrolling interests is reported in the condensed consolidated statements of operations.
Use of Estimates in the Preparation of Financial Statements
The financial statements are prepared in accordance with generally accepted accounting principles (“GAAP”) in the United States of America and include the use of estimates and assumptions that affect a number of amounts included in the Company’s financial statements, including, among other things, pensions and other postretirement benefits and related disclosures, reserves for excess and obsolete inventory, allowance for credit losses, and income taxes. Management bases its estimates on historical experience and other assumptions that we believe are reasonable. If actual amounts are ultimately different from previous estimates, the revisions are included in the Company’s results for the period in which the actual amounts become known. Historically, the aggregate differences, if any, between the Company’s estimates and actual amounts in any year have not had a significant effect on the Company’s condensed consolidated financial statements.
Financial Instruments
The Company’s financial instruments include cash and cash equivalents, accounts receivable and accounts payable. The carrying amounts of these financial assets and liabilities approximate fair value due to the short maturities of these instruments. Management believes the fair value of the Company’s revolving loans approximate the carrying value due to credit risk or current market rates, which approximate the effective interest rates on those instruments. The fair value of the Company’s term loans is estimated by discounting the future cash flow using the Company’s current borrowing rates for similar types and maturities of debt.
Income Taxes
We account for income taxes in accordance with ASC 740, Income Taxes (ASC 740). Deferred tax assets and liabilities are measured using enacted tax laws and tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities due to a change in tax rates is recognized in income in the period that includes the enactment date. In addition, the amounts of any future tax benefits are reduced by a valuation allowance to the extent such benefits are not expected to be realized on a more likely than not basis.
A two-step approach is applied pursuant to ASC 740 in the recognition and measurement of uncertain tax positions taken or expected to be taken in a tax return. The first step is to determine if the weight of available evidence indicates that it is more likely than not that the tax position will be sustained in an audit, including resolution of any related appeals or litigation processes. The second step is to measure the tax benefit as the largest amount that is more than 50% likely to be realized upon ultimate settlement. We recognize interest and penalties related to uncertain tax positions in our provision for income taxes line of our consolidated statements of operations.
Restructuring
Restructuring charges are incurred for programs in which the Company changes its operations, the scope of a business undertaken by its business units, or the manner in which that business is conducted. Such charges may include employee severance, retention bonuses, facility closure or consolidation costs, lease or contract termination costs, accelerated depreciation and amortization, and other related expenses. The restructuring programs may be implemented due to the sale or discontinuation of a product line, reorganization or management structure changes, headcount rationalization, realignment of operations or products, and/or company-wide cost saving initiatives. The amount and/or frequency of these restructuring charges are not part of the Company’s underlying business. Employee severance costs are generally
recognized when payments are probable and amounts are reasonably estimable. Costs related to contracts without future benefit or contract termination are recognized at fair value at the earlier of the contract termination or the cease-use dates. Other exit-related costs are expensed as incurred. Refer to Note 16 — Restructuring for additional details.
Variable Interest Entity
The Company holds a variable interest in VE Netting, LLC. The joint venture is a manufacturing, marketing and selling company of high-quality netting solutions for the meat and poultry industry. VE Netting, LLC is a Delaware limited liability company with its principal place of business in Lombard, IL. The netting product is manufactured under agreement by Viskase’s affiliate located in Monterrey, Mexico. VE Netting, LLC was determined to be a variable interest entity (VIE) in accordance with ASC Topic 810, Consolidations, for which the Company is the primary beneficiary, as the Company has the power to direct activities that most significantly impact the economic performance and has the right to receive benefits and losses that may potentially be significant. As the primary beneficiary of the VIE, the VIE’s assets, liabilities, and results of operations are included in the Company’s condensed consolidated financial statements as of September 30, 2025 and December 31, 2024 and for the three and nine months ended September 30, 2025 and September 30, 2024. The other equity holders’ interests are reflected in “Net (loss) income attributable to noncontrolling interests” in the Consolidated Statements of Operations and “Noncontrolling interests” in the Condensed Consolidated Balance Sheets. See Note 14 — Variable Interest Entity for standalone financial information.
Other Comprehensive (Loss) Income
Other comprehensive (loss) income includes all other non-stockholder changes in equity. Changes in other comprehensive income (loss) in 2025 and 2024 resulted from changes in foreign currency translation and pension liability.
Accumulated other comprehensive (loss) income consists of cumulative changes in foreign currency translation and pension liability. The Company uses the portfolio approach for releasing income tax effects from accumulated other comprehensive (loss) income.
Revenue Recognition
The Company’s revenues are comprised of product sales to customers, including distributors and end users. The Company’s performance obligation is defined as the promise to deliver the specified products in a purchase order. Revenue is recognized at the point in time in which the customer obtains control of the product, which is generally when product title passes to the customer according to the shipping terms dictated in the contract. In most contracts, title transfers upon shipment of the product; however, in some cases, title does not transfer until the customer has received the products at their specified location.
Revenue is recorded at the transaction price, which is the amount of consideration the Company expects to receive in exchange for providing its products to customers.
The transaction price may be adjusted for estimates of known or expected variable consideration, including consumer incentives, trade promotions, and rebate programs. The Company estimates the amount of variable consideration that will be realized and records the estimate as a reduction to the transaction price. These estimates are based on historical experience, anticipated performance and the Company’s best judgment at the time. In determining whether an estimate of variable consideration is constrained, we consider the likelihood and magnitude of a potential revenue reversal. The Company’s provision for variable consideration is recorded at contract inception and reviewed and updated regularly as new information arises throughout the contract term. Any adjustments due to resolved uncertainties or new information are recognized in the period in which the adjustment is identified.
Sales, value add, and other taxes collected from customers and remitted to governmental authorities are excluded from the transaction price, while shipping and handling fees reimbursed by the customer are included in the transaction price and recorded on a gross basis on the income statement. The Company
generally does not offer warranties or a right to return on the products it sells except in the instance of a product defect or mis-ship.
Payment terms vary by customer; however, the time between invoicing and payment is not significant. None of the Company’s customer contracts as of September 30, 2025 and December 31, 2024 contain a significant financing component.
Segments
Operating segments are identified as components of an enterprise about which separate discrete financial information is available for evaluation by the chief operating decision maker in making decisions regarding resource allocation and assessing performance. To date, the Company’s chief operating decision maker makes such decisions and assesses performance at the geographic region level, including North America, South America, EMEA, and Asia which are the Company’s four reportable segments under ASC 280. See Note 12, Business Segment Information and Geographic Area Information for further information.
Debt
The Company accounts for debt in accordance with ASC 470, Debt (ASC 470). Issuance costs for term debt are presented on the balance sheet as a direct deduction from the carrying amount of the related debt liability. These costs are amortized over the term of the related debt using the interest method under ASC 835-30. The effective interest rate for variable rate debt is determined in accordance with ASC 310-20-35, in which the Company’s policy is to use the variable rate at inception of the debt in the determination of the constant effective yield.
Recently Adopted Accounting Pronouncements
In November 2023, the FASB issued ASU 2023-07, Segment Reporting (Topic 280) — Improvements to Reportable Segment Disclosures, which includes requirements for more robust disclosures of significant segment expenses and measures of a segment’s profit and loss used in assessing performance. This standard is effective for the Company’s annual period beginning January 1, 2024 and interim periods beginning January 1, 2025 with early adoptions permitted. The Company adopted this accounting standard as of January 1, 2024. See Note 12, Business Segment Information and Geographic Area Information, for the Company’s segments disclosures. Our adoption did not result in a material impact to our condensed consolidated financial statements and disclosures.
In May 2025, the FASB issued ASU 2025-03, Business Combinations (Topic 805) and Consolidation (Topic 810): Determining the Accounting Acquirer in the Acquisition of a Variable Interest Entity (“VIE”). This standard clarifies the guidance in determining the accounting acquirer in certain transactions involving VIEs. The update aims to improve consistency and comparability in financial reporting for acquisition transactions effected primarily by exchanging equity interests. ASU 2025-03 requires entities to apply the same factors used for determining the accounting acquirer in other acquisition transactions. The ASU is applied prospectively to all business combinations with acquisition dates occurring on or after the date of initial application. The ASU is effective for all annual reporting periods (and interim periods in annual reporting periods) beginning after December 15, 2026. Early adoption is permitted in interim or annual reporting periods in which financial statements have not yet been issued (or made available for issuance). Management has elected to early adopt ASU 2025-03 in 2025.
Recently Issued Accounting Pronouncements Not Yet Adopted
In December 2023, the FASB issued ASU 2023-09, Income Taxes (Topic 740) — Improvements to Income Tax Disclosures, which requires enhanced income tax disclosures that reflect how operations and related tax risks, as well as how tax planning and operational opportunities, affect the tax rate and prospects for future cash flows. This standard is effective for the Company beginning January 1, 2025 for annual periods with early adoption permitted. The ASU should be applied on a prospective basis but retrospective application is permitted. The adoption of this guidance will modify disclosures in the Company’s consolidated financial statements.
In November 2024, the FASB issued ASU 2024-03, Income Statement — Reporting Comprehensive Income — Expense Disaggregation Disclosures (Subtopic 220-40), which requires disclosure of specific information about costs and expenses within relevant expense captions on the face of the income statement, qualitative descriptions for expense captions not specifically disaggregated quantitatively, and the total amount and definition of selling expenses for interim and annual reporting periods. This standard is effective for the Company’s annual reporting period beginning January 1, 2027 and interim reporting periods beginning January 1, 2028 and should be applied on a retrospective or prospective basis, with early adoption permitted. We are currently assessing the impact of adopting this standard on our consolidated financial statements
2. RECEIVABLES, NET
Receivables net, consist of the following:
|
(thousands)
|
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
|
Accounts receivable, gross
|
|
|
|
$ |
70,179 |
|
|
|
|
$ |
77,466 |
|
|
|
Less allowance for credit losses
|
|
|
|
|
(2,639) |
|
|
|
|
|
(2,657) |
|
|
|
Receivables, net
|
|
|
|
$ |
67,540 |
|
|
|
|
$ |
74,809 |
|
|
|
(thousands)
|
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
|
Beginning Balance
|
|
|
|
$ |
2,657 |
|
|
|
|
$ |
2,908 |
|
|
|
Provision (recoveries)
|
|
|
|
|
(3) |
|
|
|
|
|
198 |
|
|
|
Write-offs
|
|
|
|
|
(15) |
|
|
|
|
|
(454) |
|
|
|
Other and translation
|
|
|
|
|
— |
|
|
|
|
|
5 |
|
|
|
Ending balance
|
|
|
|
$ |
2,639 |
|
|
|
|
$ |
2,657 |
|
|
3. INVENTORIES, NET
Inventories net, consists of the following:
|
(thousands)
|
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
|
Raw materials
|
|
|
|
$ |
28,819 |
|
|
|
|
$ |
29,991 |
|
|
|
Work in process
|
|
|
|
|
30,444 |
|
|
|
|
|
42,940 |
|
|
|
Finished products
|
|
|
|
|
32,512 |
|
|
|
|
|
36,037 |
|
|
|
Total inventories, net
|
|
|
|
$ |
91,775 |
|
|
|
|
$ |
108,968 |
|
|
As of September 30, 2025 and December 31, 2024, the Company had an inventory reserve of $3,934 and $3,908, respectively.
4. PROPERTY, PLANT AND EQUIPMENT, NET
Depreciation expense associated with property, plant and equipment was $3,770 for the three months ended September 30, 2025 and $13,263 for the nine months ended September 30, 2025, and $4,912 for the three months ended September 30, 2024, and $16,645 for the nine months ended September 30, 2024, respectively.
Property, plant and equipment, net, consists of the following:
|
(thousands)
|
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
|
Land and improvements
|
|
|
|
$ |
1,880 |
|
|
|
|
$ |
1,848 |
|
|
|
Buildings and improvements
|
|
|
|
|
56,472 |
|
|
|
|
|
52,847 |
|
|
|
Machinery and equipment
|
|
|
|
|
378,645 |
|
|
|
|
|
371,661 |
|
|
|
Construction in progress
|
|
|
|
|
34,978 |
|
|
|
|
|
11,730 |
|
|
|
Total property plant and equipment
|
|
|
|
$ |
471,975 |
|
|
|
|
$ |
438,086 |
|
|
Accumulated depreciation
(thousands)
|
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
|
Land and improvements
|
|
|
|
$ |
531 |
|
|
|
|
$ |
520 |
|
|
|
Buildings and improvements
|
|
|
|
|
29,405 |
|
|
|
|
|
27,419 |
|
|
|
Machinery and equipment
|
|
|
|
|
308,224 |
|
|
|
|
|
286,412 |
|
|
|
Total accumulated depreciation
|
|
|
|
$ |
338,160 |
|
|
|
|
$ |
314,351 |
|
|
Asset Impairment charges of $0 and $12,100 were recorded for the three and nine months ended September 30, 2025, in association with the closing of the Osceola, Arkansas plant and the removal of assets prior to the end of their useful lives. See Note 16 — Restructuring for additional information. There were no impairment charges for the three or nine months ended September 30, 2024.
5. OTHER CURRENT ASSETS
Other current assets consist of the following:
|
(thousands)
|
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
|
Prepaid expenses
|
|
|
|
$ |
13,557 |
|
|
|
|
$ |
14,988 |
|
|
|
Supplies
|
|
|
|
|
25,387 |
|
|
|
|
|
23,971 |
|
|
|
Other
|
|
|
|
|
8,051 |
|
|
|
|
|
7,245 |
|
|
|
Total other current assets
|
|
|
|
$ |
46,995 |
|
|
|
|
$ |
46,204 |
|
|
6. DEBT OBLIGATIONS
Debt obligations consist of the following:
|
(thousands)
|
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
|
Short-term debt:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior credit facility
|
|
|
|
$ |
129,125 |
|
|
|
|
$ |
34,625 |
|
|
|
Europe Line of Credit
|
|
|
|
|
11,638 |
|
|
|
|
|
9,905 |
|
|
|
Other
|
|
|
|
|
598 |
|
|
|
|
|
— |
|
|
|
Less: short-term deferred financing costs
|
|
|
|
|
(897) |
|
|
|
|
|
(217) |
|
|
|
Total short-term debt
|
|
|
|
|
140,464 |
|
|
|
|
|
44,313 |
|
|
|
Long-term debt:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior credit facility
|
|
|
|
|
— |
|
|
|
|
$ |
99,375 |
|
|
|
Other
|
|
|
|
|
— |
|
|
|
|
|
529 |
|
|
|
Less: long-term deferred financing costs
|
|
|
|
|
— |
|
|
|
|
|
(623) |
|
|
|
Total long-term debt, net
|
|
|
|
|
— |
|
|
|
|
|
99,281 |
|
|
|
Total debt
|
|
|
|
$ |
140,464 |
|
|
|
|
$ |
143,594 |
|
|
Senior Credit Facility
On October 9, 2020, the Company and certain of its subsidiaries, entered into a certain Credit Agreement (the “Credit Agreement”) with the various lenders named therein and Bank of America, N.A., as administrative agent for the lenders (the “Administrative Agent”), providing for a $150,000 term loan (the “Term Loan”) and a $30,000 revolving credit facility (the “Revolving Credit Facility” and together with the Term Loan, the “Senior Credit Facility”) as amended by the First Amendment to Credit Agreement dated as of August 13, 2021, the Second Amendment to Credit Agreement dated as of August 10, 2022 and as further amended by the Limited Waiver and Third Amendment to Credit Agreement dated as of February 14, 2025 (the “Third Amendment”) as described below.
The Second Amendment to the Senior Credit Facility increased the commitment of the New Revolving Credit Facility to $37,000 and transitioned Term Loans on September 30, 2022 and Revolving Loans on August 30, 2022 from LIBOR Loans to SOFR Loans. Amended terms of the facility are stated below.
The Third Amendment includes a waiver on covenants for the year ended December 31, 2024, and a relief period for year 2025 (the “Covenant Relief Period”). During the Covenant Relief period, the consolidated leverage ratio will be increased to 4.00X through December 31, 2025. The consolidated fixed charge coverage ratio will be modified to include only maintenance capital expenditures and a year-to-date build basis for quarter end calculation. On December 31, 2025, the consolidated fixed charge coverage ratio will return to an LTM basis. During the Covenant Relief Period, restricted payments, permitted acquisitions and other investments as defined by the Credit Agreement are not allowed and the accordion feature of the credit facility, which allowed for an increase in borrowings under the facility has been suspended.
On July 26, 2025, the Company entered into the Fourth Amendment to its Senior Credit Facility. There were no changes to the facility amounts or maturity dates and repayment terms remained largely unchanged except for mandatory prepayments equal to $15,000 upon the closing of the Enzon Merger by December 31, 2025 or $11,250 if after December 31, 2025. The amendment also allows for certain exclusions relative to the merger for its financial covenants and EBIDTA addback amounts. On October 10, 2025, we finalized the fifth amendment to our credit agreement, which modified certain of our financial covenants.
The interest rates per annum applicable to the Amended Senior Credit Facility (other than in respect of Swingline Loans) will be SOFR, but in any event, not less than 0.00%, plus the Applicable Rate (as defined below), or, for U.S. dollar denominated loans only, made to the Company at the option of the Company, the Base Rate, defined as the highest of: (a) the Federal Funds Rate plus one-half percent (0.50%); (b) the Bank of America prime rate; and (c) the one (1) month SOFR (adjusted daily) plus one percent (1.00%), but in any case not less than 1.00%, plus the Applicable Rate. Applicable Rate means, with respect to the Amended Senior Credit Facility, a percentage per annum to be determined in accordance with the applicable pricing grid set forth in the Amended Senior Credit Facility based upon the Company’s Consolidated Coverage Ratio as reflected in a quarterly Compliance Certificate. Each Swingline Loan shall bear interest at the Base Rate plus the Applicable Rate for Base Rate loans under the New Revolving Credit Facility. As of September 30, 2025, our current interest rate is 7.40%. The effective interest rate of the Term Loan as of September 30, 2025 is 4.32%, which is determined in accordance with ASC 310-20-35, based on the variable rate in effect at inception of the instrument.
The Amended Senior Credit Facility requires the Company to repay principal of the New Term Loan at the rate of 5% of the original principal balance during each of the first two years, 7.5% during the third and fourth years and 10% of the original principal balance during the fifth year. The maturity date on the Amended Senior Credit Facility is August 13, 2026.
The Company may prepay the Amended Senior Credit Facility, in whole or in part, at any time without premium or penalty, subject to reimbursement of the Lenders’ breakage and redeployment costs in the case of prepayment of SOFR borrowings and foreign currency borrowings bearing interest at a rate other than SOFR. Each such prepayment of the New Term Facility shall be applied as directed by the Company. The unutilized portion of the commitments under the Amended Senior Credit Facility may be irrevocably reduced or terminated by the Company at any time without penalty.
The Amended Senior Credit Facility is guaranteed by each existing and future direct and indirect wholly owned material domestic Restricted Subsidiary and foreign Restricted Subsidiary of the Company
(other than any Brazilian subsidiary). The Amended Senior Credit Facility is secured by substantially all assets of the Company and its material domestic Restricted Subsidiaries, with the exception of real property.
The Amended Senior Credit Facility contains various covenants which restrict the Company’s ability to, among other things, incur indebtedness, create liens on our assets, make investments, enter into merger, consolidation or acquisition transactions, dispose of assets (other than in the ordinary course of business), make certain restricted payments, enter into sale and leaseback transactions and transactions with affiliates, in each case subject to permitted exceptions. The Amended Senior Credit Facility also requires that we comply with certain financial covenants, including meeting a consolidated leverage ratio and consolidated fixed charge coverage ratio.
As of September 30, 2025, we were in compliance with all covenants of our Amended Senior Credit Facility.
Foreign Lines of Credit
In its foreign operations, the Company has unsecured lines of credit with various banks providing approximately $12,000 of availability. There were borrowings of $11,638 under the lines of credit at September 30, 2025 and borrowings of $9,905 under the lines of credit at December 31, 2024. As of September 30, 2025, our current interest rate is 4.32%. The line of credit is an uncommitted facility that can be terminated at any time with payment on demand.
Debt Maturity
The aggregate maturities of debt(1) for each of the next five years are:
| |
|
|
2025
|
|
|
2026
|
|
|
2027
|
|
|
2028
|
|
|
2029
|
|
|
Thereafter
|
|
|
Term Loan
|
|
|
|
$ |
3,750 |
|
|
|
|
$ |
99,375 |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
Revolving Credit Facility
|
|
|
|
|
— |
|
|
|
|
|
26,000 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Other
|
|
|
|
|
11,638 |
|
|
|
|
|
944 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Total aggregate maturities
|
|
|
|
$ |
15,388 |
|
|
|
|
$ |
126,319 |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
(1)
The aggregate maturities of debt represent amounts to be paid at maturity and not the current carrying value of the debt.
7. RETIREMENT PLANS
The Company has contributed $609 and $1,258 to pension benefits in the U.S. during the three months ended September 30, 2025 and September 30, 2024, respectively. The Company has contributed $1,770 and $2,445 to pension benefits in the U.S. during nine months ended September 30, 2025 and September 30, 2024, respectively.
The Company and its subsidiaries have defined contribution and defined benefit plans varying by country and subsidiary.
The Company’s operations in the United States, France, and Germany historically offered defined benefit retirement plans (“Plan”) to their employees. Most of these benefits have been terminated, resulting in various reductions in liabilities and curtailment gains.
In connection with our adoption of FASB issued ASU No. 2017-07, Improving the Presentation of Net Periodic Pension Cost and Net Periodic Postretirement Benefit Cost, the components of net periodic benefit cost other than the service cost component are included in the line item other expense in the income statement.
The following sets forth the components of net periodic benefit cost for the periods indicated:
| |
|
|
U.S. Pension Benefits
|
|
| |
|
|
Three Months
Ended
September 30,
2025
|
|
|
Three Months
Ended
September 30,
2024
|
|
|
Nine Months
Ended
September 30,
2025
|
|
|
Nine Months
Ended
September 30,
2024
|
|
|
Component of net period benefit cost
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service cost
|
|
|
|
$ |
0 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
0 |
|
|
|
Interest cost
|
|
|
|
|
912 |
|
|
|
|
|
935 |
|
|
|
|
|
3,650 |
|
|
|
|
|
3,741 |
|
|
|
Expected return on plan assets
|
|
|
|
|
(893) |
|
|
|
|
|
(954) |
|
|
|
|
|
(3,574) |
|
|
|
|
|
(3,815) |
|
|
|
Amortization of prior service cost
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Amortization of actuarial loss
|
|
|
|
|
17 |
|
|
|
|
|
35 |
|
|
|
|
|
66 |
|
|
|
|
|
140 |
|
|
| |
|
|
|
$ |
36 |
|
|
|
|
$ |
16 |
|
|
|
|
$ |
142 |
|
|
|
|
$ |
66 |
|
|
| |
|
|
Non U.S. Pension Benefits
|
|
| |
|
|
Three Months
Ended
September 30,
2025
|
|
|
Three Months
Ended
September 30,
2024
|
|
|
Nine Months
Ended
September 30,
2025
|
|
|
Nine Months
Ended
September 30,
2024
|
|
|
Component of net period benefit cost
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service cost
|
|
|
|
$ |
62 |
|
|
|
|
$ |
57 |
|
|
|
|
$ |
242 |
|
|
|
|
$ |
230 |
|
|
|
Interest cost
|
|
|
|
|
128 |
|
|
|
|
|
126 |
|
|
|
|
|
513 |
|
|
|
|
|
503 |
|
|
|
Expected return on plan assets
|
|
|
|
|
(4) |
|
|
|
|
|
(6) |
|
|
|
|
|
(17) |
|
|
|
|
|
(23) |
|
|
|
Amortization of prior service cost
|
|
|
|
|
— |
|
|
|
|
|
1 |
|
|
|
|
|
— |
|
|
|
|
|
2 |
|
|
|
Amortization of actuarial loss
|
|
|
|
|
(16) |
|
|
|
|
|
(10) |
|
|
|
|
|
(62) |
|
|
|
|
|
(39) |
|
|
| |
|
|
|
$ |
170 |
|
|
|
|
$ |
168 |
|
|
|
|
$ |
676 |
|
|
|
|
$ |
673 |
|
|
Savings Plans
The Company also has defined contribution savings and similar plans for eligible employees, which vary by subsidiary. The Company’s aggregate contributions to these plans are based on eligible employee contributions and certain other factors. The Company expenses for these plans for the three and nine months ended September 30, 2025 were $202 and $914, respectively. The Company expenses for these plans for the three and nine months ended September 30, 2024 were $289 and $954, respectively.
International Plans
The Company maintains various pension and statutory separation pay plans for its European employees. The expense (income), not including the French and German pension plan for the three and nine months ended September 30, 2025, were $205 and $614, respectively. The expense (income), not including the French and German pension plan for the three and nine months ended September 30, 2024, were $(54) and $(162), respectively.
8. CAPITAL STOCK, TREASURY STOCK AND PAID IN CAPITAL
Authorized shares of preferred stock ($0.01 par value per share) and common stock ($0.01 par value per share) for the Company are 50,000,000 shares and 150,000,000 shares, respectively. No preferred stock has been issued.
In 2004, the Company purchased 805,270 shares of its common stock from the underwriter for a purchase price of $298. The common stock has been accounted for as treasury stock.
The Company completed private placements (the “Private Placements”) through the issuance of 7,142,858 shares at purchase price of $2.10 and 7,042,254 shares at purchase price of $0.71, on March 21,
2025, and September 30, 2025, respectively, of common stock to an affiliate of Icahn Enterprises L.P. (“IELP”). Prior to the completion of these Private Placements, IELP beneficially owned approximately 90.6% of the Company’s outstanding common stock. As a result of these Private Placements, IELP is the beneficial owner of approximately 91.76% of the Company’s outstanding common stock. The Private Placement was approved by a Special Committee of disinterested directors of the Company. The Company received $15,000 and $5,000 in proceeds from the Private Placement, of which $143 was recorded within common stock and $19,857 was recorded within paid in capital as of September 30, 2025.
The Company had 118,181,047 and 103,995,935 shares issued and 117,375,777 and 103,190,665 shares outstanding as of September 30, 2025 and December 31, 2024, respectively.
9. INCOME TAXES
For the nine months ended September 30, 2025, we recorded an income tax expense of $14,890 on pre-tax loss of $(31,959) compared to an income tax expense of $3,380 on pre-tax income of $7,091for the nine months ended September 30, 2024. Our effective income tax rate was (46.5)% and 47.6% for the nine months ended September 30, 2025 and 2024, respectively. For the nine months ended September 30, 2025, the effective tax rate was lower than the statutory federal rate of 21%, for corporations, primarily due to a valuation allowance established for US deferred tax assets during Q2 due to delays with modifications of certain operating lines in the US resulting in lower projections for the year, and the jurisdictional mix of earnings and operating losses expected for the year. For the nine months ended September 30, 2024, the effective tax rate was higher than the statutory federal rate of 21%, for corporations, primarily due to the jurisdictional mix of earnings and operating losses expected for the year.
For the three months ended September 30, 2025, we recorded an income tax expense of $1,949 on pre-tax loss of $(11,048) compared to an income tax expense of $(191) on pre-tax income of $(335) for the three months ended September 30, 2024. Our effective income tax rate was (17.6)% and 57% for the three months ended September 30, 2025 and 2024, respectively. For the three months ended September 30, 2025, the effective tax rate was lower than the statutory federal rate of 21%, for corporations, primarily due to valuation allowance established for US deferred tax assets during Q2 due to delays with modifications of certain operating lines in the US resulting in lower projections for the year, and the jurisdictional mix of earnings and operating losses expected for the year. For the three months ended September 30, 2024, the effective tax rate was higher than the statutory federal rate of 21%, for corporations, primarily due to the jurisdictional mix of earnings and operating losses expected for the year.
10. COMMITMENTS AND CONTINGENCIES
Legal Proceedings
The Company from time to time is involved in various other legal proceedings, none of which are expected to have a material adverse effect upon results of operations, cash flows or financial condition.
Lease Commitments
We have operating leases primarily for real estate, equipment, and vehicles. The remaining lease terms for our leases range from 5 months to 14 years.
The Company’s future minimum lease payments required under leases as of September 30, 2025 provides the following lease commitment:
|
Year
|
|
|
Operating Leases
|
|
|
2025 (remainder of year)
|
|
|
|
$ |
1,143 |
|
|
|
2026
|
|
|
|
|
4,563 |
|
|
|
2027
|
|
|
|
|
4,415 |
|
|
|
2028
|
|
|
|
|
4,281 |
|
|
|
2029
|
|
|
|
|
2,913 |
|
|
|
Thereafter
|
|
|
|
|
12,242 |
|
|
|
Total lease payments
|
|
|
|
$ |
29,557 |
|
|
|
Less: discounted interest
|
|
|
|
|
(7,705) |
|
|
| |
|
|
|
$ |
21,852 |
|
|
Capital Commitment
As of September 30, 2025 and December 31, 2024, the Company had $1,966 and $3,242 in contractual capital expenditure related commitments, respectively.
Contractual Commitments
The Company routinely enters into fixed price natural gas agreements which require us to purchase a portion of our natural gas each month at fixed prices. These fixed price agreements qualify for the “normal purchases” scope exception under derivative and hedging standards, therefore the natural gas purchases under these contracts were expensed as incurred and included within cost of sales. As of September 30, 2025, future annual minimum purchases remaining under the agreement are $546.
11. RELATED-PARTY TRANSACTIONS
As of September 30, 2025, and December 31, 2024, IELP owned approximately 91.76% and 90.6% of our outstanding common stock, respectively.
Equity Private Placement of Common Stock & Change in Number of Authorized Shares
Beginning in the first quarter of 2020, the Company entered into discussions with a number of banks, including Bank of America (“BofA”), regarding the terms of a new senior credit facility which would replace both the Term Loan and the ABL Loan. Under the new senior credit facility proposed by BofA, the Company was required to raise at least $100,000 in equity capital, the proceeds of which were to be used, together with borrowings under the new senior credit facility, to repay the Term Loan and the ABL Loan. The Company met this condition through the issuance of 50,000,000 shares of common stock to an affiliate of IELP in a private placement transaction at a purchase price of $2.00 per share (the “Equity Private Placement”). In order to complete the offering of the Equity Private Placement, the Company amended its Amended and Restated Certificate of Incorporation to increase the number of authorized shares of the Company’s common stock by 50,000,000 shares.
Prior to the completion of the Equity Private Placement, IELP beneficially owned approximately 90.6% of the Company’s outstanding common stock. As a result of the Equity Private Placement, IELP is the beneficial owner of approximately 91.76% of the Company’s outstanding common stock. The Equity Private Placement was approved by a Special Committee of disinterested directors of the Company.
Additionally, on March 21, 2025 and September 30, 2025, the Company completed a private placement with an affiliate of IELP. Refer to Note 8 — Capital Stock, Treasury Stock and Paid in Capital for additional details.
Pension Liabilities
Applicable pension and tax laws make each member of a “controlled group” of entities, generally defined as entities in which there is at least an 80% common ownership interest, jointly and severally liable
for certain pension plan obligations of any member of the controlled group. These pension obligations include ongoing contributions to fund the plan, as well as liability for any unfunded liabilities that may exist at the time the plan is terminated. In addition, the failure to pay these pension obligations when due may result in the creation of liens in favor of the pension plan or the Pension Benefit Guaranty Corporation (“PBGC”) against the assets of each member of the controlled group.
As a result of the Equity Private Placement, IELP became the beneficial owner of more than 80% of the shares of our common stock and the Company became subject to the pension liabilities of all entities in which Mr. Icahn has a direct or indirect ownership interest of at least 80%. One such entity, ACF Industries LLC (“ACF”), is the sponsor of several pension plans.
On January 31, 2025, the Executive Committee of ACF approved a resolution to terminate its qualified pension plans, which are frozen and no longer accrue benefits. As of December 31, 2024, the fair value of this plan’s assets exceeded its benefit obligation. The termination of the plan is effective January 31, 2025, is subject to the appropriate regulatory approvals, and is expected to be completed in fiscal year 2025. The ACF LLC ultimate settlement obligation will depend upon both the nature and timing of participant settlements and prevailing market conditions.
In connection with the Equity Private Placement, the Company entered into an agreement with Icahn Enterprises Holdings L.P. pursuant to which Icahn Enterprises Holdings L.P. has agreed to indemnify us and our subsidiaries from losses resulting from any imposition of certain pension funding or termination liabilities that may be imposed on us and our subsidiaries or our assets as a result of being a member of the Icahn controlled group.
Based on the contingent nature of potential exposure related to these affiliate pension obligations and the indemnification from Icahn Enterprises Holdings L.P., no liability has been recorded in the accompanying consolidated financial statements.
Tax Allocation
Following the Equity Private Placement, IELP became the beneficial owner of more than 80% of the shares of our common stock and the Company became a member of the consolidated group IEP Corporate Subsidiary for U.S. federal income tax purposes. As a result, the IEP Corporate Subsidiary and the Company entered into a tax allocation agreement for the allocation of certain income tax items. The Company and its subsidiaries consented to join the IEP Corporate Subsidiary’s federal consolidated return and, if elected by the IEP Corporate Subsidiary, certain state consolidated returns. In those jurisdictions where the Company and its subsidiaries will file consolidated returns with the IEP Corporate Subsidiary, the Company will pay to the IEP Corporate Subsidiary any tax it would have owed had it and its subsidiaries continued to file as a separate consolidated group. To the extent that the IEP Corporate Subsidiary consolidated group is able to reduce its tax liability as a result of including the Company and its subsidiaries in its consolidated group, the IEP Corporate Subsidiary will pay the Company 20% of such reduction on a current basis and the Company will be treated as if it would carry forward for its own use under the tax allocation agreement, 80% of the items that caused the tax reduction (the “Excess Tax Benefits”). Moreover, if the Company and its subsidiaries should ever become deconsolidated from the IEP Corporate Subsidiary, the IEP Corporate Subsidiary will reimburse the Company for any tax liability in post-consolidation years that the Company and its subsidiaries would have avoided had they actually had the Excess Tax Benefits for their own consolidated group use. The cumulative payments to the Company by the IEP Corporate Subsidiary post-consolidation will not exceed the cumulative reductions in tax to the IEP Corporate Subsidiary group resulting from the use of the Excess Tax Benefits by the IEP Corporate Subsidiary group.
12. BUSINESS SEGMENT INFORMATION AND GEOGRAPHIC AREA INFORMATION
The Company defines operating segments as components of the organization for which discrete financial information is available and operating results are evaluated regularly by the Company’s chief executive officer, who is the Chief Operating Decision Maker (“CODM”), in order to assess performance and allocate resources. Characteristics of the Company which were relied upon in making the determination of reportable segments include the geographic region in which the Company operates and the information that is regularly reviewed by the CODM for the purpose of assessing performance and allocating resources.
The Company’s operations are viewed in geographic regions of North America, South America, EMEA, and Asia which are the Company’s four reportable segments under ASC 280. The primary business of each of the geographic regions is manufacturing and selling cellulosic food casings. The Company’s casing products have similar characteristics and customers and share operations support functions such as sales, public relations, supply chain management, various research and development support, in addition to the general and administrative functions of human resources, legal, finance, and information technology.
The Company uses Operating Income, which is defined as profit or loss from operations before interest income, interest expense, other expense, net and income taxes, to assess the profitability of each segment. The Company’s reporting package does not include interest revenue, interest expense or income taxes allocated to individual segments and these items are not considered components of segment operating income. The CODM monitors actual Operating Income results relative to operating plan and forecast to assess the performance of the business and allocate resources.
Segment assets regularly reviewed by the CODM are inclusive only of inventory.
The following table reflects the results of the Company’s segments
| |
|
|
Three Months Ended September 30, 2025
|
|
| |
|
|
North
America
|
|
|
South
America
|
|
|
EMEA
|
|
|
Asia
|
|
|
Corporate
and Other
|
|
|
Consolidated
|
|
|
Sales from external customers
|
|
|
|
$ |
32,421 |
|
|
|
|
$ |
11,408 |
|
|
|
|
$ |
37,500 |
|
|
|
|
$ |
9,833 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
91,162 |
|
|
|
Intersegment net sales
|
|
|
|
$ |
4,036 |
|
|
|
|
|
292 |
|
|
|
|
|
9,918 |
|
|
|
|
|
507 |
|
|
|
|
|
— |
|
|
|
|
$ |
14,753 |
|
|
| |
|
|
|
|
36,457 |
|
|
|
|
|
11,700 |
|
|
|
|
|
47,418 |
|
|
|
|
|
10,340 |
|
|
|
|
|
— |
|
|
|
|
$ |
105,915 |
|
|
|
Reconciliation of revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Elimination of intersegment sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(14,753) |
|
|
|
|
|
(14,753) |
|
|
|
Total consolidated net sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
91,162 |
|
|
|
Cost of sales
|
|
|
|
|
(34,249) |
|
|
|
|
|
(10,263) |
|
|
|
|
|
(45,553) |
|
|
|
|
|
(9,902) |
|
|
|
|
|
14,670 |
|
|
|
|
|
(85,297) |
|
|
|
Selling and marketing
|
|
|
|
|
(1,035) |
|
|
|
|
|
(292) |
|
|
|
|
|
(1,114) |
|
|
|
|
|
(87) |
|
|
|
|
|
— |
|
|
|
|
|
(2,528) |
|
|
|
General and administrative
|
|
|
|
|
(6,202) |
|
|
|
|
|
(477) |
|
|
|
|
|
(3,101) |
|
|
|
|
|
(238) |
|
|
|
|
|
— |
|
|
|
|
|
(10,018) |
|
|
|
Research and development
|
|
|
|
|
(673) |
|
|
|
|
|
(13) |
|
|
|
|
|
(147) |
|
|
|
|
|
(17) |
|
|
|
|
|
— |
|
|
|
|
|
(850) |
|
|
|
Amortization of intangibles
|
|
|
|
|
(26) |
|
|
|
|
|
— |
|
|
|
|
|
(372) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(398) |
|
|
|
Asset impairment charge
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Restructuring expense and related expense
|
|
|
|
|
(1,009) |
|
|
|
|
|
(126) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,135) |
|
|
|
Segment operating income
|
|
|
|
|
(6,737) |
|
|
|
|
|
529 |
|
|
|
|
|
(2,869) |
|
|
|
|
|
96 |
|
|
|
|
|
(83) |
|
|
|
|
|
(9,064) |
|
|
|
Interest income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0 |
|
|
|
Interest expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(2,948) |
|
|
|
Other (expense) income, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
965 |
|
|
|
Net (loss) income before income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(11,047) |
|
|
| |
|
|
Nine Months Ended September 30, 2025
|
|
| |
|
|
North
America
|
|
|
South
America
|
|
|
EMEA
|
|
|
Asia
|
|
|
Corporate
and Other
|
|
|
Consolidated
|
|
|
Sales from external customers
|
|
|
|
$ |
117,115 |
|
|
|
|
$ |
34,326 |
|
|
|
|
$ |
101,631 |
|
|
|
|
$ |
29,557 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
282,629 |
|
|
|
Intersegment net sales
|
|
|
|
|
19,656 |
|
|
|
|
|
372 |
|
|
|
|
|
31,450 |
|
|
|
|
|
2,056 |
|
|
|
|
|
— |
|
|
|
|
|
53,534 |
|
|
| |
|
|
|
|
136,771 |
|
|
|
|
|
34,698 |
|
|
|
|
|
133,081 |
|
|
|
|
|
31,613 |
|
|
|
|
|
— |
|
|
|
|
|
336,163 |
|
|
|
Reconciliation of revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Elimination of intersegment sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(53,534) |
|
|
|
|
|
(53,534) |
|
|
|
Total consolidated net sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
282,629 |
|
|
|
Cost of sales
|
|
|
|
|
(122,428) |
|
|
|
|
|
(30,875) |
|
|
|
|
|
(121,767) |
|
|
|
|
|
(29,188) |
|
|
|
|
|
53,534 |
|
|
|
|
|
(250,724) |
|
|
|
Selling and marketing
|
|
|
|
|
(3,251) |
|
|
|
|
|
(922) |
|
|
|
|
|
(2,812) |
|
|
|
|
|
(187) |
|
|
|
|
|
— |
|
|
|
|
|
(7,172) |
|
|
|
General and administrative
|
|
|
|
|
(17,808) |
|
|
|
|
|
(1,732) |
|
|
|
|
|
(8,627) |
|
|
|
|
|
(629) |
|
|
|
|
|
— |
|
|
|
|
|
(28,796) |
|
|
|
Research and development
|
|
|
|
|
(1,741) |
|
|
|
|
|
(34) |
|
|
|
|
|
(356) |
|
|
|
|
|
(47) |
|
|
|
|
|
1 |
|
|
|
|
|
(2,177) |
|
|
|
Amortization of intangibles
|
|
|
|
|
(79) |
|
|
|
|
|
— |
|
|
|
|
|
(1,069) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,148) |
|
|
|
Asset impairment charge
|
|
|
|
|
(12,100) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(12,100) |
|
|
|
Restructuring expense and related
expense
|
|
|
|
|
(6,480) |
|
|
|
|
|
(126) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(6,606) |
|
|
|
Segment operating income
|
|
|
|
|
(27,116) |
|
|
|
|
|
1,009 |
|
|
|
|
|
(1,550) |
|
|
|
|
|
1,562 |
|
|
|
|
|
1 |
|
|
|
|
|
(26,095) |
|
|
|
Interest income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0 |
|
|
|
Interest expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(8,545) |
|
|
|
Other income (expense), net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
2,682 |
|
|
|
Net (loss) income before income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(31,958) |
|
|
| |
|
|
Three Months Ended September 30, 2024
|
|
| |
|
|
North
America
|
|
|
South
America
|
|
|
EMEA
|
|
|
Asia
|
|
|
Corporate
and Other
|
|
|
Consolidated
|
|
|
Sales from external customers
|
|
|
|
$ |
44,794 |
|
|
|
|
$ |
12,785 |
|
|
|
|
$ |
32,370 |
|
|
|
|
$ |
11,556 |
|
|
|
|
$ |
(1) |
|
|
|
|
$ |
101,504 |
|
|
|
Intersegment net sales
|
|
|
|
$ |
6,931 |
|
|
|
|
|
— |
|
|
|
|
|
10,693 |
|
|
|
|
$ |
0 |
|
|
|
|
|
— |
|
|
|
|
$ |
17,624 |
|
|
| |
|
|
|
|
51,725 |
|
|
|
|
|
12,785 |
|
|
|
|
|
43,063 |
|
|
|
|
|
11,556 |
|
|
|
|
|
(1) |
|
|
|
|
|
119,128 |
|
|
|
Reconciliation of revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Elimination of intersegment sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(17,624) |
|
|
|
|
|
(17,624) |
|
|
|
Total consolidated net sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101,504 |
|
|
|
Cost of sales
|
|
|
|
|
(46,023) |
|
|
|
|
|
(10,941) |
|
|
|
|
|
(36,366) |
|
|
|
|
|
(10,205) |
|
|
|
|
|
17,624 |
|
|
|
|
|
(85,911) |
|
|
|
Selling and marketing
|
|
|
|
|
(1,081) |
|
|
|
|
|
(352) |
|
|
|
|
|
(1,567) |
|
|
|
|
|
(64) |
|
|
|
|
|
— |
|
|
|
|
|
(3,064) |
|
|
|
General and administrative
|
|
|
|
|
(3,886) |
|
|
|
|
|
(813) |
|
|
|
|
|
(2,632) |
|
|
|
|
|
(209) |
|
|
|
|
|
— |
|
|
|
|
|
(7,540) |
|
|
|
Research and development
|
|
|
|
|
(814) |
|
|
|
|
|
(11) |
|
|
|
|
|
(116) |
|
|
|
|
|
(18) |
|
|
|
|
|
— |
|
|
|
|
|
(959) |
|
|
|
Amortization of intangibles
|
|
|
|
|
(25) |
|
|
|
|
|
— |
|
|
|
|
|
(379) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(404) |
|
|
|
Asset impairment charge
|
|
|
|
|
(77) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(77) |
|
|
|
Restructuring expense and related expense
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Segment operating income
|
|
|
|
|
(181) |
|
|
|
|
$ |
668 |
|
|
|
|
$ |
2,003 |
|
|
|
|
$ |
1,060 |
|
|
|
|
$ |
(1) |
|
|
|
|
|
3,549 |
|
|
|
Interest income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0 |
|
|
|
Interest expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(2,860) |
|
|
|
Other (expense) income, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(1,024) |
|
|
|
Net income (loss) before income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(335) |
|
|
| |
|
|
Nine Months Ended September 30, 2024
|
|
| |
|
|
North
America
|
|
|
South
America
|
|
|
EMEA
|
|
|
Asia
|
|
|
Corporate
and Other
|
|
|
Consolidated
|
|
|
Sales from external customers
|
|
|
|
$ |
135,672 |
|
|
|
|
$ |
39,125 |
|
|
|
|
$ |
99,464 |
|
|
|
|
$ |
33,283 |
|
|
|
|
$ |
(1) |
|
|
|
|
$ |
307,543 |
|
|
|
Intersegment net sales
|
|
|
|
|
23,799 |
|
|
|
|
|
— |
|
|
|
|
|
34,113 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
$ |
57,912 |
|
|
| |
|
|
|
|
159,471 |
|
|
|
|
|
39,125 |
|
|
|
|
|
133,577 |
|
|
|
|
|
33,283 |
|
|
|
|
|
(1) |
|
|
|
|
|
365,455 |
|
|
|
Reconciliation of revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Elimination of intersegment sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(57,912) |
|
|
|
|
|
(57,912) |
|
|
|
Total consolidated net sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
307,543 |
|
|
|
Cost of sales
|
|
|
|
|
(138,640) |
|
|
|
|
|
(33,123) |
|
|
|
|
|
(109,388) |
|
|
|
|
|
(28,462) |
|
|
|
|
|
57,912 |
|
|
|
|
|
(251,701) |
|
|
|
Selling and marketing
|
|
|
|
|
(3,161) |
|
|
|
|
|
(1,103) |
|
|
|
|
|
(4,367) |
|
|
|
|
|
(229) |
|
|
|
|
|
— |
|
|
|
|
|
(8,860) |
|
|
|
General and administrative
|
|
|
|
|
(13,362) |
|
|
|
|
|
(2,386) |
|
|
|
|
|
(6,758) |
|
|
|
|
|
(493) |
|
|
|
|
|
— |
|
|
|
|
|
(22,999) |
|
|
|
Research and development
|
|
|
|
|
(2,471) |
|
|
|
|
|
(47) |
|
|
|
|
|
(327) |
|
|
|
|
|
(72) |
|
|
|
|
|
— |
|
|
|
|
|
(2,917) |
|
|
|
Amortization of intangibles
|
|
|
|
|
(75) |
|
|
|
|
|
— |
|
|
|
|
|
(1,133) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,208) |
|
|
|
Asset impairment charge
|
|
|
|
|
(77) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(77) |
|
|
|
Restructuring expense and related
expense
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,396) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,396) |
|
|
|
Segment operating income
|
|
|
|
|
1,685 |
|
|
|
|
$ |
2,466 |
|
|
|
|
|
10,208 |
|
|
|
|
|
4,027 |
|
|
|
|
|
(1) |
|
|
|
|
|
18,385 |
|
|
|
Interest income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0 |
|
|
|
Interest expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(8,385) |
|
|
|
Other (expense) income, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(2,909) |
|
|
|
Net income (loss) before income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
7,091 |
|
|
The following table reflects the Company’s inventory by segment:
| |
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
|
North America
|
|
|
|
$ |
25,392 |
|
|
|
|
$ |
42,977 |
|
|
|
South America
|
|
|
|
|
17,123 |
|
|
|
|
|
21,100 |
|
|
|
EMEA
|
|
|
|
|
35,024 |
|
|
|
|
|
29,657 |
|
|
|
Asia
|
|
|
|
|
14,237 |
|
|
|
|
|
15,234 |
|
|
|
Consolidated inventory
|
|
|
|
$ |
91,776 |
|
|
|
|
$ |
108,968 |
|
|
The following table reflects the Company’s expenditures for long-lived assets by segment for the three and nine months ended September 30, 2025 and 2024:
| |
|
|
Three Months Ended
September 30,
|
|
|
Nine Months Ended
September 30,
|
|
| |
|
|
2025
|
|
|
2024
|
|
|
2025
|
|
|
2024
|
|
|
North America
|
|
|
|
$ |
7,585 |
|
|
|
|
$ |
3,228 |
|
|
|
|
$ |
21,391 |
|
|
|
|
$ |
7,160 |
|
|
|
South America
|
|
|
|
$ |
632 |
|
|
|
|
$ |
129 |
|
|
|
|
|
721 |
|
|
|
|
|
195 |
|
|
|
EMEA
|
|
|
|
$ |
1,025 |
|
|
|
|
$ |
1,091 |
|
|
|
|
|
3,468 |
|
|
|
|
|
2,356 |
|
|
|
Asia
|
|
|
|
$ |
5 |
|
|
|
|
$ |
(0) |
|
|
|
|
|
10 |
|
|
|
|
|
33 |
|
|
|
Total expenditure for long-lived assets
|
|
|
|
$ |
9,247 |
|
|
|
|
$ |
4,448 |
|
|
|
|
$ |
25,590 |
|
|
|
|
$ |
9,744 |
|
|
Geographic Information
Net sales attributed to the country based on the location of the end customer for the three and nine months ended September 30, 2025 and 2024 were as follows:
| |
|
|
Three Months Ended
September 30,
|
|
|
Nine Months Ended
September 30,
|
|
| |
|
|
2025
|
|
|
2024
|
|
|
2025
|
|
|
2024
|
|
|
United States
|
|
|
|
$ |
23,735 |
|
|
|
|
$ |
32,378 |
|
|
|
|
$ |
87,187 |
|
|
|
|
$ |
100,092 |
|
|
|
Philippines
|
|
|
|
|
6,793 |
|
|
|
|
|
7,141 |
|
|
|
|
|
21,327 |
|
|
|
|
|
19,814 |
|
|
|
Italy
|
|
|
|
|
8,558 |
|
|
|
|
|
6,395 |
|
|
|
|
|
22,055 |
|
|
|
|
|
18,507 |
|
|
|
Brazil
|
|
|
|
|
6,323 |
|
|
|
|
|
7,673 |
|
|
|
|
|
17,824 |
|
|
|
|
|
21,801 |
|
|
|
Mexico
|
|
|
|
|
3,001 |
|
|
|
|
|
4,797 |
|
|
|
|
|
11,094 |
|
|
|
|
|
14,107 |
|
|
|
Argentina
|
|
|
|
|
3,802 |
|
|
|
|
|
4,280 |
|
|
|
|
|
12,820 |
|
|
|
|
|
16,169 |
|
|
|
Germany
|
|
|
|
|
4,672 |
|
|
|
|
|
4,421 |
|
|
|
|
|
13,544 |
|
|
|
|
|
13,197 |
|
|
|
Colombia
|
|
|
|
|
3,352 |
|
|
|
|
|
3,193 |
|
|
|
|
|
10,657 |
|
|
|
|
|
10,643 |
|
|
|
France
|
|
|
|
|
3,970 |
|
|
|
|
|
3,396 |
|
|
|
|
|
11,472 |
|
|
|
|
|
9,413 |
|
|
|
Poland
|
|
|
|
|
2,222 |
|
|
|
|
|
1,942 |
|
|
|
|
|
5,898 |
|
|
|
|
|
6,415 |
|
|
|
Other international
|
|
|
|
|
24,734 |
|
|
|
|
|
25,888 |
|
|
|
|
|
68,751 |
|
|
|
|
|
77,385 |
|
|
|
Consolidated net sales
|
|
|
|
$ |
91,162 |
|
|
|
|
$ |
101,504 |
|
|
|
|
$ |
282,629 |
|
|
|
|
$ |
307,543 |
|
|
Total long-lived assets by country, which include property and equipment, net, operating lease right-of-use assets, net, and other assets, net, consists of the following:
| |
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
|
United States
|
|
|
|
$ |
83,220 |
|
|
|
|
$ |
76,849 |
|
|
|
France
|
|
|
|
|
29,464 |
|
|
|
|
|
26,652 |
|
|
|
Brazil
|
|
|
|
|
15,993 |
|
|
|
|
|
14,477 |
|
|
|
Poland
|
|
|
|
|
12,210 |
|
|
|
|
|
11,809 |
|
|
|
Philippines
|
|
|
|
|
8,547 |
|
|
|
|
|
9,740 |
|
|
|
Other international
|
|
|
|
|
14,953 |
|
|
|
|
|
14,297 |
|
|
|
Consolidated long-lived assets
|
|
|
|
$ |
164,387 |
|
|
|
|
$ |
153,824 |
|
|
13.
OTHER COMPREHENSIVE INCOME AND CHANGES IN ACCUMULATED OTHER COMPREHENSIVE LOSS
Tax effects allocated to each component of other comprehensive income are the following:
Balance at September 30, 2024
| |
|
|
Before-Tax
Amount
|
|
|
Tax (Expense) or
Benefit
|
|
|
Net-of-Tax
Amount
|
|
|
Foreign currency translation adjustments
|
|
|
|
$ |
(1,432) |
|
|
|
|
|
— |
|
|
|
|
$ |
(1,432) |
|
|
|
Pension liability adjustments
|
|
|
|
|
156 |
|
|
|
|
|
— |
|
|
|
|
|
156 |
|
|
|
Total other comprehensive (loss) income
|
|
|
|
$ |
(1,276) |
|
|
|
|
|
— |
|
|
|
|
$ |
(1,276) |
|
|
Balance at September 30, 2025
| |
|
|
Before-Tax
Amount
|
|
|
Tax (Expense) or
Benefit
|
|
|
Net-of-Tax
Amount
|
|
|
Foreign currency translation adjustments
|
|
|
|
$ |
4,863 |
|
|
|
|
|
— |
|
|
|
|
$ |
4,863 |
|
|
|
Pension liability adjustments
|
|
|
|
|
1,312 |
|
|
|
|
|
— |
|
|
|
|
$ |
1,312 |
|
|
|
Total other comprehensive (loss) income
|
|
|
|
$ |
6,175 |
|
|
|
|
|
— |
|
|
|
|
$ |
6,175 |
|
|
Changes in accumulated other comprehensive loss consist of the following:
| |
|
|
Accrued Employee
Benefits
|
|
|
Translation
Adjustments
|
|
|
Total
|
|
|
Balance at December 31, 2023
|
|
|
|
$ |
(22,113) |
|
|
|
|
$ |
(37,087) |
|
|
|
|
$ |
(59,200) |
|
|
|
Other comprehensive income (loss) before reclassifications
|
|
|
|
|
— |
|
|
|
|
|
(1,833) |
|
|
|
|
|
(1,833) |
|
|
|
Reclassifications from accumulated other comprehensive loss to earnings
|
|
|
|
|
(6) |
|
|
|
|
|
— |
|
|
|
|
|
(6) |
|
|
|
Balance at March 31, 2024
|
|
|
|
$ |
(22,119) |
|
|
|
|
$ |
(38,920) |
|
|
|
|
$ |
(61,039) |
|
|
|
Other comprehensive income (loss) before reclassifications
|
|
|
|
|
— |
|
|
|
|
|
(3,797) |
|
|
|
|
|
(3,797) |
|
|
|
Reclassifications from accumulated other comprehensive loss to earnings
|
|
|
|
|
23 |
|
|
|
|
|
— |
|
|
|
|
|
23 |
|
|
|
Balance at June 30, 2024
|
|
|
|
$ |
(22,096) |
|
|
|
|
$ |
(42,717) |
|
|
|
|
$ |
(64,813) |
|
|
|
Other comprehensive income (loss) before reclassifications
|
|
|
|
|
— |
|
|
|
|
|
4,198 |
|
|
|
|
|
4,198 |
|
|
|
Reclassifications from accumulated other comprehensive loss to earnings
|
|
|
|
|
139 |
|
|
|
|
|
— |
|
|
|
|
|
139 |
|
|
|
Balance at September 30, 2024
|
|
|
|
$ |
(21,957) |
|
|
|
|
$ |
(38,519) |
|
|
|
|
$ |
(60,476) |
|
|
| |
|
|
Accrued Employee
Benefits
|
|
|
Translation
Adjustments
|
|
|
Total
|
|
|
Balance at December 31, 2024
|
|
|
|
$ |
(20,958) |
|
|
|
|
$ |
(44,428) |
|
|
|
|
|
(65,386) |
|
|
|
Other comprehensive income (loss) before reclassifications
|
|
|
|
|
— |
|
|
|
|
|
2,157 |
|
|
|
|
|
2,157 |
|
|
|
Reclassifications from accumulated other comprehensive loss to earnings
|
|
|
|
|
99 |
|
|
|
|
|
— |
|
|
|
|
|
99 |
|
|
|
Balance at March 31, 2025
|
|
|
|
$ |
(20,859) |
|
|
|
|
$ |
(42,271) |
|
|
|
|
$ |
(63,130) |
|
|
|
Other comprehensive income (loss) before reclassifications
|
|
|
|
|
— |
|
|
|
|
|
5,237 |
|
|
|
|
|
5,237 |
|
|
|
Reclassifications from accumulated other comprehensive loss to earnings
|
|
|
|
|
1,187 |
|
|
|
|
|
— |
|
|
|
|
|
1,187 |
|
|
|
Balance at June 30, 2025
|
|
|
|
$ |
(19,672) |
|
|
|
|
$ |
(37,034) |
|
|
|
|
$ |
(56,706) |
|
|
|
Other comprehensive income (loss) before reclassifications
|
|
|
|
|
— |
|
|
|
|
|
(2,531) |
|
|
|
|
|
(2,531) |
|
|
|
Reclassifications from accumulated other comprehensive loss to earnings
|
|
|
|
|
26 |
|
|
|
|
|
— |
|
|
|
|
|
26 |
|
|
|
Balance at September 30, 2025
|
|
|
|
$ |
(19,646) |
|
|
|
|
$ |
(39,565) |
|
|
|
|
$ |
(59,211) |
|
|
14. VARIABLE INTEREST ENTITY
The Company holds a variable interest in a joint venture for which the Company is the primary beneficiary, the joint venture, VE Netting, LLC.
The following table summarizes the carrying amount of the VIEs’ assets and liabilities included in the Company’s Consolidated Balance Sheets as of September 30, 2025 and December 31, 2024:
| |
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
$ |
53 |
|
|
|
|
$ |
8 |
|
|
|
Receivables, net
|
|
|
|
|
37 |
|
|
|
|
|
80 |
|
|
|
Inventories, net
|
|
|
|
|
398 |
|
|
|
|
|
475 |
|
|
|
Other current assets
|
|
|
|
|
208 |
|
|
|
|
|
51 |
|
|
|
Property, plant and equipment
|
|
|
|
|
1,277 |
|
|
|
|
|
1,277 |
|
|
|
Less: Accumulated depreciation
|
|
|
|
|
(966) |
|
|
|
|
|
(870) |
|
|
|
Property, plant and equipment, net
|
|
|
|
|
311 |
|
|
|
|
|
407 |
|
|
|
Other assets
|
|
|
|
|
13 |
|
|
|
|
|
16 |
|
|
|
Total Assets
|
|
|
|
$ |
1,020 |
|
|
|
|
$ |
1,037 |
|
|
|
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities
|
|
|
|
|
798 |
|
|
|
|
|
749 |
|
|
|
Total Liabilites
|
|
|
|
|
798 |
|
|
|
|
|
749 |
|
|
|
Paid in capital
|
|
|
|
|
2,931 |
|
|
|
|
|
2,931 |
|
|
|
Retained earnings
|
|
|
|
|
(2,708) |
|
|
|
|
|
(2,643) |
|
|
|
Total Stockholder Equity
|
|
|
|
|
223 |
|
|
|
|
|
288 |
|
|
|
Total Liabilities and Stockholders’ Equity
|
|
|
|
$ |
1,021 |
|
|
|
|
$ |
1,037 |
|
|
All assets in the above table can only be used to settle obligations of the consolidated VIE. Liabilities are nonrecourse obligations. Amounts presented in the table above are adjusted for intercompany eliminations.
The following table summarizes the Statement of Operations of the VIE included in the Company’s Consolidated Statement of Operations for the three and nine months ended September 30, 2025 and September 30, 2024.
| |
|
|
Three Months
Ended
September 30,
2025
|
|
|
Three Months
Ended
September 30,
2024
|
|
|
Nine Months
Ended
September 30,
2025
|
|
|
Nine Months
Ended
September 30,
2024
|
|
|
Net sales
|
|
|
|
$ |
174 |
|
|
|
|
$ |
236 |
|
|
|
|
$ |
532 |
|
|
|
|
$ |
642 |
|
|
|
Cost of sales
|
|
|
|
|
177 |
|
|
|
|
|
192 |
|
|
|
|
|
538 |
|
|
|
|
|
658 |
|
|
|
Gross margin
|
|
|
|
|
(3) |
|
|
|
|
|
44 |
|
|
|
|
|
(6) |
|
|
|
|
|
(16) |
|
|
|
Selling, general and administrative
|
|
|
|
|
11 |
|
|
|
|
|
14 |
|
|
|
|
|
34 |
|
|
|
|
|
41 |
|
|
|
Asset impairment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Operating loss
|
|
|
|
|
(14) |
|
|
|
|
|
30 |
|
|
|
|
|
(40) |
|
|
|
|
|
(57) |
|
|
|
Other expense
|
|
|
|
|
9 |
|
|
|
|
|
10 |
|
|
|
|
|
26 |
|
|
|
|
|
30 |
|
|
|
Loss before income taxes
|
|
|
|
|
(23) |
|
|
|
|
|
19 |
|
|
|
|
|
(66) |
|
|
|
|
|
(88) |
|
|
|
Income tax expense
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Net loss
|
|
|
|
$ |
(23) |
|
|
|
|
$ |
19 |
|
|
|
|
$ |
(66) |
|
|
|
|
$ |
(88) |
|
|
15. NET EARNINGS (LOSS) PER SHARE
Basic and diluted net (loss) income per share attributable to common stockholders was calculated as follows (dollar amounts in thousands):
| |
|
|
Three Months
Ended
September 30,
2025
|
|
|
Three Months
Ended
September 30,
2024
|
|
|
Nine Months
Ended
September 30,
2025
|
|
|
Nine Months
Ended
September 30,
2024
|
|
|
Numerator:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income attributable to common stockholders
|
|
|
|
$ |
(12,984) |
|
|
|
|
$ |
(154) |
|
|
|
|
$ |
(46,815) |
|
|
|
|
$ |
3,755 |
|
|
|
Denominator:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-average common shares outstanding, basic and diluted
|
|
|
|
|
111,623,367 |
|
|
|
|
|
103,190,665 |
|
|
|
|
|
108,795,514 |
|
|
|
|
|
103,190,665 |
|
|
|
Net (loss) income per share attributable to common stockholders, basic and diluted
|
|
|
|
$ |
(0.12) |
|
|
|
|
$ |
(0.00) |
|
|
|
|
$ |
(0.43) |
|
|
|
|
$ |
0.04 |
|
|
16. RESTRUCTURING
During 2024, the Company announced and began implementing a restructuring plan to realign our operational focus to support multi-year growth, scale the business, and improve costs (the “2024 Restructuring Plan”). As part of this plan, the Company reduced headcount and closed its Swiecie, Poland manufacturing facility and transferred a portion of the machinery to its Legnica, Poland facility to expand production capabilities, scale the business, and improve costs. The majority of the 2024 Restructuring Plan was implemented and completed in the year ended December 31, 2024.
On March 26, 2025, the Company announced that it would cease production at the Osceola, Arkansas facility effective April 30, 2025 (the “2025 Plant Closure Program”). In connection with the plant closure, 210 employees were separated under the separation plan resulting in severance of approximately $4,543 being included in accrued liabilities and restructuring and related expense as of and for the nine months ended September 30, 2025. Additionally, there were site closure costs of $2,063 included in accrued liabilities and restructuring and related expense as of and for the nine months ended September 30, 2025. The Company recorded an additional $819 in site closure costs in restructuring and related expense for the three months ended September 30, 2025. The plant closure resulted in a loss on disposal of property, plant and equipment of $10,400 related to machinery and equipment and asset impairment of $1,700 related to the land and building of the plant which are recorded in the condensed consolidated statement of operations for the nine months ended September 30, 2025.
Restructuring and related expense consists of the following in the condensed consolidated statements of operations for the nine months ended September 30, 2025 and September 30, 2024, respectively:
|
(in thousands)
|
|
|
Three Months
Ended
September 30,
2025
|
|
|
Three Months
Ended
Spetemeber 30,
2024
|
|
|
Nine Months
Ended
September 30,
2025
|
|
|
Nine Months
Ended
September 30,
2024
|
|
|
Severance and other personnel costs
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
$ |
4,543 |
|
|
|
|
|
553 |
|
|
|
Transfer and disposal costs and professional fees
|
|
|
|
|
819 |
|
|
|
|
|
— |
|
|
|
|
|
2,063 |
|
|
|
|
|
843 |
|
|
| |
|
|
|
$ |
819 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
6,606 |
|
|
|
|
$ |
1,396 |
|
|
The following table summarizes the activities as of September 30, 2025 and December 31, 2024:
|
(in thousands)
|
|
|
September 30,
2025
|
|
|
December 31,
2024
|
|
|
Beginning balance
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Provision
|
|
|
|
|
6,606 |
|
|
|
|
|
1,917 |
|
|
|
Payments
|
|
|
|
|
(6,051) |
|
|
|
|
|
(1,917) |
|
|
|
Ending balance
|
|
|
|
$ |
555 |
|
|
|
|
|
— |
|
|
In addition, we continue to review our global businesses and may take additional restructuring actions where a path to sustained profitability is not feasible when considering the capital allocation required for those businesses.
17. REVENUE RECOGNITION
The following table summarizes net sales by product line:
| |
|
|
Three Months
Ended
September 30,
2025
|
|
|
Three Months
Ended
September 30,
2024
|
|
|
Nine Months
Ended
September 30,
2025
|
|
|
Nine Months
Ended
September 30,
2024
|
|
|
Net Sales by product line
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nojax
|
|
|
|
$ |
47,121 |
|
|
|
|
$ |
57,908 |
|
|
|
|
$ |
149,301 |
|
|
|
|
$ |
174,366 |
|
|
|
Fibrous
|
|
|
|
$ |
27,309 |
|
|
|
|
$ |
25,948 |
|
|
|
|
|
80,641 |
|
|
|
|
|
79,958 |
|
|
|
Large
|
|
|
|
$ |
1,880 |
|
|
|
|
$ |
2,432 |
|
|
|
|
|
6,567 |
|
|
|
|
|
7,975 |
|
|
|
Plastic
|
|
|
|
$ |
11,662 |
|
|
|
|
$ |
12,474 |
|
|
|
|
|
36,379 |
|
|
|
|
|
37,868 |
|
|
|
Traded Goods
|
|
|
|
$ |
2,546 |
|
|
|
|
$ |
2,334 |
|
|
|
|
|
6,867 |
|
|
|
|
|
6,355 |
|
|
|
Other
|
|
|
|
$ |
643 |
|
|
|
|
$ |
408 |
|
|
|
|
|
2,874 |
|
|
|
|
|
1,021 |
|
|
|
Total
|
|
|
|
$ |
91,161 |
|
|
|
|
$ |
101,504 |
|
|
|
|
$ |
282,629 |
|
|
|
|
$ |
307,543 |
|
|
18. SUBSEQUENT EVENTS
Viskase evaluated its September 30, 2025 condensed consolidated financial statements for subsequent events through December 19, 2025, the date the condensed consolidated financial statements were available to be issued.
Agreement and Plan of Merger
On June 20, 2025, the Company entered into an Agreement and Plan of Merger (“Merger Agreement”) that was further amended on October 23, 2025 by and between Enzon Pharmaceuticals, Inc. (“Enzon”), and EPSC Acquisition Corp. (“ESPC”). Under the terms of the Merger Agreement, EPSC will merge with and into the Company, with the Company surviving as a wholly owned subsidiary of Enzon, (the “Merger”). Immediately following the Merger, the Company will convert into a limited liability company under Delaware law. Enzon is expected to change its name to Viskase Holdings, and trade on the OTC market.
Additionally, on June 20, 2025, the Company entered into a support agreement (“Support Agreement”). In accordance with the Support Agreement, the owners of Enzon and the Company will exchange their beneficially owned shares of Enzon Series C Preferred Stock for shares of Enzon common stock. Enzon will use commercially reasonable efforts to facilitate the exchange of Enzon Series C Preferred Stock held by non-related ownership parties for shares of Enzon common stock through the Series C Exchange Offer.
Enzon will effectuate a reverse stock split of the outstanding Enzon Common Stock. The determination as to the final ratio of the Reverse Stock Split shall be made by the Company between a certain range and not to exceed the authorized number of shares of Enzon Common Stock. In addition, each share of the Company’s common stock issued and outstanding prior to the merger will automatically be converted into the
right to receive shares of Enzon Common Stock at a certain exchange ratio. All shares of EPSC common stock will be automatically converted into shares of the surviving company.
The transaction is expected to close in 2026 pending standard closing requirements and regulatory approvals.
CONSOLIDATED FINANCIAL STATEMENTS OF VISKASE COMPANIES, INC. AND SUBSIDIARIES
| |
|
|
|
|
|
F-57
|
|
|
| |
|
|
|
|
|
F-59
|
|
|
| |
|
|
|
|
|
F-60
|
|
|
| |
|
|
|
|
|
F-61
|
|
|
| |
|
|
|
|
|
F-62
|
|
|
| |
|
|
|
|
|
F-63
|
|
|
| |
Notes to Consolidated Financial Statements
|
|
|
|
|
F-64
|
|
|
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors and Stockholders
Viskase Companies, Inc.
Opinion on the financial statements
We have audited the accompanying consolidated balance sheets of Viskase Companies, Inc. (a Delaware corporation) and subsidiaries (the “Company”) as of December 31, 2024 and 2023, the related consolidated statements of operations, comprehensive (loss) income, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2024, and the related notes collectively referred to as the consolidated financial statements. In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2024 and 2023, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2024, in conformity with accounting principles generally accepted in the United States of America.
Going concern
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the financial statements, the Company is dependent on its Senior Credit Facility which reaches maturity in August 2026 and has stated that substantial doubt exists about the Company’s ability to continue as a going concern. Management’s evaluation of the events and conditions and management’s plans regarding these matters are also described in Note 1. The financial statements do not include any adjustments that might result from the outcome of this uncertainty. Our opinion is not modified with respect to this matter.
Basis for opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB and in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical audit matters
Critical audit matters are matters arising from the current period audit of the financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. We determined that there are no critical audit matters.
/s/ GRANT THORNTON LLP
We have served as the Company’s auditor since 2003.
Chicago, Illinois
December 19, 2025
VISKASE COMPANIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands of U.S. dollars, except for number of shares and per share amounts)
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
$ |
5,704 |
|
|
|
|
$ |
7,862 |
|
|
|
Receivables, net
|
|
|
|
|
74,809 |
|
|
|
|
|
88,950 |
|
|
|
Inventories
|
|
|
|
|
108,968 |
|
|
|
|
|
111,310 |
|
|
|
Other current assets
|
|
|
|
|
46,204 |
|
|
|
|
|
42,674 |
|
|
|
Total current assets
|
|
|
|
|
235,685 |
|
|
|
|
|
250,796 |
|
|
|
Property, plant and equipment
|
|
|
|
|
438,086 |
|
|
|
|
|
436,372 |
|
|
|
Less accumulated depreciation
|
|
|
|
|
(314,351) |
|
|
|
|
|
(302,027) |
|
|
|
Property, plant and equipment, net
|
|
|
|
|
123,735 |
|
|
|
|
|
134,345 |
|
|
|
Right of use assets
|
|
|
|
|
19,190 |
|
|
|
|
|
22,309 |
|
|
|
Other assets, net
|
|
|
|
|
10,899 |
|
|
|
|
|
15,676 |
|
|
|
Intangible assets
|
|
|
|
|
13,381 |
|
|
|
|
|
15,799 |
|
|
|
Goodwill
|
|
|
|
|
2,820 |
|
|
|
|
|
3,321 |
|
|
|
Deferred income taxes
|
|
|
|
|
16,011 |
|
|
|
|
|
18,597 |
|
|
|
Total Assets
|
|
|
|
$ |
421,721 |
|
|
|
|
$ |
460,843 |
|
|
|
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Short-term debt
|
|
|
|
$ |
44,530 |
|
|
|
|
$ |
21,747 |
|
|
|
Accounts payable
|
|
|
|
|
35,496 |
|
|
|
|
|
44,768 |
|
|
|
Accrued liabilities
|
|
|
|
|
23,167 |
|
|
|
|
|
39,163 |
|
|
|
Short-term portion lease liabilities
|
|
|
|
|
4,497 |
|
|
|
|
|
4,777 |
|
|
|
Total current liabilities
|
|
|
|
|
107,690 |
|
|
|
|
|
110,455 |
|
|
|
Long-term debt, net of current maturities
|
|
|
|
|
99,064 |
|
|
|
|
|
111,738 |
|
|
|
Long-term liabilities
|
|
|
|
|
— |
|
|
|
|
|
1,330 |
|
|
|
Accrued employee benefits
|
|
|
|
|
25,418 |
|
|
|
|
|
32,256 |
|
|
|
Deferred income taxes
|
|
|
|
|
2,339 |
|
|
|
|
|
3,021 |
|
|
|
Long-term lease liabilities
|
|
|
|
|
17,220 |
|
|
|
|
|
20,408 |
|
|
|
Stockholders’ equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock, $0.01 par value; 103,995,935 shares issued and 103,190,665 outstanding
|
|
|
|
|
1,040 |
|
|
|
|
|
1,040 |
|
|
|
Paid in capital
|
|
|
|
|
182,343 |
|
|
|
|
|
182,343 |
|
|
|
Retained earnings
|
|
|
|
|
53,613 |
|
|
|
|
|
58,973 |
|
|
|
Less 805,270 treasury shares, at cost
|
|
|
|
|
(298) |
|
|
|
|
|
(298) |
|
|
|
Accumulated other comprehensive loss
|
|
|
|
|
(65,386) |
|
|
|
|
|
(59,200) |
|
|
|
Total Viskase stockholders’ equity
|
|
|
|
|
171,312 |
|
|
|
|
|
182,858 |
|
|
|
Deficit attributable to non-controlling interest
|
|
|
|
|
(1,322) |
|
|
|
|
|
(1,223) |
|
|
|
Total stockholders’ equity
|
|
|
|
|
169,990 |
|
|
|
|
|
181,635 |
|
|
|
Total Liabilities and Stockholders’ Equity
|
|
|
|
$ |
421,721 |
|
|
|
|
$ |
460,843 |
|
|
VISKASE COMPANIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Amounts in thousands of U.S. dollars, except for number of shares and per share amounts)
| |
|
|
Year Ended
December 31,
2024
|
|
|
Year Ended
December 31,
2023
|
|
|
Year Ended
December 31,
2022
|
|
|
NET SALES
|
|
|
|
$ |
403,775 |
|
|
|
|
$ |
445,984 |
|
|
|
|
$ |
430,834 |
|
|
|
Cost of sales
|
|
|
|
|
335,945 |
|
|
|
|
|
352,221 |
|
|
|
|
|
356,701 |
|
|
|
GROSS MARGIN
|
|
|
|
|
67,830 |
|
|
|
|
|
93,763 |
|
|
|
|
|
74,133 |
|
|
|
Selling, general and administrative
|
|
|
|
|
48,421 |
|
|
|
|
|
52,436 |
|
|
|
|
|
50,283 |
|
|
|
Amortization of intangibles
|
|
|
|
|
1,609 |
|
|
|
|
|
1,606 |
|
|
|
|
|
1,576 |
|
|
|
Asset impairment charge
|
|
|
|
|
448 |
|
|
|
|
|
338 |
|
|
|
|
|
27 |
|
|
|
Restructuring expense
|
|
|
|
|
1,917 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
OPERATING INCOME
|
|
|
|
|
15,435 |
|
|
|
|
|
39,383 |
|
|
|
|
|
22,247 |
|
|
|
Interest income
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
5 |
|
|
|
Interest expense, net
|
|
|
|
|
11,032 |
|
|
|
|
|
12,018 |
|
|
|
|
|
8,433 |
|
|
|
Other expense, net
|
|
|
|
|
10,532 |
|
|
|
|
|
10,395 |
|
|
|
|
|
4,396 |
|
|
|
(LOSS) INCOME BEFORE INCOME TAXES
|
|
|
|
|
(6,129) |
|
|
|
|
|
16,970 |
|
|
|
|
|
9,423 |
|
|
|
Income tax (benefit) provision
|
|
|
|
|
(670) |
|
|
|
|
|
3,534 |
|
|
|
|
|
7,139 |
|
|
|
NET (LOSS) INCOME
|
|
|
|
$ |
(5,459) |
|
|
|
|
$ |
13,436 |
|
|
|
|
$ |
2,284 |
|
|
|
Less: net loss attributable to noncontrolling interests
|
|
|
|
|
(99) |
|
|
|
|
|
(70) |
|
|
|
|
|
(245) |
|
|
|
Net (loss) income attributable to Viskase Companies, Inc
|
|
|
|
$ |
(5,360) |
|
|
|
|
$ |
13,506 |
|
|
|
|
$ |
2,529 |
|
|
|
WEIGHTED AVERAGE COMMON SHARES – BASIC
AND DILUTED
|
|
|
|
|
103,190,665 |
|
|
|
|
|
103,190,665 |
|
|
|
|
|
103,190,665 |
|
|
|
PER SHARE AMOUNTS:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EARNINGS PER SHARE – BASIC AND DILUTED
|
|
|
|
$ |
(0.05) |
|
|
|
|
$ |
0.13 |
|
|
|
|
$ |
0.02 |
|
|
VISKASE COMPANIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE (LOSS) INCOME
for the years ended December 31, 2024, 2023 and 2022
| |
|
|
Year Ended
December 31,
2024
|
|
|
Year Ended
December 31,
2023
|
|
|
Year Ended
December 31,
2022
|
|
|
Net (loss) income
|
|
|
|
$ |
(5,459) |
|
|
|
|
$ |
13,436 |
|
|
|
|
$ |
2,284 |
|
|
|
Other comprehensive (loss) income, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension liability adjustment
|
|
|
|
|
1,155 |
|
|
|
|
|
2,634 |
|
|
|
|
|
11,304 |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
(7,341) |
|
|
|
|
|
5,280 |
|
|
|
|
|
(4,779) |
|
|
|
Other comprehensive (loss) income, net of tax
|
|
|
|
|
(6,186) |
|
|
|
|
|
7,914 |
|
|
|
|
|
6,525 |
|
|
|
Comprehensive (loss) income
|
|
|
|
$ |
(11,645) |
|
|
|
|
$ |
21,350 |
|
|
|
|
$ |
8,809 |
|
|
|
Less: comprehensive loss attributable to noncontrolling interests
|
|
|
|
|
(99) |
|
|
|
|
|
(70) |
|
|
|
|
|
(245) |
|
|
|
Net comprehensive (loss) income attributable to Viskase
Companies, Inc
|
|
|
|
$ |
(11,546) |
|
|
|
|
$ |
21,420 |
|
|
|
|
$ |
9,054 |
|
|
VISKASE COMPANIES, INC. AND SUBSIDIARIES
Consolidated Statements of Stockholders’ Equity
for the years ended December 31, 2024, 2023 and 2022
| |
|
|
Common
stock
|
|
|
Paid in
capital
|
|
|
Treasury
stock
|
|
|
Retained
earnings
|
|
|
Accumulated
other
comprehensive
loss
|
|
|
Total Viskase
stockholders’
equity
|
|
|
Non-controlling
Interest
|
|
|
Total
stockholders’
equity
|
|
|
Balance December 31, 2021
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
42,938 |
|
|
|
|
$ |
(73,639) |
|
|
|
|
$ |
152,384 |
|
|
|
|
$ |
(908) |
|
|
|
|
$ |
151,476 |
|
|
|
Net income (loss)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
2,529 |
|
|
|
|
|
— |
|
|
|
|
|
2,529 |
|
|
|
|
|
(245) |
|
|
|
|
|
2,284 |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(4,779) |
|
|
|
|
|
(4,779) |
|
|
|
|
|
— |
|
|
|
|
|
(4,779) |
|
|
|
Pension liability adjustment, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
11,304 |
|
|
|
|
|
11,304 |
|
|
|
|
|
— |
|
|
|
|
|
11,304 |
|
|
|
Balance December 31, 2022
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
45,467 |
|
|
|
|
$ |
(67,114) |
|
|
|
|
$ |
161,438 |
|
|
|
|
$ |
(1,153) |
|
|
|
|
$ |
160,285 |
|
|
|
Net income (loss)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
$ |
13,506 |
|
|
|
|
|
— |
|
|
|
|
|
13,506 |
|
|
|
|
|
(70) |
|
|
|
|
|
13,436 |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
5,280 |
|
|
|
|
|
5,280 |
|
|
|
|
|
— |
|
|
|
|
|
5,280 |
|
|
|
Pension liability adjustment, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
2,634 |
|
|
|
|
|
2,634 |
|
|
|
|
|
— |
|
|
|
|
|
2,634 |
|
|
|
Balance December 31, 2023
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
58,973 |
|
|
|
|
$ |
(59,200) |
|
|
|
|
$ |
182,858 |
|
|
|
|
$ |
(1,223) |
|
|
|
|
$ |
181,635 |
|
|
|
Net (loss)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(5,360) |
|
|
|
|
|
— |
|
|
|
|
|
(5,360) |
|
|
|
|
|
(99) |
|
|
|
|
|
(5,459) |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(7,341) |
|
|
|
|
|
(7,341) |
|
|
|
|
|
— |
|
|
|
|
|
(7,341) |
|
|
|
Pension liability adjustment, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
1,155 |
|
|
|
|
|
1,155 |
|
|
|
|
|
— |
|
|
|
|
|
1,155 |
|
|
|
Balance December 31, 2024
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
53,613 |
|
|
|
|
$ |
(65,386) |
|
|
|
|
$ |
171,312 |
|
|
|
|
$ |
(1,322) |
|
|
|
|
$ |
169,990 |
|
|
|
Balance December 31, 2020
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
46,157 |
|
|
|
|
$ |
(78,651) |
|
|
|
|
$ |
150,591 |
|
|
|
|
$ |
(771) |
|
|
|
|
$ |
149,820 |
|
|
|
Net loss
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(3,219) |
|
|
|
|
|
— |
|
|
|
|
|
(3,219) |
|
|
|
|
|
(137) |
|
|
|
|
|
(3,356) |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(4,902) |
|
|
|
|
|
(4,902) |
|
|
|
|
|
— |
|
|
|
|
|
(4,902) |
|
|
|
Pension liability adjustment, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
9,914 |
|
|
|
|
|
9,914 |
|
|
|
|
|
— |
|
|
|
|
|
9,914 |
|
|
|
Balance December 31, 2021
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
42,938 |
|
|
|
|
$ |
(73,639) |
|
|
|
|
$ |
152,384 |
|
|
|
|
$ |
(908) |
|
|
|
|
$ |
151,476 |
|
|
|
Net income (loss)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
$ |
2,529 |
|
|
|
|
|
— |
|
|
|
|
|
2,529 |
|
|
|
|
|
(245) |
|
|
|
|
|
2,284 |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(4,779) |
|
|
|
|
|
(4,779) |
|
|
|
|
|
— |
|
|
|
|
|
(4,779) |
|
|
|
Pension liability adjustment, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
11,304 |
|
|
|
|
|
11,304 |
|
|
|
|
|
— |
|
|
|
|
|
11,304 |
|
|
|
Balance December 31, 2022
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
45,467 |
|
|
|
|
$ |
(67,114) |
|
|
|
|
$ |
161,438 |
|
|
|
|
$ |
(1,153) |
|
|
|
|
$ |
160,285 |
|
|
|
Net income (loss)
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
13,506 |
|
|
|
|
|
— |
|
|
|
|
|
13,506 |
|
|
|
|
|
(70) |
|
|
|
|
|
13,436 |
|
|
|
Foreign currency translation adjustment
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
5,280 |
|
|
|
|
|
5,280 |
|
|
|
|
|
— |
|
|
|
|
|
5,280 |
|
|
|
Pension liability adjustment, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
2,634 |
|
|
|
|
|
2,634 |
|
|
|
|
|
— |
|
|
|
|
|
2,634 |
|
|
|
Balance December 31, 2023
|
|
|
|
$ |
1,040 |
|
|
|
|
$ |
182,343 |
|
|
|
|
$ |
(298) |
|
|
|
|
$ |
58,973 |
|
|
|
|
$ |
(59,200) |
|
|
|
|
$ |
182,858 |
|
|
|
|
$ |
(1,223) |
|
|
|
|
$ |
181,635 |
|
|
VISKASE COMPANIES, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
for the years ended December 31, 2024, 2023 and 2022
| |
|
|
Year Ended
December 31,
2024
|
|
|
Year Ended
December 31,
2023
|
|
|
Year Ended
December 31,
2022
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
|
|
$ |
(5,459) |
|
|
|
|
$ |
13,436 |
|
|
|
|
$ |
2,284 |
|
|
|
Adjustments to reconcile net income (loss) to net cash provided
by operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
|
|
23,678 |
|
|
|
|
|
25,223 |
|
|
|
|
|
27,303 |
|
|
|
Amortization of deferred financing fees
|
|
|
|
|
484 |
|
|
|
|
|
464 |
|
|
|
|
|
403 |
|
|
|
Deferred income taxes
|
|
|
|
|
787 |
|
|
|
|
|
3,241 |
|
|
|
|
|
(99) |
|
|
|
Loss on disposition/impairment of assets
|
|
|
|
|
556 |
|
|
|
|
|
449 |
|
|
|
|
|
337 |
|
|
|
Bad debt and accounts receivable provision
|
|
|
|
|
198 |
|
|
|
|
|
175 |
|
|
|
|
|
187 |
|
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Receivables
|
|
|
|
|
11,900 |
|
|
|
|
|
598 |
|
|
|
|
|
(8,795) |
|
|
|
Inventories
|
|
|
|
|
366 |
|
|
|
|
|
(5,934) |
|
|
|
|
|
(13,019) |
|
|
|
Other current assets
|
|
|
|
|
(5,180) |
|
|
|
|
|
(1,104) |
|
|
|
|
|
3,509 |
|
|
|
Accounts payable
|
|
|
|
|
(8,016) |
|
|
|
|
|
480 |
|
|
|
|
|
9,109 |
|
|
|
Accrued liabilities
|
|
|
|
|
(16,044) |
|
|
|
|
|
6,508 |
|
|
|
|
|
(2,186) |
|
|
|
Accrued employee benefits
|
|
|
|
|
(2,896) |
|
|
|
|
|
(699) |
|
|
|
|
|
(1,636) |
|
|
|
Other assets
|
|
|
|
|
4,678 |
|
|
|
|
|
748 |
|
|
|
|
|
(4,349) |
|
|
|
Other
|
|
|
|
|
(1,683) |
|
|
|
|
|
580 |
|
|
|
|
|
(2,669) |
|
|
|
Total adjustments
|
|
|
|
|
8,828 |
|
|
|
|
|
30,729 |
|
|
|
|
|
8,095 |
|
|
|
Net cash provided by operating activities
|
|
|
|
|
3,369 |
|
|
|
|
|
44,165 |
|
|
|
|
|
10,379 |
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital expenditures
|
|
|
|
|
(15,279) |
|
|
|
|
|
(14,470) |
|
|
|
|
|
(22,336) |
|
|
|
Proceeds from disposition of assets
|
|
|
|
|
— |
|
|
|
|
|
10 |
|
|
|
|
|
149 |
|
|
|
Net cash used in investing activities
|
|
|
|
|
(15,279) |
|
|
|
|
|
(14,460) |
|
|
|
|
|
(22,187) |
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred financing costs
|
|
|
|
|
— |
|
|
|
|
|
(16) |
|
|
|
|
|
(294) |
|
|
|
Proceeds from short-term debt
|
|
|
|
|
21,500 |
|
|
|
|
|
10,101 |
|
|
|
|
|
14,000 |
|
|
|
Repayment of short-term debt
|
|
|
|
|
— |
|
|
|
|
|
(30,240) |
|
|
|
|
|
— |
|
|
|
Repayment of long-term debt
|
|
|
|
|
(11,250) |
|
|
|
|
|
(9,126) |
|
|
|
|
|
(7,500) |
|
|
|
Repayment of capital lease
|
|
|
|
|
— |
|
|
|
|
|
(11) |
|
|
|
|
|
(12) |
|
|
|
Net cash (used in) provided by financing activities
|
|
|
|
|
10,250 |
|
|
|
|
|
(29,292) |
|
|
|
|
|
6,194 |
|
|
|
Effect of currency exchange rate changes on cash
|
|
|
|
|
(498) |
|
|
|
|
|
(1,334) |
|
|
|
|
|
4,521 |
|
|
|
Net decrease in cash and equivalents
|
|
|
|
|
(2,158) |
|
|
|
|
|
(921) |
|
|
|
|
|
(1,093) |
|
|
|
Cash and cash equivalents at beginning of period
|
|
|
|
|
7,862 |
|
|
|
|
|
8,783 |
|
|
|
|
|
9,876 |
|
|
|
Cash and cash equivalents at end of period
|
|
|
|
$ |
5,704 |
|
|
|
|
$ |
7,862 |
|
|
|
|
$ |
8,783 |
|
|
|
Supplemental cash flow information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest paid less capitalized interest
|
|
|
|
$ |
10,342 |
|
|
|
|
$ |
11,418 |
|
|
|
|
$ |
7,427 |
|
|
|
Income taxes paid
|
|
|
|
$ |
2,483 |
|
|
|
|
$ |
4,060 |
|
|
|
|
$ |
7,324 |
|
|
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands)
1. Summary of Significant Accounting Policies
Nature of Operations
Viskase Companies, Inc. together with its subsidiaries (“we” or the “Company”) is a producer of non-edible cellulosic, fibrous and plastic casings used to prepare and package processed meat products, and provides value-added support services relating to these products, for some of the largest global consumer products companies. We were incorporated in Delaware in 1970. The Company operates nine manufacturing facilities in North America, Europe, South America, and Asia and, as a result, is able to sell its products in nearly one hundred countries throughout the world.
Going Concern
The Company’s financial statements are prepared using accounting principles generally accepted in the United States of America applicable to a going concern which contemplates the realization of assets and liquidation of liabilities in the normal course of business. The ability of the Company to continue as a going concern is dependent on the Company obtaining adequate refinancing of its Senior Credit Facility before its maturity in August 2026.
We fully expect the refinancing will be completed after completion of the Merger (See Note 24 — Subsequent Events), but before the maturity of Senior Credit Facility. However, there is no assurance that the Company will be able to obtain sufficient additional funds to refinance these maturities occurring within 12 months of the date of the issuance of our financials or that such funds, if available, will be obtainable on terms satisfactory to the Company, and therefore substantial doubt exists about the Company’s ability to continue as a going concern.
The consolidated financial statements do not include any adjustments that might result from the Company being unable to continue as a going concern.
Seasonality
Historically, our domestic sales and profits have been seasonal in nature, increasing in the spring and summer months. Sales outside of the United States follow a relatively stable pattern throughout the year.
Basis of Presentation and Principles of Consolidation
The consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States (“U.S. GAAP”). The consolidated financial statements include the accounts of the Company, its subsidiaries and variable interest entity (“VIE”) for which the Company is the primary beneficiary. All inter-company accounts and transactions have been eliminated in consolidation.
Noncontrolling Interests
The Company consolidated its variable interest in a joint venture, VE Netting, LLC, as the Company is identified as the primary beneficiary. Noncontrolling interests reflect the equity ownership held by third parties. These noncontrolling interests are presented as a separate component of equity within the consolidated financial statements, distinct from the Company’s stockholders’ equity. The portion of net income (loss) attributable to noncontrolling interests is reported in the consolidated statements of operations.
Use of Estimates in the Preparation of Financial Statements
The financial statements are prepared in accordance with generally accepted accounting principles (“GAAP”) in the United States of America and include the use of estimates and assumptions that affect a number of amounts included in the Company’s financial statements, including, among other things, pensions and other postretirement benefits and related disclosures, reserves for excess and obsolete inventory,
allowance for credit losses, and income taxes. Management bases its estimates on historical experience and other assumptions that we believe are reasonable. If actual amounts are ultimately different from previous estimates, the revisions are included in the Company’s results for the period in which the actual amounts become known. Historically, the aggregate differences, if any, between the Company’s estimates and actual amounts in any year have not had a significant effect on the Company’s consolidated financial statements.
Cash and Cash Equivalents
For purposes of the statement of cash flows, the Company considers cash equivalents to consist of all highly liquid debt investments purchased with an initial maturity of approximately three months or less. Due to the short-term nature of these instruments, the carrying values approximate the fair market value. As of December 31, 2024, of the cash held on deposit in the U.S., approximately $518 of the cash balance was in excess of amounts insured by the Federal Deposit Insurance Corporation. The Company performs periodic evaluations of these institutions for relative credit standing and has not experienced any losses as a result of its cash concentration. Consequently, no significant concentrations of credit risk are considered to exist.
Receivables, Net
Trade accounts receivable are classified as current assets and are reported net of allowance for credit losses, which includes the evaluation of expected credit losses following the adoption of ASC Topic 326. This estimated allowance is primarily based upon our evaluation of the future expected loss for the asset. The Company estimates this using the financial condition of each customer, each customer’s ability to pay and the economic conditions of the country the customer resides in. For all trade accounts receivable, the Company defines “past due” as any payment, that is at least 15 days past the contractual due date. For the year ended December 31, 2024, 2023 and 2022, there have been expected credit losses of $198, $175, and $187, respectively.
Inventories, Net
Inventories are valued at the lower of cost or net realizable value. Cost is determined by using the first-in, first-out (“FIFO”) basis method. The Company reviews inventory for excess and obsolete inventory and establishes a reserve. As of December 31, 2024 and December 31, 2023, the Company had an inventory reserve of $3,908 and $5,838, respectively.
Financial Instruments
The Company routinely enters into fixed price natural gas agreements which require us to purchase a portion of our natural gas each month at fixed prices. These fixed price agreements qualify for the “normal purchases” scope exception under derivative and hedging standards, therefore the natural gas purchases under these contracts were expensed as incurred and included within cost of sales. As of December 31, 2024, future minimum purchases remaining under the agreement are $2,533, all of which is expected to be incurred during the year ended December 31, 2025.
The Company’s financial instruments include cash and cash equivalents, accounts receivable and accounts payable. The carrying amounts of these financial assets and liabilities approximate fair value due to the short maturities of these instruments. Management believes the fair value of the Company’s revolving loans approximate the carrying value due to credit risk or current market rates, which approximate the effective interest rates on those instruments. The fair value of the Company’s term loans is estimated by discounting the future cash flow using the Company’s current borrowing rates for similar types and maturities of debt.
Property, Plant and Equipment, Net
The Company carries property, plant and equipment at cost, less accumulated depreciation. Property and equipment additions include acquisition of property and equipment including related external direct costs of materials and services and payroll costs for employees directly associated with the project. Upon retirement or other disposition, cost and related accumulated depreciation are removed from the accounts,
and any gain or loss is included in results of operations. Depreciation is computed on the straight-line method over the estimated useful lives of the assets ranging from (i) land improvements — 30 years (ii) building and improvements — 10 to 32 years, (iii) machinery and equipment — 4 to 12 years, (iv) furniture and fixtures — 3 to 12 years, (v) leasehold improvements — shorter of lease term or useful life.
In the ordinary course of business, we lease certain equipment, consisting mainly of autos, and certain real property. Real property consists of manufacturing, distribution and office facilities.
Intangible Assets and Goodwill
The Company has recognized definite lived intangible assets for customer relationships, technologies, patents and trademarks, and in-place leases. The intangible assets are amortized on the straight-line method over an estimated weighted average useful life of 20 years for customer relationships, 13 years for technologies, 12 years for patents and trademarks, and 14 years for in-place leases. See accounting policy Impairment of Long-Lived Assets regarding testing intangible assets for impairment.
The Company has recognized goodwill for the excess of purchase consideration over the fair value of the net tangible and identifiable intangible assets acquired in a business combination. Goodwill is not amortized and is evaluated for impairment annually or more frequently if events or changes in circumstances indicate that an impairment may have occurred at the reporting unit level. The Company has identified five reporting units for goodwill: United States, Mexico, South America, EMEA and Asia.
The Company conducts its annual goodwill impairment test by either performing a qualitative assessment to determine if it is more likely than not that the fair value of the reporting unit exceeds its carrying amount or proceeding directly to a quantitative evaluation. The qualitative assessment considers factors such as macroeconomic conditions, industry and market considerations, entity-wide financial performance, cost factors, entity-specific events or events affecting a specific reporting unit. If the qualitative analysis indicates that it is more likely than not that the fair value of the reporting unit is below the carrying amount, a quantitative goodwill assessment is required. The Company would use a discounted cash flow model to determine the fair value of the reporting unit and compare it to the reporting units carrying amount. If the fair value is greater than the carrying value, then the goodwill is deemed not to be impaired, and no further action is required. If the fair value is less than the carrying value, goodwill is considered impaired and a charge is reported as impairment of goodwill in the consolidated statements of operations. During the year ended December 31, 2024, the Company implemented a restructuring plan (see Note 22 — Restructuring) which resulted in a goodwill impairment loss of $330 related to the EMEA reporting unit. See Note 12 Goodwill and Intangible Assets, Net. There were no impairment losses for the year ended December 31, 2023 or 2022, respectively.
Impairment of Long-Lived Assets
The Company has long-lived assets including property, plant and equipment and intangible assets. Long-lived assets to be held and used are tested for recoverability whenever events or changes in circumstances indicate that its carrying amount may not be recoverable. Factors that the Company considers in deciding when to perform an impairment review include significant underperformance of the business in relation to expectations, significant negative industry or economic trends and significant changes or planned changes in the use of the assets. Impairments are recognized when the expected undiscounted future operating cash flows derived from long-lived assets are less than their carrying value. If impairment is identified, the loss is based on the excess of the carrying value of the impaired asset group over its fair value, determined based on discounted cash flows. During the year ended December 31, 2024, the Company implemented a restructuring plan (see Note 22 — Restructuring) which resulted in asset write-offs of $41 in the EMEA asset group. Separately, the U.S. asset group recognized write-offs of $77, $338 and $27, in the years ended December 31, 2024, 2023, and 2022, respectively, related to assets removed from service. These write-offs are recorded as loss on disposal of property, plant and equipment in the consolidated statement of operations for the years ended December 31, 2024, 2023 and 2022.
Leases
The Company accounts for leases under FASB ASC Topic 842, Leases, which has resulted in the company reporting a right of use (“ROU”) asset and lease liability related to operating leases reported on
our balance sheet. Financing leases under current U.S. GAAP are classified and accounted for in substantially the same manner as capital leases under prior U.S. GAAP and therefore, we do not distinguish between financing leases and capital leases unless the context requires. The determination of whether an arrangement is or contains a lease occurs at inception. We have elected the practical expedient to include both the lease component and the non-lease component as a single component when accounting for each lease and calculating the resulting lease liability and ROU asset. The following is our accounting policy for leases in which we are the lessee.
A lease is classified as a finance lease if any one of the following criteria are met: (1) the lease transfers ownership of the asset by the end of the lease term, (2) the lease contains an option to purchase the asset that is reasonably certain to be exercised, (3) the lease term is for a major part of the remaining useful life of the asset,(4) the present value of the lease payments equals or exceeds substantially all of the fair value of the asset, or (5) the underlying asset is expected to have no alternative use to the lessor at the end of the lease term. All other leases are recorded as operating leases. For leases with an initial lease term in excess of twelve months, we record a ROU asset with a corresponding lease liability in our balance sheet. We have elected the practical expedient for all leases less than 12 months to not record a ROU asset or corresponding lease liability. ROU assets represent our right to use an underlying asset for the lease term and lease liabilities represent our obligation to make lease payments arising from the lease. ROU assets and lease liabilities are recognized at commencement of the lease based on the present value of lease payments over the lease term. ROU assets are adjusted for any lease payments made on or before commencement of the lease, less any lease incentives received.
The lease liability represents future lease payments for lease and non-lease components discounted for present value. Lease payments that may be included in the lease liability include fixed payments, variable lease payments that are based on an index or rate and payments for penalties for terminating the lease if the lessee is reasonably certain to utilize a termination option, among others. Certain of our leases contain rent escalation clauses that are specifically stated in the lease and these are included in the calculation of the lease liability. Variable lease payments for lease and non-lease components which are not based on an index or rate are excluded from the calculation of the lease liability and are recognized in the statement of operations during the period incurred.
We utilize discount rates to determine the net present value of our gross lease obligations when calculating the lease liability and related ROU asset. In cases in which the rate implicit in the lease is readily determinable, we utilize that discount rate for purposes of the net present value calculation. In most cases, our lease agreements do not have a discount rate that is readily determinable and therefore we utilize an estimate of our incremental borrowing rate. Our incremental borrowing rate is determined at lease commencement or lease modification and represents the rate of interest we would have to pay to borrow on a collateralized basis over a similar term an amount equal to the lease payments in a similar economic environment. For adoption of the new standard, the rate was determined at the adoption date.
The lease term is determined by taking into account the initial period as stated in the lease contract and adjusted for any renewal options that the company is reasonably certain to exercise as well as any period of time that the lessee has control of the space before the stated initial term of the lease. If we determine that we are reasonably certain to exercise a termination option, the lease term is then adjusted to account for the expected termination date.
Operating lease expense is recorded as a single expense recognized on a straight-line basis over the lease term. Financing lease expense consists of interest expense on the financing lease liability and amortization of the ROU financing lease asset on a straight-line basis over the lease term.
Debt and Debt Issuance Costs
The Company accounts for debt in accordance with ASC 470, Debt (ASC 470). Issuance costs for term debt are presented on the balance sheet as a direct deduction from the carrying amount of the related debt liability. These costs are amortized over the term of the related debt using the interest method under ASC 835-30. The effective interest rate for variable rate debt is determined in accordance with ASC 310-20-35, in which the Company’s policy is to use the variable rate at inception of the debt in the determination of the constant effective yield.
The Company has incurred creditor and third-party fees (“Debt Issuance Costs”) associated with its term debt arrangements. These Debt Issuance Costs are recognized as a direct reduction of the carrying value of the debt on the consolidated balance sheets. Debt Issuance Costs are amortized over the duration of the debt using the effective interest method. The amortization of Debt Issuance Costs is included in interest expense within the consolidated statements of operations.
Pensions and Other Postretirement Benefits
The Company uses appropriate actuarial methods and assumptions in accounting for its defined benefit pension plans and non-pension postretirement benefits.
Actual results that differ from assumptions used are accumulated and amortized over future periods and, accordingly, generally affect recognized expense and the recorded obligation in future periods. Therefore, assumptions used to calculate benefit obligations as of the end of a fiscal year directly impact the expense to be recognized in future periods. The primary assumptions affecting the Company’s accounting for employee benefits as of December 31, 2024 and 2023 are as follows:
•
Long-term rate of return on plan assets: The required use of the expected long-term rate of return on plan assets may result in recognized returns that are greater or less than the actual returns on those plan assets in any given year. Over time, however, the expected long-term rate of return on plan assets is designed to approximate actual earned long-term returns. The Company uses long-term historical actual return information, the mix of investments that comprise plan assets, and future estimates of long-term investment returns by reference to external sources to develop an assumption of the expected long-term rate of return on plan assets. The expected long-term rate of return is used to calculate net periodic pension cost. In determining its pension obligations, the Company is using a long-term rate of return on U.S. plan assets of 6.00% for December 31, 2024. The Company is using a long-term rate of return on French plan assets of 2.60% for 2024. Company is using a long-term rate of return on U.S. plan assets of 6.00% for December 31, 2023. The Company is using a long-term rate of return on French plan assets of 2.60% for 2023. The German pension plan has no assets.
•
Discount rate: The discount rate is used to calculate future pension and postretirement obligations. The Company is using a Mercer Bond yield curve in determining its pension obligations. The Company is using a discount rate of 5.70% for December 31, 2024. The Company is using a weighted average discount rate of 3.49% on its non-U.S. pension plans for December 31, 2024. The Company is using a discount rate of 5.48% for December 31, 2023. The Company is using a weighted average discount rate of 3.40% on its non-U.S. pension plans for December 31, 2023.
Income Taxes
We account for income taxes in accordance with ASC 740, Income Taxes (ASC 740). Deferred tax assets and liabilities are measured using enacted tax laws and tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities due to a change in tax rates is recognized in income in the period that includes the enactment date. In addition, the amounts of any future tax benefits are reduced by a valuation allowance to the extent such benefits are not expected to be realized on a more likely than not basis.
A two-step approach is applied pursuant to ASC 740 in the recognition and measurement of uncertain tax positions taken or expected to be taken in a tax return. The first step is to determine if the weight of available evidence indicates that it is more likely than not that the tax position will be sustained in an audit, including resolution of any related appeals or litigation processes. The second step is to measure the tax benefit as the largest amount that is more than 50% likely to be realized upon ultimate settlement. We recognize interest and penalties related to uncertain tax positions in our provision for income taxes line of our consolidated statements of operations.
Restructuring
Restructuring charges are incurred for programs in which the Company changes its operations, the scope of a business undertaken by its business units, or the manner in which that business is conducted.
Such restructuring charges may include employee severance, retention bonuses, facility closure or consolidation costs, lease or contract termination costs, and other related expenses. The restructuring programs may be implemented due to the sale or discontinuation of a product line, reorganization or management structure changes, headcount rationalization, realignment of operations or products, and/or company-wide cost saving initiatives. The amount and/or frequency of these restructuring charges are not part of the Company’s underlying business. Employee severance costs are generally recognized when payments are probable and amounts are reasonably estimable. Costs related to contracts without future benefit or contract termination are recognized at fair value at the earlier of the contract termination or the cease-use dates. Other exit-related costs are expensed as incurred. See Note 22 — Restructuring for additional details.
Variable Interest Entity
The Company holds a variable interest in VE Netting, LLC. The joint venture is a manufacturing, marketing and selling company of high-quality netting solutions for the meat and poultry industry. VE Netting, LLC is a Delaware limited liability company with its principal place of business in Lombard, IL. The netting product is manufactured under agreement by Viskase’s affiliate located in Monterrey, Mexico. VE Netting, LLC was determined to be a variable interest entity (VIE) in accordance with ASC Topic 810, Consolidations, for which the Company is the primary beneficiary, as the Company has the power to direct activities that most significantly impact the economic performance and has the right to receive benefits and losses that may potentially be significant. As the primary beneficiary of the VIE, the VIEs’ assets, liabilities, and results of operations are included in the Company’s consolidated financial statements as of, and for the period ended, December 31, 2024 and December 31, 2023. The other equity holders’ interests are reflected in “Net loss attributable to noncontrolling interests” in the Consolidated Statements of Operations and “Noncontrolling interests” in the Consolidated Balance Sheets. See Note 20 — Variable Interest Entity for standalone financial information.
Other Comprehensive Income (Loss)
Other comprehensive income (loss) includes all other non-stockholder changes in equity. Changes in other comprehensive income (loss) in 2024, 2023 and 2022 resulted from changes in foreign currency translation and pension liability.
Accumulated other comprehensive income (loss) consists of cumulative changes in foreign currency translation and pension liability.
Revenue Recognition
The Company’s revenues are comprised of product sales to customers, including distributors and end users. The Company’s performance obligation is defined as the promise to deliver the specified products in a purchase order. Revenue is recognized at the point in time in which the customer obtains control of the product, which is generally when product title passes to the customer according to the shipping terms dictated in the contract. In most contracts, title transfers upon shipment of the product; however, in some cases, title does not transfer until the customer has received the products at their specified location.
Revenue is recorded at the transaction price, which is the amount of consideration the Company expects to receive in exchange for providing its products to customers.
The transaction price may be adjusted for estimates of known or expected variable consideration, including consumer incentives, trade promotions, and rebate programs. The Company estimates the amount of variable consideration that will be realized and records the estimate as a reduction to the transaction price. These estimates are based on historical experience, anticipated performance and the Company’s best judgment at the time. In determining whether an estimate of variable consideration is constrained, we consider the likelihood and magnitude of a potential revenue reversal. The Company’s provision for variable consideration is recorded at contract inception and reviewed and updated regularly as new information arises throughout the contract term. Any adjustments due to resolved uncertainties or new information are recognized in the period in which the adjustment is identified.
Sales, value add, and other taxes collected from customers and remitted to governmental authorities are excluded from the transaction price, while shipping and handling fees reimbursed by the customer are
included in the transaction price and recorded on a gross basis on the income statement. The Company generally does not offer warranties or a right to return on the products it sells except in the instance of a product defect or mis-ship.
Payment terms vary by customer; however, the time between invoicing and payment is not significant. None of the Company’s customer contracts as of December 31, 2024 and 2023 contain a significant financing component.
Shipping and Handling
The Company periodically bills customers for shipping charges. These amounts are included in net sales, with the associated costs included in cost of sales.
Repairs and Maintenance
Routine repairs and maintenance are charged to operations as incurred. Improvements and major repairs, which extend the useful life of an asset, are capitalized and depreciated.
Foreign Currency
We transact business in various foreign currencies. In general, the functional currency of a foreign operation is the local country’s currency. Consequently, revenues and expenses of operations outside the U.S. are translated into U.S. Dollars using average exchange rates while assets and liabilities of operations outside the U.S. are translated into U.S. Dollars using exchange rates at the balance sheet dates. The effects of foreign currency translation adjustments are included in stockholders’ equity as a component of AOCL in the accompanying consolidated balance sheets and related periodic movements are summarized as a line item in our consolidated statements of comprehensive income (loss). Net foreign exchange transaction losses (gains) included in other expenses, net in the accompanying consolidated statements of operations were $8,648, ($905) and $3,431 for the years ended December 31, 2024, 2023 and 2022, respectively.
Net Income (Loss) Per Share
The Company calculated basic loss per share by dividing net loss by the weighted-average number of shares of common stock outstanding during the period. Diluted loss per share is computed by dividing net loss by the weighted-average number of shares of common stock outstanding during the period increased to include, if dilutive, the number of additional common shares that would have been outstanding if the potential common shares had been issued.
The Company has no potentially dilutive securities for each period presented. Accordingly, basic and diluted net loss per share attributable to common stockholders are the same.
Segments
Operating segments are identified as components of an enterprise about which separate discrete financial information is available for evaluation by the chief operating decision maker in making decisions regarding resource allocation and assessing performance. To date, the Company’s chief operating decision maker makes such decisions and assesses performance at the geographic region level, including North America, South America, EMEA, and Asia which are the Company’s four reportable segments under ASC 280. See Note 16, Business Segment Information and Geographic Area Information for further information.
Recently Adopted Accounting Pronouncements
In November 2023, the FASB issued ASU 2023-07, Segment Reporting (Topic 280) — Improvements to Reportable Segment Disclosures, which includes requirements for more robust disclosures of significant segment expenses and measures of a segment’s profit and loss used in assessing performance. This standard is effective for the Company’s annual period beginning January 1, 2024 and interim periods beginning January 1, 2025 with early adoptions permitted. The Company adopted this accounting standard as of January 1, 2024. See Note 16, Business Segment Information and Geographic Area Information for the
Company’s segments disclosures. Our adoption did not result in a material impact to our consolidated financial statements and disclosures.
Recently Issued Accounting Pronouncements Not Yet Adopted
In December 2023, the FASB issued ASU 2023-09, Income Taxes (Topic 740) — Improvements to Income Tax Disclosures, which requires enhanced income tax disclosures that reflect how operations and related tax risks, as well as how tax planning and operational opportunities, affect the tax rate and prospects for future cash flows. This standard is effective for the Company beginning January 1, 2025 with early adoption permitted. The ASU should be applied on a prospective basis but retrospective application is permitted.The adoption of this guidance will modify disclosures in the Company’s consolidated financial statements.
In November 2024, the FASB issued ASU 2024-03, Income Statement — Reporting Comprehensive Income — Expense Disaggregation Disclosures (Subtopic 220-40), which requires disclosure of specific information about costs and expenses within relevant expense captions on the face of the income statement, qualitative descriptions for expense captions not specifically disaggregated quantitatively, and the total amount and definition of selling expenses for interim and annual reporting periods. This standard is effective for the Company’s annual reporting period beginning January 1, 2027 and interim reporting periods beginning January 1, 2028 and should be applied on a retrospective or prospective basis, with early adoption permitted. We are currently assessing the impact of adopting this standard on our consolidated financial statements.
2. Cash and Cash Equivalents
Cash and cash equivalents consist of the following:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
Cash and cash equivalents
|
|
|
|
$ |
5,704 |
|
|
|
|
$ |
7,862 |
|
|
As of December 31, 2024, and December 31, 2023, cash held in foreign banks was $5,069 and $7,218, respectively.
As of December 31, 2024, and December 31, 2023, letters of credit for $685 and $735, respectively were outstanding under our New Senior Credit Facility.
3. Receivables, Net
Receivables net, consist of the following:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
December 31, 2022
|
|
|
Accounts receivable, gross
|
|
|
|
$ |
77,466 |
|
|
|
|
$ |
91,858 |
|
|
|
|
$ |
91,431 |
|
|
|
Less allowance for credit losses
|
|
|
|
|
(2,657) |
|
|
|
|
|
(2,908) |
|
|
|
|
|
(3,847) |
|
|
|
Receivables, net
|
|
|
|
$ |
74,809 |
|
|
|
|
$ |
88,950 |
|
|
|
|
$ |
87,584 |
|
|
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
December 31, 2022
|
|
|
Beginning balance
|
|
|
|
$ |
2,908 |
|
|
|
|
$ |
3,847 |
|
|
|
|
$ |
3,404 |
|
|
|
Provision (recoveries)
|
|
|
|
|
198 |
|
|
|
|
|
(132) |
|
|
|
|
|
187 |
|
|
|
Write-offs
|
|
|
|
|
(454) |
|
|
|
|
|
— |
|
|
|
|
|
373 |
|
|
|
Other and translation
|
|
|
|
|
5 |
|
|
|
|
|
(807) |
|
|
|
|
|
(117) |
|
|
|
Ending balance
|
|
|
|
$ |
2,657 |
|
|
|
|
$ |
2,908 |
|
|
|
|
$ |
3,847 |
|
|
4. Inventories, Net
Inventories net, consists of the following:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
Raw materials
|
|
|
|
$ |
29,991 |
|
|
|
|
$ |
35,573 |
|
|
|
Work in process
|
|
|
|
|
42,940 |
|
|
|
|
|
51,872 |
|
|
|
Finished products
|
|
|
|
|
36,037 |
|
|
|
|
|
23,865 |
|
|
|
Total inventories, net
|
|
|
|
$ |
108,968 |
|
|
|
|
$ |
111,310 |
|
|
5. Property, Plant and Equipment, net
Depreciation expense associated with property, plant and equipment was $22,443, $23,617 and $25,727 for the years ended December 31, 2024, 2023 and 2022, respectively.
Property, plant and equipment, net, consists of the following:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
Land and improvements
|
|
|
|
$ |
1,848 |
|
|
|
|
$ |
1,939 |
|
|
|
Buildings and improvements
|
|
|
|
|
52,847 |
|
|
|
|
|
53,613 |
|
|
|
Machinery, equipment and leasehold
|
|
|
|
|
345,730 |
|
|
|
|
|
344,647 |
|
|
|
Furniture and fixtures
|
|
|
|
|
25,931 |
|
|
|
|
|
27,664 |
|
|
|
Construction in progress
|
|
|
|
|
11,730 |
|
|
|
|
|
8,509 |
|
|
|
Total property plant and equipment
|
|
|
|
$ |
438,086 |
|
|
|
|
$ |
436,372 |
|
|
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
Land and improvements
|
|
|
|
$ |
520 |
|
|
|
|
$ |
496 |
|
|
|
Buildings and improvements
|
|
|
|
|
27,419 |
|
|
|
|
|
26,790 |
|
|
|
Machinery, equipment and leasehold
|
|
|
|
|
272,077 |
|
|
|
|
|
260,232 |
|
|
|
Furniture and fixtures
|
|
|
|
|
14,335 |
|
|
|
|
|
14,509 |
|
|
|
Total accumulated depreciation
|
|
|
|
$ |
314,351 |
|
|
|
|
$ |
302,027 |
|
|
Loss on disposal of property, plant and equipment relating to assets removed from service prior to the end of their useful lives of $77, $338 and $27 for the years ended December 31, 2024, 2023 and 2022, respectively and an additional loss on disposal of property, plant and equipment of $41 for the year ended December 31, 2024 related to the plant closure in Poland was recorded in the Company’s consolidated statement of operations. For additional information on the plant closure see Note 22 — Restructuring.
6. Balance Sheet Details
Other current assets
Other current assets consist of the following:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
Prepaid expenses
|
|
|
|
$ |
14,988 |
|
|
|
|
$ |
14,582 |
|
|
|
Supplies
|
|
|
|
|
23,971 |
|
|
|
|
|
23,100 |
|
|
|
Other
|
|
|
|
|
7,245 |
|
|
|
|
|
4,992 |
|
|
|
Total other current assets
|
|
|
|
$ |
46,204 |
|
|
|
|
$ |
42,674 |
|
|
Other assets
Other assets consist of the following:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
Other taxes receivable
|
|
|
|
$ |
10,295 |
|
|
|
|
$ |
15,048 |
|
|
|
Other
|
|
|
|
|
604 |
|
|
|
|
|
628 |
|
|
|
Total other assets
|
|
|
|
$ |
10,899 |
|
|
|
|
$ |
15,676 |
|
|
Accrued Liabilities
Accrued liabilities consist of the following:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
Compensation and employee benefits
|
|
|
|
$ |
8,559 |
|
|
|
|
$ |
15,919 |
|
|
|
Taxes payable
|
|
|
|
|
8,877 |
|
|
|
|
|
17,171 |
|
|
|
Accrued volume and sales rebates
|
|
|
|
|
1,929 |
|
|
|
|
|
2,409 |
|
|
|
Other
|
|
|
|
|
3,802 |
|
|
|
|
|
3,664 |
|
|
|
Total accrued liabilities
|
|
|
|
$ |
23,167 |
|
|
|
|
$ |
39,163 |
|
|
7. Debt Obligations
Debt obligations consist of the following:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
Short-term debt:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior credit facility
|
|
|
|
$ |
34,625 |
|
|
|
|
$ |
11,250 |
|
|
|
Europe Line of Credit
|
|
|
|
|
9,905 |
|
|
|
|
|
10,497 |
|
|
|
Less: short-term deferred financing costs
|
|
|
|
|
(217) |
|
|
|
|
|
(76) |
|
|
|
Total short-term debt
|
|
|
|
|
44,313 |
|
|
|
|
|
21,671 |
|
|
|
Long-term debt:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior credit facility
|
|
|
|
$ |
99,375 |
|
|
|
|
$ |
112,500 |
|
|
|
Other
|
|
|
|
|
529 |
|
|
|
|
|
562 |
|
|
|
Less: long-term deferred financing costs
|
|
|
|
|
(623) |
|
|
|
|
|
(1,248) |
|
|
|
Total long-term debt, net
|
|
|
|
|
99,281 |
|
|
|
|
|
111,814 |
|
|
|
Total debt
|
|
|
|
$ |
143,594 |
|
|
|
|
$ |
133,485 |
|
|
Senior Credit Facility
On October 9, 2020, the Company and certain of its subsidiaries, entered into a certain Credit Agreement (the “Credit Agreement”) with the various lenders named therein and Bank of America, N.A., as administrative agent for the lenders (the “Administrative Agent”), providing for a $150,000 term loan (the “Term Loan”) and a $30,000 revolving credit facility (the “Revolving Credit Facility” and together with the Term Loan, the “Senior Credit Facility”) as amended by the First Amendment to Credit Agreement dated as of August 13, 2021, the Second Amendment to Credit Agreement dated as of August 10, 2022 and as further amended by the Limited Waiver and Third Amendment to Credit Agreement dated as of February 14, 2025 (the “Third Amendment”) as described below.
The Second Amendment to the Senior Credit Facility increased the commitment of the New Revolving Credit Facility to $37,000 and transitioned Term Loans on September 30, 2022 and Revolving Loans on August 30,2022 from LIBOR Loans to SOFR Loans. Amended terms of the facility are stated below.
The Third Amendment includes a waiver on ants for the year ended December 31, 2024, and a relief period for year 2025 (the “Covenant Relief Period”). During the Covenant Relief period, the consolidated
leverage ratio will be increased to 4.00X through December 31, 2025. The consolidated fixed charge coverage ratio will be modified to include only maintenance capital expenditures and a year-to-date build basis for quarter end calculation. On December 31, 2025, the consolidated fixed charge coverage ratio will return to an LTM basis. During the Covenant Relief Period, restricted payments, permitted acquisitions and other investments as defined by the Credit Agreement are not allowed and the accordion feature of the credit facility, which allowed for an increase in borrowings under the facility has been suspended.
The interest rates per annum applicable to the Amended Senior Credit Facility (other than in respect of Swingline Loans) will be SOFR, but in any event, not less than 0.00%, plus the Applicable Rate (as defined below), or, for U.S. dollar denominated loans only, made to the Company at the option of the Company, the Base Rate, defined as the highest of: (a) the Federal Funds Rate plus one-half percent (0.50%); (b) the Bank of America prime rate; and (c) the one (1) month SOFR (adjusted daily) plus one percent (1.00%), but in any case not less than 1.00%, plus the Applicable Rate. Applicable Rate means, with respect to the Amended Senior Credit Facility, a percentage per annum to be determined in accordance with the applicable pricing grid set forth in the Amended Senior Credit Facility based upon the Company’s Consolidated Coverage Ratio as reflected in a quarterly Compliance Certificate. Each Swingline Loan shall bear interest at the Base Rate plus the Applicable Rate for Base Rate loans under the New Revolving Credit Facility. As of December 31, 2024, our current interest rate is 6.94%. The effective interest rate of the Term Loan as of December 31, 2024 is 4.1%, which is determined in accordance with ASC 310-20-35, based on the variable rate in effect at inception of the instrument.
The Amended Senior Credit Facility requires the Company to repay principal of the New Term Loan at the rate of 5% of the original principal balance during each of the first two years, 7.5% during the third and fourth years and 10% of the original principal balance during the fifth year. The maturity date on the Amended Senior Credit Facility is August 13, 2026.
The Company may prepay the Amended Senior Credit Facility, in whole or in part, at any time without premium or penalty, subject to reimbursement of the Lenders’ breakage and redeployment costs in the case of prepayment of SOFR borrowings and foreign currency borrowings bearing interest at a rate other than SOFR. Each such prepayment of the New Term Facility shall be applied as directed by the Company. The unutilized portion of the commitments under the Amended Senior Credit Facility may be irrevocably reduced or terminated by the Company at any time without penalty.
The Amended Senior Credit Facility is guaranteed by each existing and future direct and indirect wholly owned material domestic Restricted Subsidiary and foreign Restricted Subsidiary of the Company (other than any Brazilian subsidiary). The Amended Senior Credit Facility is secured by substantially all assets of the Company and its material domestic Restricted Subsidiaries, with the exception of real property.
The Amended Senior Credit Facility contains various covenants which restrict the Company’s ability to, among other things, incur indebtedness, create liens on our assets, make investments, enter into merger, consolidation or acquisition transactions, dispose of assets (other than in the ordinary course of business), make certain restricted payments, enter into sale and leaseback transactions and transactions with affiliates, in each case subject to permitted exceptions. The Amended Senior Credit Facility also requires that we comply with certain financial covenants, including meeting a consolidated leverage ratio and consolidated fixed charge coverage ratio.
The Company was not in compliance with the consolidated leverage ratio and consolidated fixed charge coverage ratio for the period ending December 31, 2024. The noncompliance constituted an event of default that, absent a waiver, could have resulted in the debt becoming callable by the lender and reclassified as a current liability in accordance with ASC 470-10-45. Subsequent to the balance sheet date in February 2025, but prior to the issuance of the financial statements, the Company entered into the Third Amendment to Credit Agreement. Among other provisions, the amendment included a waiver of the covenant violations existing as of December 31, 2024. The Company believes it is reasonably possible that it will comply with the covenants at measurement dates within the next twelve months. As such, the Company has classified the related debt as long-term based on the contractual installments as of December 31, 2024, in accordance with ASC 470-10-45-11.
During the year ended December 31, 2024, the Company borrowed an additional $21,500 under the terms of the Senior Credit Facility. During the years ended December 31, 2024 and 2023, the company had
repayments of $11,250 and $39,376, respectively. The Company recognized $9,752 and $10,984 of interest expense and $484 and $464 of deferred financing fee amortization for the years ended December 31, 2024 and 2023 respectively. Interest expense and deferred financing fee amortization are included within interest expense, net in the consolidated statement of operations.
Foreign Lines of Credit
In its foreign operations, the Company has unsecured lines of credit with various banks providing approximately $12,000 of availability. There were borrowings of $9,905 under the lines of credit at December 31, 2024 and borrowings of $10,497 under the lines of credit at December 31, 2023. As of December 31, 2024, our current interest rate is 4.81%. As of December, 31, 2024, all borrowings under the Foreign Lines of Credit were due within 12 months and presented within short-term debt on the consolidated balance sheets. For the years ended December 31, 2024 and 2023, the Company incurred $590 and $407 of interest expense, respectively. The line of credit is an uncommitted facility that can be terminated at any time with payment on demand.
Debt Maturity
The aggregate maturities of debt(1) for each of the next five years are:
| |
|
|
2025
|
|
|
2026
|
|
|
2027
|
|
|
2028
|
|
|
2029
|
|
|
Thereafter
|
|
|
Term Loan
|
|
|
|
$ |
13,125 |
|
|
|
|
$ |
99,375 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
0 |
|
|
|
Revolving Credit Facility
|
|
|
|
|
21,500 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Foreign Line of Credit and Other
|
|
|
|
|
9,905 |
|
|
|
|
|
529 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Total maturities
|
|
|
|
$ |
44,530 |
|
|
|
|
$ |
99,904 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
0 |
|
|
(1)
The aggregate maturities of debt represent amounts to be paid at maturity and not the current carrying value of the debt.
8. Leases
We have operating leases primarily for real estate, equipment, and vehicles. Our lease agreements do not contain any material residual value guarantees or material restrictive covenants. The remaining lease terms for our leases range from 1 month to 14 years. These leases often include options to extend the term of the lease which may be for periods of up to 10 years. When it is reasonably certain that the option will be exercised, the impact of the renewal term is included in the lease term for purposes of determining total future lease payments and measuring the ROU asset and lease liability. We apply the short-term lease policy election, which allows us to exclude from recognition leases with an original term of 12 months or less.
ROU assets and lease liabilities are as follows:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
Operating Leases:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ROU assets
|
|
|
|
$ |
19,190 |
|
|
|
|
$ |
22,309 |
|
|
|
Lease liabilities
|
|
|
|
$ |
21,717 |
|
|
|
|
$ |
25,185 |
|
|
The following is an analysis of leased property under financing leases by major classes as of December 31, 2024 and December 31, 2023:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
Building and improvements
|
|
|
|
$ |
453 |
|
|
|
|
$ |
453 |
|
|
|
Machinery and equipment
|
|
|
|
|
3,599 |
|
|
|
|
|
3,535 |
|
|
|
Less: Accumulated depreciation
|
|
|
|
|
(4,052) |
|
|
|
|
|
(3,988) |
|
|
| |
|
|
|
$ |
0 |
|
|
|
|
$ |
0 |
|
|
Additional information with respect to our operating and finance leases as of December 31, 2024 is presented below.
| |
|
|
Operating
|
|
|
Weighted average remaining lease term (years)
|
|
|
|
|
8.49 |
|
|
|
Weighted average discount rate
|
|
|
|
|
7.42% |
|
|
Lease expense consists of the following:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
December 31, 2022
|
|
|
Operating lease rent expense
|
|
|
|
$ |
4,591 |
|
|
|
|
$ |
5,255 |
|
|
|
|
$ |
5,182 |
|
|
|
Financing Leases:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of ROU assets
|
|
|
|
|
— |
|
|
|
|
|
10 |
|
|
|
|
|
20 |
|
|
|
Interest expense on lease liabilities
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
3 |
|
|
| |
|
|
|
$ |
0 |
|
|
|
|
$ |
10 |
|
|
|
|
$ |
23 |
|
|
Cash flow information related to leases is as follows:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
Cash Paid For Amounts Included in the Measurement of Lease Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash used in operating activities (operating leases)
|
|
|
|
$ |
4,564 |
|
|
|
|
$ |
5,164 |
|
|
|
Cash used in operating activities (financing leases)
|
|
|
|
|
— |
|
|
|
|
|
12 |
|
|
|
Supplemental Cash Flow Information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ROU assets obtained in exchange for lease obligations (operating leases)
|
|
|
|
$ |
239 |
|
|
|
|
$ |
114 |
|
|
Maturities of operating lease liabilities as of December 31, 2024 are as follows:
|
Year
|
|
|
Operating Leases
|
|
|
2025
|
|
|
|
$ |
4,497 |
|
|
|
2026
|
|
|
|
|
3,928 |
|
|
|
2027
|
|
|
|
|
3,714 |
|
|
|
2028
|
|
|
|
|
3,666 |
|
|
|
2029
|
|
|
|
|
2,579 |
|
|
|
Thereafter
|
|
|
|
|
11,476 |
|
|
|
Total lease payments
|
|
|
|
|
29,860 |
|
|
|
Less: discounted interest
|
|
|
|
|
(8,143) |
|
|
| |
|
|
|
$ |
21,717 |
|
|
9. Retirement Plans
The Company has contributed $3,099 and $2,235 to pension benefits in the U.S. during the years ended December 31, 2024 and December 31, 2023, respectively.
The Company and its subsidiaries have defined contribution and defined benefit plans varying by country and subsidiary.
The Company’s operations in the United States, France, and Germany historically offered defined benefit retirement plans (“Plan”) to their employees. Most of these benefits have been terminated, resulting in various reductions in liabilities and curtailment gains.
Included in accumulated other comprehensive loss, net of tax is $(20,935) as of December 31, 2024. The following amounts not yet recognized in net periodic benefit cost:
| |
|
|
U.S. Pension Benefits
|
|
|
Non U.S. Pension Benefits
|
|
|
Net actuarial (loss) gain
|
|
|
|
$ |
(10,410) |
|
|
|
|
$ |
1,741 |
|
|
|
Prior service credit
|
|
|
|
|
1 |
|
|
|
|
|
19 |
|
|
Amounts included in other comprehensive income (loss) expected to be recognized as a component of net periodic benefit cost for the year ending December 31, 2025 are:
| |
|
|
U.S. Pension Benefits
|
|
|
Non U.S. Pension Benefits
|
|
|
Net actuarial (loss) gain
|
|
|
|
$ |
(88) |
|
|
|
|
$ |
82 |
|
|
The measurement date for all defined benefit plans is December 31. The year-end status of the plans is as follows:
| |
|
|
U.S. Pension Benefits
|
|
|
Non U.S. Pension Benefits
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
2024
|
|
|
2023
|
|
|
Change in benefit obligation:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Projected benefit obligation at beginning of year
|
|
|
|
$ |
95,385 |
|
|
|
|
$ |
97,738 |
|
|
|
|
$ |
20,578 |
|
|
|
|
$ |
17,761 |
|
|
|
Service cost
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
296 |
|
|
|
|
|
297 |
|
|
|
Interest cost
|
|
|
|
|
4,988 |
|
|
|
|
|
5,185 |
|
|
|
|
|
644 |
|
|
|
|
|
737 |
|
|
|
Plan amendments
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(133) |
|
|
|
Actuarial (gain) loss
|
|
|
|
|
(3,124) |
|
|
|
|
|
(487) |
|
|
|
|
|
(98) |
|
|
|
|
|
1,962 |
|
|
|
Benefits paid
|
|
|
|
|
(7,563) |
|
|
|
|
|
(7,051) |
|
|
|
|
|
(942) |
|
|
|
|
|
(686) |
|
|
|
Currency translation
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,230) |
|
|
|
|
|
640 |
|
|
|
Estimated benefit obligation at end of year
|
|
|
|
$ |
89,686 |
|
|
|
|
$ |
95,385 |
|
|
|
|
$ |
19,248 |
|
|
|
|
$ |
20,578 |
|
|
|
Change in plan assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value of plan assets at beginning of year
|
|
|
|
$ |
87,538 |
|
|
|
|
$ |
82,693 |
|
|
|
|
$ |
1,227 |
|
|
|
|
$ |
1,367 |
|
|
|
Actual return on plan assets
|
|
|
|
|
4,202 |
|
|
|
|
|
9,661 |
|
|
|
|
|
39 |
|
|
|
|
|
33 |
|
|
|
Employer contribution
|
|
|
|
|
3,099 |
|
|
|
|
|
2,236 |
|
|
|
|
|
609 |
|
|
|
|
|
617 |
|
|
|
Plan settlements
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(154) |
|
|
|
Benefits paid
|
|
|
|
|
(7,563) |
|
|
|
|
|
(7,052) |
|
|
|
|
|
(942) |
|
|
|
|
|
(686) |
|
|
|
Currency translation
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(75) |
|
|
|
|
|
50 |
|
|
|
Fair value of plan assets at end of year
|
|
|
|
$ |
87,276 |
|
|
|
|
$ |
87,538 |
|
|
|
|
$ |
858 |
|
|
|
|
$ |
1,227 |
|
|
|
Unfunded status of the plan
|
|
|
|
$ |
(2,410) |
|
|
|
|
$ |
(7,847) |
|
|
|
|
$ |
(18,390) |
|
|
|
|
$ |
(19,351) |
|
|
| |
|
|
U.S. Pension Benefits
|
|
|
Non U.S. Pension Benefits
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
2024
|
|
|
2023
|
|
|
Amounts recognized in statement of financial position:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities
|
|
|
|
$ |
(73) |
|
|
|
|
$ |
(73) |
|
|
|
|
$ |
(70) |
|
|
|
|
$ |
(798) |
|
|
|
Noncurrent liabilities
|
|
|
|
|
(2,337) |
|
|
|
|
|
(7,774) |
|
|
|
|
|
(18,319) |
|
|
|
|
|
(18,553) |
|
|
|
Net amount recognized
|
|
|
|
$ |
(2,410) |
|
|
|
|
$ |
(7,847) |
|
|
|
|
$ |
(18,389) |
|
|
|
|
$ |
(19,351) |
|
|
The funded status of these pension plans as a percentage of the projected benefit obligation was 81% in 2024 compared to 77% in 2023. The actuarial gain for 2024 was mainly due to the discount rate on U.S. pension benefits and changes in demographics on the foreign plans.
| |
|
|
U.S. Pension Benefits
|
|
|
Non U.S. Pension Benefits
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
2024
|
|
|
2023
|
|
|
Projected benefit obligation
|
|
|
|
$ |
89,686 |
|
|
|
|
$ |
95,385 |
|
|
|
|
$ |
19,248 |
|
|
|
|
$ |
20,578 |
|
|
|
Fair value of plan assets
|
|
|
|
$ |
87,276 |
|
|
|
|
$ |
87,538 |
|
|
|
|
$ |
858 |
|
|
|
|
$ |
1,227 |
|
|
Information for defined benefit plans with accumulated benefit obligations in excess of plan assets:
| |
|
|
U.S. Pension Benefits
|
|
|
Non U.S. Pension Benefits
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
2024
|
|
|
2023
|
|
|
Accumulated benefit obligation
|
|
|
|
$ |
89,686 |
|
|
|
|
$ |
95,385 |
|
|
|
|
$ |
19,248 |
|
|
|
|
$ |
20,578 |
|
|
|
Fair value of plan assets
|
|
|
|
$ |
87,276 |
|
|
|
|
$ |
87,538 |
|
|
|
|
$ |
858 |
|
|
|
|
$ |
1,227 |
|
|
In connection with our adoption of FASB issued ASU No. 2017-07, Improving the Presentation of Net Periodic Pension Cost and Net Periodic Postretirement Benefit Cost, the components of net periodic benefit cost other than the service cost component are included in the line item other expense in the income statement.
Components of net periodic benefit cost for the years ended December 31:
| |
|
|
U.S. Pension Benefits
|
|
|
Non U.S. Pension Benefits
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
2022
|
|
|
2024
|
|
|
2023
|
|
|
2022
|
|
|
Component of net period benefit cost
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service cost
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
308 |
|
|
|
|
$ |
296 |
|
|
|
|
$ |
412 |
|
|
|
Interest cost
|
|
|
|
|
4,988 |
|
|
|
|
|
5,185 |
|
|
|
|
|
3,655 |
|
|
|
|
|
672 |
|
|
|
|
|
725 |
|
|
|
|
|
298 |
|
|
|
Expected return on plan assets
|
|
|
|
|
(5,086) |
|
|
|
|
|
(4,774) |
|
|
|
|
|
(5,029) |
|
|
|
|
|
(31) |
|
|
|
|
|
(36) |
|
|
|
|
|
(35) |
|
|
|
Amortization of prior service cost
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
3 |
|
|
|
|
|
10 |
|
|
|
|
|
10 |
|
|
|
Amortization of actuarial loss
|
|
|
|
|
185 |
|
|
|
|
|
474 |
|
|
|
|
|
752 |
|
|
|
|
|
(52) |
|
|
|
|
|
(326) |
|
|
|
|
|
47 |
|
|
| |
|
|
|
$ |
87 |
|
|
|
|
$ |
885 |
|
|
|
|
$ |
(622) |
|
|
|
|
$ |
900 |
|
|
|
|
$ |
669 |
|
|
|
|
$ |
732 |
|
|
Weighted average assumptions used to determine the benefit obligation and net periodic benefit cost as of December 31:
| |
|
|
U.S. Pension Benefits
|
|
|
Non U.S. Pension Benefits
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
2024
|
|
|
2023
|
|
|
Discount rate
|
|
|
|
|
5,70% |
|
|
|
|
|
5.48% |
|
|
|
|
|
3.49% |
|
|
|
|
|
3.40% |
|
|
|
Expected return on plan assets
|
|
|
|
|
6.00% |
|
|
|
|
|
6.00% |
|
|
|
|
|
2.60% |
|
|
|
|
|
2.60% |
|
|
|
Rate of compensation increase
|
|
|
|
|
N/A |
|
|
|
|
|
N/A |
|
|
|
|
|
3.28% |
|
|
|
|
|
3.30% |
|
|
The Company evaluates its discount rate assumption annually as of December 31 for each of its retirement-related benefit plans. The Company is using a Mercer bond model for determining its U.S. pension benefits.
The Company’s expected return on plan assets is evaluated annually based upon a study which includes a review of anticipated future long-term performance of individual asset classes, and consideration of the appropriate asset allocation strategy to provide for the timing and amount of benefits included in the projected benefit obligation. While the study gives appropriate consideration to recent fund performance and historical returns, the assumption is primarily a long-term prospective rate.
The Company’s overall investment strategy is a glide path to manage the plan to a fully funded status through a mix of approximately 75% of investments for long-term growth and 25% for near-term benefit
payments with a wide diversification of asset types, fund strategies, and fund managers. The target allocations for plan assets are 45% equity securities, 5% in alternatives and 48% to fixed income investments. Equity securities primarily include investments in large-cap, mid-cap and small-cap companies primarily located in the United States and international developed markets. Fixed income securities include corporate bonds of companies from diversified industries, mortgage-backed securities, and U.S. Treasuries. Other types of investments include investments in hedge funds that follow several different strategies.
We categorize our plan assets into three levels based upon the assumptions (inputs) used to price the assets. Level 1 provides the most reliable measure of fair value, whereas Level 3 generally requires significant management judgment. The three levels are defined as follows:
•
Level 1: Unadjusted quoted prices in active markets for identical assets.
•
Level 2: Observable inputs other than those included in Level 1. For example, quoted prices for similar assets in active markets or quoted prices for identical assets in inactive markets.
•
Level 3: Unobservable inputs reflecting assumptions about the inputs used in pricing the asset.
We did not maintain any level 3 assets during the years ended December 31, 2024 and 2023.
Plan management uses the following methods and significant assumptions to estimate fair value of investments:
•
Money market — overnight bank deposits and money market mutual funds maintaining at all times $1.00 Net Asset Value (“NAV”).
•
US Government and agency obligations — U.S. Treasury bonds, notes and other government obligations. U.S. securities are Level 1 assets and corporate notes are Level 2 assets.
•
Exchange traded funds — marketable securities tracking asset baskets traded on active markets.
•
Mutual funds — Valued at the net asset value (“NAV”) of shares or units held by the Plan at year-end which is obtained from an active market or at share or unit prices provided by the fund manager with significant observable inputs.
•
Hedge funds — Value provided by the administrator of the fund. The pricing for these funds is provided monthly by the fund to determine the quoted price.
•
Common stocks — marketable corporate equity securities traded on active markets.
The fair values of the Company’s pension plan asset allocation at December 31, 2024 and 2023, by asset category are as follows:
| |
|
|
|
|
|
|
|
|
Fair Value Measurement at
December 31, 2024
|
|
| |
|
|
|
|
|
|
|
|
Quoted Prices in
Active Markets for
Identical Assets
|
|
|
Significant
Observable
Inputs
|
|
|
Significant
Unobservable
Inputs
|
|
| |
|
|
Total
|
|
|
(Level 1)
|
|
|
(Level 2)
|
|
|
(Level 3)
|
|
|
Money market
|
|
|
|
$ |
2,490 |
|
|
|
|
$ |
2,490 |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
US Government and agency obligations
|
|
|
|
|
56,675 |
|
|
|
|
|
1,161 |
|
|
|
|
|
55,514 |
|
|
|
|
|
— |
|
|
|
Exchange traded funds
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Mutual funds
|
|
|
|
|
69 |
|
|
|
|
|
69 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Common stocks
|
|
|
|
|
28,900 |
|
|
|
|
|
28,900 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Total Assets in the fair value hierarchy
|
|
|
|
$ |
88,134 |
|
|
|
|
$ |
32,620 |
|
|
|
|
$ |
55,514 |
|
|
|
|
|
— |
|
|
| |
|
|
|
|
|
|
|
|
Fair Value Measurement at
December 31, 2023
|
|
| |
|
|
|
|
|
|
|
|
Quoted Prices in
Active Markets for
Identical Assets
|
|
|
Significant
Observable
Inputs
|
|
|
Significant
Unobservable
Inputs
|
|
| |
|
|
Total
|
|
|
(Level 1)
|
|
|
(Level 2)
|
|
|
(Level 3)
|
|
|
Money market
|
|
|
|
$ |
2,448 |
|
|
|
|
$ |
2,448 |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
US Government and agency obligations
|
|
|
|
|
40,435 |
|
|
|
|
|
1,519 |
|
|
|
|
|
38,916 |
|
|
|
|
|
— |
|
|
|
Exchange traded funds
|
|
|
|
|
10,699 |
|
|
|
|
|
10,699 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Mutual funds
|
|
|
|
|
19,100 |
|
|
|
|
|
19,100 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Common stocks
|
|
|
|
|
16,083 |
|
|
|
|
|
16,083 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Total Assets in the fair value hierarchy
|
|
|
|
$ |
88,765 |
|
|
|
|
$ |
49,849 |
|
|
|
|
$ |
38,916 |
|
|
|
|
|
— |
|
|
The following table provides a summary of the estimated benefit payments for the postretirement plans for the next five fiscal years and thereafter.
| |
|
|
Total Estimated
Benefit Payments
|
|
| |
|
|
U.S.
|
|
|
Non U.S
|
|
|
Total
|
|
|
2025
|
|
|
|
$ |
7,975 |
|
|
|
|
$ |
744 |
|
|
|
|
$ |
8,719 |
|
|
|
2026
|
|
|
|
|
7,949 |
|
|
|
|
|
782 |
|
|
|
|
|
8,731 |
|
|
|
2027
|
|
|
|
|
7,989 |
|
|
|
|
|
826 |
|
|
|
|
|
8,815 |
|
|
|
2028
|
|
|
|
|
7,901 |
|
|
|
|
|
852 |
|
|
|
|
|
8,753 |
|
|
|
2029
|
|
|
|
|
7,745 |
|
|
|
|
|
1,214 |
|
|
|
|
|
8,959 |
|
|
|
Thereafter
|
|
|
|
|
35,858 |
|
|
|
|
|
6,209 |
|
|
|
|
|
42,067 |
|
|
|
Total
|
|
|
|
$ |
75,417 |
|
|
|
|
$ |
10,627 |
|
|
|
|
$ |
86,044 |
|
|
The Company’s expected contribution for the 2025 fiscal year is $2,304 for the U.S. pension plan. There is no funding requirement for non-U.S. pension plans.
Savings Plans
The Company also has defined contribution savings and similar plans for eligible employees, which vary by subsidiary. The Company’s aggregate contributions to these plans are based on eligible employee contributions and certain other factors. The Company expenses for these plans were $1,188, $1,218 and $1,160 in 2024, 2023 and 2022, respectively.
International Plans
The Company maintains various pension and statutory separation pay plans for its European employees. The expense (income), not including the French and German pension plan, in 2024, 2023, and 2022 was $(221), $1,767 and $(431), respectively. As of their most recent valuation dates, for those plans where vested benefits exceeded plan assets, the actuarially computed value of vested benefits exceeded those plans’ assets by approximately $5,582.
10. Capital Stock, Treasury Stock and Paid in Capital
Authorized shares of preferred stock ($0.01 par value per share) and common stock ($0.01 par value per share) for the Company are 50,000,000 shares and 150,000,000 shares, respectively. No preferred stock has been issued.
On October 9, 2020, the Company completed a private placement of 50,000,000 shares of common stock at $2.00 per share. The Company used the net proceeds of the private placement to complete a refinancing of its short-term debt.
As a result of the private placement to complete an extinguishment of the Revolving Credit Facility and Term Loan Facility in 2020 and subsequent purchases, Icahn Enterprises L.P. currently owns approximately 90.6% of our outstanding common stock.
In 2004, the Company purchased 805,270 shares of its common stock from the underwriter for a purchase price of $298. The common stock has been accounted for as treasury stock.
11. Income Taxes
Income tax provision (benefit) consists of the following:
| |
|
|
2024
|
|
|
2023
|
|
|
2022
|
|
|
Current
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic
|
|
|
|
$ |
288 |
|
|
|
|
$ |
1,213 |
|
|
|
|
$ |
51 |
|
|
|
Foreign
|
|
|
|
|
(1,746) |
|
|
|
|
|
(920) |
|
|
|
|
|
7,187 |
|
|
|
Total current
|
|
|
|
|
(1,458) |
|
|
|
|
|
293 |
|
|
|
|
|
7,238 |
|
|
|
Deferred
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic
|
|
|
|
|
(413) |
|
|
|
|
|
2,170 |
|
|
|
|
|
(32) |
|
|
|
Foreign
|
|
|
|
|
1,201 |
|
|
|
|
|
1,071 |
|
|
|
|
|
(67) |
|
|
|
Total deferred
|
|
|
|
|
788 |
|
|
|
|
|
3,241 |
|
|
|
|
|
(99) |
|
|
|
Total
|
|
|
|
$ |
(670) |
|
|
|
|
$ |
3,534 |
|
|
|
|
$ |
7,139 |
|
|
The reconciliation of income tax provision (benefit) attributable to earnings differed from the amounts computed by applying the U.S. Federal statutory income tax rate to earnings by the following amounts:
Income (loss) before income taxes:
| |
|
|
2024
|
|
|
2023
|
|
|
2022
|
|
|
Domestic
|
|
|
|
$ |
(9,068) |
|
|
|
|
$ |
(2,995) |
|
|
|
|
$ |
(6,297) |
|
|
|
Foreign
|
|
|
|
|
2,939 |
|
|
|
|
|
19,965 |
|
|
|
|
|
15,720 |
|
|
|
Total
|
|
|
|
$ |
(6,129) |
|
|
|
|
$ |
16,970 |
|
|
|
|
$ |
9,423 |
|
|
|
Computed income tax provision (benefit)
|
|
|
|
$ |
(1,318) |
|
|
|
|
$ |
3,592 |
|
|
|
|
$ |
1,979 |
|
|
|
State and local taxes, net of federal tax
|
|
|
|
|
(26) |
|
|
|
|
|
113 |
|
|
|
|
|
341 |
|
|
|
Foreign taxes, net
|
|
|
|
|
(2,086) |
|
|
|
|
|
1,355 |
|
|
|
|
|
655 |
|
|
|
Valuation allowance
|
|
|
|
|
5,166 |
|
|
|
|
|
(1,568) |
|
|
|
|
|
(887) |
|
|
|
Uncertain tax positions – (benefit) expense
|
|
|
|
|
(4,756) |
|
|
|
|
|
(6,214) |
|
|
|
|
|
860 |
|
|
|
Foreign exchange impact
|
|
|
|
|
(4) |
|
|
|
|
|
(24) |
|
|
|
|
|
18 |
|
|
|
Permanent differences, net
|
|
|
|
|
299 |
|
|
|
|
|
2,880 |
|
|
|
|
|
1,687 |
|
|
|
Revaluation of deferreds
|
|
|
|
|
1,574 |
|
|
|
|
|
(328) |
|
|
|
|
|
1,016 |
|
|
|
Other, net
|
|
|
|
|
481 |
|
|
|
|
|
3,728 |
|
|
|
|
|
1,470 |
|
|
|
Total income tax provision
|
|
|
|
$ |
(670) |
|
|
|
|
$ |
3,534 |
|
|
|
|
$ |
7,139 |
|
|
Temporary differences and net operating loss carryforwards that give rise to a significant portion of deferred tax assets and liabilities for 2024 and 2023 are as follows:
| |
|
|
2024
|
|
|
2023
|
|
|
Deferred tax asset
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provisions not currently deductible
|
|
|
|
$ |
11,117 |
|
|
|
|
$ |
10,520 |
|
|
|
Inventory basis differences
|
|
|
|
|
1,484 |
|
|
|
|
|
1,797 |
|
|
|
Stock options
|
|
|
|
|
40 |
|
|
|
|
|
41 |
|
|
|
Pension and healthcare
|
|
|
|
|
2,829 |
|
|
|
|
|
4,312 |
|
|
|
Net operating loss carryforwards
|
|
|
|
|
16,360 |
|
|
|
|
|
15,795 |
|
|
|
Lease liability
|
|
|
|
|
4,050 |
|
|
|
|
|
6,409 |
|
|
|
Foreign exchange and other
|
|
|
|
|
4,740 |
|
|
|
|
|
2,021 |
|
|
|
Valuation allowance
|
|
|
|
|
(9,410) |
|
|
|
|
|
(4,692) |
|
|
|
Total deferred tax asset
|
|
|
|
$ |
31,210 |
|
|
|
|
$ |
36,203 |
|
|
|
Deferred tax liability
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property, plant, and equipment
|
|
|
|
$ |
(7,069) |
|
|
|
|
$ |
(7,106) |
|
|
|
Intangible asset
|
|
|
|
|
(4,061) |
|
|
|
|
|
(4,772) |
|
|
|
Right of use assets
|
|
|
|
|
(4,057) |
|
|
|
|
|
(6,480) |
|
|
|
Foreign exchange and other
|
|
|
|
|
(2,351) |
|
|
|
|
|
(2,269) |
|
|
|
Total deferred tax liability
|
|
|
|
$ |
(17,538) |
|
|
|
|
$ |
(20,627) |
|
|
| |
|
|
|
$ |
13,672 |
|
|
|
|
$ |
15,576 |
|
|
As of December 31, 2024, we have not provided taxes on approximately $81,000 of undistributed earnings in foreign subsidiaries which are deemed to be indefinitely reinvested. If at some future date these earnings cease to be permanently reinvested, we may be subject to foreign income and withholding taxes upon repatriation of such amounts. An estimate of the tax liability that would be incurred upon repatriation of foreign earnings is not practicable to determine.
A valuation allowance is provided when it is more likely than not that some portion or all of the net deferred tax assets will not be realized. Management believes that is more likely than not that its net deferred tax assets will be realized based on the weight of positive evidence and future income except with respect to the loss in Brazil and a portion of the state loss in the US.
The Company’s valuation allowance balance is $9,410 and $4,692 as of December 31, 2024 and December 31, 2023 respectively. The net change in the valuation allowance during 2024 is an increase of $4,718. The Company has gross U.S. federal net operating loss carryforwards at December 31, 2024 and December 31, 2023 of $40,327 and $36,649, respectively, with amounts beginning to expire in 2025. The Company also has net operating losses in various US state jurisdictions with amounts beginning to expire in 2025. The Company has gross net operating loss carryforwards in Brazil at December 31, 2024 and December 31, 2023 of $6,309 and $5,059, respectively, and has an unlimited carryforward period. The Company has gross net operating loss carryforwards in Poland at December 31, 2024 of $1,184 and none at December 31, 2023. The net operating loss in Poland is set to expire in 2029. The Company has gross net operating loss carryforwards in France at December 31, 2024 and December 31, 2023 of $1,907 and $4,321, respectively, and has an unlimited carryforward period. The Company has gross net operating loss carryforwards in Viskase Germany at December 31, 2024 and December 31, 2023 of $5,435 and $5,882 for Income Tax and Trade Tax, respectively. The Company has gross net operating loss carryforwards in CT Casings at December 31, 2024 of $894 and none for December 31, 2023 for Income Tax and Trade Tax. The NOLs at Viskase Germany and CT Casings can carryforward their NOLs indefinitely. The Company also has SEZ Credits in Poland at December 31, 2024 and December 31, 2023 of $2,418 and $2,954, respectively. The SEZ Credits are scheduled to expire at the end of December 2026.
Following the Equity Private Placement, Icahn Enterprises L.P. (“IELP”) became the beneficial owner of more than 80% of the shares of our common stock and the Company became a member of the
consolidated group of a corporate subsidiary of Icahn Enterprises for U.S. federal income tax purposes (the “IEP Corporate Subsidiary”). As a result, the IEP Corporate Subsidiary and the Company entered into a tax allocation agreement for the allocation of certain income tax items. The Company and its subsidiaries consented to join the IEP Corporate Subsidiary’s federal consolidated return and, if elected by the IEP Corporate Subsidiary, certain state consolidated returns. See Note 15 — Related-Party Transactions for details.
Uncertainty in Income Taxes
The uncertain tax positions as of December 31, 2024 and 2023 totaled $7,456 and $9,190, respectively. The following table summarizes the activity related to the unrecognized tax benefits.
| |
|
|
2024
|
|
|
2023
|
|
|
Unrecognized tax benefits as of January 1
|
|
|
|
$ |
9,190 |
|
|
|
|
$ |
15,983 |
|
|
|
Increases in positions taken in a prior period
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Decreases in positions taken in a prior period
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Decreases due to settlements
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Increases due to currency translation
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Decreases due to currency translation
|
|
|
|
|
(158) |
|
|
|
|
|
— |
|
|
|
Decreases due to lapse of statute of limitations
|
|
|
|
|
(1,576) |
|
|
|
|
|
(6,793) |
|
|
|
Unrecognized tax benefits as of December 31
|
|
|
|
$ |
7,456 |
|
|
|
|
$ |
9,190 |
|
|
In 2024, the Company recognized an approximate net decrease of $1,734 to the reserves for uncertain tax positions.
Approximately $7,456 of the total gross unrecognized tax benefits represents the amount that, if recognized, would affect the effective income tax rate in future periods. The Company and its subsidiaries are subject to U.S. federal income tax as well as income tax of multiple state and foreign jurisdictions. The statute of limitations varies across jurisdictions, typically ranging from 3 to 6 years. The Company evaluates tax positions and establishes liabilities for uncertain tax positions that may be challenged by local authorities and may not be fully sustained, despite our belief that the underlying tax positions are fully supportable. Uncertain tax positions are reviewed on an ongoing basis and are adjusted considering changing facts and circumstances, including progress of tax audits, developments in case law and the closing of statutes of limitations. Such adjustments are reflected in the tax provision as appropriate.
Germany has an ongoing corporate income tax examination for 2019 – 2022 years that started in May 2024. This examination is expected to come to an end during Q3 2025. The Company currently does not have information to recognize an assessment at a more likely than not level.
The Company has substantially concluded all U.S. federal income tax matters for years through 2016. Substantially all material state and local and foreign income tax matters have been concluded for years through 2013. Based on the expiration of the statute of limitations for certain jurisdictions, we do not expect any amounts of unrecognized tax benefits to be released in the next twelve months.
The Company’s continuing practice is to recognize interest and/or penalties related to income tax matters in income tax expense. During the years ended December 31, 2024 and 2023, the Company recorded adjustments for interest of ($3,751) and $628, respectively, and for penalties of $10 and $10, respectively, related to these unrecognized tax benefits. In total, as of December 31, 2024 and 2023, the Company has recorded a liability of interest of $23 and $3,774, respectively, and $177 and $167, respectively, for potential penalties.
12. Goodwill and Intangible Assets, Net
The Company has two reporting units with a goodwill balance, U.S and EMEA and which roll into two reportable operating segments, North America and EMEA. The changes in the carrying amount of goodwill during the years ended December 31, 2024, and 2023 is as follows:
| |
|
|
North
America
|
|
|
EMEA
|
|
|
Total
|
|
|
Balance at January 1, 2023
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill
|
|
|
|
$ |
449 |
|
|
|
|
$ |
2,758 |
|
|
|
|
$ |
3,207 |
|
|
|
Translation
|
|
|
|
|
— |
|
|
|
|
|
114 |
|
|
|
|
|
114 |
|
|
|
Balance at December 31, 2023
|
|
|
|
|
449 |
|
|
|
|
|
2,872 |
|
|
|
|
|
3,321 |
|
|
|
Translation
|
|
|
|
|
— |
|
|
|
|
|
(171) |
|
|
|
|
|
(171) |
|
|
|
Impairment
|
|
|
|
|
— |
|
|
|
|
|
(330) |
|
|
|
|
|
(330) |
|
|
|
Balance at December 31, 2024
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill
|
|
|
|
|
449 |
|
|
|
|
|
2,701 |
|
|
|
|
|
3,150 |
|
|
|
Accumulated impairment losses
|
|
|
|
|
— |
|
|
|
|
|
(330) |
|
|
|
|
|
(330) |
|
|
|
Total
|
|
|
|
$ |
449 |
|
|
|
|
$ |
2,371 |
|
|
|
|
$ |
2,820 |
|
|
During the year ended December 31, 2024, the Company decided to wind down operations in its Swiecie, Poland manufacturing facility as part of its 2024 Restructuring Plan (see Note 22 — Restructuring). Upon the closing of the plant, the Company reviewed the goodwill balance of its EMEA reporting unit, and concluded that it was impaired, and estimated the impairment to be $330 based on the facts and circumstances of the EMEA reporting unit.
Intangible assets, net consists of the following:
| |
|
|
December 31, 2024
|
|
| |
|
|
Gross
Carrying
Value
|
|
|
Accumulated
Amortization
|
|
|
Net
Carrying
Value
|
|
|
Definite live intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer relationships
|
|
|
|
$ |
18,222 |
|
|
|
|
$ |
(7,879) |
|
|
|
|
$ |
10,343 |
|
|
|
Technologies
|
|
|
|
|
2,137 |
|
|
|
|
|
(1,014) |
|
|
|
|
|
1,123 |
|
|
|
Patents/Trademarks
|
|
|
|
|
9,676 |
|
|
|
|
|
(7,842) |
|
|
|
|
|
1,834 |
|
|
|
In-place leases
|
|
|
|
|
189 |
|
|
|
|
|
(108) |
|
|
|
|
|
81 |
|
|
|
Total definite live intangible assets
|
|
|
|
$ |
30,224 |
|
|
|
|
$ |
(16,843) |
|
|
|
|
$ |
13,381 |
|
|
| |
|
|
December 31, 2023
|
|
| |
|
|
Gross
Carrying
Value
|
|
|
Accumulated
Amortization
|
|
|
Net
Carrying
Value
|
|
|
Definite live intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer relationships
|
|
|
|
$ |
19,382 |
|
|
|
|
$ |
(6,969) |
|
|
|
|
$ |
12,413 |
|
|
|
Technologies
|
|
|
|
|
2,318 |
|
|
|
|
|
(1,295) |
|
|
|
|
|
1,023 |
|
|
|
Patents/Trademarks
|
|
|
|
|
9,866 |
|
|
|
|
|
(7,603) |
|
|
|
|
|
2,263 |
|
|
|
In-place leases
|
|
|
|
|
201 |
|
|
|
|
|
(101) |
|
|
|
|
|
100 |
|
|
|
Total definite live intangible assets
|
|
|
|
$ |
31,767 |
|
|
|
|
$ |
(15,968) |
|
|
|
|
$ |
15,799 |
|
|
Amortization expense associated with definite-lived intangible assets was $1,609, $1,606 and $1,576 for the years ended December 31, 2024, 2023 and 2022, respectively. We utilize the straight-line method of amortization, recognized over the estimated useful lives of the assets.
The estimated future amortization expense for our definite-lived intangible assets is as follows:
| |
2025
|
|
|
|
$ |
1,570 |
|
|
| |
2026
|
|
|
|
|
1,574 |
|
|
| |
2027
|
|
|
|
|
1,574 |
|
|
| |
2028
|
|
|
|
|
1,566 |
|
|
| |
2029
|
|
|
|
|
1,201 |
|
|
| |
Total thereafter
|
|
|
|
|
5,896 |
|
|
| |
Total amortization
|
|
|
|
$ |
13,381 |
|
|
13. Commitments and Contingencies
The Company from time to time is involved in various other legal proceedings, none of which are expected to have a material adverse effect upon results of operations, cash flows or financial condition.
14. Research and Development Costs
Research and development costs are expensed as incurred and totaled $3,724, $4,755 and $5,267 for the years ended December 31, 2024, 2023, and 2022, respectively.
15. Related-Party Transactions
As of December 31, 2024, and December 31, 2023, Icahn Enterprises L.P. owned approximately 90.6% and 90.0% of our outstanding common stock, respectively.
Equity Private Placement of Common Stock & Change in Number of Authorized Shares
Beginning in the first quarter of 2020, the Company entered into discussions with a number of banks, including Bank of America (“BofA”), regarding the terms of a new senior credit facility which would replace both the Term Loan and the ABL Loan. Under the new senior credit facility proposed by BofA, the Company was required to raise at least $100,000 in equity capital, the proceeds of which were to be used, together with borrowings under the new senior credit facility, to repay the Term Loan and the ABL Loan. The Company met this condition through the issuance of 50,000,000 shares of common stock to an affiliate of IELP in a private placement transaction at a purchase price of $2.00 per share (the “Equity Private Placement”). In order to complete the offering of the Equity Private Placement, the Company amended its Amended and Restated Certificate of Incorporation to increase the number of authorized shares of the Company’s common stock by 50,000,000 shares.
Prior to the completion of the Equity Private Placement, IELP beneficially owned approximately 78.6% of the Company’s outstanding common stock. As a result of the Equity Private Placement, IELP is the beneficial owner of approximately 89.0% of the Company’s outstanding common stock. The Equity Private Placement was approved by a Special Committee of disinterested directors of the Company.
Pension Liabilities
Applicable pension and tax laws make each member of a “controlled group” of entities, generally defined as entities in which there is at least an 80% common ownership interest, jointly and severally liable for certain pension plan obligations of any member of the controlled group. These pension obligations include ongoing contributions to fund the plan, as well as liability for any unfunded liabilities that may exist at the time the plan is terminated. In addition, the failure to pay these pension obligations when due may result in the creation of liens in favor of the pension plan or the Pension Benefit Guaranty Corporation (“PBGC”) against the assets of each member of the controlled group.
As a result of the Equity Private Placement, IELP became the beneficial owner of more than 80% of the shares of our common stock and the Company became subject to the pension liabilities of all entities in which Mr. Icahn has a direct or indirect ownership interest of at least 80%. One such entity, ACF Industries LLC (“ACF”), is the sponsor of several pension plans.
On January 31, 2025, the Executive Committee of ACF approved a resolution to terminate its qualified pension plans, which are frozen and no longer accrues benefits. As of December 31, 2024, the fair value of this plan’s assets exceeded its benefit obligation. The termination of the plan is effective January 31, 2025, is subject to the appropriate regulatory approvals, and is expected to be completed in fiscal year 2025. The ACF LLC ultimate settlement obligation will depend upon both the nature and timing of participant settlements and prevailing market conditions.
In connection with the Equity Private Placement, the Company entered into an agreement with Icahn Enterprises Holdings L.P. pursuant to which Icahn Enterprises Holdings L.P. has agreed to indemnify us and our subsidiaries from losses resulting from any imposition of certain pension funding or termination liabilities that may be imposed on us and our subsidiaries or our assets as a result of being a member of the Icahn controlled group.
Based on the contingent nature of potential exposure related to these affiliate pension obligations and the indemnification from Icahn Enterprises Holdings L.P., no liability has been recorded in the accompanying consolidated financial statements.
Tax Allocation
Following the Equity Private Placement, IELP became the beneficial owner of more than 80% of the shares of our common stock and the Company became a member of the consolidated group IEP Corporate Subsidiary for U.S. federal income tax purposes. As a result, the IEP Corporate Subsidiary and the Company entered into a tax allocation agreement for the allocation of certain income tax items. The Company and its subsidiaries consented to join the IEP Corporate Subsidiary’s federal consolidated return and, if elected by the IEP Corporate Subsidiary, certain state consolidated returns. In those jurisdictions where the Company and its subsidiaries will file consolidated returns with the IEP Corporate Subsidiary, the Company will pay to the IEP Corporate Subsidiary any tax it would have owed had it and its subsidiaries continued to file as a separate consolidated group. To the extent that the IEP Corporate Subsidiary consolidated group is able to reduce its tax liability as a result of including the Company and its subsidiaries in its consolidated group, the IEP Corporate Subsidiary will pay the Company 20% of such reduction on a current basis and the Company will be treated as if it would carry forward for its own use under the tax allocation agreement, 80% of the items that caused the tax reduction (the “Excess Tax Benefits”). Moreover, if the Company and its subsidiaries should ever become deconsolidated from the IEP Corporate Subsidiary, the IEP Corporate Subsidiary will reimburse the Company for any tax liability in post-consolidation years that the Company and its subsidiaries would have avoided had they actually had the Excess Tax Benefits for their own consolidated group use. The cumulative payments to the Company by the IEP Corporate Subsidiary post-consolidation will not exceed the cumulative reductions in tax to the IEP Corporate Subsidiary group resulting from the use of the Excess Tax Benefits by the IEP Corporate Subsidiary group.
16. Business Segment Information and Geographic Area Information
The Company defines operating segments as components of the organization for which discrete financial information is available and operating results are evaluated regularly by the Company’s chief executive officer, who is the Chief Operating Decision Maker (“CODM”), in order to assess performance and allocate resources. Characteristics of the Company which were relied upon in making the determination of reportable segments include the geographic region in which the Company operates and the information that is regularly reviewed by the CODM for the purpose of assessing performance and allocating resources.
The Company’s operations are viewed in geographic regions of North America, South America, EMEA, and Asia which are the Company’s four reportable segments under ASC 280. The primary business of each of the geographic regions is manufacturing and selling cellulosic food casings. The Company’s casing products have similar characteristics and customers and share operations support functions such as sales, public relations, supply chain management, various research and development support, in addition to the general and administrative functions of human resources, legal, finance, and information technology. Revenue by product line is disclosed in Note 23.
The Company uses Operating Income, which is defined as profit or loss from operations before interest income, interest expense, other expense, net and income taxes, to assess the profitability of each segment.
The Company’s reporting package does not include interest revenue, interest expense or income taxes allocated to individual segments and these items are not considered components of segment operating income. The CODM monitors actual Operating Income results relative to operating plan and forecast to assess the performance of the business and allocate resources.
Segment assets regularly reviewed by the CODM are inclusive only of inventory.
The following table reflects the results of the Company’s segments:
| |
|
|
Year Ended December 31, 2024
|
|
| |
|
|
North
America
|
|
|
South
America
|
|
|
EMEA
|
|
|
Asia
|
|
|
Corporate
and
Other
|
|
|
Consolidated
|
|
|
Sales from external customers
|
|
|
|
$ |
176,469 |
|
|
|
|
$ |
50,190 |
|
|
|
|
$ |
128,978 |
|
|
|
|
$ |
48,138 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
403,775 |
|
|
|
Intersegment net sales
|
|
|
|
|
29,451 |
|
|
|
|
|
130 |
|
|
|
|
|
46,249 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
75,830 |
|
|
| |
|
|
|
|
205,920 |
|
|
|
|
|
50,320 |
|
|
|
|
|
175,227 |
|
|
|
|
|
48,138 |
|
|
|
|
|
— |
|
|
|
|
|
479,605 |
|
|
|
Reconciliation of revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Elimination of intersegment sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(75,830) |
|
|
|
|
|
(75,830) |
|
|
|
Total consolidated net sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
403,775 |
|
|
|
Cost of sales
|
|
|
|
|
(180,126) |
|
|
|
|
|
(42,988) |
|
|
|
|
|
(146,850) |
|
|
|
|
|
(42,554) |
|
|
|
|
|
76,573 |
|
|
|
|
|
(335,945) |
|
|
|
Selling and marketing
|
|
|
|
|
(4,254) |
|
|
|
|
|
(1,489) |
|
|
|
|
|
(5,260) |
|
|
|
|
|
(323) |
|
|
|
|
|
— |
|
|
|
|
|
(11,326) |
|
|
|
General and administrative
|
|
|
|
|
(18,132) |
|
|
|
|
|
(3,317) |
|
|
|
|
|
(11,411) |
|
|
|
|
|
(511) |
|
|
|
|
|
— |
|
|
|
|
|
(33,371) |
|
|
|
Research and development
|
|
|
|
|
(3,125) |
|
|
|
|
|
(63) |
|
|
|
|
|
(454) |
|
|
|
|
|
(82) |
|
|
|
|
|
— |
|
|
|
|
|
(3,724) |
|
|
|
Amortization of intangibles
|
|
|
|
|
(100) |
|
|
|
|
|
— |
|
|
|
|
|
(1,509) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,609) |
|
|
|
Asset impairment charge
|
|
|
|
|
(77) |
|
|
|
|
|
— |
|
|
|
|
|
(371) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(448) |
|
|
|
Restructuring expense
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,917) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,917) |
|
|
|
Segment operating income
|
|
|
|
$ |
106 |
|
|
|
|
$ |
2,463 |
|
|
|
|
$ |
7,455 |
|
|
|
|
$ |
4,668 |
|
|
|
|
$ |
743 |
|
|
|
|
$ |
15,435 |
|
|
|
Interest income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
Interest expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(11,032) |
|
|
|
Other expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(10,532) |
|
|
|
Net income (loss) before income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(6,129) |
|
|
| |
|
|
Year Ended December 31, 2023
|
|
| |
|
|
North
America
|
|
|
South
America
|
|
|
EMEA
|
|
|
Asia
|
|
|
Corporate
and
Other
|
|
|
Consolidated
|
|
|
Sales from external customers
|
|
|
|
$ |
189,374 |
|
|
|
|
$ |
53,163 |
|
|
|
|
$ |
157,413 |
|
|
|
|
$ |
46,034 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
445,984 |
|
|
|
Intersegment net sales
|
|
|
|
|
32,719 |
|
|
|
|
|
38 |
|
|
|
|
|
44,216 |
|
|
|
|
|
128 |
|
|
|
|
|
— |
|
|
|
|
|
77,101 |
|
|
| |
|
|
|
|
222,093 |
|
|
|
|
|
53,201 |
|
|
|
|
|
201,629 |
|
|
|
|
|
46,162 |
|
|
|
|
|
— |
|
|
|
|
|
523,085 |
|
|
|
Reconciliation of revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Elimination of intersegment sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(77,101) |
|
|
|
|
|
(77,101) |
|
|
|
Total consolidated net sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
445,984 |
|
|
|
Cost of sales
|
|
|
|
|
(182,160) |
|
|
|
|
|
(43,034) |
|
|
|
|
|
(166,636) |
|
|
|
|
|
(37,492) |
|
|
|
|
|
77,101 |
|
|
|
|
|
(352,221) |
|
|
|
Selling and marketing
|
|
|
|
|
(6,074) |
|
|
|
|
|
(1,422) |
|
|
|
|
|
(3,802) |
|
|
|
|
|
(279) |
|
|
|
|
|
— |
|
|
|
|
|
(11,577) |
|
|
|
General and administrative
|
|
|
|
|
(23,908) |
|
|
|
|
|
(2,591) |
|
|
|
|
|
(8,995) |
|
|
|
|
|
(610) |
|
|
|
|
|
— |
|
|
|
|
|
(36,104) |
|
|
|
Research and development
|
|
|
|
|
(4,505) |
|
|
|
|
|
(61) |
|
|
|
|
|
(93) |
|
|
|
|
|
(96) |
|
|
|
|
|
— |
|
|
|
|
|
(4,755) |
|
|
|
Amortization of intangibles
|
|
|
|
|
(100) |
|
|
|
|
|
— |
|
|
|
|
|
(1,506) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,606) |
|
|
|
Asset impairment charge
|
|
|
|
|
(338) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(338) |
|
|
|
Restructuring expense
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Segment operating income
|
|
|
|
$ |
5,008 |
|
|
|
|
$ |
6,093 |
|
|
|
|
$ |
20,597 |
|
|
|
|
$ |
7,685 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
39,383 |
|
|
|
Interest income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
Interest expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(12,018) |
|
|
|
Other expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(10,395) |
|
|
|
Net income (loss) before income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
16,970 |
|
|
| |
|
|
Year Ended December 31, 2022
|
|
| |
|
|
North
America
|
|
|
South
America
|
|
|
EMEA
|
|
|
Asia
|
|
|
Corporate
and
Other
|
|
|
Consolidated
|
|
|
Sales from external customers
|
|
|
|
$ |
185,780 |
|
|
|
|
$ |
50,530 |
|
|
|
|
$ |
146,464 |
|
|
|
|
$ |
48,060 |
|
|
|
|
$ |
0 |
|
|
|
|
$ |
430,834 |
|
|
|
Intersegment net sales
|
|
|
|
|
31,038 |
|
|
|
|
|
91 |
|
|
|
|
|
40,937 |
|
|
|
|
|
880 |
|
|
|
|
|
— |
|
|
|
|
|
72,946 |
|
|
| |
|
|
|
|
216,818 |
|
|
|
|
|
50,621 |
|
|
|
|
|
187,401 |
|
|
|
|
|
48,940 |
|
|
|
|
|
— |
|
|
|
|
|
503,780 |
|
|
|
Reconciliation of revenue
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Elimination of intersegment sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(72,946) |
|
|
|
|
|
(72,946) |
|
|
|
Total consolidated net sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
430,834 |
|
|
|
Cost of sales
|
|
|
|
|
(184,980) |
|
|
|
|
|
(40,869) |
|
|
|
|
|
(163,373) |
|
|
|
|
|
(39,823) |
|
|
|
|
|
72,344 |
|
|
|
|
|
(356,701) |
|
|
|
Selling and marketing
|
|
|
|
|
(5,667) |
|
|
|
|
|
(1,282) |
|
|
|
|
|
(6,316) |
|
|
|
|
|
(336) |
|
|
|
|
|
— |
|
|
|
|
|
(13,601) |
|
|
|
General and administrative
|
|
|
|
|
(20,038) |
|
|
|
|
|
(2,147) |
|
|
|
|
|
(8,427) |
|
|
|
|
|
(803) |
|
|
|
|
|
— |
|
|
|
|
|
(31,415) |
|
|
|
Research and development
|
|
|
|
|
(5,137) |
|
|
|
|
|
11 |
|
|
|
|
|
(33) |
|
|
|
|
|
(108) |
|
|
|
|
|
— |
|
|
|
|
|
(5,267) |
|
|
|
Amortization of intangibles
|
|
|
|
|
(100) |
|
|
|
|
|
— |
|
|
|
|
|
(1,476) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1,576) |
|
|
|
Asset impairment charge
|
|
|
|
|
(27) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(27) |
|
|
|
Restructuring expense
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Segment operating income
|
|
|
|
$ |
869 |
|
|
|
|
$ |
6,334 |
|
|
|
|
$ |
7,776 |
|
|
|
|
$ |
7,870 |
|
|
|
|
$ |
(602) |
|
|
|
|
$ |
22,247 |
|
|
|
Interest income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5 |
|
|
|
Interest expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(8,433) |
|
|
|
Other expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4,396) |
|
|
|
Net income (loss) before income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
9,423 |
|
|
The following table reflects the Company’s inventory by segment:
| |
|
|
Year Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
North America
|
|
|
|
$ |
42,977 |
|
|
|
|
$ |
43,694 |
|
|
|
South America
|
|
|
|
|
21,100 |
|
|
|
|
|
21,555 |
|
|
|
EMEA
|
|
|
|
|
29,657 |
|
|
|
|
|
32,038 |
|
|
|
Asia
|
|
|
|
|
15,234 |
|
|
|
|
|
14,023 |
|
|
|
Consolidated inventory
|
|
|
|
$ |
108,968 |
|
|
|
|
$ |
111,310 |
|
|
The following table reflects the Company’s expenditure for long-lived assets by segment:
| |
|
|
Year Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
2022
|
|
|
North America
|
|
|
|
$ |
12,762 |
|
|
|
|
$ |
9,548 |
|
|
|
|
$ |
17,378 |
|
|
|
South America
|
|
|
|
|
267 |
|
|
|
|
|
530 |
|
|
|
|
|
303 |
|
|
|
EMEA
|
|
|
|
|
2,114 |
|
|
|
|
|
4,211 |
|
|
|
|
|
4,147 |
|
|
|
Asia
|
|
|
|
|
135 |
|
|
|
|
|
182 |
|
|
|
|
|
507 |
|
|
|
Total expenditure for long-lived assets
|
|
|
|
$ |
15,278 |
|
|
|
|
$ |
14,471 |
|
|
|
|
$ |
22,335 |
|
|
Geographic Information
Net sales attributed to the country based on the location of the end customer for the years ended December 31, 2024, 2023, and 2022 were as follows:
| |
|
|
Year Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
2022
|
|
|
United States
|
|
|
|
$ |
128,730 |
|
|
|
|
$ |
135,702 |
|
|
|
|
$ |
135,371 |
|
|
|
Philippines
|
|
|
|
|
27,706 |
|
|
|
|
|
27,312 |
|
|
|
|
|
31,663 |
|
|
|
Italy
|
|
|
|
|
24,824 |
|
|
|
|
|
27,184 |
|
|
|
|
|
28,248 |
|
|
|
Brazil
|
|
|
|
|
27,646 |
|
|
|
|
|
28,327 |
|
|
|
|
|
24,489 |
|
|
|
Mexico
|
|
|
|
|
20,031 |
|
|
|
|
|
24,603 |
|
|
|
|
|
24,161 |
|
|
|
Argentina
|
|
|
|
|
20,560 |
|
|
|
|
|
21,414 |
|
|
|
|
|
20,399 |
|
|
|
Germany
|
|
|
|
|
17,041 |
|
|
|
|
|
22,178 |
|
|
|
|
|
22,188 |
|
|
|
Colombia
|
|
|
|
|
14,430 |
|
|
|
|
|
12,208 |
|
|
|
|
|
18,092 |
|
|
|
France
|
|
|
|
|
12,872 |
|
|
|
|
|
14,021 |
|
|
|
|
|
13,634 |
|
|
|
Poland
|
|
|
|
|
8,253 |
|
|
|
|
|
10,007 |
|
|
|
|
|
9,271 |
|
|
|
Russia
|
|
|
|
|
13 |
|
|
|
|
|
23,647 |
|
|
|
|
|
18,939 |
|
|
|
Other international
|
|
|
|
|
101,669 |
|
|
|
|
|
99,381 |
|
|
|
|
|
84,379 |
|
|
|
Consolidated net sales
|
|
|
|
$ |
403,775 |
|
|
|
|
$ |
445,984 |
|
|
|
|
$ |
430,834 |
|
|
Total long-lived assets by country, which includes property and equipment, net, operating lease right-of-use assets, net, and other assets for the years ended December 31, 2024 and 2023 were as follows:
| |
|
|
Year Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
United States
|
|
|
|
$ |
76,849 |
|
|
|
|
$ |
76,620 |
|
|
|
France
|
|
|
|
|
26,652 |
|
|
|
|
|
31,740 |
|
|
|
Brazil
|
|
|
|
|
14,477 |
|
|
|
|
|
21,366 |
|
|
|
Poland
|
|
|
|
|
11,809 |
|
|
|
|
|
14,630 |
|
|
|
Philippines
|
|
|
|
|
9,740 |
|
|
|
|
|
11,479 |
|
|
|
Other international
|
|
|
|
|
14,297 |
|
|
|
|
|
16,495 |
|
|
|
Consolidated long-lived assets
|
|
|
|
$ |
153,824 |
|
|
|
|
$ |
172,330 |
|
|
17. Interest Expense, Net
Net interest expense, net consists of the following:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
December 31, 2022
|
|
|
Interest expense
|
|
|
|
$ |
11,300 |
|
|
|
|
$ |
12,152 |
|
|
|
|
$ |
8,433 |
|
|
|
Less Capitalized interest
|
|
|
|
|
(268) |
|
|
|
|
|
(134) |
|
|
|
|
|
— |
|
|
|
Interest expense, net
|
|
|
|
$ |
11,032 |
|
|
|
|
$ |
12,018 |
|
|
|
|
$ |
8,433 |
|
|
18. Other Expense, Net
Other expense, net consists of the following:
| |
|
|
December 31, 2024
|
|
|
December 31, 2023
|
|
|
December 31, 2022
|
|
|
Foreign currency transaction loss (gain)
|
|
|
|
$ |
8,648 |
|
|
|
|
$ |
(905) |
|
|
|
|
$ |
3,431 |
|
|
|
FIN 48 receivable write off
|
|
|
|
|
— |
|
|
|
|
|
6,793 |
|
|
|
|
|
— |
|
|
|
Non-service pension and other post retirement benefits expense (income)
|
|
|
|
|
1,438 |
|
|
|
|
|
2,976 |
|
|
|
|
|
(1,795) |
|
|
|
Other
|
|
|
|
|
446 |
|
|
|
|
|
1,531 |
|
|
|
|
|
2,760 |
|
|
|
Other expense, net
|
|
|
|
$ |
10,532 |
|
|
|
|
$ |
10,395 |
|
|
|
|
$ |
4,396 |
|
|
19. Other Comprehensive Income and Changes in Accumulated Other Comprehensive Loss
Tax effects allocated to each component of other comprehensive income are the following:
| |
|
|
Before-Tax
Amount
|
|
|
Tax (Expense) or
Benefit
|
|
|
Net-of-Tax
Amount
|
|
|
Balance at December 31, 2022
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation adjustments
|
|
|
|
$ |
(4,779) |
|
|
|
|
|
— |
|
|
|
|
$ |
(4,779) |
|
|
|
Pension liability adjustments
|
|
|
|
|
13,953 |
|
|
|
|
|
(2,649) |
|
|
|
|
|
11,304 |
|
|
|
Total other comprehensive (loss) income
|
|
|
|
|
9,174 |
|
|
|
|
|
(2,649) |
|
|
|
|
$ |
6,525 |
|
|
| |
|
|
Before-Tax
Amount
|
|
|
Tax (Expense) or
Benefit
|
|
|
Net-of-Tax
Amount
|
|
|
Balance at December 31, 2023
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation adjustments
|
|
|
|
$ |
5,280 |
|
|
|
|
|
— |
|
|
|
|
$ |
5,280 |
|
|
|
Pension liability adjustments
|
|
|
|
|
1,802 |
|
|
|
|
|
832 |
|
|
|
|
|
2,634 |
|
|
|
Total other comprehensive (loss) income
|
|
|
|
|
7,082 |
|
|
|
|
|
832 |
|
|
|
|
$ |
7,914 |
|
|
| |
|
|
Before-Tax
Amount
|
|
|
Tax (Expense) or
Benefit
|
|
|
Net-of-Tax
Amount
|
|
|
Balance at December 31, 2024
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation adjustments
|
|
|
|
$ |
(7,341) |
|
|
|
|
|
— |
|
|
|
|
$ |
(7,341) |
|
|
|
Pension liability adjustments
|
|
|
|
|
1,823 |
|
|
|
|
|
(668) |
|
|
|
|
|
1,155 |
|
|
|
Total other comprehensive (loss) income
|
|
|
|
|
(5,518) |
|
|
|
|
|
(668) |
|
|
|
|
$ |
(6,186) |
|
|
Changes in accumulated other comprehensive loss consist of the following:
| |
|
|
Accrued
Employee
Benefits
|
|
|
Translation
Adjustments
|
|
|
Total
|
|
|
Balance at December 31, 2022
|
|
|
|
$ |
(24,747) |
|
|
|
|
$ |
(42,367) |
|
|
|
|
|
(67,114) |
|
|
|
Other comprehensive income (loss) before reclassifications
|
|
|
|
|
— |
|
|
|
|
|
5,280 |
|
|
|
|
|
5,280 |
|
|
|
Reclassifications from accumulated other comprehensive loss to earnings
|
|
|
|
|
2,634 |
|
|
|
|
|
— |
|
|
|
|
|
2,634 |
|
|
|
Balance at December 31, 2023
|
|
|
|
$ |
(22,113) |
|
|
|
|
$ |
(37,087) |
|
|
|
|
$ |
(59,200) |
|
|
|
Other comprehensive income (loss) before reclassifications
|
|
|
|
|
1,032 |
|
|
|
|
|
(7,341) |
|
|
|
|
|
(6,309) |
|
|
|
Reclassifications from accumulated other comprehensive loss to earnings
|
|
|
|
|
123 |
|
|
|
|
|
— |
|
|
|
|
|
123 |
|
|
|
Balance at December 31, 2024
|
|
|
|
$ |
(20,958) |
|
|
|
|
$ |
(44,428) |
|
|
|
|
$ |
(65,386) |
|
|
| |
|
|
Amounts
Reclassified from
Accumulated Other
Comprehensive Loss
|
|
|
Affected Line
Items in the Consolidated
Statement of Operations
|
|
| |
|
|
December 31,
2024
|
|
|
December 31,
2023
|
|
|
Accrued employee benefits
|
|
|
|
|
|
Amortization of net actuarial loss
|
|
|
|
$ |
123 |
|
|
|
|
$ |
2,634 |
|
|
|
Other expense, net
|
|
| |
|
|
|
$ |
123 |
|
|
|
|
$ |
2,634 |
|
|
|
|
|
20.
Variable Interest Entity
The Company holds a variable interest in a joint venture for which the Company is the primary beneficiary, the joint venture, VE Netting, LLC.
The following table summarizes the carrying amount of the VIEs’ assets and liabilities included in the Company’s Consolidated Balance Sheets at December 31, 2024 and December 31, 2023:
| |
|
|
December 31,
2024
|
|
|
December 31,
2023
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
$ |
8 |
|
|
|
|
$ |
23 |
|
|
|
Receivables, net
|
|
|
|
|
80 |
|
|
|
|
|
104 |
|
|
|
Inventories
|
|
|
|
|
475 |
|
|
|
|
|
508 |
|
|
|
Other current assets
|
|
|
|
|
51 |
|
|
|
|
|
109 |
|
|
|
Property, plant and equipment
|
|
|
|
|
1,277 |
|
|
|
|
|
1,277 |
|
|
|
Less: Accumulated depreciation
|
|
|
|
|
(870) |
|
|
|
|
|
(742) |
|
|
|
Property, plant and equipment,net
|
|
|
|
|
407 |
|
|
|
|
|
535 |
|
|
|
Other assets
|
|
|
|
|
16 |
|
|
|
|
|
20 |
|
|
|
Total Assets
|
|
|
|
$ |
1,037 |
|
|
|
|
$ |
1,299 |
|
|
|
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities
|
|
|
|
|
749 |
|
|
|
|
|
814 |
|
|
|
Total Liabilites
|
|
|
|
|
749 |
|
|
|
|
|
814 |
|
|
|
Paid in capital
|
|
|
|
|
2,931 |
|
|
|
|
|
2,931 |
|
|
|
Retained earnings
|
|
|
|
|
(2,643) |
|
|
|
|
|
(2,446) |
|
|
|
Total Stockholder Equity
|
|
|
|
|
288 |
|
|
|
|
|
485 |
|
|
|
Total Liabilities and Stockholders’ Equity
|
|
|
|
$ |
1,037 |
|
|
|
|
$ |
1,299 |
|
|
All assets in the above table can only be used to settle obligations of the consolidated VIE. Liabilities are nonrecourse obligations. Amounts presented in the table above are adjusted for intercompany eliminations.
The following table summarizes the Statement of Operations of the VIE included in the Company’s Consolidated Statement of Operations for the period ended December 31, 2024 and December 31, 2023.
| |
|
|
December 31,
2024
|
|
|
December 31,
2023
|
|
|
December 31,
2022
|
|
|
Net sales
|
|
|
|
$ |
848 |
|
|
|
|
$ |
1,348 |
|
|
|
|
$ |
1,197 |
|
|
|
Cost of sales
|
|
|
|
|
949 |
|
|
|
|
|
1,207 |
|
|
|
|
|
1,371 |
|
|
|
Gross margin
|
|
|
|
|
(101) |
|
|
|
|
|
141 |
|
|
|
|
|
(174) |
|
|
|
Selling, general and administrative
|
|
|
|
|
54 |
|
|
|
|
|
197 |
|
|
|
|
|
228 |
|
|
|
Asset impairment
|
|
|
|
|
— |
|
|
|
|
|
18 |
|
|
|
|
|
— |
|
|
|
Operating loss
|
|
|
|
|
(155) |
|
|
|
|
|
(74) |
|
|
|
|
|
(402) |
|
|
|
Other expense
|
|
|
|
|
42 |
|
|
|
|
|
64 |
|
|
|
|
|
87 |
|
|
|
Loss before income taxes
|
|
|
|
|
(197) |
|
|
|
|
|
(138) |
|
|
|
|
|
(489) |
|
|
|
Income tax expense
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Net loss
|
|
|
|
$ |
(197) |
|
|
|
|
$ |
(138) |
|
|
|
|
$ |
(489) |
|
|
21. Net Income (Loss) Per Share
Basic and diluted net loss per share attributable to common stockholders was calculated as follows (dollar amounts in thousands):
| |
|
|
Year Ended December 31,
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
2022
|
|
|
Numerator:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss attributable to common stockholders
|
|
|
|
$ |
(5,360) |
|
|
|
|
$ |
13,506 |
|
|
|
|
$ |
2,529 |
|
|
|
Denominator:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-average common shares outstanding, basic and
diluted
|
|
|
|
|
103,190,665 |
|
|
|
|
|
103,190,665 |
|
|
|
|
|
103,190,665 |
|
|
|
Net loss per share attributable to common stockholders, basic and diluted
|
|
|
|
$ |
(0.05) |
|
|
|
|
$ |
0.13 |
|
|
|
|
$ |
0.02 |
|
|
22. Restructuring
During 2024, the Company announced and began implementing a restructuring plan to realign our operational focus to support multi-year growth, scale the business, and improve costs (the “2024 Restructuring Plan”). As part of this plan, the Company reduced headcount and closed its Swiecie, Poland manufacturing facility and transferred a portion of the machinery to its Legnica, Poland facility to expand production capabilities, scale the business, and improve costs. The plant closure resulted in the loss on disposal of property, plant and equipment of $41 which is included in the consolidated statements of operations for the year ended December 31, 2024. The majority of the 2024 Restructuring Plan was implemented and completed in the year ended December 31, 2024.
Restructuring expense consists of the following which are recorded as a restructuring expense in the consolidated statements of operations:
| |
|
|
December 31,
2024
|
|
|
Transfer and disposal costs and professional fees
|
|
|
|
$ |
1,059 |
|
|
|
Severance and other personnel costs
|
|
|
|
|
515 |
|
|
|
Capital expenditures
|
|
|
|
|
343 |
|
|
| |
|
|
|
$ |
1,917 |
|
|
The following table summarizes the activities for the year ended December 31, 2024:
| |
|
|
December 31,
2024
|
|
|
December 31,
2023
|
|
|
Beginning balance
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Provision
|
|
|
|
|
1,917 |
|
|
|
|
|
— |
|
|
|
Payments
|
|
|
|
|
(1,917) |
|
|
|
|
|
— |
|
|
|
Translation
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Ending balance
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
In addition, we continue to review our global businesses and may take additional restructuring actions where a path to sustained profitability is not feasible when considering the capital allocation required for those businesses.
23. Revenue Recognition
The following table summarizes net sales by product line:
| |
|
|
December 31,
2024
|
|
|
December 31,
2023
|
|
|
December 31,
2022
|
|
|
Net Sales by product line
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nojax
|
|
|
|
$ |
228,494 |
|
|
|
|
$ |
233,295 |
|
|
|
|
$ |
223,808 |
|
|
|
Fibrous
|
|
|
|
|
104,509 |
|
|
|
|
|
129,935 |
|
|
|
|
|
116,730 |
|
|
|
Large
|
|
|
|
|
9,931 |
|
|
|
|
|
12,879 |
|
|
|
|
|
10,474 |
|
|
|
Plastic
|
|
|
|
|
49,572 |
|
|
|
|
|
57,683 |
|
|
|
|
|
66,967 |
|
|
|
Traded Goods
|
|
|
|
|
8,662 |
|
|
|
|
|
10,512 |
|
|
|
|
|
13,097 |
|
|
|
Other
|
|
|
|
|
2,607 |
|
|
|
|
|
1,681 |
|
|
|
|
|
(242) |
|
|
|
Total
|
|
|
|
$ |
403,775 |
|
|
|
|
$ |
445,984 |
|
|
|
|
$ |
430,834 |
|
|
| |
|
|
December 31,
2024
|
|
|
December 31,
2023
|
|
|
December 31,
2022
|
|
|
Net Sales by product line
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nojax
|
|
|
|
$ |
228,494 |
|
|
|
|
$ |
233,295 |
|
|
|
|
$ |
223,808 |
|
|
|
Fibrous
|
|
|
|
|
104,509 |
|
|
|
|
|
129,935 |
|
|
|
|
|
116,730 |
|
|
|
Large
|
|
|
|
|
9,931 |
|
|
|
|
|
12,879 |
|
|
|
|
|
10,474 |
|
|
|
Plastic
|
|
|
|
|
49,572 |
|
|
|
|
|
57,683 |
|
|
|
|
|
66,967 |
|
|
|
Traded Goods
|
|
|
|
|
8,662 |
|
|
|
|
|
10,512 |
|
|
|
|
|
13,097 |
|
|
|
Other
|
|
|
|
|
2,700 |
|
|
|
|
|
3,511 |
|
|
|
|
|
3,047 |
|
|
|
Total
|
|
|
|
$ |
403,868 |
|
|
|
|
$ |
447,814 |
|
|
|
|
$ |
434,123 |
|
|
24.
Subsequent Events
Viskase evaluated its December 31, 2024 consolidated financial statements for subsequent events through December 19, 2025, the date the consolidated financial statements were available to be issued.
Private Placement
The Company completed private placements (the “Private Placements”) through the issuance of 7,142,858 shares at a purchase price of $2.10 and 7,042,254 shares at a purchase price of $0.71, on March 21, 2025, and September 30, 2025, respectively, of common stock to an affiliate of Icahn Enterprises L.P. (“IELP”). Prior to the completion of these Private Placements, IELP beneficially owned approximately 90.6% of the Company’s outstanding common stock. As a result of these Private Placements, IELP is the beneficial owner of approximately 91.76% of the Company’s outstanding common stock.
Plant Closure
The Company announced a plan to close its plant in Osceola, Arkansas on March 26, 2025 with the closure of the facility effective May 31, 2025 and wind down operations taking place through June 2025. Part of this plan is to consolidate Osceola capacity at existing plants, including moving Osceola equipment and people to these existing sites. The plan was given limited approval by the board of directors on December 18, 2024.
Agreement and Plan of Merger
On June 20, 2025, the Company entered into an Agreement and Plan of Merger (“Merger Agreement”) that was further amended on October 23, 2025 by and between Enzon Pharmaceuticals, Inc. (“Enzon”), and EPSC Acquisition Corp. (“ESPC”). Under the terms of the Merger Agreement, EPSC will merge with and into the Company, with the Company surviving as a wholly owned subsidiary of Enzon, (the “Merger”). Immediately following the Merger, the Company will convert into a limited liability company under Delaware law. Enzon is expected to change its name to Viskase Holdings, and trade on the OTC market.
Additionally, on June 20, 2025, the Company entered into a support agreement (“Support Agreement”). In accordance with the Support Agreement, the owners of Enzon and the Company will exchange their beneficially owned shares of Enzon Series C Preferred Stock for shares of Enzon common stock. Enzon will use commercially reasonable efforts to facilitate the exchange of Enzon Series C Preferred Stock held by non-related ownership parties for shares of Enzon common stock through the Series C Exchange Offer.
Enzon will effectuate a reverse stock split of the outstanding Enzon Common Stock. The determination as to the final ratio of the Reverse Stock Split shall be made by the Company between a certain range and not to exceed the authorized number of shares of Enzon Common Stock. In addition, each share of the Company’s common stock issued and outstanding prior to the merger will automatically be converted into the right to receive shares of Enzon Common Stock at a certain exchange ratio. All shares of EPSC common stock will be automatically converted into shares of the surviving company.
The transaction is expected to close in 2026 pending standard closing requirements and regulatory approvals.
One Big Beautiful Bill Act
On July 4, 2025, President Trump signed into law the One Big Beautiful Bill Act (“OBBBA”), which enacts significant changes to the US federal corporate income tax system. The legislation includes, among other provisions, modifications to the treatment of research and development expenditures, permanent full expensing for certain business assets, changes to the interest deduction limitation under Section 163(j), amendments to international tax provisions including the global intangible low-taxed income (“GILTI”) and foreign-derived intangible income (“FDII”) regimes, as well as the permanent extension of the controlled foreign corporation (“CFC”) look-through rule.
Since the tax legislation was enacted after the balance sheet date of December 31, 2024, but before the issuance of these financial statements, the Company has not recognized any tax effects of the new tax legislation in its 2024 income tax provision. In accordance with ASC 855, the enactment of OBBA is considered a nonrecognized subsequent event.
The Company is currently evaluating the provisions of the OBBBA including the potential implications for its deferred tax assets, valuation allowance assessments, and effective tax rate. At this time, the financial impact of the new legislation cannot be reasonably estimated.
Amendments to the Senior Credit Facility
On February 14, 2025, the Company entered into a Third Amendment to its Senior Credit Facility. See Note 7 — Debt Obligations for additional details.
On July 26, 2025, the Company entered into the Fourth Amendment to its Senior Credit Facility. There were no changes to the facility amounts or maturity dates and repayment terms remained largely unchanged
except for mandatory prepayments equal to $15,000 upon the closing of the Enzon Merger by December 31, 2025 or $11,250 if after December 31, 2025. The amendment also allows for certain exclusions relative to the merger for its financial covenants and EBIDTA addback amounts.
The Fourth and Fifth Amendment allow the Company to include equity infusions through private placements into the calculation of LTM EBITDA for covenant purposes.
Annex A
Execution Version
AGREEMENT AND PLAN OF MERGER
by and between
ENZON PHARMACEUTICALS, INC.,
EPSC ACQUISITION CORP.,
and
VISKASE COMPANIES, INC.
Dated as of June 20, 2025
Exhibits
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This AGREEMENT AND PLAN OF MERGER, dated as of June 20, 2025 (this “Agreement”), is by and between Enzon Pharmaceuticals, Inc., a Delaware corporation (“Enzon”), EPSC Acquisition Corp., a Delaware corporation (“Merger Sub”), and Viskase Companies, Inc., a Delaware corporation (“Viskase”).
W I T N E S S E T H:
WHEREAS, the parties intend that, on the terms and subject to the conditions set forth in this Agreement, Merger Sub be merged with and into Viskase (the “Merger”), with Viskase as the surviving entity in the Merger, in accordance with the applicable provisions of the General Corporation Law of the State of Delaware (the “DGCL”), and promptly thereafter, Viskase shall convert into a limited liability company pursuant to Section 266 of the DGCL and Section 18-214 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”);
WHEREAS, the Board of Directors of Viskase has established a special committee thereof consisting only of independent and disinterested directors that the Board of Directors of Viskase determined to be disinterested directors within the meaning of the DGCL (the “Viskase Special Committee”) to, among other things, review, evaluate and negotiate, and/or to reject, this Agreement and the transactions contemplated hereby, and the material facts as to the interests of IEH (as defined herein), together with its affiliates, were disclosed or known to all of the members of the Viskase Special Committee;
WHEREAS, the Viskase Special Committee has unanimously (i) determined that this Agreement and the transactions contemplated hereby are fair to, and in the best interests of Viskase and Viskase’s stockholders, other than IEH and its Affiliates, and declared it advisable, that Viskase enter into this Agreement and consummate the transactions contemplated hereby and (ii) adopted resolutions recommending that the Board of Directors of Viskase (A) adopt resolutions approving and declaring the advisability of this Agreement and the consummation of the transactions contemplated hereby, including the Merger, (B) adopt resolutions recommending that the stockholders of Viskase entitled to vote adopt this Agreement (this clause (B), the “Viskase Special Committee Recommendation”) and (C) direct that this Agreement and the transactions contemplated hereby be submitted to the stockholders of Viskase entitled to vote for adoption;
WHEREAS, the Board of Directors of Viskase, upon the unanimous recommendation of the Viskase Special Committee, has unanimously (i) determined that this Agreement and the transactions contemplated hereby are fair to, and in the best interests of Viskase and Viskase’s stockholders, and declared it advisable, that Viskase enter into this Agreement and consummate the transactions contemplated hereby, (ii) adopted resolutions approving and declaring the advisability of this Agreement and the consummation of the transactions contemplated hereby, including the Merger, (iii) adopted resolutions recommending that the stockholders of Viskase entitled to vote adopt this Agreement (this clause (iii), the “Viskase Recommendation”) and (iv) directed that this Agreement and the transactions contemplated hereby be submitted to the stockholders of Viskase entitled to vote for adoption;
WHEREAS, the Board of Directors of Enzon has established a special committee thereof consisting only of independent and disinterested directors that the Board of Directors of Enzon determined to be disinterested directors within the meaning of the DGCL (the “Enzon Special Committee”) to, among other things, analyze, evaluate and oversee a potential transaction with Viskase and any available alternatives thereto, and/or to reject a potential transaction with Viskase, and the material facts as to the interests of IEH (as defined herein), together with its Affiliates, were disclosed or known to all of the members of the Enzon Special Committee;
WHEREAS, the Enzon Special Committee has unanimously (i) determined that this Agreement and the transactions contemplated hereby are fair to, and in the best interests of, Enzon and Enzon’s stockholders, other than IEH and its Affiliates, and (ii) recommended that the Board of Directors of Enzon (A) determine that this Agreement and the transactions contemplated hereby, are fair to, and in the best interests of, Enzon and Enzon’s stockholders, other than IEH and its Affiliates, (B) approve this Agreement and the transactions contemplated hereby, including the Proposed Enzon Action and (C) recommend that the stockholders of Enzon entitled to vote thereon (x) adopt this Agreement, and (y) approve an amendment to the Amended and Restated Certificate of Incorporation of Enzon in the form set forth as Exhibit A hereto to, among other things, effect a consolidation of the issued and outstanding shares of Enzon Common
Stock, pursuant to which the shares of Enzon Common Stock would be combined and reclassified at a ratio of between 1 to 2 and 1 to 100 (the “Reverse Stock Split” or the “Proposed Enzon Action”) (this clause (ii)(C), the “Enzon Special Committee Recommendation”);
WHEREAS, the Board of Directors of Enzon, upon the unanimous recommendation of the Enzon Special Committee, has unanimously (i) determined that this Agreement and the transactions contemplated hereby are fair to, and in the best interests of, Enzon and Enzon’s stockholders, (ii) approved this Agreement and the transactions contemplated hereby, including the Proposed Enzon Action, (iii) approved the execution and delivery of this Agreement, the performance by Enzon of its covenants and other obligations contained herein and the transactions contemplated hereby upon the terms and subject to the conditions contained herein, (iv) recommended that the stockholders of Enzon entitled to vote thereon adopt this Agreement and approve the Proposed Enzon Action (this clause (iv), the “Enzon Recommendation”), and (v) directed that the adoption of this Agreement and the Proposed Enzon Action be submitted to the stockholders of Enzon entitled to vote thereon for the approval thereof;
WHEREAS, the Board of Directors of Merger Sub has unanimously (i) determined that this Agreement and the transactions contemplated hereby are fair to, and in the best interests of, Merger Sub and Merger Sub’s sole stockholder, (ii) approved and declared advisable this Agreement and the transactions contemplated hereby, including the Merger, (iii) approved the execution and delivery of this Agreement, the performance by Merger Sub of its covenants and other obligations contained herein and the transactions contemplated hereby upon the terms and subject to the conditions contained herein, (iv) directed that the adoption of this Agreement be submitted to a vote of Enzon, in its capacity as Merger Sub’s sole stockholder, (v) resolved to recommend that Enzon, in its capacity as the sole stockholder of Merger Sub, vote in favor of the adoption of this Agreement (this clause (v), the “Merger Sub Recommendation”) and (vi) Enzon, as Merger Sub’s sole stockholder, has duly executed and delivered to Merger Sub a written consent, to be effective by its terms immediately following execution and delivery of this Agreement by all parties hereto, adopting this Agreement;
WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the parties’ willingness to enter into this Agreement, Icahn Enterprises Holdings L.P., a Delaware limited partnership (“IEH”), and certain Affiliates thereof, are entering into a support agreement in the form attached hereto as Exhibit B (the “IEH Support Agreement”) with Enzon and Viskase, pursuant to which IEH has agreed to, among other things, (i) deliver or cause the delivery of written consents with respect to all of the issued and outstanding shares of Enzon Common Stock held by IEH and its Affiliates approving the Proposed Enzon Action and (ii) effectuate the conversion of each issued and outstanding share of Enzon Series C Preferred Stock into shares of Enzon Common Stock immediately prior to the consummation of the Closing, in each case on the terms and conditions set forth in the IEH Support Agreement (the “IEH Share Exchange”);
WHEREAS, for U.S. federal income Tax purposes, the parties intend that (i) the Merger and the conversion of Viskase into a limited liability company undertaken as part of this Agreement will, taken together, qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the regulations promulgated thereunder, (ii) Enzon and Viskase will each be a party to the reorganization within the meaning of Section 368(b) of the Code and (iii) this Agreement will constitute a “plan of reorganization” within the meaning of the Code (clauses (i)-(iii) collectively, the “Intended Tax Treatment”); and
WHEREAS, Viskase and Enzon desire to make certain representations, warranties, covenants and agreements in connection with this Agreement and to set forth certain conditions to the Merger.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the satisfaction or valid waiver of the conditions set forth in this Agreement and in accordance with the applicable provisions of the DGCL, at the Effective Time, Merger Sub will merge with and into Viskase, the separate corporate existence of Merger Sub shall cease and Viskase shall continue as the surviving corporation (the “Surviving Company”) and a wholly owned subsidiary of Enzon. Promptly after the Merger, Enzon shall cause the conversion of the Surviving Company into a limited liability company under Section 266 of the DGCL and Section 18-214 of the Delaware LLC Act (the “Surviving Company Conversion”).
Section 1.2 Closing. The closing of the Merger (the “Closing”) shall take place at 10:00 a.m. (New York City time) on the third (3rd) Business Day after the satisfaction or waiver (to the extent permitted by applicable Law) of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at the Closing but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions). The Closing shall take place virtually by the electronic exchange of documents, unless another time, date or place is agreed to in writing by the parties hereto. The date on which the Closing occurs is referred to in this Agreement as the “Closing Date.”
Section 1.3 Effective Time. Subject to the conditions set forth in this Agreement, on the Closing Date, the parties will cause the Merger to be consummated by filing all necessary documentation, including a certificate of merger (the “Certificate of Merger”) with the Secretary of State of the State of Delaware (the “Secretary of State”), in such form as required by, and executed in accordance with, the DGCL. The Merger shall become effective either upon the filing of the Certificate of Merger with the Secretary of State or at such later effective time as may be agreed in writing by Enzon, Merger Sub and Viskase and stated in the Certificate of Merger (such time as the Merger becomes effective, the “Effective Time”).
Section 1.4 Effects of the Merger. The effects of the Merger shall be as provided in this Agreement and in the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the assets, rights, privileges, powers and franchises of Viskase and Merger Sub shall vest in the Surviving Company, and all debts, liabilities and duties of Viskase and Merger Sub shall become the debts, liabilities and duties of the Surviving Company, and the separate legal existence of Merger Sub shall cease, all as provided under the DGCL.
Section 1.5 Constituent Documents. At the Effective Time, the certificate of incorporation of Viskase as in effect immediately prior to the Effective Time shall be amended and restated in its entirety to read as set forth in Exhibit C to this Agreement and, as so amended and restated, shall be the certificate of incorporation of the Surviving Company until thereafter amended as provided therein or as provided by applicable Law. The parties shall take all necessary action so that, at the Effective Time, the by-laws of Viskase as in effect immediately prior to the Effective Time shall be amended and restated in their entirety to read as the bylaws of Merger Sub as in effect immediately prior to the Effective Time until thereafter amended as provided therein, by the certificate of incorporation of the Surviving Company or as provided by applicable Law. The parties hereto shall also take all actions necessary such that, in connection with and promptly following the Surviving Company Conversion, the certificate of formation and the limited liability company agreement of the Surviving Company shall be as set forth on Exhibit D.
Section 1.6 Directors and Officers.
(a) Directors. The parties hereto shall take all actions necessary such that, as of the Effective Time, the Board of Directors of Enzon and the Surviving Company shall be comprised of (i) individuals designated by the Viskase Board of Directors prior to the Effective Time and (ii) Jordan Bleznick. Each such director shall hold office until his or her respective successor is duly elected or appointed and qualified or until his or her earlier death, resignation or removal in accordance with the governing documents of Enzon or the Surviving Company, as applicable, and applicable Law.
(b) Officers. The parties hereto shall take all actions necessary such that, as of the Effective Time, the officers of Viskase immediately prior to the Effective Time shall be the officers of Enzon and the Surviving Company, in each case, until his or her respective successor is duly elected or appointed
and qualified or until his or her earlier death, resignation or removal in accordance with the governing documents of Enzon or the Surviving Company, as applicable, and applicable Law.
Section 1.7 Conversion of Viskase Common Stock. At the Effective Time, by virtue of the Merger and without any action on the part of Enzon, Merger Sub, Viskase, or the holder of any securities of Enzon or Viskase:
(a) Each share of Viskase Common Stock issued and outstanding immediately prior to the Effective Time, except for shares of Viskase Common Stock held by Viskase as treasury shares, or owned by Enzon, Merger Sub or a wholly owned Subsidiary of Viskase, Enzon or Merger Sub immediately prior to the Effective Time (the “Cancelled Shares”) and Dissenting Viskase Shares (as defined herein), shall automatically be converted into the right to receive a number of shares of Enzon Common Stock equal to the Exchange Ratio (such shares, the “Merger Consideration”).
(b) All of the shares of Viskase Common Stock converted into the right to receive the Merger Consideration pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist as of the Effective Time, and each Certificate or Book-Entry Share previously representing any such shares of Viskase Common Stock shall thereafter represent only the right to receive (i) the Merger Consideration, (ii) cash to be paid in lieu of fractional shares of Enzon Common Stock in accordance with Section 2.5, without any interest thereon (which cash paid in lieu of fractional shares, shall, for the avoidance of doubt, not reduce the amount of cash on hand at Enzon for purposes of determining whether the Minimum Cash Condition has been satisfied and any shortfall thereof), and (iii) any dividends or distributions which the holder thereof has the right to receive pursuant to Section 2.3, without any interest thereon. If, prior to the Effective Time, the outstanding shares of Viskase Common Stock or Enzon Common Stock shall have been increased, decreased, changed into or exchanged for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other similar change in capitalization, or there shall be any extraordinary dividend or distribution, an appropriate and proportionate adjustment shall be made to the Exchange Ratio to give Enzon and the holders of Viskase Common Stock the same economic effect as contemplated by this Agreement prior to such event; provided, that (A) the Exchange Ratio takes into account the consummation of the IEH Share Exchange, the Series C Exchange Offer and the Reverse Stock Split, and no such adjustment to the Exchange Ratio shall occur as a result thereof and (B) nothing contained in this sentence shall be construed to permit Viskase or Enzon to take any action with respect to its securities or otherwise that is prohibited by the terms of this Agreement.
(c) All Cancelled Shares issued and/or outstanding immediately prior to the Effective Time shall be automatically cancelled and shall cease to exist and no consideration shall be delivered in exchange therefor.
Section 1.8 Merger Sub Common Stock. At the Effective Time, each share of Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall be automatically converted into and become one share of common stock, par value $0.01 per share, of the Surviving Company.
ARTICLE II
EXCHANGE OF CERTIFICATES
Section 2.1 Exchange Fund. Immediately prior to or substantially concurrently with the Effective Time, Enzon shall deposit with a nationally recognized bank or trust company (the “Exchange Agent”) designated by Enzon, which bank or trust company shall be reasonably satisfactory to Viskase, uncertificated, book-entry shares representing the number of shares of Enzon Common Stock sufficient to deliver the aggregate Merger Consideration. Enzon agrees to and shall make available to the Exchange Agent, immediately prior to the Effective Time and from time to time thereafter as needed, cash sufficient to pay any dividends and other distributions pursuant to Section 2.3 and to make payments in lieu of any fraction of a share of Enzon Common Stock pursuant to Section 2.5; provided that any such cash made available to the Exchange Agent for such purposes shall be counted as cash of Enzon for purposes of determining whether the Minimum Cash Condition has been satisfied and any shortfall thereof. Any cash and uncertificated, book-entry shares of Enzon Common Stock deposited with the Exchange Agent shall
hereinafter be referred to as the “Exchange Fund.” Notwithstanding the foregoing, Enzon shall not be required to make available to the Exchange Agent any Merger Consideration or cash in respect of dividends and other distributions pursuant to Section 2.3 or cash in lieu of any fraction of a share pursuant to Section 2.5 for any Dissenting Viskase Shares until such time as the holder thereof has failed to perfect or otherwise failed to comply with the provisions of Section 262 of the DGCL or shall have effectively withdrawn, waived or lost its or their rights to appraisal of such Dissenting Viskase Shares under Section 262 of the DGCL or a court of competent jurisdiction determined that such holder is not entitled to the relief provided by Section 262 of the DGCL. No interest will be paid or will accrue on any cash payable pursuant to Section 2.3 or Section 2.5.
Section 2.2 Exchange Procedures. (a) As promptly as practicable after the Effective Time and in any event not later than five (5) Business Days thereafter, Enzon shall cause the Exchange Agent to send to each holder of record of shares of Viskase Common Stock whose shares of Viskase Common Stock were converted pursuant to Section 1.7 (i) a letter of transmittal (which shall specify that risk of loss and title to any shares evidenced by Certificates or any Book-Entry Shares shall pass, only upon (A) with respect to shares evidenced by Certificates, proper delivery of the Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.8) and (B) with respect to Book-Entry Shares, upon proper delivery of any “agent’s message” regarding the book-entry transfer of such Book-Entry Shares (or such other evidence, if any, of the transfer as the Exchange Agent may reasonably request), as applicable, to the Exchange Agent and shall be in a form and have such other provisions as Enzon and Viskase may reasonably specify) (the “Letter of Transmittal”) and (ii) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares.
(b) Upon surrender of a Certificate (or an affidavit of loss in lieu thereof in accordance with Section 2.8) or Book-Entry Shares to the Exchange Agent together with a Letter of Transmittal, duly completed and validly executed, and such other documents as may reasonably be required by the Exchange Agent, Enzon shall cause the Exchange Agent to, as promptly as practicable and in any event not later than five (5) Business Days thereafter, (i) credit to the surrendering holder of such Certificate (or affidavit of loss in lieu thereof in accordance with Section 2.8) or Book-Entry Shares in the stock ledger and other appropriate books and records of Enzon the number of shares of Enzon Common Stock into which the shares represented by such Certificate or such Book-Entry Shares have been converted pursuant to this Agreement, and (ii) pay and deliver by wire transfer or check the amount of any dividends or other distributions to which such holder of Certificate (or affidavit of loss in lieu thereof in accordance with Section 2.8) or Book-Entry Shares become entitled in accordance with Section 2.3.
(c) In the event of a transfer of ownership of Viskase Common Stock which is not registered in the transfer records of Viskase, Enzon may cause the Exchange Agent to credit any shares of Enzon Common Stock to be credited upon, and pay any cash to be paid upon, due surrender of a Certificate or Book-Entry Shares to such a transferee only if such Certificate or Book-Entry Shares are presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence to the satisfaction of the Exchange Agent that any applicable stock transfer or similar Taxes have been paid or are not applicable.
(d) Until surrendered as contemplated by this Section 2.2, each Certificate and Book-Entry Share shall at any time after the Effective Time represent, upon such surrender, the applicable Merger Consideration into which the shares represented by such Certificate or Book-Entry Share have been converted pursuant to this Agreement and the right to receive cash in lieu of fractional shares of Enzon Common Stock under Section 2.5 and any dividends or other distributions to which the holder of such Certificate or Book-Entry Share becomes entitled in accordance with Section 2.3.
Section 2.3 Distributions with Respect to Unexchanged Shares. No dividends or other distributions declared or made with respect to shares of Enzon Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate or Book-Entry Shares until such holder shall surrender such Certificate (or affidavit of loss in lieu thereof in accordance with Section 2.8) or Book-Entry Shares in accordance with Section 2.2. Subject to escheat, Tax or other applicable Law, following surrender of any such Certificate (or affidavit of loss in lieu thereof in accordance with Section 2.8) or Book-Entry Shares, such holder thereof shall be paid (a) promptly after such surrender, any such dividends or
distributions, without interest, with a record date after the Effective Time theretofore payable with respect to the Enzon Common Stock into which the shares represented by such Certificate or such Book-Entry Shares have been converted pursuant to this Agreement and (b) at the appropriate payment date, the amount of any dividends or distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to the Enzon Common Stock into which the shares represented by such Certificate or such Book-Entry Shares have been converted pursuant to this Agreement.
Section 2.4 No Further Ownership Rights. The shares of Enzon Common Stock issued and cash paid upon conversion of shares of Viskase Common Stock in accordance with the terms of Article I and this Article II (including any cash paid pursuant to Section 2.3 and Section 2.5) shall be deemed to have been delivered or paid in full satisfaction of all rights pertaining to the shares of Viskase Common Stock. From and after the Effective Time, (a) all holders of Certificates and Book-Entry Shares shall cease to have any rights as stockholders of Viskase, other than the right to receive the applicable Merger Consideration, cash in lieu of fractional shares under Section 2.5 and any dividends or other distributions to which the holders of such Certificates or Book-Entry Shares become entitled in accordance with Section 2.3, in each case without interest, and (b) the stock transfer books of Viskase shall be closed with respect to all shares of Viskase Common Stock outstanding immediately prior to the Effective Time, and there shall be no further registration of transfers on the stock transfer books of Viskase of shares of Viskase Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, any Certificates or Book-Entry Shares formerly representing shares of Viskase Common Stock are presented to the Surviving Company or the Exchange Agent for any reason, such Certificates, or Book-Entry Shares (as applicable) shall be cancelled, and their holders shall be credited shares of Enzon Common Stock as provided in this Article II.
Section 2.5 No Fractional Shares of Enzon Common Stock. No fractional shares of Enzon Common Stock shall be issued upon the conversion of shares of Viskase Common Stock pursuant to Section 1.7, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Enzon. Notwithstanding any other provision of this Agreement, each holder of Viskase Common Stock converted pursuant to Section 1.7 that would otherwise have been entitled to receive a fraction of a share of Enzon Common Stock (after taking into account all shares of Viskase Common Stock evidenced by the Certificates and Book-Entry Shares delivered by such holder) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional amount multiplied by the volume weighted averages of the trading prices of Enzon Common Stock on the “OTCQX tier” of the OTC market of the OTC Markets Group, Inc. (“OTC”) (as reported by Bloomberg or, if not reported thereby, in another authoritative source mutually selected by Enzon and Viskase) on the five (5) consecutive Trading Days ending on (and including) the Trading Day that is two (2) Trading Days prior to the date of the Effective Time, rounded down to the nearest penny.
Section 2.6 Termination of Exchange Fund. Any portion of the Exchange Fund which remains undistributed to the holders of shares of Viskase Common Stock for 180 days after the Effective Time shall be delivered to Enzon or otherwise on the instruction of Enzon, and any holders of Certificates or Book-Entry Shares that have not theretofore complied with this Article II shall thereafter look only to Enzon (subject to abandoned property, escheat or other similar Laws) as general creditors thereof for the applicable Merger Consideration with respect to the shares of Viskase Common Stock formerly represented thereby to which such holders are entitled pursuant to Section 1.7, any cash in lieu of fractional shares of Enzon Common Stock under Section 2.5 and any dividends or distributions with respect to shares of Enzon Common Stock to which such holders are entitled pursuant to Section 2.3.
Section 2.7 No Liability. None of Enzon, Viskase, the Surviving Company or the Exchange Agent shall be liable to any Person in respect of any Merger Consideration or portion of the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any portion of the Exchange Fund which remains undistributed to the holders of Certificates or Book-Entry Shares as of the second (2nd) anniversary of the Effective Time (or immediately prior to such earlier date on which the Exchange Fund would otherwise escheat to, or become the property of, any Governmental Entity) shall, to the extent permissible by applicable Law, become the property of Enzon, free and clear of all claims or interest of any Person previously entitled thereto.
Section 2.8 Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed
and, if required by Enzon, the posting by such Person of a bond in such reasonable amount as Enzon may direct as indemnity against any claim that may be made against it with respect to such Certificate or other documentation (including an indemnity in customary form) reasonably requested by Enzon, the Exchange Agent (or, after dissolution of the Exchange Fund, Enzon) will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect of the shares of Viskase Common Stock formerly represented by such Certificate, any cash payable in lieu of fractional shares of Enzon Common Stock to which the holder thereof is entitled pursuant to Section 2.5 and any unpaid dividends and distributions on shares of Enzon Common Stock deliverable in respect thereof, pursuant to this Agreement.
Section 2.9 Dissenting Shares.
(a) Notwithstanding anything to the contrary set forth in this Agreement, all shares of Viskase Common Stock that are issued and outstanding immediately prior to the Effective Time and held by the stockholders of Viskase who have not voted in favor of the adoption of this Agreement (or consented thereto in writing) and who shall have properly demanded appraisal of such shares of Viskase Common Stock in accordance with, and who have otherwise complied in all respects with, Section 262 of the DGCL and, as of the Effective Time, have neither effectively withdrawn nor lost their rights to such appraisal under the DGCL (collectively, “Dissenting Viskase Shares”) shall not be converted into the right to receive the Merger Consideration. The holders of Dissenting Viskase Shares shall instead be entitled to receive payment of the appraised value of such Dissenting Viskase Shares in accordance with the provisions of Section 262 of the DGCL, unless and until such holder of Dissenting Viskase Shares fails to perfect or otherwise fails to comply with the provisions of Section 262 of the DGCL, or has effectively withdrawn or waives or otherwise loses their rights to appraisal of such Dissenting Viskase Shares under such Section 262 of the DGCL or a court of competent jurisdiction determines that such holder is not entitled to the relief provided by Section 262 of the DGCL. If any holder of Dissenting Viskase Shares fails to perfect or otherwise fails to comply with the provisions of Section 262 of the DGCL or effectively withdraws or waives or otherwise loses such right to appraisal of such Dissenting Viskase Shares pursuant to Section 262 of the DGCL or a court of competent jurisdiction determines that such holder is not entitled to the relief provided by Section 262 of the DGCL, such Dissenting Viskase Shares shall be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without interest thereon, upon surrender of the Viskase Common Stock in the manner provided in this Article II, and shall not thereafter be deemed to be Dissenting Viskase Shares.
(b) Viskase shall give Enzon prompt notice of any demands for appraisal received by Viskase, withdrawals of such demands, and any other instruments served pursuant to Delaware Law and received by Viskase in respect of Dissenting Viskase Shares. Viskase shall control all negotiations and proceedings with respect to demands for appraisal under Delaware Law in respect of Dissenting Viskase Shares. Viskase shall not, except with the prior written consent of Enzon, make any payment with respect to any demands for appraisal, or settle or offer to settle any such demands for payment, in respect of Dissenting Viskase Shares.
Section 2.10 Withholding Rights. Each of Enzon, Viskase, the Surviving Company and the Exchange Agent shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement such amounts as are required to be deducted or withheld under applicable Tax Law. To the extent that amounts are so deducted or withheld and, if required, paid over to the relevant Governmental Entity, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.
Section 2.11 Further Assurances. If at any time before or after the Effective Time, Enzon, Viskase or the Surviving Company reasonably believes that any further instruments, deeds, assignments or assurances are reasonably necessary or desirable to consummate the Merger or to carry out the purposes and intent of this Agreement at or after the Effective Time, then Enzon, Merger Sub, Viskase, the Surviving Company and their respective officers and directors or managers shall execute and deliver all such proper instruments, deeds, assignments or assurances and do all other things reasonably necessary or desirable to consummate the Merger and to carry out the purposes and intent of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF VISKASE
Except as expressly disclosed in the Viskase OTC Documents filed with or furnished by Viskase pursuant to the disclosure guidelines of OTC and publicly available after January 1, 2023, and prior to the date of this Agreement (other than any forward-looking statements, or other statements that are similarly predictive or forward-looking in nature, contained in such Viskase OTC Documents), or in the Viskase Disclosure Letter, Viskase hereby represents and warrants to Enzon as follows:
Section 3.1 Organization; Standing. (a) Viskase is a corporation duly organized and validly existing under the laws of the State of Delaware, is in good standing with the Secretary of State and has all requisite corporate power and corporate authority necessary to carry on its business as it is now being conducted, except (other than with respect to Viskase’s due incorporation and valid existence) as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect. Viskase is duly licensed or qualified to do business and is in good standing (where such concept is recognized under applicable Law) in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed, qualified or in good standing has not had or would not reasonably be expected to have a Viskase Material Adverse Effect. True and complete copies of the Viskase Organizational Documents have been provided to Enzon prior to the execution of this Agreement.
(b) Each of Viskase’s Subsidiaries is duly organized, validly existing and in good standing (where such concept is recognized under applicable Law) under the Laws of the jurisdiction of its organization, has all requisite power and authority necessary to carry on its business as it is now being conducted, and is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so organized, existing, qualified, licensed and in good standing has not had or would not reasonably be expected to have a Viskase Material Adverse Effect. True and complete copies of the articles of incorporation, bylaws, operating (or equivalent governing documents) of each Viskase Subsidiary that would constitute a “significant subsidiary” within the meaning of Rule 1-02 of Regulation S-X of the Exchange Act have been provided to Enzon prior to execution of this Agreement.
Section 3.2 Capitalization. (a) The authorized capital stock of Viskase consists of 150,000,000 shares of Viskase Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Viskase Preferred Stock”). At the close of business on May 30, 2025 (the “Viskase Capitalization Date”), (i) 110,333,523 shares of Viskase Common Stock were issued and outstanding, (ii) 805,270 shares of Viskase Common Stock were issued and held in Viskase treasury, and (iii) no shares of Viskase Preferred Stock were issued or outstanding. All the outstanding shares of Viskase Common Stock are duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights.
(b) As of the Viskase Capitalization Date, no shares of capital stock of Viskase are issued and outstanding and Viskase does not have outstanding, and there are not, any securities convertible into or exchangeable for any shares of capital stock of Viskase, any rights to subscribe for or to purchase or any options for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any warrants, calls, commitments or known claims of any other character relating to the issuance of, any capital stock of Viskase, or any stock or securities convertible into or exchangeable for any capital stock of Viskase; and Viskase is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, or to register under the Securities Act, any shares of capital stock of Viskase. Viskase does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or are convertible into or exercisable for securities having the right to vote) with the stockholders of Viskase on any matter. As of the Viskase Capitalization Date, there are no outstanding stock options, restricted stock units, restricted stock, stock appreciation rights, “phantom” stock rights, performance units or other compensatory rights or awards (in each case, issued by Viskase or any of its Subsidiaries), that are convertible into or exercisable for a share of Viskase Common Stock on a deferred basis or otherwise or other rights that are linked to, or based upon, the value of Viskase Common Stock. There are no shareholder agreements, voting trusts, registration rights agreements, subscription agreements or other agreements, commitments or
understandings to which Viskase, or any Viskase Subsidiary is a party with respect to the shares of capital stock or other equity interests of Viskase or any Viskase Subsidiary.
(c) Section 3.2(c) of the Viskase Disclosure Letter sets forth, as of the date of this Agreement, any Person in which Viskase or any of its Subsidiaries holds capital stock or other equity interests. Except as set forth on Section 3.2(c) of the Viskase Disclosure Letter, Viskase holds one hundred percent (100%) of the capital stock and other equity interests of each such Person.
(d) From the Viskase Capitalization Date to the date of this Agreement, Viskase has not issued any shares of capital stock of Viskase.
Section 3.3 Authority; Noncontravention; Voting Requirements. (a) Viskase has all necessary corporate power and corporate authority to execute and deliver this Agreement and to perform its obligations hereunder and, subject to the receipt of the Viskase Stockholder Approval, to consummate the Merger. The execution, delivery and performance by Viskase of this Agreement, and the consummation by it of the transactions contemplated hereby, including the Merger, have been duly authorized by its Board of Directors and, except for obtaining the Viskase Stockholder Approval and filing the Certificate of Merger with the Secretary of State pursuant to the DGCL, no other corporate action on the part of Viskase is necessary to authorize the execution, delivery and performance by Viskase of this Agreement and the consummation by it of the transactions contemplated hereby, including the Merger. This Agreement has been duly executed and delivered by Viskase and, assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of Viskase, enforceable against Viskase in accordance with its terms, except that such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or in equity (the “Bankruptcy and Equity Exception”).
(b) The Viskase Special Committee, at a meeting duly called and held, unanimously (i) determined that this Agreement and the transactions contemplated hereby are fair to, and in the best interests of Viskase and Viskase’s stockholders, other than IEH and its Affiliates, and declared it advisable, that Viskase enter into this Agreement and consummate the transactions contemplated hereby, (ii) adopted resolutions making the Viskase Special Committee Recommendation, which resolutions have not been subsequently withdrawn or modified in a manner adverse to Enzon, and (iii) directed that this Agreement and the transactions contemplated hereby be submitted to the stockholders of Viskase entitled to vote for adoption.
(c) The Board of Directors of Viskase, at a meeting duly called and held, upon the unanimous recommendation of the Viskase Special Committee, unanimously (i) determined that this Agreement and the transactions contemplated hereby are fair to, and in the best interests of Viskase and Viskase’s stockholders, and declared it advisable, that Viskase enter into this Agreement and consummate the transactions contemplated hereby, (ii) adopted resolutions approving and declaring the advisability of this Agreement and the consummation of the transactions contemplated hereby, including the Merger, (iii) adopted resolutions making the Viskase Recommendation, which resolutions have not been subsequently withdrawn or modified in a manner adverse to Enzon, and (iv) directed that this Agreement and the transactions contemplated hereby be submitted to the stockholders of Viskase entitled to vote for adoption.
(d) The only approval of holders of any class or series of capital stock of Viskase necessary to adopt this Agreement and approve the Merger is the affirmative vote (in person, by proxy or by written consent) of the holders of a majority of the outstanding shares of Viskase Common Stock (the “Viskase Stockholder Approval”).
(e) Neither the execution and delivery of this Agreement by Viskase, nor the consummation by Viskase of the Merger, nor performance or compliance by Viskase with any of the terms or provisions hereof, will (i) subject to the receipt of the Viskase Stockholder Approval, conflict with or violate any provision (A) of the Viskase Organizational Documents or (B) of the similar organizational documents of any of Viskase’s Subsidiaries or (ii) assuming the authorizations, consents and approvals referred to in Section 3.4 and the Viskase Stockholder Approval are obtained prior to the Effective Time and the
filings referred to in Section 3.4 are made and any waiting periods thereunder have terminated or expired prior to the Effective Time, (x) violate any Law or Order applicable to Viskase or any of its Subsidiaries or (y) except as set forth in Section 3.3(e) of the Viskase Disclosure Letter, violate or constitute a breach of or default under, any of the terms or provisions of any material loan or credit agreement, indenture, debenture, note, bond, mortgage, deed of trust, lease, sublease, license, contract or other agreement (each, a “Contract”) to which Viskase or any of its Subsidiaries is a party, except, in the case of clause (i)(B) and clause (ii), as would not reasonably be expected to have a Viskase Material Adverse Effect.
Section 3.4 Governmental Approvals. Except for (a) compliance with the applicable requirements of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), including filing with the SEC of the Registration Statement, (b) the filing of the Certificate of Merger with the Secretary of State pursuant to the DGCL and of appropriate documents with the relevant authorities of other jurisdictions in which Viskase or any of its Subsidiaries are qualified to do business, (c) compliance with any applicable state securities or blue sky laws, (d) filings required under, and compliance with other applicable requirements of, the HSR Act or any other Antitrust Laws, or (e) notice to OTC and to The Financial Industry Regulatory Authority, Inc. pursuant to Rule 10b-17 of the Exchange Act, no consent or approval of, or filing, license, permit or authorization, declaration or registration with, or notice to, any Governmental Entity is necessary for the execution and delivery of this Agreement by Viskase, the performance by Viskase of its obligations hereunder and the consummation by Viskase of the Merger, other than such other consents, approvals, filings, licenses, permits or authorizations, declarations or registrations that, if not obtained, made or given, would not have or would not reasonably be expected to have a Viskase Material Adverse Effect.
Section 3.5 Viskase Documents; Undisclosed Liabilities. (a) Viskase has filed or furnished, as applicable, on a timely basis, all material reports, schedules, forms, statements and other documents required to be filed or furnished by Viskase pursuant to the “Pink Limited Information tier” disclosure guidelines of OTC since January 1, 2023 (collectively, the “Viskase OTC Documents”). As of their respective filing dates, or, if amended prior to the date hereof, the date of the filing of such amendment, with respect to the disclosures that are amended, the Viskase OTC Documents complied in all material respects with the applicable requirements of the OTC disclosure guidelines for the Pink Limited Information tier. None of the Viskase OTC Documents contained at the time they were filed or furnished, or if amended prior to the date hereof, the date of the filing of such amendment, with respect to the disclosures that are amended, any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(b) Viskase is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of FINRA and OTC as to the quotation of the Viskase Common Stock on the “Pink Limited Information tier” of the OTC Pink Market.
(c) Each of the following have been provided to Enzon prior to execution of this Agreement: (A) the audited (i) consolidated statements of operations, (loss) income, stockholders’ equity and cash flows of Viskase and its Subsidiaries for each of the fiscal years ended December 31, 2024, 2023 and 2022, and (ii) consolidated balance sheets of Viskase and its Subsidiaries at December 31, 2024, 2023 and 2022, in each case together with the report and opinion of the auditor of Viskase (the financial statements described in this clause (A), the “Audited Financial Statements”), and (B) the unaudited (i) consolidated statements of operations, (loss) income, stockholders’ equity and cash flows of Viskase and its Subsidiaries for the three-month period ended March 31, 2025, and (ii) consolidated balance sheets of Viskase and its Subsidiaries at March 31, 2025 (such balance sheet, the “Most Recent Viskase Balance Sheet” and, together with the other financial statements described in clause (B), the “Unaudited Financial Statements”). The Audited Financial Statements and Unaudited Financial Statements are collectively referred to herein as the “Viskase Financial Statements”. The Viskase Financial Statements complied as to form in all material respects with the published “Pink Limited Information tier” disclosure guidelines of OTC with respect thereto, have been prepared in all material respects in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated
financial position of Viskase and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of the Unaudited Financial Statements, to normal year-end adjustments that are not reasonably expected to be material and to any other adjustments described therein, including the notes thereto).
(d) Neither Viskase nor any of its Subsidiaries has any liabilities of any nature required by GAAP to be reflected upon or reserved against in a consolidated balance sheet of Viskase and its Subsidiaries (or disclosed in the notes to such balance sheet), whether or not accrued, contingent, absolute or otherwise, except (i) as set forth in Section 3.5(d) of the Viskase Disclosure Letter, (ii) as and to the extent specifically disclosed, reflected or reserved against in Viskase’s consolidated balance sheet (or the notes thereto) as of March 31, 2025 or as otherwise included in the Viskase OTC Documents filed or furnished prior to the date hereof, (iii) for liabilities incurred, in each case, in the ordinary course of business consistent with past practice since March 31, 2025, (iv) arising pursuant to this Agreement or incurred in connection with the transactions contemplated hereby, including the Merger, and (v) for liabilities which have not had or would not reasonably be expected to have, individually or in the aggregate, a Viskase Material Adverse Effect.
Section 3.6 Absence of Certain Changes. (a) Since the Viskase Balance Sheet Date through the date of this Agreement (i) except for the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto and to any transaction of the type contemplated by this Agreement, the business of Viskase and its Subsidiaries has been carried on and conducted in all material respects in the ordinary course of business consistent with past practice and (ii) there has not been any action taken by Viskase or any of its Subsidiaries that, if taken during the period from the date of this Agreement through the Effective Time without Enzon’s consent, would constitute a breach of Section 5.1.
(b) Since the Viskase Balance Sheet Date, there has not been any Viskase Material Adverse Effect.
Section 3.7 Legal Proceedings. Except as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect, there is no (a) pending or, to the Knowledge of Viskase, threatened legal or administrative proceeding, suit, claim, investigation, arbitration or action (a “Proceeding”) against Viskase or any of its Subsidiaries (other than any Viskase Transaction Litigation), or (b) outstanding order, judgment, injunction, ruling, writ or decree of any Governmental Entity (an “Order”) imposed upon Viskase or any of its Subsidiaries, in each case, by or before any Governmental Entity.
Section 3.8 Compliance with Laws; Permits.
(a) Viskase and each of its Subsidiaries are, and have been since January 1, 2023, in compliance with all Laws and Orders applicable to Viskase or any of its Subsidiaries, except as have not had or would not reasonably be expected to have a Viskase Material Adverse Effect. The licenses, franchises, permits, certificates, approvals and authorizations from Governmental Entities held by Viskase or any of its Subsidiaries (each, a “Viskase Permit”) constitute all licenses, franchises, permits, certificates, approvals and authorizations that are necessary for Viskase and its Subsidiaries to lawfully conduct their respective businesses and all such Viskase Permits are valid and in full force and effect, except where the failure to hold the same or to be in full force and effect has not had or would not reasonably be expected to have a Viskase Material Adverse Effect. Except as would not reasonably be expected to have a Viskase Material Adverse Effect, none of Viskase or any of its Subsidiaries has received any written notice from any Governmental Entity threatening to suspend, revoke, withdraw or modify any such Viskase Permit.
(b) Except as would not reasonably be expected to be material to Viskase and any of its Subsidiaries, since January 1, 2023, neither Viskase nor any of its Subsidiaries, nor, to the Knowledge of Viskase, any Persons acting on behalf of Viskase or any of its Subsidiaries, has (i) taken any action in violation of any applicable Anti-Corruption Law, or (ii) offered, authorized, provided or given any payment or thing of value to any Person, including a “foreign official” (as defined by the FCPA), for the purpose of influencing any act or decision of such Person to unlawfully obtain or retain business or other advantage.
(c) Except as has not had or would not be reasonably expected to have a Viskase Material Adverse Effect, neither Viskase, nor any of its Subsidiaries, nor to the Knowledge of Viskase, any of
Viskase’s respective directors, officers or employees, or to the Knowledge of Viskase, any Persons acting on behalf of Viskase or any of its Subsidiaries, respectively, is a Person with whom dealings are prohibited under any Sanctions. Neither Viskase, its Subsidiaries, nor to the Knowledge of Viskase, any of its respective directors, officers or employees acting on behalf of the Viskase or any of its Subsidiaries, respectively, is engaged in dealings or transactions in or with any country or any Person that represents a material violation of applicable Sanctions or Export Control Laws.
Section 3.9 Tax Matters. (a) Except (x) as set forth in Section 3.9(a) of the Viskase Disclosure Letter or (y) as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect:
(i) Viskase and each of its Subsidiaries has filed with the appropriate taxing authority when due (taking into account any applicable extension of time within which to file) all Tax Returns required to be filed by it, and all such Tax Returns are true, correct and complete in all respects;
(ii) Viskase and each of its Subsidiaries has paid all Taxes required to be paid by it, except for Taxes that are not yet due;
(iii) Viskase and each of its Subsidiaries has complied with all applicable Laws relating to the deduction, withholding, collection and remittance of Taxes (including information reporting requirements);
(iv) there is no Proceeding or audit now pending or that has been proposed in writing with respect to Viskase or any of its Subsidiaries in respect of any Tax or any Tax Return;
(v) neither Viskase nor any of its Subsidiaries has filed with any Governmental Entity any agreement extending or waiving the application of any statute of limitations applicable to any claim for, or the period for assessment and collection of, any Taxes;
(vi) neither Viskase nor any of its Subsidiaries has participated in any “listed transaction” as defined in Treasury Regulations Section 1.6011 - 4(b)(2);
(vii) there are no Liens for Taxes on any of the assets of Viskase or any of its Subsidiaries, other than Permitted Liens;
(viii) neither Viskase nor any of its Subsidiaries (A) is or has been a member of any affiliated, consolidated, combined, unitary or similar group for purposes of filing Tax Returns or paying Taxes (other than any such group the common parent of which is (i) Viskase or any of its Subsidiaries or (ii) American Entertainment Properties Corp.) or (B) is liable for the Taxes of any Person (other than any of (i) Viskase and its Subsidiaries or (ii) American Entertainment Properties Corp.) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by contract or otherwise (in each case other than pursuant to any contract entered into in the ordinary course of business, the primary purpose of which is not the allocation or payment of Taxes);
(ix) within the last two years, neither Viskase nor any of its Subsidiaries has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was intended to be governed in whole or in part by Section 355(a) of the Code; and
(x) no Governmental Entity has notified Viskase or any of its Subsidiaries in writing in the last five (5) years that it is or may be subject to taxation by a jurisdiction in which it does not presently file Tax Returns.
(b) Neither Viskase nor any of its Subsidiaries has taken or agreed to take any action, or is aware of the existence of any fact or circumstance, that would or could reasonably be expected to impede or prevent the Merger from qualifying for the Intended Tax Treatment.
Section 3.10 Employee Plans. (a) Section 3.10(a) of the Viskase Disclosure Letter contains a correct and complete list, as of the date of this Agreement, of each material Viskase Benefit Plan. A “Viskase Benefit Plan” is a Benefit Plan that is sponsored, maintained, or contributed to by Viskase or any
of its Subsidiaries, or to which any of the foregoing have any obligation to contribute or any liability (whether contingent or otherwise).
(b) Viskase has made available to Enzon with respect to each material Viskase Benefit Plan a true and complete copy (to the extent applicable) of (i) all plan documents, if any, including related trust agreements, funding arrangements and insurance contracts, and all amendments thereto, or written summaries of the material terms thereof, (ii) the most recent summary plan description for each material Viskase Benefit Plan for which such summary plan description is required by applicable Law and (iii) the most recent annual report on Form 5500 required to be filed with the IRS with respect thereto, audited financial statements and actuarial valuation reports, if any.
(c) None of Viskase or any of its ERISA Affiliates maintains or contributes to, or is obligated to maintain or contribute to (i) any plan that is subject to Title IV or Section 302 of ERISA or Section 412 of the Code, (ii) a “multiemployer plan” as defined in Section 3(37) of ERISA (a “Multiemployer Plan”) or (iii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA. With respect to any Multiemployer Plan, (A) neither Viskase nor any of its ERISA Affiliates has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied or (B) to the Knowledge of Viskase, as of the date hereof, no fact exists that would reasonably be expected to give rise to a partial withdrawal by Viskase or any of its Subsidiaries from any Multiemployer Plan, in each case, except as would not reasonably be expected to have a Viskase Material Adverse Effect.
(d) With respect to each Viskase Benefit Plan that is intended to qualify under Section 401(a) of the Code, such plan has received a favorable determination letter as to its qualification and that its related trust is exempt from Tax under Section 501(a) of the Code, and, to the Knowledge of Viskase, nothing has occurred with respect to the operation of any such plan which would reasonably be expected to cause the loss of such qualification or exemption or the imposition of any material liability, penalty or Tax under ERISA or the Code.
(e) Each Viskase Benefit Plan has been established and administered in accordance with its terms, and in compliance with the applicable provisions of ERISA, the Code and other applicable Laws, all contributions required to have been made under any Viskase Benefit Plan to any funds or trusts established thereunder or in connection therewith have been made or have been accrued and reported on the Viskase Financial Statements and there are no actions, liens, lawsuits, claims or complaints (other than routine claims for benefits) pending or, to the Knowledge of Viskase, threatened against any Viskase Benefit Plan, in each case, except as would not reasonably be expected to have a Viskase Material Adverse Effect.
(f) None of the Viskase Benefit Plans provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA or any other applicable Law or at the expense of the participant or the participant’s beneficiary.
(g) Except as provided in this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) result in any payment becoming due to any current or former director, employee or consultant of Viskase or any of its Subsidiaries, (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of material compensation or benefits under, or materially increase the amount payable or result in any other material obligation pursuant to, any of the Viskase Benefit Plans or (iii) limit or restrict the right of Viskase or, after the consummation of the transactions contemplated hereby, the Surviving Company to merge, amend or terminate any Viskase Benefit Plan.
(h) No Viskase Benefit Plan provides for the gross-up or reimbursement of Taxes, including under Section 409A or 4999 of the Code or other similar Laws.
(i) Except (a) as set forth in Section 3.10(i) of the Viskase Disclosure Letter, or (b) as would not reasonably be expected to have a Viskase Material Adverse Effect, all Viskase Benefit Plans subject to the Laws of any jurisdiction outside of the United States (i) have been maintained in accordance with all applicable requirements, (ii) that are intended to qualify for special Tax treatment, meet all requirements
for such treatment, and (iii) that are intended to be funded and/or book-reserved, are fully funded and/or book-reserved, as appropriate, based upon reasonable actuarial assumptions.
Section 3.11 Labor Matters. Except as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect, (a) neither Viskase nor any of its Subsidiaries is the subject of any Proceeding asserting that Viskase or any of its Subsidiaries has committed any unfair labor practice or is seeking to compel Viskase to bargain with any labor union or labor organization, (b) there is no pending or, to the Knowledge of Viskase, threatened, nor has there been since January 1, 2023 any, labor strike, walkout, work stoppage, slow-down or lockout affecting any employees of Viskase or any of its Subsidiaries and (c) each of Viskase and its Subsidiaries is, and has been since January 1, 2023, in compliance in all respects with all applicable Collective Bargaining Agreements and all federal, state, local and foreign Laws regarding labor, employment and employment practices. Section 3.11 of the Viskase Disclosure Letter contains a correct and complete list, as of the date of this Agreement, of each Collective Bargaining Agreement to which Viskase or any of its Subsidiaries is a party, and no such Collective Bargaining Agreement contains any notice, consultation, or consent requirement with respect to the entry into this Agreement or the consummation of the transactions contemplated hereby.
Section 3.12 Environmental Matters. Except as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect, (a) Viskase and each of its Subsidiaries is, and has been since January 1, 2023, in compliance with all applicable Environmental Laws, and Viskase has not received any written (or to the Knowledge of Viskase, oral) notice, demand, claim or request for information since January 1, 2023 or that otherwise remains unresolved alleging that Viskase or any of its Subsidiaries is in violation of or has any liability under any Environmental Law, and (b) Viskase and its Subsidiaries possess and are in compliance with all Viskase Permits required under Environmental Laws for the operation of their respective businesses (“Viskase Environmental Permits”) ”), and (c) there is no Proceeding pending, or to the Knowledge of Viskase threatened, to revoke, suspend, or adversely modify any such Viskase Environmental Permit.
Section 3.13 Intellectual Property; Information Technology; Data Privacy. (a) All material Intellectual Property of Viskase and its Subsidiaries is subsisting in the jurisdiction(s) where such material Intellectual Property is issued or registered, is, to the Knowledge of Viskase, valid and enforceable.
(b) Except as would not reasonably be expected to have a Viskase Material Adverse Effect, Viskase and its Subsidiaries own, or have a valid and enforceable license or otherwise sufficient rights to use, all Intellectual Property used in or necessary for Viskase’s business, free and clear of all Liens, other than Permitted Liens. Except as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect, (i) there are no pending, and since January 1, 2023, to the Knowledge of Viskase, threatened in writing, Proceedings against Viskase or any of its Subsidiaries raising the invalidity or unenforceability of any material Intellectual Property owned or purported to be owned by Viskase or any of its Subsidiaries and (ii) since January 1, 2023, no Intellectual Property owned or purported to be owned by Viskase or any of its Subsidiaries has expired except in the ordinary course.
(c) To the Knowledge of Viskase, except as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect, Viskase and its Subsidiaries have not, and none of the current activities, products or services of Viskase or any of its Subsidiaries has, since January 1, 2023, infringed, misappropriated or otherwise violated the Intellectual Property rights of, or defamed, any third party. Except as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect, there are no pending or, since January 1, 2023, threatened in writing (or, to the Knowledge of Viskase, orally), Proceedings by Viskase or its Subsidiaries against any third party nor has Viskase or its Subsidiaries sent any written notice to any third party regarding any actual or potential infringement, misappropriation or other unauthorized use of any Intellectual Property owned or exclusively licensed by Viskase or any of its Subsidiaries.
(d) Except as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect, as of the date of this Agreement, (i) to the Knowledge of Viskase, no third party is infringing, misappropriating or otherwise violating any Intellectual Property owned or licensed by Viskase or any of its Subsidiaries and (ii) there are no pending or, to the Knowledge of Viskase, threatened in writing (or, to the Knowledge of Viskase, orally), Proceedings against Viskase or any of its
Subsidiaries alleging that the operation of the business of Viskase or any of its Subsidiaries, infringes, misappropriates or otherwise violates the Intellectual Property rights of any Person, alleging that Viskase or any of its Subsidiaries has defamed any Person or terminating or purporting to terminate copyright assignments pursuant to 17 U.S.C. §203 or §304 or their foreign equivalents relating to any current activities, products or services of Viskase or any of its Subsidiaries.
(e) Except as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect, each employee and consultant of Viskase or any of its Subsidiaries who contributes to the production or development of any material Intellectual Property owned or purported to be owned by Viskase or any of its Subsidiaries, agrees that his or her contribution is a work-made-for-hire pursuant to a valid written agreement and/or has otherwise assigned such Intellectual Property rights to Viskase or any of its Subsidiaries by operation of law in the last three (3) years.
(f) Except as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect: (i) the Information Technology used by Viskase and its Subsidiaries, whether owned or controlled by Viskase and its Subsidiaries, operates and performs in all respects as required to permit Viskase and its Subsidiaries to conduct their business as currently conducted, (ii) to the Knowledge of Viskase, since January 1, 2023, no Person has gained unauthorized access to the Information Technology of Viskase or any of its Subsidiaries and (iii) to the Knowledge of Viskase, since January 1, 2023, there have been no failures, crashes, security breaches or other adverse events affecting the Information Technology which have caused disruption to Viskase or its Subsidiaries’ business.
(g) Except as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect, (i) Viskase and its Subsidiaries take reasonable measures to comply with applicable Laws and Orders regarding privacy, Personal Data protection and collection, retention, use and disclosure of personal information, and (ii) to the Knowledge of Viskase, as of the date hereof, there have not been any incidents of, or third party claims related to, any loss, theft, unauthorized access to, unauthorized use of, or unauthorized acquisition, modification, disclosure, corruption, or other misuse of any Personal Data in Viskase’s or any of its Subsidiaries’ possession.
Section 3.14 No Rights Agreement; Anti-Takeover Provisions. (a) Neither Viskase nor any of its Subsidiaries is a party to, subject to or otherwise bound by a stockholder rights agreement, “poison pill” or similar anti-takeover agreement or plan.
(b) No restrictions on a “business combination” and no “control share acquisition”, “fair price”, “moratorium” or other anti-takeover Laws (each, a “Takeover Law”) apply or will apply to Viskase, this Agreement, the Merger, the IEH Support Agreement or the transactions contemplated hereby or thereby.
Section 3.15 Property. Except as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect, (a) Viskase or one of its Subsidiaries has good and marketable title to the real property owned by Viskase or any of its Subsidiaries free and clear of all Liens (other than Permitted Liens), (b) each lease, sublease, sub-sublease, license and other agreement under which Viskase or any of its Subsidiaries leases, subleases, licenses, uses or occupies, or has the right to use or occupy any real property is a valid and legally binding obligation of Viskase or one of its Subsidiaries that is a party thereto, and, to the Knowledge of Viskase, the other party thereto, and is in full force and effect in accordance with its terms except insofar as such enforceability may be limited by the Bankruptcy and Equity Exception, and (c) neither Viskase nor any of its Subsidiaries has received a written notice of any pending or threatened condemnation of any such owned or leased real property by any Governmental Entity. Viskase, or at least one of its Subsidiaries has good and valid title to, or in the case of leased tangible assets, a valid leasehold interest in, all of its material tangible personal property, free and clear of all Liens (other than Permitted Liens). Except as would not reasonably be expected to have a Viskase Material Adverse Effect, the tangible personal property currently used in the operation of the business of Viskase and its Subsidiaries is in good working order (reasonable wear and tear excepted).
Section 3.16 Contracts. (a) Section 3.16(a) of the Viskase Disclosure Letter sets forth a list as of the date of this Agreement of each Viskase Material Contract. For purposes of this Agreement, “Viskase Material Contract” means any Contract to which either Viskase or any of its Subsidiaries is a party or is otherwise bound, other than any Viskase Benefit Plan, which:
(i) provides that any of them will not compete with any other Person in a manner that is material to Viskase and its Subsidiaries, taken as a whole;
(ii) purports to limit in any respect that is material to Viskase and its Subsidiaries, taken as a whole, either the type of business in which Viskase or its Subsidiaries may engage or the manner or locations in which any of them may so engage;
(iii) requires Viskase or any of its Subsidiaries to deal exclusively with any Person or group of related Persons, includes any “most favored nation” provision, minimum use or minimum supply agreements, which Contract is material to Viskase and its Subsidiaries, taken as a whole;
(iv) is a Contract for the lease of real property providing for annual payments of $3,500,000 or more;
(v) contains a put, call or similar right pursuant to which Viskase or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person or assets (excluding Intellectual Property);
(vi) is a Contract pursuant to which Viskase or any of its Subsidiaries has potential material indemnification obligations to any Person, or material outstanding liabilities or obligations (excluding confidentiality obligations), whether or not contingent, in connection with any acquisitions or dispositions (in each case, whether completed by merger, sale or purchase of stock, sale or purchase of assets or otherwise) completed since January 1, 2023;
(vii) relates to indebtedness for borrowed money owed to a Person other than Viskase or any of its Subsidiaries in excess of $3,500,000, excluding, for the avoidance of doubt, ordinary course trade payables and expenses incurred in connection with the transactions contemplated by this Agreement;
(viii) is a Contract with any Affiliate of Viskase (other than a wholly owned Subsidiary thereof);
(ix) is a material partnership, joint venture, strategic alliance or similar Contract (other than with a wholly owned Subsidiary of Viskase);
(x) is a settlement agreement or settlement-related Contract that imposes material financial obligations on Viskase or a Subsidiary after the date hereof; or
(xi) is a Contract not of a type (disregarding any dollar thresholds, materiality or other qualifiers, restrictions or other limitations applied to such Contract type) described in the foregoing clauses (i) through (x) and that has or would reasonably be expected to, either pursuant to its own terms or the terms of any related Contracts, involve gross payments or receipts in excess of $3,500,000 in any year.
(b) A true and complete copy (or, as applicable, a true and complete summary of the material terms) of each Viskase Material Contract, as amended as of the date of this Agreement, has been made available to Enzon prior to the date of this Agreement (other than omissions of immaterial information). Each of the Viskase Material Contracts, and each Contract entered into after the date hereof that would have been a Viskase Material Contract if entered into prior to the date hereof (each a “Viskase Additional Contract”) is (or if entered into after the date hereof, will be) valid and binding on Viskase or its Subsidiaries, as the case may be and, to the Knowledge of Viskase, each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not reasonably be expected to have a Viskase Material Adverse Effect. Neither Viskase nor any of its Subsidiaries nor, to the Knowledge of Viskase, any other party is in breach of or in default under any Viskase Material Contract or Viskase Additional Contract, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a default thereunder by Viskase or any of its Subsidiaries, in each case, except for such breaches and defaults as would not reasonably be expected to have a Viskase Material Adverse Effect. As of the date of this Agreement, neither Viskase nor any of its Subsidiaries has received written notice (or, to the Knowledge of Viskase, oral notice) alleging a breach of or default under any Viskase Material Contract.
Section 3.17 Insurance. Except as would not reasonably be expected to have a Viskase Material Adverse Effect, (i) Viskase and its Subsidiaries are covered by valid and currently effective insurance policies with reputable insurers and all premiums payable under such policies have been duly paid to date, and (ii) as of the date of this Agreement, none of Viskase or any of its Subsidiaries has received any written notice of default or cancellation of any such policy. All material all-risk property and casualty, general liability, business interruption and product liability insurance policies (“Insurance Policies”) maintained by or on behalf of Viskase or any of its Subsidiaries provide adequate coverage for all normal risks incident to the business of Viskase and its Subsidiaries and their respective properties and assets, except for any such failures to maintain Insurance Policies as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect. Except as has not had or would not reasonably be expected to have a Viskase Material Adverse Effect, there are no pending Proceedings under the Insurance Policies with respect to Viskase or any of its Subsidiaries as to which the insurers have denied or disputed (in writing) coverage or cancelled any Insurance Policy maintained by or on behalf of Viskase or any of its Subsidiaries, or, to the Knowledge of Viskase, have threatened to deny or dispute coverage or cancel any Insurance Policy maintained by or on behalf of Viskase or any of its Subsidiaries (other than the reservation of rights letters issued in the ordinary course of business). Except as has not had or would not be reasonably be expected to have a Viskase Material Adverse Effect, Viskase and its Subsidiaries are, and since January 1, 2023, have been, in compliance with their respective Insurance Policies and are not in default under any of the terms thereunder.
Section 3.18 Information Supplied. The information relating to Viskase and its Subsidiaries provided by Viskase to Enzon to be contained in, or incorporated by reference in, the Registration Statement/Consent Solicitation Statement to be filed with the SEC by Enzon (as amended or supplemented from time to time) will not, at the time such Registration Statement/Consent Solicitation Statement is filed with the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of any material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, at the time and in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing provisions of this Section 3.18, no representation or warranty is made by Viskase with respect to information or statements made or incorporated by reference in the Registration Statement/Consent Solicitation Statement based upon information supplied by or on behalf of Enzon or Merger Sub.
Section 3.19 Opinion of Financial Advisors. The Viskase Special Committee has received the opinion of Alvarez & Marsal Valuation Services, LLC, to the effect that, as of the date of such opinion and subject to the limitations, qualifications and assumptions set forth therein, the Exchange Ratio is fair from a financial point of view to the holders of Viskase Common Stock (other than holders of the Cancelled Shares, Dissenting Viskase Shares and the Icahn Related Parties). As of the date of this Agreement, such opinion has not been withdrawn, revoked or modified.
Section 3.20 Brokers and Other Advisors. Except for Alvarez & Marsal Valuation Services, LLC, no broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission, or the reimbursement of expenses in connection therewith, in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Viskase or any of its Subsidiaries.
Section 3.21 No Other Representations or Warranties. Viskase acknowledges and agrees that, except for the representations and warranties made by Enzon in Article IV or in any certificates delivered by Enzon in connection with the transactions contemplated by this Agreement, neither Enzon, Merger Sub nor any other Person makes any other express or implied representation or warranty with respect to Enzon or any of its Subsidiaries or their respective businesses, operations, properties, assets, liabilities, condition (financial or otherwise) or prospects, or any estimates, projections, forecasts and other forward-looking information or business and strategic plan information regarding Enzon and its Subsidiaries, notwithstanding the delivery or disclosure to Viskase or any of its Representatives of any documentation, forecasts or other information (in any form or through any medium) with respect to any one or more of the foregoing, and Viskase acknowledges the foregoing. In particular, and without limiting the generality of the foregoing, Viskase acknowledges and agrees that neither Enzon, Merger Sub nor any other Person makes or has made any express or implied representation or warranty to Viskase or any of its respective Representatives with respect
to (a) any financial projection, forecast, estimate, budget or prospective information relating to Enzon, any of its Subsidiaries or their respective businesses or (b) except for the representations and warranties made by Enzon in Article IV or in any certificates delivered by Enzon or Merger Sub in connection with the transactions contemplated by this Agreement, any oral, written, video, electronic or other information presented to Viskase or any of its Representatives in the course of their due diligence investigation of Enzon, the negotiation of this Agreement or the course of the transactions contemplated by this Agreement. Viskase acknowledges and agrees that, except for the representations and warranties contained in Article IV, it is not acting in reliance on any representation or warranty, express or implied, that may have been made by any Person.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ENZON AND MERGER SUB
Except as expressly disclosed in the Enzon SEC Documents filed with or furnished to the SEC and publicly available after January 1, 2023 and prior to the date of this Agreement (other than (a) any information that is contained solely in the “Risk Factors” section of such Enzon SEC Documents that are not statements of historical fact and (b) any forward-looking statements, or other statements that are similarly predictive or forward-looking in nature, contained in such Enzon SEC Documents), or in the Enzon Disclosure Letter, Enzon hereby represents and warrants to Viskase as follows:
Section 4.1 Organization; Standing. (a) Each of Enzon and Merger Sub is a corporation duly organized and validly existing under the laws of the State of Delaware, is in good standing with the Secretary of State and has all requisite corporate power and corporate authority necessary to carry on its business as it is now being conducted, except (other than with respect to each of Enzon’s and Merger Sub’s due incorporation and valid existence) as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect. Each of Enzon and Merger Sub is duly licensed or qualified to do business and is in good standing (where such concept is recognized under applicable Law) in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed, qualified or in good standing has not had or would not reasonably be expected to have an Enzon Material Adverse Effect. True and complete copies of the Enzon Organizational Documents are included in the Enzon SEC Documents. True and complete copies of the organizational documents of Merger Sub have been provided to Viskase.
(b) Each of Enzon’s Subsidiaries is duly organized, validly existing and in good standing (where such concept is recognized under applicable Law) under the Laws of the jurisdiction of its organization, has all requisite power and authority necessary to carry on its business as it is now being conducted, and is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so organized, existing, qualified, licensed and in good standing has not had or would not reasonably be expected to have an Enzon Material Adverse Effect. True and complete copies of the articles of incorporation, bylaws, operating (or equivalent governing documents) of each Subsidiary of Enzon that would constitute a “significant subsidiary” within the meaning of Rule 1-02 of Regulation S-X of the Exchange Act have been provided to Viskase prior to execution of this Agreement
Section 4.2 Capitalization. (a) Prior to the Proposed Enzon Action, the authorized capital stock of Enzon consists of 170,000,000 shares of Enzon Common Stock and 3,000,000 shares of preferred stock, par value $0.01 per share (the “Enzon Preferred Stock”). At the close of business on June 11, 2025 (the “Enzon Capitalization Date”), (i) 74,214,603 shares of Enzon Common Stock were issued and outstanding, (ii) 7 shares of Enzon Common Stock were issued and held in Enzon treasury, and (iii) 40,000 shares of Enzon Series C Non-Convertible Redeemable Preferred Stock, par value $0.01 per share (the “Enzon Series C Preferred Stock”) were issued and outstanding. All the outstanding shares of Enzon Common Stock and Enzon Preferred Stock are duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights.
(b) Except as set forth in this Section 4.2, as of the Enzon Capitalization Date, no shares of capital stock of Enzon are issued and outstanding and Enzon does not have outstanding, and there are
not, any securities convertible into or exchangeable for any shares of capital stock of Enzon, any rights to subscribe for or to purchase or any options for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any warrants, calls, commitments or known claims of any other character relating to the issuance of, any capital stock of Enzon, or any stock or securities convertible into or exchangeable for any capital stock of Enzon; and Enzon is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, or to register under the Securities Act, any shares of capital stock of Enzon. Except for the Enzon Series C Preferred Stock, Enzon does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or are convertible into or exercisable for securities having the right to vote) with the stockholders of Enzon on any matter. Except as set forth in this Section 4.2, as of the Enzon Capitalization Date, there are no outstanding stock options, restricted stock units, restricted stock, stock appreciation rights, “phantom” stock rights, performance units or other compensatory rights or awards (in each case, issued by Enzon or any of its Subsidiaries), that are convertible into or exercisable for a share of Enzon Common Stock on a deferred basis or otherwise or other rights that are linked to, or based upon, the value of Enzon Common Stock (in each case other than the Enzon Series C Preferred Stock).
(c) Section 4.2(c) of the Enzon Disclosure Letter sets forth, as of the date of this Agreement, any Person in which Enzon or any of its Subsidiaries holds capital stock or other equity interests. Except as set forth on Section 4.2(c) of the Enzon Disclosure Letter, Enzon holds one hundred percent (100%) of the capital stock and other equity interests of each such Person.
(d) All of the issued and outstanding capital stock of Merger Sub is owned, directly or indirectly, by Enzon. Merger Sub does not have any outstanding options, warrants, rights or any other agreements pursuant to which any Person other than Enzon may acquire any equity security of Merger Sub.
(e) From the Enzon Capitalization Date to the date of this Agreement, neither Enzon nor Merger Sub has issued any shares of capital stock of Enzon or Merger Sub.
Section 4.3 Authority; Noncontravention; Voting Requirements. (a) Each of Enzon and Merger Sub has all necessary corporate power and corporate authority to execute and deliver this Agreement and to perform its obligations hereunder and, subject to the receipt of the Enzon Stockholder Approval, the Series C Preferred Approval and Merger Sub Stockholder Approval, to consummate the transactions contemplated hereby, including the Merger. The execution, delivery and performance by Enzon and Merger Sub of this Agreement, and the consummation by it of the transactions contemplated hereby, including the Merger, have been duly authorized by its Board of Directors and, except for obtaining the Enzon Stockholder Approval, Merger Sub Stockholder Approval and filing the Certificate of Merger with the Secretary of State pursuant to the DGCL, no other corporate action on the part of Enzon or Merger Sub is necessary to authorize the execution, delivery and performance by Enzon or Merger Sub of this Agreement and the consummation of the Merger. This Agreement has been duly executed and delivered by Enzon and Merger Sub and, assuming due authorization, execution and delivery hereof by Viskase, constitutes a legal, valid and binding obligation of Enzon, enforceable against Enzon and Merger Sub in accordance with its terms, except for the Bankruptcy and Equity Exception.
(b) The Enzon Special Committee, at a meeting duly called and held, unanimously (i) determined that this Agreement and the transactions contemplated hereby are fair to, and in the best interests of, Enzon and Enzon’s stockholders, other than IEH and its Affiliates, and (ii) recommended that the Board of Directors of Enzon (A) determine that this Agreement and the transactions contemplated hereby, are fair to, and in the best interests of, Enzon and Enzon’s stockholders, other than IEH and its Affiliates, (B) approve this Agreement and the transactions contemplated hereby, including the Proposed Enzon Action and (C) recommend that the stockholders of Enzon entitled to vote thereon adopt this Agreement and approve the Proposed Enzon Action, which recommendation in clause (C) has not, except after the date hereof as permitted by Section 7.5, been subsequently withdrawn or modified in a manner adverse to Viskase.
(c) The Board of Directors of Enzon, at a meeting duly called and held, upon the unanimous recommendation of the Enzon Special Committee, unanimously (i) determined that this Agreement and the transactions contemplated hereby are fair to, and in the best interests of, Enzon and Enzon’s
stockholders, (ii) approved this Agreement and the transactions contemplated hereby, including the Proposed Enzon Action, (iii) approved the execution and delivery of this Agreement, the performance by Enzon of its covenants and other obligations contained herein and the transactions contemplated hereby upon the terms and subject to the conditions contained herein, (iv) recommended that the stockholders of Enzon entitled to vote thereon adopt this Agreement and approve the Proposed Enzon Action, which recommendation in clause (iv) has not, except after the date hereof as permitted by Section 7.5, been subsequently withdrawn or modified in a manner adverse to Viskase, and (v) directed that the adoption of this Agreement and the Proposed Enzon Action be submitted to the stockholders of Enzon entitled to vote thereon for the approval thereof.
(d) The Board of Directors of Merger Sub, acting by written consent, unanimously (i) determined that this Agreement and the transactions contemplated hereby are fair to, and in the best interests of, Merger Sub and Merger Sub’s sole stockholder, (ii) approved and declared advisable this Agreement and the transactions contemplated hereby, including the Merger, (iii) approved the execution and delivery of this Agreement, the performance by Merger Sub of its covenants and other obligations contained herein and the transactions contemplated hereby upon the terms and subject to the conditions contained herein, (iv) directed that the adoption of this Agreement be submitted to a vote of Enzon, in its capacity as Merger Sub’s sole stockholder, and (v) resolved to recommend that Enzon, in its capacity as the sole stockholder of Merger Sub, vote in favor of the adoption of this Agreement, which recommendation in clause (v) has not been subsequently withdrawn or modified in a manner adverse to Viskase.
(e) (i) The only approval of holders of any class or series of capital stock of Enzon necessary to adopt this Agreement and approve the Proposed Enzon Action is the affirmative vote (in person, by proxy or by written consent) of the holders of a majority of the outstanding shares of Enzon Common Stock entitled to vote on thereon (the “Enzon Stockholder Approval”), and (ii) the only approval of holders of any class or series of capital stock of Merger Sub necessary to adopt this Agreement and approve the Merger is the affirmative vote (in person, by proxy or by written consent) of Enzon, in its capacity as the sole shareholder of Merger Sub (the “Merger Sub Stockholder Approval”).
(f) Neither the execution and delivery of this Agreement by Enzon nor the performance or compliance by Enzon with any of the terms or provisions hereof, will (i) subject to the receipt of the Enzon Stockholder Approval and Merger Sub Stockholder Approval and the termination of the 382 Rights Agreement, conflict with or violate any provision (A) of the Enzon Organizational Documents or (B) of the similar organizational documents of any of Enzon’s Subsidiaries or (ii) assuming the authorizations, consents and approvals referred to in Section 4.4 and the Enzon Stockholder Approval and Merger Sub Stockholder Approval are obtained prior to the Effective Time, the 382 Rights Agreement is duly waived in accordance with its terms prior to the date of this Agreement and subsequently terminated in accordance with its terms prior to the Effective Time, and the filings referred to in Section 4.4 are made and any waiting periods thereunder have terminated or expired prior to the Effective Time, (x) violate any Law or Order applicable to Enzon or any of its Subsidiaries or (y) violate or constitute a breach of or default (under any of the terms or provisions of any material Contract to which Enzon or any of its Subsidiaries is a party, except, in the case of clause (i)(B) and clause (ii), as would not reasonably be expected to have an Enzon Material Adverse Effect.
Section 4.4 Governmental Approvals. Except for (a) compliance with the applicable requirements of the Securities Act, including filing with the SEC of the Registration Statement/ Consent Solicitation Statement, (b) compliance with the applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), including the filing with the SEC of the Registration Statement/ Consent Solicitation Statement, (c) compliance with the rules and regulations of OTC, (d) the filing of the Certificate of Merger with the Secretary of State pursuant to the DGCL and of appropriate documents with the relevant authorities of other jurisdictions in which Enzon or any of its Subsidiaries are qualified to do business, (e) compliance with any applicable state securities or blue sky laws, (f) filings required under or (g) such other items arising solely as a result of Viskase or its Subsidiaries’ participation in the transactions contemplated by this Agreement, and compliance with other applicable requirements of, the HSR Act or any other Antitrust Laws, no consent or approval of, or filing, license, permit or authorization, declaration or registration with, or notice to, any Governmental Entity
is necessary for the execution and delivery of this Agreement by Enzon and the performance by Enzon of its obligations hereunder and the consummation by Merger Sub of the Merger, other than such other consents, approvals, filings, licenses, permits or authorizations, declarations or registrations that, if not obtained, made or given, would not have or would not reasonably be expected to have an Enzon Material Adverse Effect.
Section 4.5 Enzon SEC Documents; Undisclosed Liabilities. (a) Enzon has filed or furnished, as applicable, on a timely basis with or to the SEC all material reports, schedules, forms, statements and other documents required to be filed or furnished by Enzon with or to the SEC pursuant to the Securities Act or the Exchange Act since January 1, 2023 (collectively, the “Enzon SEC Documents”). As of their respective effective dates (in the case of Enzon SEC Documents that are registration statements filed pursuant to the requirements of the Securities Act) and as of their respective SEC filing or furnished dates or, if amended prior to the date hereof, the date of the filing or furnishing of such amendment, with respect to the portions that are amended (in the case of all other Enzon SEC Documents), the Enzon SEC Documents complied as to form in all material respects with the requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, as the case may be, applicable to such Enzon SEC Documents, and none of the Enzon SEC Documents as of such respective dates (or, if amended prior to the date hereof, the date of the filing of such amendment, with respect to the disclosures that are amended) contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. As of the date of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the Enzon SEC Documents and, to the Knowledge of Enzon, none of the Enzon SEC Documents is the subject of any pending SEC comment or investigation.
(b) Enzon is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of FINRA and OTC as to the quotation of the Enzon Common Stock on OTC.
(c) The consolidated financial statements of Enzon (including all related notes and schedules) included or incorporated by reference in the Enzon SEC Documents, as of their respective dates of filing with the SEC (or, if such Enzon SEC Documents were amended prior to the date hereof, the date of the filing of such amendment, with respect to the consolidated financial statements that are amended or restated therein), complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto, have been prepared in all material respects in accordance with GAAP (except, in the case of unaudited quarterly statements, as permitted by Form 10-Q of the SEC or other rules and regulations of the SEC) applied on a consistent basis during the periods involved (except (i) as may be indicated in the notes thereto or (ii) as permitted by Regulation S-X of the Exchange Act) and fairly present in all material respects the consolidated financial position of Enzon and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of unaudited quarterly financial statements, to normal year-end adjustments that are not reasonably expected to be material and to any other adjustments described therein, including the notes thereto).
(d) Enzon has established and maintains disclosure controls and procedures and a system of internal controls over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act and that are sufficient to provide reasonable assurance (i) that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, consistently applied, (ii) that transactions are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Enzon’s properties or assets. Since January 1, 2023, neither Enzon, the Board of Directors of Enzon nor its audit committee nor, to Enzon’s Knowledge, Enzon’s independent registered public accounting firm, has identified or been made aware of (x) “significant deficiencies” or “material weaknesses” (as defined by the Public Company Accounting Oversight Board) in the design or operation of Enzon’s internal controls over financial reporting which would reasonably be expected to adversely affect in any material respect Enzon’s ability to record, process, summarize and report financial data, in each case which has not been subsequently remediated, or (y) fraud, whether or not material, that involves management or
other employees of Enzon who have a significant role in the internal controls over financial reporting of Enzon. The disclosure controls and procedures utilized by Enzon are reasonably designed to ensure that all information (both financial and non-financial) required to be disclosed by Enzon in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC and that all such information required to be disclosed is accumulated and communicated to the management of Enzon, as appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Enzon to make the certifications required under the Exchange Act with respect to such reports.
(e) Each document required to be filed by Enzon with the SEC or required to be distributed to Enzon’s stockholders in connection with the Merger, including the Registration Statement/Consent Solicitation Statement (and including any amendments or supplements thereto), at the time first sent or given to the stockholders of Enzon in the case of the Registration Statement/Consent Solicitation Statement, and at the time filed with the SEC and at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, will comply as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and will not 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. Notwithstanding the foregoing, Enzon makes no representation or warranty with respect to statements made or incorporated by reference therein based on information supplied by or on behalf of Viskase or any of its Affiliates for inclusion or incorporation by reference in the Registration Statement/Consent Solicitation Statement or any other documents to be filed with the SEC.
(f) Neither Enzon nor any of its Subsidiaries has any liabilities of any nature required by GAAP to be reflected upon or reserved against in a consolidated balance sheet of Enzon and its Subsidiaries (or disclosed in the notes to such balance sheet), whether or not accrued, contingent, absolute or otherwise, except (i) as and to the extent specifically disclosed, reflected or reserved against in Enzon’s consolidated balance sheet (or the notes thereto) as of March 31, 2025 or as otherwise included in the Enzon SEC Documents filed or furnished prior to the date hereof, (ii) for liabilities incurred, in each case, in the ordinary course of business consistent with past practice since March 31, 2025, (iii) arising pursuant to this Agreement or incurred in connection with the transactions contemplated hereby, including the Merger, and (iv) for liabilities which would not reasonably be expected to have, individually or in the aggregate, an Enzon Material Adverse Effect.
Section 4.6 Absence of Certain Changes. (a) Since the date of the most recent consolidated balance sheet included in the Enzon SEC Documents prior to the date of this Agreement (the “Enzon Balance Sheet Date”) through the date of this Agreement (i) except for the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto and to any transaction of the type contemplated by this Agreement, the business of Enzon and its Subsidiaries has been carried on and conducted in all material respects in the ordinary course of business consistent with past practice and (ii) there has not been any action taken by Enzon or any of its Subsidiaries that, if taken during the period from the date of this Agreement through the Effective Time without Viskase’s consent, would constitute a breach of Section 6.1.
(b) Since the Enzon Balance Sheet Date, there has not been any Enzon Material Adverse Effect.
Section 4.7 Legal Proceedings. Except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect, there is no (a) pending or, to the Knowledge of Enzon, threatened Proceeding against Enzon or any of its Subsidiaries (other than any Enzon Transaction Litigation), or (b) outstanding Order imposed upon Enzon or any of its Subsidiaries or any of their respective assets or properties, in each case, by or before any Governmental Entity.
Section 4.8 Compliance with Laws; Permits(a) .
(a) Enzon and each of its Subsidiaries are, and have been since January 1, 2022, in compliance with all Laws and Orders applicable to Enzon or any of its Subsidiaries, except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect. The licenses, franchises,
permits, certificates, approvals and authorizations from Governmental Entities held by Enzon or any of its Subsidiaries (each, an “Enzon Permit”) constitute all licenses, franchises, permits, certificates, approvals and authorizations that are necessary for Enzon and its Subsidiaries to lawfully conduct their respective businesses and all such Enzon Permits are valid and in full force and effect, except where the failure to hold the same or to be in full force and effect would not reasonably be expected to have an Enzon Material Adverse Effect. Except as would not reasonably be expected to have an Enzon Material Adverse Effect, none of Enzon or any of its Subsidiaries has received any written notice from any Governmental Entity threatening to suspend, revoke, withdraw or modify any such Enzon Permit.
(b) Except as would not reasonably be expected to be material to Enzon or any of its Subsidiaries, since January 1, 2022, neither Enzon nor any of its Subsidiaries, nor, to the Knowledge of Enzon, any Person acting on behalf of Enzon or any of its Subsidiaries, has (i) taken any action in violation of any applicable Anti-Corruption Law, or (ii) offered, authorized, provided or given any payment or thing of value to any Person, including a “foreign official” (as defined by the FCPA), for the purpose of influencing any act or decision of such Person to unlawfully obtain or retain business or other advantage.
(c) Except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect, to the Knowledge of Enzon, none of (i) Enzon, (ii) nor any of its Subsidiaries, (iii) nor any of Enzon’s respective directors, officers or employees, (iv) nor any Persons acting on behalf of Enzon or any of its Subsidiaries, respectively, is (X) a Person with whom dealings are prohibited under any Sanctions or (Y) engaged in dealings or transactions in or with any country or any Person that represents a material violation of applicable Sanctions or Export Control Laws.
Section 4.9 Tax Matters. (a) Except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect:
(i) Enzon and each of its Subsidiaries has filed with the appropriate taxing authority when due (taking into account any applicable extension of time within which to file) all Tax Returns required to be filed by it, and all such Tax Returns are true, correct and complete in all respects;
(ii) Enzon and each of its Subsidiaries has paid all Taxes required to be paid by it, except for Taxes that are not yet due;
(iii) Enzon and each of its Subsidiaries has complied with all applicable Laws relating to the deduction, withholding, collection and remittance of Taxes (including information reporting requirements);
(iv) there is no Proceeding or audit now pending or that has been proposed in writing with respect to Enzon or any of its Subsidiaries in respect of any Tax or any Tax Return;
(v) neither Enzon nor any of its Subsidiaries has filed with any Governmental Entity any agreement extending or waiving the application of any statute of limitations applicable to any claim for, or the period for assessment and collection of, any Taxes;
(vi) neither Enzon nor any of its Subsidiaries has participated in any “listed transaction” as defined in Treasury Regulations Section 1.6011 - 4(b)(2);
(vii) there are no Liens for Taxes on any of the assets of Enzon or any of its Subsidiaries, other than Permitted Liens;
(viii) neither Enzon nor any of its Subsidiaries (A) is or has been a member of any affiliated, consolidated, combined, unitary or similar group for purposes of filing Tax Returns or paying Taxes (other than any such group the common parent of which is Enzon or any of its Subsidiaries) or (B) is liable for the Taxes of any Person (other than (i) any of Enzon or its Subsidiaries or (ii) for Tax years ending before January 1, 2006, any member of the Former Enzon Group) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by contract or otherwise (in each case other than pursuant to any contract entered into in the ordinary course of business, the primary purpose of which is not the allocation or payment of Taxes);
(ix) within the last two years, neither Enzon nor any of its Subsidiaries has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was intended to be governed in whole or in part by Section 355(a) of the Code; and
(x) no Governmental Entity has notified Enzon or any of its Subsidiaries in writing in the last five (5) years that it is or may be subject to taxation by a jurisdiction in which it does not presently file Tax Returns.
(b) Neither Enzon nor any of its Subsidiaries has taken or agreed to take any action, or is aware of the existence of any fact or circumstance, that could reasonably be expected to impede or prevent the Merger from qualifying for the Intended Tax Treatment.
Section 4.10 Employee Plans. (a) Except as set forth on Section 4.10(a) of the Enzon Disclosure Letter, neither Enzon nor any of its Subsidiaries sponsors, maintains, contributes to, is obligated to contribute to, or otherwise has any liability (whether contingent or otherwise) with respect to, any Benefit Plan. Except as set forth on Section 4.10(a) of the Enzon Disclosure Letter, in the past six (6) years), neither Enzon nor any of its Subsidiaries has incurred any obligation or liability (whether contingent or otherwise) with respect to, any Benefit Plan that remains outstanding as of the date of this Agreement. Any Benefit Plan set forth on Section 4.10(a) of the Enzon Disclosure Letter is referred to herein as an “Enzon Benefit Plan.”
(a) Enzon has made available to Viskase with respect to each Enzon Benefit Plan a true and complete copy (to the extent applicable) of all plan documents, if any, and all amendments thereto, or written summaries of the material terms thereof.
(b) None of Enzon or any of its ERISA Affiliates maintains or contributes to, or is obligated to maintain or contribute to (i) any plan that is subject to Title IV or Section 302 of ERISA or Section 412 of the Code, (ii) a Multiemployer Plan, or (iii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA.
(c) There are no pending or, to the Knowledge of Enzon, threatened actions, claims or lawsuits against or relating to any Enzon Benefit Plan or trusts related thereto with respect to the operation of such plan (other than routine benefits claims), except where such claims would not reasonably be expected to have an Enzon Material Adverse Effect.
(d) Each Enzon Benefit Plan has been established and administered in accordance with its terms, and in compliance with the applicable provisions of ERISA, the Code and other applicable Laws.
(e) None of the Enzon Benefit Plans provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA or any other applicable Law or at the expense of the participant or the participant’s beneficiary.
(f) Except as provided in this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) result in any payment becoming due to any current or former director, employee or consultant of Enzon or any of its Subsidiaries, (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of material compensation or benefits under, or materially increase the amount payable or result in any other material obligation pursuant to, any of the Enzon Benefit Plans or (iii) limit or restrict the right of Enzon or, after the consummation of the transactions contemplated hereby, the Surviving Company to merge, amend or terminate any Enzon Benefit Plan.
(g) No Enzon Benefit Plan provides for the gross-up or reimbursement of Taxes, including under Section 409A or 4999 of the Code or other similar Laws.
Section 4.11 Labor Matters. Other than Enzon’s (i) sole executive officer, and (ii) non-employee directors who are members of the Enzon Board of Directors, neither Enzon nor any of its Subsidiaries has (and has not in the past three (3) years had) any employees, officers, directors, or independent contractors (who are individuals, including individuals providing their services through a personal services entity), and in the past six (6) years has not had any obligations or liabilities (contingent or otherwise) with respect to any
of the foregoing Persons that remains outstanding as of the date of this Agreement. Neither Enzon nor any of its Subsidiaries is the subject of any Proceeding asserting that Enzon or any of its Subsidiaries has committed any unfair labor practice or is seeking to compel Enzon to bargain with any labor union or labor organization, and since January 1, 2023, Enzon has been in compliance in all material respects with all applicable federal, state, local and foreign Laws regarding labor, employment and employment practices. As of the date of this Agreement, there are no Collective Bargaining Agreements to which Enzon or any of its Subsidiaries is a party.
Section 4.12 Environmental Matters. Except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect, (a) Enzon and each of its Subsidiaries is, and has been since January 1, 2023, in compliance with all applicable Environmental Laws, and Enzon has not received any written (or to the Knowledge of Enzon, oral) notice, demand, claim or request for information since January 1, 2023 or that otherwise remains unresolved alleging that Enzon or any of its Subsidiaries is in violation of or has any liability under any Environmental Law, and (b) Enzon and its Subsidiaries possess and are in compliance with all Enzon Permits required under Environmental Laws for the operation of their respective businesses (“Enzon Environmental Permits”), and (c) there is no Proceeding, pending, or to the Knowledge of Enzon threatened, to revoke, suspend, or adversely modify any such Enzon Environmental Permit.
Section 4.13 Intellectual Property; Information Technology; Data Privacy. (a) All material Intellectual Property of Enzon and its Subsidiaries is subsisting, and except as would not reasonably be expected to have an Enzon Material Adverse Effect in the jurisdiction(s) where such material Intellectual Property is issued or registered, is, to the Knowledge of Enzon, valid and enforceable.
(b) Except as would not reasonably be expected to have an Enzon Material Adverse Effect, Enzon and its Subsidiaries own, or have a valid and enforceable license or otherwise sufficient rights to use, all Intellectual Property used in or necessary for Enzon’s business, free and clear of all Liens, other than Permitted Liens. Except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect, (i) there are no pending, and since January 1, 2023, to the Knowledge of Enzon, threatened in writing, Proceedings against Enzon or any of its Subsidiaries raising the invalidity or unenforceability of any material Intellectual Property owned or purported to be owned by Enzon or any of its Subsidiaries and (ii) since January 1, 2023, no Intellectual Property owned or purported to be owned by Enzon or any of its Subsidiaries has expired except in the ordinary course.
(c) To the Knowledge of Enzon, except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect, Enzon and its Subsidiaries have not, and none of the current activities, products or services of Enzon or any of its Subsidiaries has, since January 1, 2023, infringed, misappropriated or otherwise violated the Intellectual Property rights of, or defamed, any third party. Except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect, there are no pending or, since January 1, 2023, threatened in writing (or to the Knowledge of Enzon, orally), Proceedings by Enzon or its Subsidiaries against any third party nor has Enzon or its Subsidiaries sent any written notice to any third party regarding any actual or potential infringement, misappropriation or other unauthorized use of any Intellectual Property owned or exclusively licensed by Enzon or any of its Subsidiaries.
(d) Except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect, as of the date of this Agreement, (i) to the Knowledge of Enzon, no third party is infringing, misappropriating or otherwise violating any Intellectual Property owned or licensed by Enzon or any of its Subsidiaries and (ii) there are no pending or, to the Knowledge of Enzon, threatened in writing (or to the Knowledge of Enzon, orally), Proceedings against Enzon or any of its Subsidiaries alleging that the operation of the business of Enzon or any of its Subsidiaries, infringes, misappropriates or otherwise violates the Intellectual Property rights of any Person, alleging that Enzon or any of its Subsidiaries has defamed any Person or terminating or purporting to terminate copyright assignments pursuant to 17 U.S.C. §203 or §304 or their foreign equivalents relating to any current activities, products or services of Enzon or any of its Subsidiaries.
(e) Except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect, each employee and consultant of Enzon or any of its Subsidiaries who contributes to the production or development of any material Intellectual Property owned or purported to be owned by
Enzon or any of its Subsidiaries, agrees that his or her contribution is a work-made-for-hire pursuant to a valid written agreement and/or has otherwise assigned such Intellectual Property rights to Enzon or any of its Subsidiaries by operation of law within the last three (3) years.
(f) Except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect: (i) the Information Technology used by Enzon and its Subsidiaries, whether owned or controlled by Enzon and its Subsidiaries, operates and performs in all respects as required to permit Enzon and its Subsidiaries to conduct their business as currently conducted, (ii) to the Knowledge of Enzon, since January 1, 2023, no Person has gained unauthorized access to the Information Technology of Enzon or any of its Subsidiaries and (iii) to the Knowledge of Enzon, since January 1, 2023, there have been no failures, crashes, security breaches or other adverse events affecting the Information Technology which have caused disruption to Enzon or its Subsidiaries’ business.
(g) Except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect, (i) Enzon and its Subsidiaries take reasonable measures to comply with applicable Laws and Orders regarding privacy, Personal Data protection and collection, retention, use and disclosure of personal information, (ii) Enzon and its Subsidiaries are compliant with their respective published privacy policies and (iii) to the Knowledge of Enzon, as of the date hereof, there have not been any incidents of, or third party claims related to, any loss, theft, unauthorized access to, unauthorized use of, or unauthorized acquisition, modification, disclosure, corruption, or other misuse of any Personal Data in Enzon’s or any of its Subsidiaries’ possession.
Section 4.14 No Rights Agreement; Anti-Takeover Provisions. (a) Except for the 382 Rights Agreement, neither Enzon nor any of its Subsidiaries is a party to, subject to or otherwise bound by a stockholder rights agreement, “poison pill” or similar anti-takeover agreement or plan.
(b) No Takeover Laws apply or will apply to Enzon, this Agreement, the Merger, the IEH Support Agreement or the transactions contemplated hereby or thereby.
Section 4.15 Property. Enzon and its Subsidiaries do not own any real property. Except as would not reasonably be expected to have an Enzon Material Adverse Effect, (a) each lease, sublease, sub-sublease, license and other agreement under which Enzon or any of its Subsidiaries leases, subleases, licenses, uses or occupies, or has the right to use or occupy any real property is a valid and legally binding obligation of Enzon or one of its Subsidiaries that is a party thereto, and, to the Knowledge of Enzon, the other party thereto, and is in full force and effect in accordance with its terms except insofar as such enforceability may be limited by the Bankruptcy and Equity Exception, and (b) neither Enzon nor any of its Subsidiaries has received a written notice of any pending or threatened condemnation of any such owned or leased real property by any Governmental Entity.
Section 4.16 Contracts. (a) Section 4.16(a) of the Enzon Disclosure Letter sets forth a list as of the date of this Agreement of each Enzon Material Contract. For purposes of this Agreement, “Enzon Material Contract” means any Contract to which either Enzon or any of its Subsidiaries is a party or is otherwise bound, other than any Enzon Benefit Plan, which:
(i) provides that any of them will not compete with any other Person in a manner that is material to Enzon and its Subsidiaries, taken as a whole;
(ii) purports to limit in any respect that is material to Enzon and its Subsidiaries, taken as a whole, either the type of business in which Enzon or its Subsidiaries may engage or the manner or locations in which any of them may so engage;
(iii) requires Enzon or any of its Subsidiaries to deal exclusively with any Person or group of related Persons, includes any “most favored nation” provision, or minimum use or minimum supply agreement, which Contract is material to Enzon and its Subsidiaries, taken as a whole;
(iv) is a Contract for the lease of real property providing for annual payments of $500,000 or more;
(v) would be required to be filed by Enzon as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act;
(vi) contains a put, call or similar right pursuant to which Enzon or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person or assets (excluding Intellectual Property);
(vii) is a Contract pursuant to which Enzon or any of its Subsidiaries has potential material indemnification obligations to any Person, or material outstanding liabilities or obligations (excluding confidentiality obligations), whether or not contingent, in connection with any acquisitions or dispositions (in each case, whether completed by merger, sale or purchase of stock, sale or purchase of assets or otherwise) completed since January 1, 2023;
(viii) relates to indebtedness for borrowed money owed to a Person other than Enzon or any of its Subsidiaries, excluding, for the avoidance of doubt, ordinary course trade payables and expenses incurred in connection with the transactions contemplated by this Agreement;
(ix) is a Contract with any Affiliate of Enzon (other than a wholly owned Subsidiary thereof);
(x) is a material partnership, joint venture, strategic alliance or similar Contract (other than with a wholly owned Subsidiary of Enzon);
(xi) is a settlement agreement or settlement-related Contract that imposes material financial obligations on Enzon or a Subsidiary after the date hereof; or
(xii) is a Contract not of a type (disregarding any dollar thresholds, materiality or other qualifiers, restrictions or other limitations applied to such Contract type) described in the foregoing clauses (i) through (xi) and that has or would reasonably be expected to, either pursuant to its own terms or the terms of any related Contracts, involve gross payments or receipts in excess of $500,000 in any year.
(b) A true and complete copy (or, as applicable, a true and complete summary of the material terms) of each Enzon Material Contract, as amended as of the date of this Agreement, has been made available to Viskase prior to the date of this Agreement (other than omissions of immaterial information or economically sensitive terms). Each of the Enzon Material Contracts, and each Contract entered into after the date hereof that would have been an Enzon Material Contract if entered into prior to the date hereof (each a “Enzon Additional Contract”) is (or if entered into after the date hereof, will be) valid and binding on Enzon or its Subsidiaries, as the case may be and, to the Knowledge of Enzon, each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not reasonably be expected to have an Enzon Material Adverse Effect. Neither Enzon nor any of its Subsidiaries nor, to the Knowledge of Enzon, any other party is in breach of or in default under any Enzon Material Contract or Enzon Additional Contract, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a default thereunder by Enzon or any of its Subsidiaries, in each case, except for such breaches and defaults as would not reasonably be expected to have an Enzon Material Adverse Effect. As of the date of this Agreement, neither Enzon nor any of its Subsidiaries has received written notice (or to the Knowledge of Enzon, oral notice) alleging a breach of or default under any Enzon Material Contract.
Section 4.17 Insurance. Except as would not reasonably be expected to have an Enzon Material Adverse Effect, (i) Enzon and its Subsidiaries are covered by valid and currently effective insurance policies with reputable insurers and all premiums payable under such policies have been duly paid to date and (ii) as of the date of this Agreement, none of Enzon or any of its Subsidiaries has received any written notice of default or cancellation of any such policy. All material Insurance Policies maintained by or on behalf of Enzon or any of its Subsidiaries provide adequate coverage for all normal risks incident to the business of Enzon and its Subsidiaries and their respective properties and assets, except for any such failures to maintain Insurance Policies as would not reasonably be expected to have an Enzon Material Adverse Effect. Except as has not had or would not reasonably be expected to have an Enzon Material Adverse Effect, there are no pending Proceedings under the Insurance Policies with respect to Enzon or any of its Subsidiaries as to which the insurers have denied or disputed (in writing) coverage or cancelled any Insurance Policy maintained by or on behalf of Enzon or any of its Subsidiaries, or, to the Knowledge of Enzon, have threatened to deny or dispute coverage or cancel any Insurance Policy maintained by or on behalf of Enzon or any of its Subsidiaries (other than the reservation of rights letters issued in the ordinary course of
business). Except as had not or would not be reasonably expected to have an Enzon Material Adverse Effect, Enzon and its Subsidiaries are, and since January 1, 2023, have been, in compliance with their respective Insurance Policies and are not in default under any of the terms thereunder.
Section 4.18 Ownership of Viskase Common Stock. Since January 1, 2023, neither Enzon nor any of its Subsidiaries beneficially owns or owned, directly or indirectly, any shares of Viskase Common Stock or other securities convertible into, exchangeable into or exercisable for shares of Viskase Common Stock. Other than the IEH Support Agreement, there are no voting trusts or other agreements or understandings to which Enzon or any of its Subsidiaries is a party with respect to the voting of the capital stock or other equity interest of Viskase or any of its Subsidiaries. For the avoidance of doubt, no securities owned directly by IEH or any of its Affiliates shall be deemed to be beneficially owned by Enzon or any of its Subsidiaries as a result of the IEH Support Agreement or otherwise.
Section 4.19 Opinion of Financial Advisors. The Enzon Special Committee has received the opinion of A.G.P./Alliance Global Partners to the effect that, as of the date of such opinion and subject to the limitations, qualifications and assumptions set forth therein, the Exchange Ratio in the Merger pursuant to this Agreement is fair from a financial point of view to Enzon. As of the date of this Agreement, such opinion has not been withdrawn, revoked or modified.
Section 4.20 Brokers and Other Advisors. Except for A.G.P./Alliance Global Partners, the fees and expenses of which are set forth on Section 4.20 of the Enzon Disclosure Letter and will be paid by Enzon, no broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission, or the reimbursement of expenses in connection therewith, in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Enzon or any of its Subsidiaries.
Section 4.21 No Other Representations or Warranties. Enzon acknowledges and agrees that, except for the representations and warranties made by Viskase in Article III or in any certificates delivered by Viskase in connection with the transactions contemplated by this Agreement, neither Viskase nor any other Person makes any other express or implied representation or warranty with respect to Viskase or any of its Subsidiaries or their respective businesses, operations, properties, assets, liabilities, condition (financial or otherwise) or prospects, or any estimates, projections, forecasts and other forward-looking information or business and strategic plan information regarding Viskase and its Subsidiaries, notwithstanding the delivery or disclosure to Enzon or any of its Representatives of any documentation, forecasts or other information (in any form or through any medium) with respect to any one or more of the foregoing, and Enzon acknowledges the foregoing. In particular, and without limiting the generality of the foregoing, Enzon acknowledges and agrees that neither Viskase nor any other Person makes or has made any express or implied representation or warranty to Enzon or any of its respective Representatives with respect to (a) any financial projection, forecast, estimate, budget or prospective information relating to Viskase, any of its Subsidiaries or their respective businesses or (b) except for the representations and warranties made by Viskase in Article III or in any certificates delivered by Viskase in connection with the transactions contemplated by this Agreement, any oral, written, video, electronic or other information presented to Enzon or any of its Representatives in the course of their due diligence investigation of Viskase, the negotiation of this Agreement or the course of the transactions contemplated by this Agreement. Enzon acknowledges and agrees that, except for the representations and warranties contained in Article III, it is not acting in reliance on any representation or warranty, express or implied, that may have been made by any Person.
ARTICLE V
COVENANTS OF VISKASE
Section 5.1 Conduct of Business Before the Closing Date. (a) Viskase covenants and agrees that, during the period from the date hereof to the earlier of the termination of this Agreement in accordance with its terms and the Effective Time (except as otherwise specifically contemplated by the terms of this Agreement, as may be required by Law or Order or as otherwise set forth on Section 5.1(a) of the Viskase Disclosure Letter), unless Enzon shall otherwise consent in writing (which shall not be unreasonably withheld, conditioned or delayed), (i) Viskase shall use its commercially reasonable efforts to conduct the businesses of Viskase and its Subsidiaries, in all material respects, in the ordinary course of business, in a manner consistent with past practice and (ii) Viskase shall use its commercially reasonable efforts consistent with the
foregoing to preserve substantially intact the business organization of Viskase and its Subsidiaries, to keep available the services of the present executive officers and the key employees of Viskase and its Subsidiaries and to preserve, in all material respects, their respective assets and properties in good repair and condition and the present relationships and goodwill of Viskase and its Subsidiaries with Governmental Entities and persons with which Viskase or any of its Subsidiaries has significant business relations. Without limiting the generality of the foregoing, Viskase shall not and shall not permit any of its Subsidiaries to (except as specifically contemplated by the terms of this Agreement, as may be required by Law or Order or as set forth on Section 5.1(a) of the Viskase Disclosure Letter), between the date of this Agreement and the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, directly or indirectly, do any of the following without the prior written consent of Enzon (which shall not be unreasonably withheld, conditioned or delayed):
(i) amend, modify, rescind, waive or make any change in (A) any Subsidiary of Viskase’s certificate of incorporation, bylaws or equivalent organization documents that, individually or in the aggregate, would reasonably be expected to prevent, delay or materially impair the ability of Viskase to consummate the Merger or (B) any of the Viskase Organizational Documents;
(ii) issue, deliver, sell, pledge, grant, transfer, encumber or subject to any Lien any additional shares of capital stock, membership interests or partnership interests or other equity securities or grant any option, warrant or right to acquire any capital stock, membership interests or partnership interests or other equity securities or issue any security convertible into or exchangeable for such securities or alter in any way any of its outstanding securities or make any change in outstanding shares of capital stock, membership interests or partnership interests or other ownership interests or its capitalization, whether by reason of a reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, stock dividend or otherwise;
(iii) redeem, retire, purchase or otherwise acquire, directly or indirectly, any shares of the capital stock, membership interests or partnership interests or other ownership interests of Viskase or any of its Subsidiaries or any other securities convertible into or exercisable or exchangeable for, or warrants, options or other rights to acquire, any such shares or other ownership interests, other than in connection with redemptions, purchases or other acquisitions of shares or interests of any wholly owned Subsidiary of Viskase by Viskase or any other wholly owned Subsidiary of Viskase;
(iv) other than as set forth in Schedule 2.2, declare, set aside or pay any dividends or other distributions in respect of such shares or interests, other than dividends or other distributions by wholly owned Subsidiaries of Viskase paid or payable to Viskase or another wholly owned Subsidiary of Viskase;
(v) other than as set forth in Schedule 5.1 or other than in the ordinary course of business consistent with past practice, transfer, lease, license, sell, assign, let lapse, abandon, cancel, mortgage, pledge, place a Lien upon (other than a Permitted Lien) or otherwise dispose of any cash or cash equivalents, properties or assets (including cash or cash equivalents or capital stock of any Subsidiaries of Viskase but excluding Intellectual Property, which is governed by Section 5.1(a)(vi));
(vi) other than in the ordinary course of business consistent with past practice, transfer, lease, license, sell, assign, let lapse, abandon, cancel, mortgage, pledge, place a Lien upon or otherwise dispose of any material Intellectual Property;
(vii) other than in the ordinary course of business consistent with past practice, (A) acquire, lease or sublease any material assets or properties (including any equity interests or any real property) or (B) spend or commit to spend any cash or cash equivalents to acquire any assets or other property, whether by merger, consolidation, purchase of property or assets or otherwise;
(viii) merge with or consolidate with any other Person, or restructure, reorganize or completely or partially liquidate;
(ix) make any material change in any financial or accounting policy, principle, procedure, method, estimate or practice, except for any such change required by changes in GAAP (or any interpretation thereof) or applicable Law, in each case, occurring after the date of this Agreement;
(x) (A) make, change or revoke any Tax election that is material to Viskase and its Subsidiaries as a whole, (B) adopt or change any Tax accounting method or change any Tax accounting period, in each case, that is material to Enzon and its Subsidiaries as a whole, (C) file any amended U.S. federal income or other material Tax Return, (D) settle any Proceeding or audit relating to Viskase or any of its Subsidiaries for an amount of Taxes, (E) surrender any right to claim a refund of an amount of Taxes or (F) enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law);
(xi) (A) settle, release, waive, compromise or forgive any claim, action, proceeding, investigation or inquiry, or make any material commitment to a Governmental Entity, other than settlements that result solely in customary confidentiality obligations and monetary obligations of Viskase and its Subsidiaries or (B) waive any material right with respect to any material claim held by Viskase or any of its Subsidiaries other than in the ordinary course of business and consistent with past practice, in each case other than any claim with respect to (1) Taxes, which shall be governed by Section 5.1(a)(x) and (2) Viskase Transaction Litigation, which shall be governed by Section 7.6;
(xii) incur, assume, endorse, guarantee or otherwise become liable for, or modify in any manner materially adverse to Viskase when considered as a whole the terms of, any indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except in the ordinary course of business consistent with past practice;
(xiii) (A) amend in any material respect, terminate early or fail to use commercially reasonable efforts to renew, or waive, release or assign any material rights, claims or benefits under, any Viskase Material Contract, or (B) enter into any agreement, contract or commitment that would be a Viskase Material Contract if it were in effect on the date of this Agreement, in each case other than in the ordinary course of business consistent with past practice;
(xiv) fail to maintain in all material respects insurance in the name of Viskase and its Subsidiaries in such amounts and covering such risks as are consistent with past practice, subject to availability of such insurance in the market at commercially reasonable rates consistent with past practice;
(xv) enter into or amend any material Contract, arrangement or transaction with any Affiliate of Viskase (other than a wholly owned Subsidiary thereof);
(xvi) other than in the ordinary course of business consistent with past practice, make any loans, advances or capital contributions to, or investments in, any Person (other than loans, advances or capital contributions to Viskase or any direct or indirect wholly owned Subsidiary of Viskase);
(xvii) other than in the ordinary course of business consistent with past practice, enter into or amend any agreement, contract or commitment, or take any other action, in each case that would reasonably be expected to prevent or materially delay or materially impair the consummation of the Merger;
(xviii) adopt or otherwise implement any stockholder rights, “poison-pill” or other comparable agreement;
(xix) enter into a material new line of business outside of the existing business of Viskase and Viskase’s Subsidiaries, taken as a whole; or
(xx) commit, resolve or agree to do or authorize any of the foregoing.
(b) Nothing contained in this Agreement shall give to Enzon, directly or indirectly, rights to control or direct the operations of Viskase or its Subsidiaries prior to the Closing Date. Prior to the Closing Date, Viskase and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its and its Subsidiaries’ operations.
Section 5.2 Annual and Interim Financial Statements.
(a) As promptly as practicable after the date of this Agreement (the “Financial Statements Delivery Date”), Viskase shall deliver to Enzon the following financial statements (such financial statements, the “Required Financial Statements”): (i) audited consolidated balance sheet of Viskase and its Subsidiaries as of December 31, 2023 and December 31, 2024, and the related audited consolidated statements of comprehensive loss, cash flows and securityholders equity for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of Viskase’s independent auditors (which reports shall be unqualified) in each case audited in accordance with the standards of the PCAOB (the “PCAOB Financial Statements”); (ii) all other audited and unaudited financial statements of Viskase and its Subsidiaries and any company or business units acquired by Viskase, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Registration Statement/Consent Solicitation Statement or any Form 8-K required to be filed by Enzon (including pro forma financial information); and (iii) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the Exchange Act (as if Viskase and its Subsidiaries were subject thereto) with respect to the periods described in clauses (i) and (ii) above, as necessary for inclusion in the Registration Statement/Consent Solicitation Statement or any Form 8-K required to be filed by Enzon (including pro forma financial information).
(b) All Required Financial Statements delivered pursuant to this Section 5.2, together with all related notes and schedules thereto, (i) will be prepared from, and reflect in all material respects, the books and records of Viskase, (ii) will be compliant with U.S. GAAP and prepared in all material respects in accordance with GAAP applied on a consistent basis throughout the periods covered thereby (except (x) that the unaudited Required Financial Statements do not contain footnotes and (y) as may be indicated in the notes to such Required Financial Statements), (iii) will fairly present, in all material respects, the consolidated financial position of Viskase, as of the dates thereof and their results of operations for the periods then ended except that the unaudited interim Required Financial Statements are subject to normal year-end adjustments, that are not expected to be material in amount, and (iv) will be audited in accordance with the standards of the PCAOB. All costs incurred in connection with preparing and obtaining such financial statements shall be expenses of Viskase.
(c) Viskase shall use commercially reasonable efforts (i) to assist Enzon and its Representatives, upon advance written notice, during normal business hours and in a manner such as to not unreasonably interfere with the normal operations of Viskase, in causing to be prepared in a timely manner any other financial information or statements (including customary pro forma financial statements) and any other such information, including compensation information, in each case that is reasonably required to be included in the Registration Statement, the Consent Solicitation Statement and any other filings to be made by Enzon with the SEC in connection with the transactions contemplated by this Agreement and (ii) to obtain the consents of Viskase’s auditors with respect thereto as may be required by applicable Law.
ARTICLE VI
COVENANTS OF ENZON; ADDITIONAL COVENANTS
Section 6.1 Conduct of Business Before the Closing Date. (a) Enzon covenants and agrees that, during the period from the date hereof to the earlier of the termination of this Agreement in accordance with its terms and the Effective Time (except as otherwise specifically contemplated by the terms of this Agreement, as may be required by Law or Order or as otherwise set forth on Section 6.1(a) of the Enzon Disclosure Letter), unless Viskase shall otherwise consent in writing (which shall not be unreasonably withheld, conditioned or delayed), (i) Enzon shall use its commercially reasonable efforts to conduct the businesses of Enzon and its Subsidiaries, in all material respects, in the ordinary course of business, in a manner
consistent with past practice and (ii) Enzon shall use its commercially reasonable efforts consistent with the foregoing to preserve substantially intact the business organization of Enzon and its Subsidiaries, to keep available the services of the present executive officers and the key employees of Enzon and its Subsidiaries and to preserve, in all material respects, their respective assets and properties in good repair and condition and the present relationships and goodwill of Enzon and its Subsidiaries with Governmental Entities and persons with which Enzon or any of its Subsidiaries has significant business relations. Without limiting the generality of the foregoing, Enzon shall not and shall not permit any of its Subsidiaries to (except as specifically contemplated by the terms of this Agreement, as may be required by Law or Order or as set forth on Section 6.1(a)) of the Enzon Disclosure Letter), between the date of this Agreement and the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, directly or indirectly, do any of the following without the prior written consent of Viskase (which shall not be unreasonably withheld, conditioned or delayed):
(i) except as reasonably necessary to implement the Proposed Enzon Action, make any change in any of the Enzon Organizational Documents;
(ii) issue, deliver, sell, pledge, grant, transfer, encumber or subject to any Lien any additional shares of capital stock, membership interests or partnership interests or other equity securities or grant any option, warrant or right to acquire any capital stock, membership interests or partnership interests or other equity securities or issue any security convertible into or exchangeable for such securities or alter in any way any of its outstanding securities or make any change in outstanding shares of capital stock, membership interests or partnership interests or other ownership interests or its capitalization, whether by reason of a reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, stock dividend or otherwise;
(iii) redeem, retire, purchase or otherwise acquire, directly or indirectly, any shares of the capital stock, membership interests or partnership interests or other ownership interests of Enzon or any of its Subsidiaries or any other securities convertible into or exercisable or exchangeable for, or warrants, options or other rights to acquire, any such shares or other ownership interests, other than in connection with redemptions, purchases or other acquisitions of shares or interests of any wholly owned Subsidiary of Enzon by Enzon or any other wholly owned Subsidiary of Enzon;
(iv) set aside or pay any dividends or other distributions in respect of such shares or interests (including any dividends or other distributions in respect of the Enzon Series C Preferred Stock; provided that, for the avoidance of doubt, dividends will continue to accrue pursuant to the terms of such Enzon Series C Preferred Stock), other than dividends or other distributions by wholly owned Subsidiaries of Enzon paid or payable to Enzon or another wholly owned Subsidiary of Enzon;
(v) other than in the ordinary course of business consistent with past practice and expenses incurred in connection with this Agreement and the transactions contemplated hereby, transfer, lease, license, sell, assign, let lapse, abandon, cancel, mortgage, pledge, place a Lien upon (other than a Permitted Lien) or otherwise dispose of any cash or cash equivalents, properties or assets (including cash or cash equivalents or capital stock of any Subsidiaries of Enzon but excluding Intellectual Property, which is governed by Section 6.1(a)(vi));
(vi) other than in the ordinary course of business consistent with past practice, transfer, lease, license, sell, assign, let lapse, abandon, cancel, mortgage, pledge, place a Lien upon or otherwise dispose of any material Intellectual Property;
(vii) other than in the ordinary course of business consistent with past practice, (A) acquire, lease or sublease any material assets or properties (including any equity interests or any real property) or (B) spend or commit to spend any cash or cash equivalents to acquire any assets or other property, whether by merger, consolidation, purchase of property or assets or otherwise;
(viii) merge with or consolidate with any other Person, or restructure, reorganize or completely or partially liquidate;
(ix) (A) increase the compensation or benefits payable or to become payable under any Enzon Benefit Plan or otherwise to any employees, officers, director, or independent contractors (who are individuals, including individuals providing their services through a personal services entity) of Enzon or any of its Subsidiaries, (B) establish, adopt, enter into, or amend any Enzon Benefit Plan, or any benefit plan, arrangement, program, policy, commitment, or other arrangement that would be an Enzon Benefit Plan if it were in existence on the date hereof, or any Collective Bargaining Agreement, (C) grant any awards under any bonus, incentive, performance, or other compensation plan or arrangements, (D) take any action to accelerate the vesting or payment of, or establish or provide any funding for any rabbi trust or similar arrangement for, any compensation or benefits under any Enzon Benefit Plan (including any equity or equity-based awards), (E) grant or provide any change-in-control, retention, severance, or termination compensation or benefits, (F) hire or terminate (other than for “cause”) any employee, officer, director, or independent contractor (who is an individual, including an individual providing services through a personal services entity), or (G) increase the compensation of any of its, or any of its Affiliates’, officers, directors, managers, partners, or employees, or pay or agree to pay any bonus or similar payment to any of the foregoing other than in the ordinary course of business consistent with past practice;
(x) make any material change in any financial or accounting policy, principle, procedure, method, estimate or practice, except for any such change required by changes in GAAP (or any interpretation thereof) or applicable Law, in each case, occurring after the date of this Agreement;
(xi) (A) make, change or revoke any Tax election that is material to Enzon and its Subsidiaries as a whole, (B) adopt or change any Tax accounting method or change any Tax accounting period, in each case, that is material to Enzon and its Subsidiaries as a whole, (C) file any amended U.S. federal income or other material Tax Return, (D) settle any Proceeding or audit relating to Enzon or any of its Subsidiaries for an amount of Taxes, (E) surrender any right to claim a refund of an amount of Taxes or (F) enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law);
(xii) (A) settle, release, waive, compromise or forgive any claim, action, proceeding, investigation or inquiry, or make any material commitment to a Governmental Entity, other than settlements that result solely in customary confidentiality obligations and monetary obligations of Enzon and its Subsidiaries or (B) waive any material right with respect to any material claim held by Enzon or any of its Subsidiaries other than in the ordinary course of business and consistent with past practice, in each case other than any claim with respect to (1) Taxes, which shall be governed by Section 6.1(a)(xi) and (2) Enzon Transaction Litigation, which shall be governed by Section 7.6;
(xiii) incur, assume, endorse, guarantee or otherwise become liable for, or modify the terms of, any indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except in the ordinary course of business consistent with past practice;
(xiv) (A) amend in any material respect, terminate early or fail to use commercially reasonable efforts to renew, or waive, release or assign any material rights, claims or benefits under, any Enzon Material Contract, or (B) enter into any agreement, contract or commitment that would be an Enzon Material Contract if it were in effect on the date of this Agreement, in each case other than in the ordinary course of business consistent with past practice;
(xv) fail to maintain in all material respects insurance in the name of Enzon and its Subsidiaries in such amounts and covering such risks as are consistent with past practice, subject to availability of such insurance in the market at commercially reasonable rates consistent with past practice;
(xvi) other than in the ordinary course of business consistent with past practice, enter into or amend any agreement, contract or commitment, or take any other action, that would reasonably be expected to prevent or materially delay or materially impair the consummation of the Merger;
(xvii) enter into or amend any material Contract, arrangement or transaction with any Affiliate of Enzon (other than a wholly owned Subsidiary thereof);
(xviii) other than in the ordinary course of business consistent with past practice, make any loans, advances or capital contributions to, or investments in, any Person (other than loans, advances or capital contributions to Enzon or any direct or indirect wholly owned Subsidiary of Enzon);
(xix) adopt or otherwise implement any stockholder rights, “poison-pill” or other comparable agreement;
(xx) enter into a material new line of business outside of the existing business of Enzon and Enzon’s Subsidiaries, taken as a whole;
(xxi) accelerate the collection of accounts receivable or delay the payment of accounts payable or accrued expenses, in each case, other than in the ordinary course of business consistent with past practice; or
(xxii) commit, resolve or agree to do or authorize any of the foregoing.
(b) Nothing contained in this Agreement shall give to Viskase, directly or indirectly, rights to control or direct the operations of Enzon or its Subsidiaries prior to the Closing Date. Prior to the Closing Date, Enzon and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its and its Subsidiaries’ operations.
Section 6.2 Resignations. Upon the written request of Viskase, Enzon shall use its commercially reasonable efforts to cause each person identified by Viskase who is in office as a director or officer of Enzon or any of its Subsidiaries to deliver a letter of resignation to the Board of Directors of Enzon, at or prior to the Effective Time, effective as of the Effective Time, resigning from all such positions at Enzon and each of its respective Subsidiaries.
Section 6.3 D&O Insurance and Indemnification. (a) For six years from and after the Effective Time, Enzon shall, and shall cause the Surviving Company to, indemnify and hold harmless all past and present directors, officers and managers of Enzon and its Subsidiaries and Viskase and its Subsidiaries (collectively, the “Indemnified Parties”) against any costs (including reasonable attorneys’ fees) and expenses (including advancing costs (including reasonable attorneys’ fees) and expenses and applicable retention amounts under applicable insurance policies) prior to the final disposition of any actual or threatened claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by applicable Law, the Enzon Organizational Documents or the Viskase Organizational Documents, as applicable, and any indemnification agreements with any Indemnified Party set forth in Section 6.3(a) of the Enzon Disclosure Letter, judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, investigation, suit or proceeding, whether civil, criminal, administrative or investigative process, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time (including acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Merger), whether asserted or claimed prior to, at or after the Effective Time, by reason of the fact of such Indemnified Party’s serving or having served as an officer, director or manager of Enzon or any of its Subsidiaries or Viskase or any of its Subsidiaries. The parties hereto agree that the foregoing rights to indemnification and advancement shall also apply with respect to any action to enforce this provision and that all rights to elimination of liability, indemnification and advancement of expenses for acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, now existing in favor of the Indemnified Parties as provided in their respective certificate of incorporation or bylaws (or comparable organizational documents) or in any indemnification agreement in existence on the date of this Agreement and provided to Enzon or Viskase, as applicable, prior to the date of this Agreement shall survive the Merger and shall continue in full force and effect in accordance with the terms thereof. Notwithstanding anything in this Section 6.3 to the contrary, if any Indemnified Party notifies Enzon or the Surviving Company on or prior to the sixth (6th) anniversary of the Effective Time of a matter in respect of which such Person may seek indemnification or advancement of expenses pursuant to this Section 6.3, the provisions of this Section 6.3 that require Enzon and the Surviving Company to indemnify and advance expenses shall continue
in effect with respect to such matter until the final disposition of all claims, actions, investigations, suits and proceedings relating thereto.
(b) For six years after the Effective Time, Enzon and the Surviving Company shall cause to be maintained in effect the provisions in (i) the Enzon Organizational Documents, (ii) any indemnification agreement of Enzon or a Subsidiary of Enzon with any Indemnified Party set forth in Section 6.3(b) of the Enzon Disclosure Letter, and (iii) the Viskase Organizational Documents, except to the extent that such agreement provides for an earlier termination, in each case, regarding elimination of liability, indemnification of officers, directors and managers and advancement of expenses that are in existence on the date hereof, and no such provision shall be amended, modified or repealed in any manner that would adversely affect the rights or protections thereunder of any such Indemnified Party in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time (including acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Merger). The obligations under this Section 6.3 shall not be terminated, amended or otherwise modified in such a manner as to adversely affect any Indemnified Party without the prior written consent of such affected Indemnified Party and any of such Person’s heirs, executors, administrators Representatives.
(c) At or prior to the Effective Time, Viskase (or, at Enzon’s election, Enzon) shall purchase a six-year prepaid “tail” policy for the benefit of Enzon’s officers and directors prior to the transactions contemplated by this Agreement, which Enzon and the Surviving Company shall maintain in effect for the duration of such policy, on terms and conditions providing coverage retentions, limits and other material terms substantially equivalent to the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by Enzon and its Subsidiaries with respect to matters arising at or prior to the Effective Time; provided, however, that Viskase shall not commit or spend on such “tail” policy, in the aggregate, more than 300% of the last aggregate annual premium paid by Enzon prior to the date hereof for Enzon’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”), and if the cost of such “tail” policy would otherwise exceed the Base Amount, Viskase shall be permitted to purchase as much coverage as reasonably practicable for the Base Amount.
(d) In the event Enzon, the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provision shall be made so that the successors and assigns of Enzon or the Surviving Company shall assume the obligations set forth in this Section 6.3. The rights and obligations under this Section 6.3 shall survive consummation of the Merger and shall not be terminated or amended in a manner that is adverse to any Indemnified Party without the written consent of such Indemnified Party. The parties hereto acknowledge and agree that the Indemnified Parties shall be third party beneficiaries of this Section 6.3, each of whom may enforce the provisions thereof.
ARTICLE VII
ADDITIONAL COVENANTS OF THE PARTIES
Section 7.1 Registration Statement/Consent Solicitation Statement.
(a) As promptly as reasonably practicable after the execution of this Agreement, (i) Enzon (with Viskase’s reasonable cooperation) shall prepare and file with the SEC a registration statement on Form S-4 (the “Registration Statement”) in connection with the registration under the Securities Act of the Enzon Common Stock to be issued in connection with the Merger, which Registration Statement will also contain a consent solicitation statement with respect to the solicitation of written consents from the stockholders of Enzon in connection with the Enzon Stockholder Approval (as amended, the “Consent Solicitation Statement” and, together with the Registration Statement, the “Registration Statement/Consent Solicitation Statement”). Enzon shall use its commercially reasonable efforts to (A) cause the Registration Statement/Consent Solicitation Statement to comply with the applicable rules and regulations promulgated by the SEC, (B) have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing (including by responding to comments from
the SEC), and, prior to the effective date of the Registration Statement, take all action reasonably required to be taken under any applicable state securities Laws in connection with the issuance of Enzon Common Stock in the Merger and (C) keep the Registration Statement effective through the Closing Date in order to permit the consummation of the Merger. Viskase shall furnish all information as may be reasonably requested by Enzon in connection with any such action and the preparation, filing and distribution of the Registration Statement/Consent Solicitation Statement. As promptly as practicable (and in no event, no more than five (5) Business Days) after the Registration Statement shall have become effective, Enzon shall use commercially reasonable efforts to cause the Consent Solicitation Statement to be mailed to its stockholders. No filing of, or amendment or supplement to, the Registration Statement/Consent Solicitation Statement will be made by Enzon without providing Viskase with a reasonable opportunity to review and comment (which comments shall be considered by Enzon in good faith) thereon if reasonably practicable. If, at any time prior to the Effective Time, any information relating to Enzon or Viskase or any of their respective Affiliates, directors or officers, should be discovered by Enzon or Viskase which should be set forth in an amendment or supplement to the Registration Statement/Consent Solicitation Statement, so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be prepared and, following a reasonable opportunity for the other party (and its counsel) to review and comment on such amendment or supplement, promptly filed with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of Enzon. Subject to applicable Law, Enzon shall notify Viskase promptly of the time when the Registration Statement has become effective, of the issuance of any stop order or suspension of the qualification of the Enzon Common Stock issuable in the Merger for offering or sale in any jurisdiction (in which case the parties hereto shall use their respective commercially reasonable efforts to have any such stop order or suspension lifted, reversed or otherwise terminated), or of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Registration Statement/Consent Solicitation Statement or for additional information and shall supply each other with copies of all correspondence between either party or any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Registration Statement/Consent Solicitation Statement or the Merger.
(b) Enzon shall (i) seek the Enzon Stockholder Approval via written consent and (ii) take such other actions as may be necessary under applicable Law or as may be required by an applicable Order in connection with obtaining the Enzon Stockholder Approval via written consent, in each case as promptly as practicable after the Registration Statement is declared effective under the Securities Act.
(c) Neither Viskase nor Enzon shall call or convene any meeting of its stockholders in connection with the Viskase Stockholder Approval or the Enzon Stockholder Approval, respectively. The Consent Solicitation Statement shall include the Enzon Special Committee Recommendation and the Enzon Recommendation, except to the extent there has been an Enzon Adverse Recommendation Change permitted by Section 7.5 (in the case of the Enzon Special Committee Recommendation or the Enzon Recommendation). The only corporate actions to be set forth in the Consent Solicitation Statement will be (i) the adoption of this Agreement, (ii) the approval of the Proposed Enzon Action by the holders of Enzon Common Stock and (iii) any other matters contemplated by this Agreement that may be required to be approved by holders of Enzon Common Stock under applicable Law or as may be required by an applicable Order.
(d) Immediately after the execution of this Agreement, in lieu of calling a meeting of the stockholders of Viskase, Viskase shall submit to, and seek and obtain, by no later than twenty-four (24) hours after the execution of this Agreement, the Viskase Stockholder Approval (the “Written Consent Delivery Time”). Upon receipt of the executed Viskase Stockholder Approval, Viskase shall provide to Enzon promptly (and in any event by the Written Consent Delivery Time) a copy of such Viskase Stockholder Approval. In connection with the Viskase Stockholder Approval, Viskase shall take all actions necessary or advisable to comply, and shall comply in all respects, with Section 228 and Section 262 of the DGCL and the Viskase Organizational Documents. Enzon shall furnish all
information as may be reasonably requested by Viskase in connection with any such action and the preparation and distribution of the Viskase Stockholder Approval.
Section 7.2 Access to Information. Upon reasonable notice, each of Enzon and Viskase shall (and shall cause their respective Subsidiaries to) afford the other party and its Representatives reasonable access during normal business hours, during the period prior to the Effective Time, to all its officers, employees, properties, offices and other facilities and to all books and records, including financial statements, other financial data and monthly financial statements within the time such statements are customarily prepared, and, during such period, each of Enzon and Viskase shall (and shall cause their respective Subsidiaries to) furnish promptly to the other party and its Representatives, consistent with their respective legal obligations, all other information concerning its business, properties and personnel as such Person may reasonably request; provided, however, that each may restrict the foregoing access to the other to the extent that, in such party’s reasonable judgment, (a) providing such access would result in the waiver of any attorney-client privilege (provided that the withholding party shall use commercially reasonable efforts to allow for such access to the maximum extent that does not result in a waiver of attorney-client privilege), (b) any Law or Order of any Governmental Entity applicable to Enzon or Viskase, as applicable, requires such party or its Subsidiaries to preclude the other party and its Representatives from gaining access to any properties or information or (c) such access relates to documents or other information regarding the negotiation of this Agreement and the transactions contemplated hereby. Each party will hold any such information that is non-public in confidence to the extent required by, and in accordance with, the provisions of that certain agreement, dated January 3, 2025 (the “Confidentiality Agreement”), between Viskase and Enzon.
Section 7.3 Efforts. Upon the terms and subject to the conditions set forth in this Agreement, each party hereto agrees to use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper or advisable to consummate and make effective, as soon as possible following the date hereof, the Merger and the other transactions contemplated by this Agreement, including using commercially reasonable efforts in (a) causing each of the conditions to the Merger set forth in Article VIII to be satisfied as promptly as practicable after the date of this Agreement, (b) the obtaining of all necessary actions, non-actions, waivers, consents and approvals from Governmental Entities, including the HSR approval contemplated by Section 7.4 (the “Required Consents”) prior to the Effective Time, and the making of all necessary registrations and filings and the taking of all steps as may be reasonably necessary to obtain a Required Consent from, or to avoid an action or proceeding by, any Governmental Entity, (c) the obtaining of all required consents, approvals or waivers from third parties, (d) the contesting and defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, (e) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement, (f) no later than two (2) Business Days prior to the Closing, providing reasonably detailed documentation calculating Enzon’s Cash on Hand as of the Closing, and (g) refraining from taking any action that would reasonably be expected to impede, interfere with, prevent or materially delay the consummation of the Merger.
Section 7.4 HSR Act Filing.
(a) As promptly as reasonably practicable after the date of this Agreement (but in no event later than fifteen (15) Business Days after the date of this Agreement), each of Enzon and Viskase shall, or shall cause their ultimate parent entity as that term is defined in the HSR Act and its implementing regulations to, file with the Federal Trade Commission (the “FTC”) and the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) a pre-merger notification in accordance with the HSR Act with respect to the Merger pursuant to this Agreement and to obtain from any Governmental Entity any consents, licenses, permits, waivers, clearances, approvals, authorizations, or waiting period expirations required to be obtained or made by Viskase, Enzon or Merger Sub under any foreign or other antitrust or related Law governing competition or prohibiting, restricting or regulating actions with the purpose or effect of monopolization, restraint of trade, or lessening of competition (collectively with the HSR Act, “Antitrust Laws”). Each of Enzon and Viskase shall promptly make an appropriate
response to any request by the FTC, the Antitrust Division and any other requesting Governmental Entity pursuant to the HSR Act or any other Antitrust Law in connection with the transactions contemplated by this Agreement. Enzon and Viskase shall cooperate fully with each other in connection with the making of all such filings or responses. In addition, except as may be prohibited by any Governmental Entity or by any applicable Law, each party hereto will reasonably consult with the other party in advance of participating in or attending any meeting or conference or engaging in any material communication, with any Governmental Entity or any official, Representative or staff thereof or such other person in respect of the transactions contemplated by this Agreement and give the other party a reasonable opportunity to attend and participate therein, and in the event one party is prohibited or unable to participate, attend or engage in any such meeting, conference or material written communication, keep such party apprised with respect thereto.
(b) Subject to applicable confidentiality restrictions or restrictions required by Law, Enzon and Viskase will notify the other promptly upon the receipt of (i) any material comments, questions, or requests for information or documents from any Governmental Entity in connection with any filings made pursuant to Section 7.4(a) or the transactions contemplated by this Agreement and (ii) any material request by any Governmental Entity for amendments or supplements to any filings made pursuant to any Laws relating to an investigation of the transactions contemplated by this Agreement and shall keep each other reasonably apprised of the status of the matters addressed in this Section 7.4. Whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to this Section 7.4, or whenever a Governmental Entity requests material information or documents related to the transactions contemplated by this Agreement, each party hereto will promptly inform the other of such occurrence or request and cooperate in filing or producing promptly with the applicable Governmental Entity such amendment, supplement, information or documents. Without limiting the generality of the foregoing, each party hereto shall provide to the other (or the other’s respective advisors) copies of all material correspondence between such party and any Governmental Entity relating to the transactions contemplated by this Agreement. The parties hereto may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 7.4 as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. In addition, to the extent reasonably practicable, all material discussions, telephone calls, and meetings with a Governmental Entity regarding the transactions contemplated by this Agreement shall include Representatives of both Enzon and Viskase. Subject to applicable Law, the parties hereto will reasonably consult in advance and cooperate with each other, and consider in good faith the views of one another, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted to any Governmental Entity regarding the transactions contemplated by this Agreement by or on behalf of any party hereto.
(c) If any Proceeding is instituted (or threatened to be instituted) challenging the transactions contemplated by this Agreement as violative of any Antitrust Law, each of Enzon and Viskase will use its commercially reasonable efforts to (i) avoid the entry of any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the Termination Date; and (ii) avoid or eliminate each and every impediment under any Antitrust Law so as to enable the Closing to occur as soon as possible (and in any event no later than the Termination Date, subject to the other terms and conditions in this Agreement); provided, however, that neither of Enzon or Viskase (x) shall be required to litigate or defend any action by a Governmental Entity to restrain the transactions contemplated by this Agreement, (y) shall be required to propose or agree to any divestiture, sale, licensing, or disposition of businesses, product lines, equity holdings, technology, intellectual properties, or other assets of Viskase, Enzon, or their respective Subsidiaries, or (z) shall be required to agree to any action after the Closing that would limit Viskase’s or Enzon’s freedom of action with respect to, or its or their ability to operate and/or retain, one or more of the businesses, product lines, equity interests, technology, intellectual property, or other assets of Viskase, Enzon, or their respective Subsidiaries.
(d) During the period beginning on the date hereof through the date on which the condition set forth in Section 8.1(g) is satisfied or waived (or through the date of a termination of this Agreement in
accordance with its terms), each of Viskase, Enzon and Merger Sub shall not, and shall cause their controlled Affiliates not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation could reasonably be expected to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consents of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under any Antitrust Law; (ii) materially increase the risk of any Governmental Entity seeking or entering an Order prohibiting the consummation of the transactions contemplated by this Agreement; or (iii) materially increase the risk of not being able to remove any such Order on appeal or otherwise.
(e) Viskase shall develop and control the strategy for obtaining any Required Consent or approval under any Antitrust Law, including by determining the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, proposals, filings, agreements or other documents made or submitted by or on behalf of either party in connection with the obtaining of any Required Consents or approval under any Antitrust Law; provided that Viskase shall consult in advance with, and consider in good faith the views of, Enzon in executing all decisions and responsibilities related to all matters described in this sentence (including in connection with the overall strategy and timing, strategies and decisions that are reasonably likely to result in the extension of any waiting period under the HSR Act (including by withdrawing its filing under the HSR Act) or any other applicable Laws or entering into any agreement with any Governmental Entity or Person to delay, or otherwise not to consummate as soon as practicable, the transactions contemplated hereby). Enzon shall provide such reasonable cooperation in obtaining the Required Consents and approval under any Antitrust Laws as is requested in writing by Viskase.
Section 7.5 No Solicitation by Enzon.
(a) Enzon agrees that from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, except as expressly permitted by this Section 7.5, Enzon shall not, and shall cause its Subsidiaries not to, and shall instruct (and cause) its and its Subsidiaries’ respective Representatives not to, directly or indirectly, (A) solicit, initiate or knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an Enzon Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection with an actual or potential Enzon Acquisition Proposal or (C) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement constituting an Enzon Acquisition Proposal. Enzon shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Enzon Acquisition Proposal, or any inquiry or proposal that may reasonably be expected to lead to an Enzon Acquisition Proposal, request the prompt return or destruction of all confidential information previously furnished to any Person in connection with a potential Enzon Acquisition Proposal and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. Without limiting the foregoing, it is agreed that the taking of any action restricted by this Section 7.5(a) by any Representative of Enzon or its Subsidiaries shall constitute a breach of this Section 7.5(a) by Enzon.
(b) Notwithstanding anything contained in Section 7.5(a) or any other provision of this Agreement to the contrary, if at any time prior to obtaining the Enzon Stockholder Approval, Enzon or any of its Representatives receives an Enzon Acquisition Proposal, which Enzon Acquisition Proposal did not result from any breach of this Section 7.5, and the Board of Directors of Enzon (acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Enzon Acquisition Proposal constitutes or is reasonably likely to lead to an Enzon Superior Proposal, then
Enzon and its Representatives (acting at the direction of the Enzon Special Committee) may (i) enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making the Enzon Acquisition Proposal and furnish pursuant to such Acceptable Confidentiality Agreement information (including non-public information) with respect to Enzon and its Subsidiaries to the Person or group of Persons who has made such Enzon Acquisition Proposal; provided that Enzon shall promptly provide to Viskase any material non-public information concerning Enzon or any of its Subsidiaries that is provided to any Person given such access which was not previously provided to Viskase or its Representatives and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Enzon Acquisition Proposal and otherwise facilitate such Enzon Acquisition Proposal or assist such Person (and its Representatives) with such Enzon Acquisition Proposal (in each case, if requested by such Person).
(c) Enzon shall notify Viskase within two (2) Business Days of receipt of an Enzon Acquisition Proposal in the event that Enzon or any of its Subsidiaries or its or their respective Representatives receives an Enzon Acquisition Proposal and, subject to applicable Law (including with respect to fiduciary duties), shall disclose to Viskase the material terms and conditions of any such Enzon Acquisition Proposal (including the consideration offered therein), and the identity of the Person or group of Persons making such Enzon Acquisition Proposal, and Enzon shall, upon the request of Viskase, keep Viskase reasonably informed of any material developments with respect to any such Enzon Acquisition Proposal (including any material changes thereto). Enzon shall not, and shall cause its Subsidiaries not to, enter into any confidentiality or similar agreement with any Person that prohibits Enzon from providing to Viskase any of the information required to be provided to Viskase under this Section 7.5 within the time periods contemplated hereby.
(d) Neither the Board of Directors of Enzon (acting upon the recommendation of the Enzon Special Committee) nor the Enzon Special Committee shall (i)(A) withhold or withdraw (or modify in a manner adverse to Viskase), or publicly propose to withhold or withdraw (or modify in a manner adverse to Viskase), the Enzon Recommendation or the Enzon Special Committee Recommendation (as applicable), (B) recommend the approval or adoption of, or approve or adopt, or publicly propose to recommend, approve or adopt, any Enzon Acquisition Proposal, (C) fail to include the Enzon Recommendation or the Enzon Special Committee Recommendation in the Consent Solicitation Statement, (D) make any public recommendation in connection with a tender offer or exchange offer that is subject to Regulation 14D under the Exchange Act other than a recommendation in a Solicitation/Recommendation Statement on Schedule 14D-9 against such tender offer or exchange offer or (E) if an Enzon Acquisition Proposal (other than an Enzon Acquisition Proposal subject to Regulation 14D) shall have been publicly announced or disclosed, fail to reaffirm the Enzon Recommendation or the Enzon Special Committee Recommendation on or prior to the tenth Business Day after Viskase requests such reaffirmation (any action described in this clause (i) being referred to as a “Enzon Adverse Recommendation Change”, it being understood that (A) neither the delivery of a notice by Enzon described in this Section 7.5(d) nor any public announcement thereof shall constitute an Enzon Adverse Recommendation Change and (B) the Board of Directors of Enzon (acting upon the recommendation of the Enzon Special Committee) or the Enzon Special Committee may make or cause Enzon to make a customary “stop, look and listen” communication and may elect to take no position with respect to an Enzon Acquisition Proposal until the close of business on the tenth (10th) Business Day after the commencement of such Enzon Acquisition Proposal pursuant to Rule 14e-2 under the Exchange Act without such action being considered an Enzon Adverse Recommendation Change) or (ii) execute or enter into (or cause or permit Enzon or any of its Subsidiaries to execute or enter into) any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement constituting an Enzon Acquisition Proposal, other than any Acceptable Confidentiality Agreement. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, prior to the time Enzon Stockholder Approval is obtained, but not after, each of the Board of Directors of Enzon (acting on the recommendation of the Enzon Special Committee) and the Enzon Special Committee (I) may make an Enzon Adverse Recommendation Change or (II) solely in the case of the following clause (y), terminate this Agreement in accordance with Section 9.1(e) in order to enter into a definitive agreement providing for an Enzon Superior Proposal (an “Enzon Superior Proposal Termination”) if (x) in the case of an Enzon Adverse Recommendation Change to be made in response to an Enzon Intervening Event, the Board of Directors of Enzon
(acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action in response to such Enzon Intervening Event would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) if in the case of an Enzon Adverse Recommendation Change or Enzon Superior Proposal Termination to be made in response to an Enzon Acquisition Proposal, the Board of Directors of Enzon (acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee has determined in good faith, after consultation with its financial advisor and outside legal counsel, that such Enzon Acquisition Proposal constitutes an Enzon Superior Proposal; provided, however, that the Board of Directors of Enzon (acting on the recommendation of the Enzon Special Committee) and the Enzon Special Committee shall not, and shall cause Enzon not to, make an Enzon Adverse Recommendation Change or Enzon Superior Proposal Termination unless (1) Enzon has given Viskase at least five (5) Business Days’ prior written notice of its intention to take such action (which notice shall (A) in the case of an Enzon Adverse Recommendation Change to be made in response to an Enzon Intervening Event, specify the circumstances related to such Enzon Intervening Event in reasonable detail or (B) in the case of an Enzon Adverse Recommendation Change or Enzon Superior Proposal Termination to be made in response to an Enzon Superior Proposal, specify the identity of the party making such Enzon Superior Proposal and the material terms thereof and attach the agreement and all material related documentation providing for such Enzon Superior Proposal), (2) Enzon has negotiated, and has caused its Representatives to negotiate, in good faith with Viskase during such notice period, to the extent Viskase wishes to negotiate to enable Viskase to propose in writing a binding offer to effect revisions to the terms of this Agreement such that (A) in the case of an Enzon Adverse Recommendation Change to be made in response to an Enzon Intervening Event, it would obviate any need to make such Enzon Adverse Recommendation Change or (B) in the case of any Enzon Adverse Recommendation Change or Enzon Superior Proposal Termination to be made in response to an Enzon Superior Proposal, it would cause such Enzon Superior Proposal to no longer constitute an Enzon Superior Proposal, (3) following the end of such notice period, the Board of Directors of Enzon (acting on the recommendation of the Enzon Special Committee) or the Enzon Special Committee shall have considered in good faith any such binding offer from Viskase, and shall have determined that (A) in the case of an Enzon Adverse Recommendation Change to be made in response to an Enzon Intervening Event, the failure to make an Enzon Adverse Recommendation Change in response to such Enzon Intervening Event would continue to reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law or (B) in the case of an Enzon Adverse Recommendation Change or Enzon Superior Proposal Termination to be made in response to an Enzon Superior Proposal, the Enzon Superior Proposal would continue to constitute an Enzon Superior Proposal, in each case if the revisions proposed in such binding offer were to be given effect and (4) in the event of any material development with respect to an Enzon Intervening Event or any material change to the material terms of such Enzon Superior Proposal, as applicable, Enzon shall, in each case, have delivered to Viskase an additional notice consistent with that described in clause (1) above, the notice period shall have recommenced, and Enzon shall have complied with clauses (2) and (3) above during such notice period. Except in connection with an Enzon Superior Proposal Termination, nothing in this Section 7.5(d) shall be deemed to modify or otherwise affect the obligation of Enzon to submit this Agreement to Enzon’s stockholders and to seek the Enzon Stockholder Approval in accordance with Section 7.1(b).
(e) Nothing in this Section 7.5 or elsewhere in this Agreement shall prohibit the Board of Directors of Enzon (acting upon the recommendation of the Enzon Special Committee) or the Enzon Special Committee from (i) taking and disclosing to the stockholders of Enzon a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of Enzon that is required by applicable Law or stock exchange rule. In addition, it is understood and agreed that, for purposes of this Agreement, a factually accurate public statement by Enzon, solely if and to the extent required by Law in the opinion of Enzon’s legal counsel, that describes Enzon’s receipt of an Enzon Acquisition Proposal, the identity of the Person making such Enzon Acquisition Proposal, the material terms of such Enzon Acquisition Proposal and the operation of this Agreement with respect thereto will not, in and of itself, be deemed to be (i) a withholding, withdrawal, amendment, or modification, or proposal by the Board of Directors of Enzon or the Enzon Special Committee to withhold, withdraw, amend or modify,
the Enzon Recommendation or the Enzon Special Committee Recommendation (as applicable); (ii) an adoption, approval or recommendation with respect to such Enzon Acquisition Proposal; or (iii) an Enzon Adverse Recommendation Change, in each case, so long as the Board of Directors of Enzon or the Enzon Special Committee expressly reaffirms the Enzon Recommendation and the Enzon Special Committee Recommendation in such public statement.
Section 7.6 Stockholder Litigation. Prior to the Effective Time or the valid termination of this Agreement, Viskase shall provide Enzon with prompt notice of any stockholder litigation or claim against Viskase and/or its directors or officers relating to the Merger or the other transactions contemplated by this Agreement (“Viskase Transaction Litigation”) (including by providing copies of all pleadings with respect thereto). Prior to the Effective Time or the valid termination of this Agreement, Enzon shall provide Viskase with prompt notice of any stockholder litigation or claim against Enzon and/or its directors or officers relating to the Merger or the other transactions contemplated by this Agreement (“Enzon Transaction Litigation”) (including by providing copies of all pleadings with respect thereto). Viskase shall control the defense, settlement or prosecution of any Viskase Transaction Litigation, and Viskase shall consult with Enzon with respect to the defense, settlement and prosecution of any Viskase Transaction Litigation and shall consider in good faith Enzon’s advice with respect to such Viskase Transaction Litigation. Viskase may not compromise, settle or come to an arrangement regarding, or offer or agree to compromise, settle or come to an arrangement regarding, any Viskase Transaction Litigation without the prior written consent of Enzon (which consent shall not be unreasonably withheld, conditioned or delayed). Enzon shall control the defense, settlement or prosecution of any Enzon Transaction Litigation, and Enzon shall consult with Viskase with respect to the defense, settlement and prosecution of any Enzon Transaction Litigation and shall consider in good faith Viskase’s advice with respect to such Enzon Transaction Litigation. Enzon may not compromise, settle or come to an arrangement regarding, or offer or agree to compromise, settle or come to an arrangement regarding, any Enzon Transaction Litigation without the prior written consent of Viskase (which consent shall not be unreasonably withheld, conditioned or delayed); provided that nothing herein shall limit the ability of the Board of Directors of Enzon or any directors thereof to compromise, settle or come to an arrangement regarding, or offer or agree to compromise, settle or come to an arrangement regarding, any Enzon Transaction Litigation so long as such settlement is consummated following the Effective Time and such settlement includes a full dismissal of, and release from, any and all actions and claims from the applicable plaintiffs against any directors and officers of Enzon prior to the Merger relating to the transactions contemplated by this Agreement, including the Merger; provided, further, that any such compromise, settlement or arrangement of Enzon Transaction Litigation that adversely affects any officer or director of Enzon in office prior to the Effective Time shall require the consent of such affected officer or director. The parties hereto acknowledge and agree that each officer or director of Enzon in office prior to the Effective Time shall be third party beneficiaries of this Section 7.6, each of whom may enforce the provisions of the immediately preceding sentence.
Section 7.7 Public Announcements. Except with respect to any communications relating to an Enzon Adverse Recommendation Change made in accordance with this Agreement, each of Viskase and Enzon agrees that no public release or announcement concerning the transactions contemplated hereby shall be issued by either party without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed), except as such release or announcement may be required by Law or the rules or regulations of any applicable United States securities exchange or interdealer quotation service, in which case the party required to make the release or announcement shall use its commercially reasonable efforts to allow the other party reasonable time to comment on such release or announcement in advance of such issuance, it being understood that the final form and content of any such release or announcement, to the extent so required, shall be at the final discretion of the disclosing party; provided that the foregoing shall not apply to any public release or announcement so long as the statements contained therein concerning the transactions contemplated hereby are substantially similar to previous releases or announcements made by the applicable party with respect to which such party has complied with the provisions of this sentence.
Section 7.8 Section 16 Matters. Prior to the Effective Time, Enzon shall take all such steps as may be required to cause any dispositions of Viskase Common Stock (including derivative securities with respect to Viskase Common Stock) or acquisitions of Enzon Common Stock (including derivative securities with respect to Enzon Common Stock) resulting from the Merger by each individual who is subject to the reporting
requirements of Section 16(a) of the Exchange Act with respect to Viskase or will become subject to such reporting requirements with respect to Enzon, to be exempt under Rule 16b-3 promulgated under the Exchange Act, to the extent permitted by applicable Law.
Section 7.9 Tax Matters. (a) The parties intend that the Merger and conversion of Viskase into a limited liability company undertaken as part of this Agreement together will qualify for the Intended Tax Treatment. Each of Enzon and Viskase will (and will cause its Subsidiaries, officers and employees to) use its reasonable best efforts to cause the Merger to qualify for the Intended Tax Treatment, and will not take or knowingly fail to take any action (and will cause its Subsidiaries, officers and employees not to take or knowingly fail to take any action) that could reasonably be expected to impede or prevent the Merger and conversion of Viskase into a limited liability company undertaken as part of this Agreement together from qualifying for the Intended Tax Treatment.
(b) Each of Enzon and Viskase shall promptly notify the other party to this Agreement if it becomes aware of any non-public fact or circumstance that would reasonably be likely to prevent or impede the Merger and conversion of Viskase into a limited liability company undertaken as part of this Agreement together from qualifying for the Intended Tax Treatment.
Section 7.10 Enzon Series C Preferred Stock. Enzon shall use commercially reasonable efforts to consummate the IEH Share Exchange in accordance with the terms of the IEH Support Agreement. Enzon shall, no less than twenty-five (25) Business Days prior to the anticipated Closing Date, commence an exchange offer pursuant to which Enzon shall offer to each holder of Enzon Series C Preferred Stock to exchange a number of shares of Enzon Common Stock for each share of Enzon Series C Preferred Stock equal to (i) the aggregate Liquidation Preference of each share of Enzon Series C Preferred Stock divided by (B) the Enzon 20-Day VWAP (as defined in the IEH Support Agreement) (the “Series C Exchange Offer”). The consummation of the Series C Exchange Offer shall be conditioned only upon the prior satisfaction or waiver of the conditions set forth in Article VIII hereof (excluding those portions of any condition set forth in Article VIII that (i) reference the Series C Exchange Offer or (ii) cannot be satisfied prior to (A) the Closing or (B) the consummation of the Series C Exchange Offer) and the intent of the parties hereto to effectuate the Closing in accordance with the terms hereof. Enzon shall comply with applicable Law, including the Exchange Act, in commencing, performing and consummating the Series C Exchange Offer. Enzon shall afford Viskase a reasonable opportunity to review and comment on any documents to be filed with the SEC or any other Governmental Entity in connection with the Series C Exchange Offer. Enzon shall use commercially reasonable efforts to (i) ensure that the Series C Exchange Offer is consummated prior to the Closing and (ii) seek maximum participation of the holders of Series C Preferred Stock (other than IEH and its Affiliates) in the Series C Exchange Offer.
Section 7.11 Debt Instruments. Each of Enzon and Viskase shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to deliver, on the Closing Date, all officers’ certificates, legal opinions and other documentation required to be delivered to the applicable trustee or agent under each of the indentures and credit agreements set forth on Section 7.11 of the Enzon Disclosure Letter and Section 7.11 of the Viskase Disclosure Letter, respectively, in connection with the Merger.
Section 7.12 Private Placement Agreement. Prior to or concurrently with the Effective Time, Viskase shall use commercially reasonable efforts to terminate that certain Private Placement Agreement, dated as of October 9, 2020, by and between Viskase and Icahn Enterprise Holdings L.P.
Section 7.13 State Takeover Statutes. In connection with and without limiting the foregoing, each party to this Agreement shall take all commercially reasonable action necessary to ensure that no Takeover Law is or becomes applicable to this Agreement, the Merger, the IEH Support Agreement or any of the other transactions contemplated hereby or thereby. If any Takeover Law becomes applicable to this Agreement, the Merger, the IEH Support Agreement or any of the other transactions contemplated hereby or thereby, each party to this Agreement shall take all commercially reasonable action necessary to ensure that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms required by, or provided for, in this Agreement and otherwise to minimize the effect of such Law on the Merger and the other transactions contemplated by this Agreement or the IEH Support Agreement.
Section 7.14 Delisting. Viskase shall take, or cause to be taken, all actions necessary to remove the Viskase Common Stock from quotation on OTC, effective as of the Effective Time.
Section 7.15 Listing. Enzon shall use its commercially reasonable efforts to cause the shares of Enzon Common Stock to be issued in connection with the Merger to be listed on OTC, subject to official notice of issuance, prior to the Effective Time.
Section 7.16 Reverse Stock Split. Prior to the Effective Time, Enzon shall take all actions necessary to effectuate the Reverse Stock Split. The determination as to the final ratio of the Reverse Stock Split shall be made by Viskase in its sole discretion pursuant to a written notice provided by Viskase to Enzon; provided that such final ratio shall be between 1 to 2 and 1 to 100 and shall result in a total number of shares of Enzon Common Stock outstanding (after giving effect to all of the transactions contemplated by this Agreement and the IEH Support Agreement) that does not exceed the number of shares of Enzon Common Stock authorized under Enzon’s Amended and Restated Certificate of Incorporation.
Section 7.17 382 Rights Agreement. Prior to the Effective Time, the Board of Directors of Enzon shall cause (a) the rights issued pursuant to that certain Section 382 Rights Agreement dated as of August 14, 2020, as amended, by and between Enzon and Continental Stock Transfer & Trust Company (the “382 Rights Agreement”) to be redeemed in accordance with the terms of the 382 Rights Agreement, and (b) the 382 Rights Agreement to be terminated.
ARTICLE VIII
CONDITIONS PRECEDENT
Section 8.1 Conditions to Each Party’s Obligation to Effect the Merger. The respective obligations of Viskase and Enzon to effect the Merger are subject to the satisfaction or (to the extent permitted by Law) waiver by Viskase and Enzon at or prior to the Effective Time of the following conditions:
(a) Viskase Stockholder Approval. Viskase shall have obtained the Viskase Stockholder Approval.
(b) Enzon Stockholder Approval. Enzon shall have obtained the Enzon Stockholder Approval.
(c) Series C Exchange Offer. The Series C Exchange Offer shall have been consummated.
(d) Legal Prohibition. No Law shall have been adopted or promulgated, or shall be in effect, and no temporary, preliminary or permanent Order issued by a court or other Governmental Entity of competent jurisdiction in the United States shall be in effect, in each case having the effect of making the Merger illegal or otherwise restraining, enjoining or prohibiting consummation of the Merger (any of the foregoing, a “Legal Restraint”).
(e) Exchange Listing. The shares of Enzon Common Stock to be issued in the Merger shall have been approved for listing on OTC, subject to official notice of issuance.
(f) Effectiveness of the Registration Statement. The Registration Statement shall have been declared effective by the SEC under the Securities Act. No stop order suspending the effectiveness of the Registration Statement shall have been issued by the SEC and no proceedings for that purpose shall have been initiated or threatened by the SEC.
(g) Antitrust Approval. Any waiting period applicable to the Merger under the HSR Act shall have expired or been terminated.
(h) IEH Share Exchange. The IEH Share Exchange shall have been consummated in accordance with the terms of the IEH Support Agreement.
Section 8.2 Additional Conditions to Obligations of Enzon. The obligations of Enzon to effect the Merger are subject to the satisfaction, or waiver by Enzon, at or prior to the Effective Time of the following additional conditions:
(a) Representations and Warranties. (i) The representations and warranties of Viskase contained in Section 3.1(a), Section 3.2(a), Section 3.2(b), Section 3.2(d), Section 3.3 (a), Section 3.3(b), Section 3.3(c), Section 3.3(d), Section 3.14, Section 3.19 and Section 3.20 shall be true and correct in all material respects, in each case both when made and at and as of the Closing Date, as if made at and
as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), (ii) the representations and warranties of Viskase contained in Section 3.6(b) shall be true and correct in all respects both when made and at and as of the Closing Date and (iii) all other representations and warranties of Viskase set forth in this Agreement shall be true and correct both when made and at and as of the Closing Date, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Viskase Material Adverse Effect” set forth therein) has not had a Viskase Material Adverse Effect. Enzon shall have received a certificate of an executive officer of Viskase to such effect, dated the Closing Date.
(b) Performance of Obligations of Viskase. Viskase shall have performed in all material respects and complied in all material respects with all agreements and covenants required to be performed or complied with by it under this Agreement at or prior to the Effective Time. Enzon shall have received a certificate of an executive officer of Viskase to such effect, dated the Closing Date.
(c) Senior Credit Facility. Viskase shall have delivered to Enzon proof reasonably satisfactory to Enzon that no event of default, acceleration or other demand for payment under the Viskase Credit Agreement shall occur as a result of the transactions contemplated by this Agreement, including the Merger.
Section 8.3 Additional Conditions to Obligations of Viskase. The obligations of Viskase to effect the Merger are subject to the satisfaction, or waiver by Viskase, at or prior to the Effective Time of the following additional conditions:
(a) Representations and Warranties. (i) The representations and warranties of Enzon contained in Section 4.1(a), Section 4.2(a), Section 4.2(b), Section 4.2(e), Section 4.3(a), Section 4.3(b), Section 4.3(c), Section 4.3(d), Section 4.3(e), Section 4.14, Section 4.19 and Section 4.20 shall be true and correct in all material respects, in each case both when made and at and as of the Closing Date, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), (ii) the representations and warranties of Enzon contained in Section 4.6(b) shall be true and correct in all respects both when made and at and as of the Closing Date and (iii) all other representations and warranties of Enzon set forth in this Agreement shall be true and correct both when made and at and as of the Closing Date, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Enzon Material Adverse Effect” set forth therein) has not had an Enzon Material Adverse Effect. Viskase shall have received a certificate of an executive officer of Enzon to such effect, dated the Closing Date.
(b) Performance of Obligations of Enzon. Enzon shall have performed in all material respects and complied in all material respects with all agreements and covenants required to be performed or complied with by it under this Agreement at or prior to the Effective Time. Viskase shall have received a certificate of an executive officer of Enzon to such effect, dated the Closing Date.
(c) Series C Preferred Actions. Each of (i) the IEH Share Exchange and (ii) the Series C Exchange Offer shall have been consummated and effective.
(d) Reverse Stock Split. The Reverse Stock Split shall have been consummated and effective.
(e) Dissenting Viskase Shareholders. The period during which holders of Viskase Common Stock can exercise their dissenters’ rights pursuant to Section 262 of the DGCL shall have expired, and the holders of Viskase Common Stock representing not more than three percent (3%) of the issued and outstanding Viskase Common Stock shall have exercised (and not subsequently withdrawn or waived) such rights.
(f) Minimum Cash Condition. At the Closing, Enzon shall have Cash on Hand of an amount that is equal to or greater than (i) $43,045,000, plus (ii) the aggregate Liquidation Preference of the shares of Enzon Series C Preferred Stock Beneficially Owned by any non-IEH Party (for the avoidance
of doubt, excluding any shares of Enzon Series C Preferred Stock exchanged for Enzon Common Stock pursuant to the Series C Exchange Offer), minus (iii) the IEH Exchange Adjustment (as defined in the IEH Support Agreement) (the “Minimum Cash Condition”).
Section 8.4 Frustration of Conditions. None of Viskase, Enzon or Merger Sub may rely, either as a basis for not consummating the Merger or the other transactions contemplated by this Agreement or for terminating this Agreement and abandoning the Merger, on the failure of any condition set forth in Section 8.1, Section 8.2 or Section 8.3, as the case may be, to be satisfied if such failure was caused by such party’s willful and material breach of any provision of this Agreement (it being understood that Enzon and Merger Sub shall be deemed a single party for purposes of this Section 8.4).
ARTICLE IX
TERMINATION
Section 9.1 Termination. This Agreement may be terminated and the Merger abandoned at any time prior to the Effective Time (except as provided below, whether before or after the Viskase Stockholder Approval or the Enzon Stockholder Approval has been obtained) only as follows:
(a) By mutual written consent of Enzon and Viskase;
(b) By either Viskase or Enzon if the Effective Time shall not have occurred on or before 11:59 p.m., Eastern Time on December 31, 2025 (as such date may be extended in accordance with this Section 9.1(b), the “Termination Date”); provided, further, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose material breach of any obligation under this Agreement has been the primary cause of the failure of the Effective Time to occur on or before the Termination Date;
(c) By either Viskase or Enzon if any Legal Restraint permanently restraining, enjoining or otherwise prohibiting or making illegal the Merger or otherwise prohibiting the consummation of the Merger shall have become final and nonappealable; provided that the right to terminate this Agreement pursuant to this Section 9.1(c) shall not be available to any party whose material breach of any obligation under this Agreement has been the primary cause of the imposition of such Legal Restraint or the failure of such Legal Restraint to be resisted, resolved or lifted;
(d) By Viskase, prior to receipt of the Enzon Stockholder Approval, if there shall have been an Enzon Adverse Recommendation Change;
(e) By Enzon, prior to the receipt of the Enzon Stockholder Approval, if (i) the Board of Directors of Enzon or the Enzon Special Committee authorizes Enzon, subject to complying with the terms of Section 7.5(d), to enter into a definitive agreement providing for an Enzon Superior Proposal, (ii) Enzon, the Board of Directors of Enzon and the Enzon Special Committee shall not have beached in any material respect Section 7.5, (iii) concurrently with the termination of this Agreement, Enzon, subject to complying with the terms of Section 7.5(d), enters into a definitive agreement providing for an Enzon Superior Proposal and (iv) prior to or concurrently with such termination, Enzon pays to Viskase the Enzon Termination Fee pursuant to Section 9.2(c);
(f) By Viskase, if Enzon shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement, or if any representation or warranty of Enzon shall have become untrue, in either case such that any condition set forth in Section 8.3(a) or Section 8.3(b) would not be satisfied and (i) such breach is not reasonably capable of being cured prior to the Termination Date or (ii) if such breach is reasonably capable of being cured prior to the Termination Date, such breach shall not have been cured prior to the earlier of (A) 30 days following written notice of such breach from Viskase to Enzon and (B) the Termination Date; provided that Viskase shall not have the right to terminate this Agreement pursuant to this Section 9.1(f) if Viskase is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement or if any representation or warranty of Viskase shall have become untrue, in either case so as to result in the failure of any condition set forth in Section 8.3(a) or Section 8.3(b);
(g) By Enzon, if Viskase shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement, or if any representation or warranty of Viskase shall have become untrue, in either case such that any condition set forth in Section 8.2(a) or Section 8.2(b) would not be satisfied and (i) such breach is not reasonably capable of being cured prior to the Termination Date or (ii) if such breach is reasonably capable of being cured prior to the Termination Date, such breach shall not have been cured prior to the earlier of (A) 30 days following written notice of such breach from Enzon to Viskase and (B) the Termination Date; provided that Enzon shall not have the right to terminate this Agreement pursuant to this Section 9.1(g) if Enzon is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement or if any representation or warranty of Enzon shall have become untrue, in either case so as to result in the failure of any condition set forth in Section 8.2(a) or Section 8.2(b); or
(h) By Enzon, if the Viskase Stockholder Approval shall not have been delivered to Viskase by the Written Consent Delivery Time.
(i) The party seeking to terminate this Agreement pursuant to this Section 9.1 shall give written notice of such termination to the other party in accordance with Section 10.7, specifying the provision of this Agreement pursuant to which such termination is effected and the basis for such termination, described in reasonable detail.
Section 9.2 Effect of Termination. (a) In the event of termination of this Agreement by either Viskase or Enzon as provided in Section 9.1, this Agreement shall terminate and there shall be no liability or obligation on the part of either party to the other or any of such other party’s Subsidiaries or any of their respective Representatives (except that the Confidentiality Agreement, this Section 9.2 and Article X shall survive any such termination); provided that, in the event that any Enzon Termination Fee becomes due and payable to Viskase in accordance with this Agreement, the payment of such fee and any applicable expenses shall be the sole and exclusive remedy of Viskase, its Subsidiaries or any of their respective Representatives, on the one hand, against Enzon or any of its Subsidiaries or any of their respective Representatives, on the other hand, for (i) any loss, liability or damages suffered, directly or indirectly, as a result of the failure of the Merger to be consummated, (ii) the termination of this Agreement, (iii) any liabilities or obligations arising under this Agreement, or (iv) any claims or actions or other losses arising out of or relating to this Agreement or any breach, termination or failure of or under this Agreement; provided further that, notwithstanding anything in this Agreement to the contrary, termination of this Agreement shall not relieve any party from any liability or damages incurred or suffered by the other party to the extent such liability or damages were the result of or arise out of fraud or any Intentional Breach of any covenant or agreement in this Agreement occurring prior to such termination (in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity).
(b) If (i) Viskase shall terminate this Agreement pursuant to Section 9.1(d) (Enzon Adverse Recommendation Change) or (ii) Enzon shall terminate this Agreement pursuant to Section 9.1(e) (Enzon Superior Proposal Termination), then Enzon shall pay to Viskase, not later than two (2) Business Days following such termination, an amount in cash equal to $1,000,000 (the “Enzon Termination Fee”).
(c) If Enzon shall terminate this Agreement pursuant to Section 9.1(h) (failure of Written Consent Delivery Time), then Viskase shall pay to Enzon not later than two (2) Business Days following such termination an amount in cash equal to $1,000,000 (the “Viskase Termination Fee”).
(d) If (i) Viskase or Enzon shall terminate this Agreement pursuant to Section 9.1(b) (Termination Date), (ii) after the date of this Agreement, an Enzon Acquisition Proposal shall have been publicly disclosed or announced or shall have become publicly known (A) prior to the Termination Date (in the case of a termination pursuant to Section 9.1(b) (Termination Date)) or (B) prior to such termination (in the case of a termination pursuant to Section 9.1(f) (Enzon Breach) and (iii) (A) within 12 months following such termination (x) Enzon or any of its Subsidiaries enters into a definitive agreement with respect to an Enzon Acquisition Proposal and such Enzon Acquisition Proposal is subsequently consummated (whether during or after such 12-month period) or (y) any Enzon Acquisition Proposal is consummated or (B) within 12 months following such termination, any Person commences a tender offer or exchange offer in respect of an Enzon Acquisition Proposal that is thereafter consummated
(whether during or after such 12-month period), then Enzon shall pay to Viskase, upon the earlier of the execution of the definitive agreement or consummation of the transaction, the Enzon Termination Fee.
(e) All payments under this Section 9.2 by Enzon or Viskase shall be made by wire transfer of cash immediately available funds to an account designated in writing by the other party.
(f) Each party acknowledges that the agreements contained in this Section 9.2 are an integral part of the transactions contemplated by this Agreement and are not a penalty, and that, without these agreements, the other party would not enter into this Agreement. If a party fails to pay promptly the amounts due pursuant to this Section 9.2, such party will also pay to the other party’s reasonable costs and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment of such overdue amount, together with interest on the unpaid amount under this Section 9.2, accruing from its due date, at an interest rate per annum equal to two percentage points in excess of the prime rate quoted by The Wall Street Journal in effect on the date such payment was required to be made. For the avoidance of doubt, in no event shall a party be required to pay or cause to be paid the Enzon Termination Fee or the Viskase Termination Fee, as applicable, more than once. Each of the parties hereto acknowledges that the Enzon Termination Fee and the Viskase Termination Fee are not intended to be a penalty, but rather are liquidated damages in a reasonable amount that will compensate the applicable party in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision.
Section 9.3 Amendment. This Agreement may be amended by the parties hereto, at any time before or after receipt of the Enzon Stockholder Approval or the Viskase Stockholder Approval, but, after any such approval, no amendment shall be made which by Law requires further approval by such stockholders, without approval by such stockholders. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto.
Section 9.4 Waiver. Any agreement on the part of a party hereto to any waiver shall be valid only if set forth in a written instrument signed on behalf of such party. The failure or delay of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of those rights, nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
ARTICLE X
MISCELLANEOUS
Section 10.1 Non-Survival of Representations, Warranties and Agreements. None of the representations, warranties, covenants and other agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time, except for those covenants and agreements contained herein and therein that by their terms contemplate performance in whole or in part after the Effective Time.
Section 10.2 Disclosure Letters. The inclusion of any information in the Disclosure Letters accompanying this Agreement will not be deemed an admission or acknowledgment, in and of itself, solely by virtue of the inclusion of such information in such Disclosure Letter, that such information or any similar information is required to be listed in such Disclosure Letter or that such information or any similar information is material to any party or the conduct of the business of any party. Disclosure in any section of a Disclosure Letter shall be deemed to be disclosed with respect to any other section of this Agreement only to the extent that it is reasonably apparent from the content and context of such disclosure that it is applicable to such other section notwithstanding the omission of a reference or cross reference thereto.
Section 10.3 Successors and Assigns. No party hereto shall assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto and any such attempted assignment without such prior written consent shall be void and of no force and effect. This Agreement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the parties hereto.
Section 10.4 Governing Law: Jurisdiction: Specific Performance. (a) This Agreement shall be construed, performed and enforced in accordance with, and governed by, the Laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Delaware. Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party(ies) hereto or its successors or assigns shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware, or in the event (but only in the event) that such court does not have subject matter jurisdiction over such action or proceeding, any state or federal court within the State of Delaware. Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the courts set forth in this paragraph and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than such courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (i) any claim that it is not personally subject to the jurisdiction of the above named courts, (ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts and (iii) to the fullest extent permitted by applicable Law, any claim that (A) the suit, action or proceeding in such court is brought in an inconvenient forum, (B) the venue of such suit, action or proceeding is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of Enzon and Viskase agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. To the fullest extent permitted by applicable Law, each of the parties hereto hereby consents to the service of process in accordance with Section 10.7; provided, that nothing herein shall affect the right of any party to serve legal process in any other matter permitted by Law.
(b) EACH PARTY HEREBY ON BEHALF OF ITSELF AND ITS SUBSIDIARIES IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.4(b).
(c) The parties agree that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed, or were threatened not to be performed, in accordance with their specific terms or were otherwise breached and that any defense in any action for specific performance that a remedy at law would be adequate is hereby waived. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement (in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative, except, in each case, as may be limited by Section 9.2). Any requirements for the securing or posting of any bond in connection with or as a condition to obtaining any such remedy are waived. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any person at law or in equity.
Section 10.5 Expenses. All fees and expenses incurred in connection with the Merger including all legal, accounting, financial advisory, consulting and all other fees and expenses of third parties incurred by
a party in connection with the negotiation and effectuation of the terms and conditions of this Agreement and the transactions contemplated hereby, shall be the obligation of the respective party incurring such fees and expenses, except (a) Enzon and Viskase shall each bear and pay one-half of the expenses incurred in connection with filing fees related to the Merger and this Agreement under the HSR Act, (b) Viskase shall bear and pay all expenses incurred in connection with any other applicable Antitrust Laws and (c) Viskase shall bear and pay all transfer, documentary, sales, use, real property, stamp, registration and other similar Taxes related to the Merger and this Agreement, and (d) as provided in Section 9.2.
Section 10.6 Severability; Construction. (a) In the event that any part of this Agreement is declared by any court or other judicial or administrative body to be null, void or unenforceable, all of the other provisions of this Agreement shall remain in full force and effect, with no effect on the validity or enforceability of such other provisions. If any provision of this Agreement, or the application of such provision to any Person or any circumstance, is invalid or unenforceable, (i) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (ii) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application of such provision, in any other jurisdiction.
(b) The parties have participated jointly in the negotiation and drafting of this Agreement. If any ambiguity or question of intent arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement.
Section 10.7 Notices. All notices, requests, instructions or other communications or documents to be given or made hereunder by either party to the other party to this Agreement shall be in writing and (a) served by personal delivery upon the party for whom it is intended, (b) by an internationally recognized overnight courier service upon the party for whom it is intended or (c) sent by e-mail, provided that a hard copy is also sent in accordance with the delivery methods set forth in clause (a) or (b) of this Section 10.7:
If to Viskase:
Viskase Companies, Inc.
333 East Butterfield Road Suite 400
Lombard, IL 60148-5679
Attention :
Timothy P. Feast, President & CEO
Email:
tim.feast@viskase.com
Copy to (such copy not to constitute notice):
Viskase Companies, Inc.
333 East Butterfield Road Suite 400
Lombard, IL 60148-5679
Attention :
Joseph D. King
Senior Vice President, General Counsel and Secretary
Email:
joe.king@viskase.com
Copy to (such copy not to constitute notice):
Troutman Pepper Locke LLP
875 Third Avenue
New York, NY 10022
Attention:
Steven Khadavi
Email:
steven.khadavi@troutman.com
If to Enzon:
Enzon Pharmaceuticals, Inc.
20 Commerce Drive, Suite 135
Cranford, NJ 07016
E-mail:
rlfeinsteincpa@enzon.com
Attention:
Richard L. Feinstein
Copy to (such copy not to constitute notice):
Brownstein Hyatt Farber Schreck, LLP
675 15th Street, Suite 2900
Denver, CO 80202
E-mail:
aagron@bhfs.com
eleitch@bhfs.com
Attention:
Adam J. Agron
Evan J. Leitch
Copy to (such copy not to constitute notice):
Thompson Hine, LLP
300 Madison Avenue, 27th Floor
New York, NY 10017
E-mail:
Todd.Mason@ThompsonHine.com
Attention:
Todd E. Mason
Any party may change its address for the purpose of this Section 10.7 by giving the other party written notice of its new address in the manner set forth above. Any notice, request, instruction or other communication or document given as provided above shall be deemed given to the receiving party (x) upon actual receipt, if delivered personally, (y) on the second (2nd) Business Day after deposit with an overnight courier, if sent by an overnight courier, or (z) upon confirmation of successful transmission if sent by email. Copies to outside counsel are for convenience only.
Section 10.8 Entire Agreement. This Agreement and the exhibits and schedules hereto, the IEH Support Agreement, the Confidentiality Agreement, which, for the avoidance of doubt, shall survive the Closing or any termination of this Agreement, the Enzon Disclosure Letter and the Viskase Disclosure Letter contain the entire understanding among the parties hereto with respect to the matters contemplated hereby and supersede and replace all prior and contemporaneous agreements and understandings, oral or written, with regard to such matters. Notwithstanding anything in this Agreement to the contrary, the parties hereto acknowledge and agree that the Enzon Disclosure Letter and the Viskase Disclosure Letter are not incorporated by reference into, and shall not be deemed to constitute a part of, this Agreement or the “agreement of merger” for purposes of Section 251 of the DGCL, but shall have the effects provided in this Agreement under Section 268 of the DGCL.
Section 10.9 Third Party Beneficiaries. Except for, following the Effective Time, the rights to continued indemnification, advancement and insurance pursuant to Section 6.3 (of which in each case the Persons entitled to indemnification, advancement or insurance, as the case may be, are the intended beneficiaries), and the rights for former directors and officers of Enzon to consent to certain settlements, compromises and other arrangements regarding Enzon Transaction Litigation pursuant to Section 7.6, nothing in this Agreement is intended to confer, or does confer, any rights or remedies under or by reason of this Agreement on any Persons other than the parties hereto and their respective successors and permitted assigns.
Section 10.10 Section and Paragraph Headings; Interpretation.
(a) The table of contents to this Agreement is for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The section and paragraph headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. A reference in this Agreement to “$” or “dollars” is to U.S. dollars. For purposes of
determining the U.S. dollar equivalent of any amounts in a foreign currency, the parties shall use the applicable foreign exchange rate as published by The Wall Street Journal on the date hereof. If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb). Unless the context of this Agreement clearly requires otherwise, words imparting the masculine gender shall include the feminine and neutral genders and vice versa, and the definitions of terms contained in this Agreement are applicable to the singular as well as the plural forms of such terms. The words “includes” or “including” shall mean “including without limitation.” The words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular section or article in which such words appear, the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” Any reference to a Law shall include any rules and regulations promulgated thereunder, and shall mean such Law as from time to time amended, modified or supplemented. References herein to any contract (including this Agreement) mean such contract as amended, supplemented or modified from time to time in accordance with the terms thereof. Each reference to a “wholly owned Subsidiary” of a Person shall be deemed to include any Subsidiary of such Person where all of the equity interests of such Subsidiary are directly or indirectly owned by such Person (other than directors qualifying shares, nominee shares or other equity interests that are required by law or regulation to be held by a director or nominee).
(b) Where used with respect to information, the phrases “delivered,” “made available,” “provided to” and words of similar import means, when used in reference to anything made available by Enzon or any of its Subsidiaries (including Merger Sub) or any of their respective Representatives, in each case, shall be deemed to include anything (i) uploaded to the electronic data room maintained by or on behalf of Enzon or its Representatives for purposes of the transactions contemplated hereby, (ii) publicly available in the Electronic Data Gathering, Analysis and Retrieval (EDGAR) database of the SEC or (iii) provided directly (including via email) to Viskase or its Representatives, in each case, in a manner that enables viewing of such materials by Viskase and its Representatives no later than 24 hours prior to the execution and delivery of this Agreement by all of the parties. Where used with respect to information, the phrases “delivered,” “made available,” “provided to” and words of similar import means, when used in reference to anything made available by Viskase, any of its Subsidiaries or any of their respective Representatives, in each case, shall be deemed to include anything (A) uploaded to the electronic data room maintained by or on behalf of Viskase or its Representatives for purposes of the transactions contemplated hereby, (B) publicly available on the OTC or (C) provided directly (including via email) to Enzon or its Representatives, in each case, in a manner that enables viewing of such materials by Enzon and its Representatives no later than 24 hours prior to the execution and delivery of this Agreement by all of the parties.
Section 10.11 Counterparts. This Agreement may be executed in counterparts, (including by facsimile, “.pdf” files or other electronic transmission) each of which shall be deemed an original, but all of which when taken together shall constitute the same instrument.
Section 10.12 Definitions. As used in this Agreement:
“$” shall have the meaning set forth in Section 10.10.
“382 Rights Agreement” shall have the meaning set forth in Section 7.17.
“Acceptable Confidentiality Agreement” shall mean a customary confidentiality agreement entered into by Enzon containing provisions (a) not less favorable to Enzon in any material respect than those set forth in the Confidentiality Agreement, (b) that require any counterparty thereto (and any of its Affiliates and Representatives named therein) that receives non-public information of or with respect to Enzon and its Subsidiaries to keep such information confidential; provided that, the provisions contained therein are no less restrictive in any material respect to such counterparty (and any of its Affiliates and Representatives named therein) than those set forth in the Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement need not include a standstill provision), and (c) does not prohibit Enzon from providing any information to Viskase in accordance with, and otherwise complying with, this Agreement, including Section 7.5.
“Affiliate” shall mean, with respect to any Person, any other Person that directly, or through one or more intermediaries, controls or is controlled by or is under common control with such Person; provided, however, that with respect to (a) Viskase, “Affiliate” means any Person that is controlled, directly or indirectly, by Viskase, and (b) Enzon, “Affiliate” means any Person that is controlled, directly or indirectly, by Enzon. As used herein, the term “control” means: (i) the power to vote at least 10% of the voting power of a Person or (ii) the possession, directly or indirectly, of any other power to direct or cause the direction of the management and policies of such a Person, whether through ownership of voting securities, by contract or otherwise.
“Agreement” shall have the meaning set forth in the Preamble hereto.
“Anti-Corruption Law” means any Law related to combating bribery and corruption, including legislation implementing the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions or the U.N. Convention Against Corruption, the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the U.K. Bribery Act 2010, the European Union Money Laundering Directives and member states’ implementing legislation, the UK Proceeds of Crime Act 2002, the U.S. Bank Secrecy Act, USA Patriot Act and other U.S. legislation relating to money laundering and proceeds of crime, 2000 Prohibition of Financing or Terrorism Law, 5765-2005 and Combating Criminal Organizations Law, 5763-2003.
“Antitrust Division” shall have the meaning set forth in Section 7.4(a).
“Antitrust Laws” shall have the meaning set forth in Section 7.4(a).
“Audited Financial Statements” shall have the meaning set forth in Section 3.5(c).
“Bankruptcy and Equity Exception” shall have the meaning set forth in Section 3.3(a).
“Base Amount” shall have the meaning set forth in Section 6.3(c).
“Benefit Plan” shall mean any “employee benefit plan” (within the meaning of Section 3(3) of ERISA) and all other compensation and employee benefits plans, policies, programs, agreements, or arrangements, and each other stock purchase, stock option, stock bonus, restricted stock, stock appreciation right, equity or similar equity-based plan, employee stock ownership, severance, vacation, sick leave, other paid time off, retention, employment, consulting, change-of-control, bonus, incentive, deferred compensation, retirement, profit-sharing, pension, employee loan, health and welfare, retiree medical, Tax gross-up or Tax indemnification, fringe benefit, life or post-employment medical, life, or other insurance contracts, and other benefit plan, agreement, program, policy, commitment, or other arrangement, whether or not subject to ERISA (including any related award agreements and any related funding mechanism now in effect or required in the future). Notwithstanding the foregoing, a “Benefit Plan” shall not include a Multiemployer Plan or any plans, programs, or arrangements sponsored by any Governmental Entity and in which any current or former employees or other service providers participate.
“Board of Directors” shall mean the Board of Directors of any specified Person and any committees thereof.
“Book-Entry Share” shall mean a non-certificated share of Viskase Common Stock held by book-entry.
“Business Day” shall mean any day other than (a) Saturday or Sunday or (b) any other day on which banks in the City of New York are permitted or required to be closed.
“Cancelled Shares” shall have the meaning set forth in Section 1.7(a).
“Cash on Hand” means all cash and cash equivalents of Enzon, in each case, determined in accordance with GAAP, and held in any account of Enzon, (i) excluding the amount of any issued but uncleared checks, wires, or drafts and any cash overdrafts and restricted cash, and (ii) including checks and drafts deposited for the account of Enzon or on hand at Enzon or available for deposit for the account of Enzon.
“Certificate” shall mean a valid certificate which represents a share of Viskase Common Stock.
“Certificate of Merger” shall have the meaning set forth in Section 1.3.
“Closing” shall have the meaning set forth in Section 1.2.
“Closing Date” shall have the meaning set forth in Section 1.2.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Collective Bargaining Agreement” shall mean any written or oral agreement, memorandum of understanding or other contractual obligation between Enzon, Viskase, or any of their Subsidiaries and any labor union, works council, or similar labor organization or other authorized employee Representative representing current or former employees of Enzon, Viskase or any of their Subsidiaries.
“Confidentiality Agreement” shall have the meaning set forth in Section 7.2.
“Consent Solicitation Statement” shall have the meaning set forth in Section 7.1(a).
“Contract” shall have the meaning set forth in Section 3.3(e).
“Delaware LLC Act” shall have the meaning set forth in the Recitals hereto.
“DGCL” shall have the meaning set forth in the Recitals hereto.
“Disclosure Letters” shall mean the Enzon Disclosure Letter and the Viskase Disclosure Letter, collectively.
“Dissenting Viskase Shares” shall have the meaning set forth in Section 2.9(a).
“dollars” shall have the meaning set forth in Section 10.10.
“Effective Time” shall have the meaning set forth in Section 1.3.
“Environmental Laws” shall mean all Laws in effect as of the date of this Agreement relating to (i) the protection, investigation or restoration of the environment, health and safety or natural resources, (ii) the protection of human health and safety (as it relates to exposure to Hazardous Materials), (iii) the handling, use, storage, treatment, transportation, presence, disposal, release or threatened release of, or exposure to, any hazardous, harmful or deleterious substance, or (iv) noise, odor or other pollution, indoor air quality, employee exposure or the protection or restoration of wetlands.
“Enzon” shall have the meaning set forth in the Preamble hereto.
“Enzon Acquisition Proposal” shall mean any inquiry, proposal or offer from any Person or group (other than Viskase and its Subsidiaries) relating to, in a single transaction or series of related transactions, any direct or indirect (i) acquisition of 20% or more of the consolidated assets of Enzon and its Subsidiaries (based on the fair market value thereof, as determined in good faith by the Board of Directors of Enzon or any committee thereof), or assets comprising 20% or more of the consolidated revenues or EBITDA of Enzon and its Subsidiaries, including in any such case through the acquisition of one or more Subsidiaries of Enzon owning such assets, (ii) acquisition of Enzon Common Stock representing 20% or more of the aggregate equity or voting power of Enzon, (iii) tender offer or exchange offer that if consummated would result in any Person or group beneficially owning Enzon Common Stock representing 20% or more of the aggregate equity or voting power of Enzon or (iv) merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving Enzon pursuant to which such Person or group (or the shareholders of any Person) would acquire, directly or indirectly, 20% or more of the aggregate equity or voting power of Enzon or of the surviving entity in a merger involving Enzon or the resulting direct or indirect parent of Enzon or such surviving entity. For the avoidance of doubt, the transactions contemplated hereby shall not be deemed an Enzon Acquisition Proposal.
“Enzon Additional Contract” shall have the meaning set forth in Section 4.16(b).
“Enzon Adverse Recommendation Change” shall have the meaning set forth in Section 7.5(d).
“Enzon Balance Sheet Date” shall have the meaning set forth in Section 4.6(a).
“Enzon Capitalization Date” shall have the meaning set forth in Section 4.2(a).
“Enzon Common Stock” shall mean common stock of Enzon, par value $0.01 per share.
“Enzon Disclosure Letter” shall mean the disclosure schedule delivered by Enzon on the date hereof.
“Enzon Environmental Permits” shall have the meaning set forth in Section 4.12.
“Enzon Intervening Event” shall mean any event, change, circumstance, effect, development or state of facts that is material to Enzon and its Subsidiaries, taken as a whole, that (i) first becomes known after the date of this Agreement and prior to the Enzon Stockholder Approval and (ii) was not known by or reasonably foreseeable to the Board of Directors of Enzon or the Enzon Special Committee as of the date of this Agreement; provided, however, that in no event shall any of the following events, changes, circumstances, effects, developments or states of fact be taken into account in determining whether an Enzon Intervening Event has occurred: (A) the receipt, existence or terms of an Enzon Acquisition Proposal or any matter relating thereto or direct or indirect consequence thereof, (B) the fact that, in and of itself, Enzon or any of its Subsidiaries exceeds any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that the facts or occurrences giving rise to or contributing to such event may be taken into account in determining whether there has been or will be, an Enzon Intervening Event to the extent not otherwise excluded hereunder), or (C) any change, in and of itself, in the market price or trading volume of Enzon’s securities (it being understood that the facts or occurrences giving rise to or contributing to such change may be taken into account in determining whether there has been or will be, an Enzon Intervening Event to the extent not otherwise excluded hereunder).
“Enzon Material Adverse Effect” shall mean any event, change, circumstance, effect, development or state of facts that, individually or in the aggregate, is or would reasonably be expected to (i) be materially adverse to the business, results of operations, assets or financial condition of Enzon and its Subsidiaries, taken as a whole or (ii) materially delay, impede or prevent the transactions contemplated hereby on or before the Termination Date; provided, however, that for purposes of subclause (i), Enzon Material Adverse Effect shall not include the effect of any event, change, circumstance, effect, development or state of facts to the extent it results from or arises out of (A) general economic or political conditions or securities, credit, financial or other capital markets conditions, in each case in the United States or any foreign jurisdiction, (B) changes or conditions generally affecting the industries, businesses, or segments thereof, in which Enzon or its Subsidiaries operate, (C) any change after the date hereof in applicable Law, regulation, GAAP or accounting standards (or authoritative interpretation of any of the foregoing), (D) the announcement of this Agreement or the transactions contemplated hereby or the terms hereof or the consummation of the transactions contemplated by this Agreement, including the impact thereof on the relationships of Enzon or its Subsidiaries with customers, suppliers, distributors, partners, officers or employees, (E) pandemics, epidemics, COVID-19, acts of war (whether or not declared), armed hostilities, sabotage, terrorism or cyber-attack, or any escalation or worsening of any acts of war, armed hostilities, sabotage, terrorism or cyber-attack threatened or underway as of the date of this Agreement (including requirements for business closures, restrictions on operations or “sheltering-in-place”), (F) earthquakes, hurricanes, floods, or other natural disasters or other weather-related or force majeure events, (G) any failure, in and of itself, by Enzon to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period, (H) any change in the market price or trading volume of Enzon’s securities or downgrade in Enzon’s credit rating, (I) tariffs, trade wars or similar matters, (J) any demands, litigation or similar actions brought by stockholders of Enzon in connection with this Agreement and the transactions contemplated hereby or (K) the taking of any specific action expressly required by this Agreement or taken with Viskase’s written consent or the failure to take any specific action expressly prohibited by this Agreement and as for which Viskase declined to consent; except, in each case, with respect to the exceptions set forth in (A), (B), (C) or (E), to the extent materially disproportionately affecting Enzon and its Subsidiaries, taken as a whole, relative to other similarly situated Persons in the industries in which Enzon operates, then the incremental material disproportionate impact of such event, change, circumstance, effect, development or state of facts shall be taken into account for the purpose of determining whether a Enzon Material Adverse Effect has occurred.
“Enzon Material Contract” shall have the meaning set forth in Section 4.16(a).
“Enzon Organizational Documents” shall mean Enzon’s Amended and Restated Certificate of Corporation and Amended and Restated Bylaws, together with all amendments thereto.
“Enzon Permit” shall have the meaning set forth in Section 4.8(a).
“Enzon Preferred Stock” shall have the meaning set forth in Section 4.2(a).
“Enzon Recommendation” shall have the meaning set forth in the Recitals hereto.
“Enzon SEC Documents” shall have the meaning set forth in Section 4.5(a).
“Enzon Series C Preferred Stock” shall have the meaning set forth in Section 4.2(a).
“Enzon Special Committee” shall have the meaning set forth in the Recitals hereto.
“Enzon Special Committee Recommendation” shall have the meaning set forth in the Recitals hereto.
“Enzon Stockholder Approval” shall have the meaning set forth in Section 4.3(e).
“Enzon Superior Proposal” shall mean any bona fide unsolicited written Enzon Acquisition Proposal that the Board of Directors of Enzon and the Enzon Special Committee have determined in their good faith judgment, after consultation with their outside legal counsel and financial advisor, (i) would be more favorable to Enzon’s stockholders from a financial point of view than the transactions contemplated hereby (taking into account any amendment or modification proposed by Viskase pursuant to Section 7.5(d)) and (ii) is reasonably likely to be completed in accordance with its terms, taking into account all terms and conditions of such proposal and the legal, regulatory, financial (including financing terms), timing and other aspects of such proposal (including certainty of closing) and of this Agreement; provided that for purposes of the definition of “Enzon Superior Proposal”, the references to “20%” in the definition of Enzon Acquisition Proposal shall be deemed to be references to “50%”.
“Enzon Superior Proposal Termination” shall have the meaning set forth in Section 7.5(d).
“Enzon Termination Fee” shall have the meaning set forth in Section 9.2(b).
“Enzon Transaction Litigation” shall have the meaning set forth in Section 7.6.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” shall mean any entity, trade or business that is, or was at the relevant time, a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes or included any other entity, trade or business, or that is, or was at the relevant time, a member of the same “controlled group” as such other entity, trade or business pursuant to Section 4001(a)(14) of ERISA.
“Exchange Act” shall have the meaning set forth in Section 4.4.
“Exchange Agent” shall have the meaning set forth in Section 2.1.
“Exchange Fund” shall have the meaning set forth in Section 2.1.
“Exchange Ratio” means the number of shares of Enzon Common Stock equal to (i) the Viskase Closing Share Number, divided by (ii) the number of issued and outstanding shares of Viskase Common Stock issued and outstanding as of immediately prior to the Effective Time (including Dissenting Viskase Shares but excluding Cancelled Shares).
“Export Control Laws” means (i) economic or financial sanctions or trade embargoes imposed, administered, or enforced by applicable Governmental Entities (“Sanctions”), including those administered by the United States government through the United States Treasury Department’s Office of Foreign Asset Control (“OFAC”) or the United States Department of State, the United Nations Security Council, the European Union or its Member States, or the United Kingdom, (ii) applicable trade, export control, import, and anti-boycott laws and regulations imposed, administered, or enforced by the United States government, including the Arms Export Control Act (22 U.S.C. § 1778), the International Emergency
Economic Powers Act (50 U.S.C. §§ 1701 1706), the Export Controls Act of 2018 (22 U.S.C. §2751 et seq.), the Export Control Reform Act of 2018, Section 999 of the Code, Title 19 of the U.S. Code, the International Traffic in Arms Regulations (22 C.F.R. Parts 120-130), the Export Administration Regulations (15 C.F.R. Parts 730 – 774), the U.S. customs regulations at 19 C.F.R. Chapter 1, and the Foreign Trade Regulations (15 C.F.R. Part 30), (iii) applicable trade, export control, import, and antiboycott laws and regulations imposed, administered, or enforced by the United Kingdom, including the Export Control Act 2002 and the Export Control Order 2008 (each as amended), and (iv) all applicable trade, export control, import, and antiboycott laws and regulations imposed, administered or enforced by any other country in which either Viskase or Enzon or either of their respective Subsidiaries conduct their business.
“Financial Statements Delivery Date” shall have the meaning set forth in Section 5.2(a).
“Former Enzon Group” shall mean the consolidated group (for U.S. federal income tax purposes) for taxable periods ending before January 1, 2006, that includes Enzon and Viskase and of which Enzon was the common parent.
“FTC” shall have the meaning set forth in Section 7.4(a).
“GAAP” shall mean United States generally accepted accounting principles as in effect from time to time, consistently applied.
“Governmental Entity” shall mean any national, federal, state, or local, domestic or foreign, governmental, regulatory or administrative authority, branch, agency or commission or any court, tribunal or judicial body or arbitral body or arbitrator.
“Hazardous Materials” shall mean any petroleum or petroleum products, radioactive materials, asbestos and asbestos-containing materials, polychlorinated biphenyls and hazardous or toxic substances and any other substance, material or waste that is regulated, characterized or otherwise classified as “hazardous,” “toxic,” a “pollutant,” a “contaminant” or words of similar meaning and regulatory effect pursuant to any Environmental Law;
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“Icahn Related Parties” shall mean the Persons listed on Section 10.12(b) of the Viskase Disclosure Letter.
“IEH” shall have the meaning set forth in the Recitals hereto.
“IEH Share Exchange” shall have the meaning set forth in the Recitals hereto.
“IEH Support Agreement” shall have the meaning set forth in the Recitals hereto.
“Indemnified Parties” shall have the meaning set forth in Section 6.3(a).
“Information Technology” means computers, hardware, software, databases, firmware, middleware, servers, workstations, networks, systems, routers, hubs, switches, data communications lines, and all other information technology equipment and associated documentation, reference and resource materials.
“Insurance Policies” shall have the meaning set forth in Section 3.17.
“Intellectual Property” means, collectively, all U.S. and foreign intellectual property rights, including rights in (i) trademarks, service marks, brand names, certification marks, collective marks, d/b/as, Internet domain names, social media account identifiers, logos, designs, symbols, trade dress, trade names, and other indicia of origin, all applications and registrations for the foregoing, and all goodwill associated therewith and symbolized thereby, including all renewals of the same; (ii) all patents, patent applications, and invention disclosures, including divisions, continuations, continuations-in-part, extensions, reissues, reexaminations, and any other governmental grant for the protection of inventions or industrial designs; (iii) trade secrets and related confidential and proprietary know-how (including all confidential and proprietary ideas, concepts, research and development, plans, proposals and processes), schematics, business methods, formulae, technical data, specifications, operating and maintenance manuals, drawings, prototypes, models, designs, customer lists, supplier lists, inventions, discoveries and improvements thereto, whether patentable or not, and all other
confidential information and proprietary information (“Trade Secrets”); (iv) published and unpublished copyrightable works of authorship in any media (including software, source code, object code, algorithms, databases and other compilations of information), copyrights therein and thereto, and registrations and applications therefor, and all renewals, extensions, restorations and reversions thereof and all derivative, compilation and ancillary rights of every kind, related to copyrights; and (v) moral rights and rights of publicity.
“Intended Tax Treatment” shall have the meaning set forth in the Recitals hereto.
“Intentional Breach” shall mean, with respect to any representation, warranty, agreement or covenant, an action or omission taken or omitted to be taken that the breaching party intentionally takes (or intentionally fails to take) and knows (or reasonably should have known) would, or would reasonably be expected to, cause a material breach of such representation, warranty, agreement or covenant.
“IRS” shall mean the United States Internal Revenue Service.
“Knowledge” shall mean, (i) with respect to Viskase, the actual knowledge of the individuals listed on Section 10.12(a) of the Viskase Disclosure Letter, or (ii) with respect to Enzon, the actual knowledge of the individuals listed on Section 10.12(a) of the Enzon Disclosure Letter.
“Law” shall mean any federal, state, local or foreign law, statute, ordinance, rule, regulation, Order or agency requirement of any Governmental Entity.
“Legal Restraint” shall have the meaning set forth in Section 8.1(c).
“Letter of Transmittal” shall have the meaning set forth in Section 2.2(a).
“Lien” shall mean any mortgage, pledge, security interest, encumbrance, title defect, lien (statutory or other), conditional sale agreement, claim, charge, adverse right, prior assignment, hypothecation, limitation or restriction.
“Liquidation Preference” shall have the meaning given to it in the Certificate of Designation of Series C Non-Convertible Redeemable Preferred Stock of Enzon, which, for the avoidance of doubt, includes accrued and unpaid dividends on the Enzon Series C Preferred Stock.
“Merger” shall have the meaning set forth in the Recitals hereto.
“Merger Consideration” shall have the meaning set forth in Section 1.7(a).
“Merger Sub” shall have the meaning set forth in the Preamble hereto.
“Merger Sub Common Stock” shall mean common stock of Merger Sub, par value $0.01 per share.
“Merger Sub Recommendation” shall have the meaning set forth in the Recitals hereto.
“Merger Sub Stockholder Approval” shall have the meaning set forth in Section 4.3(e).
“Minimum Cash Condition” shall have the meaning set forth in Section 8.3(f).
“Most Recent Viskase Balance Sheet” shall have the meaning set forth in Section 3.5(c).
“Multiemployer Plan” shall have the meaning set forth in Section 3.10(c).
“Order” shall have the meaning set forth in Section 3.7.
“OTC” shall have the meaning set forth in Section 2.5.
“PCAOB Financial Statements” shall have the meaning set forth in Section 5.2(a).
“Permitted Liens” shall mean (i) Liens for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP on the balance sheet of the applicable Person, (ii) mechanics’, carriers’, workers’, repairers’, materialmen’s, warehousemen’s, lessor’s, landlord’s and other similar Liens arising or incurred in the ordinary
course of business, (iii) non-monetary Liens that would be disclosed on title policies, title commitments and/or surveys, provided that the same do not materially interfere with the business of Enzon or its Subsidiaries or Viskase or its Subsidiaries, as applicable, or the operation of the property as presently conducted to which they apply, (iv) Liens arising out of pledges or deposits under worker’s compensation Laws, unemployment insurance, old age pensions or other social security or retirement benefits or similar legislation, (v) deposits securing liability to insurance carriers under insurance or self-insurance arrangements, (vi) deposits to secure the performance of bids, tenders, trade contracts (other than contracts for indebtedness for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business, (vii) easements, rights of way, zoning ordinances, variances, any set of facts that would be disclosed by an accurate up-to-date survey and other similar encumbrances affecting a Person’s properties, none of which materially interfere with the business of Enzon or its Subsidiaries or Viskase or its Subsidiaries, as applicable, or the operation of the property as presently conducted to which they apply, (viii) non-exclusive licenses of Intellectual Property rights granted in the ordinary course of business, and (ix) Liens not created by any of Enzon or Viskase (or their Subsidiaries) that affect the underlying fee interest of any leased real property of Enzon or Viskase (or their Subsidiaries).
“Person” shall mean an individual, corporation, limited liability company, partnership, association, trust, other entity or group (as defined in the Exchange Act).
“Personal Data” means any data or information in any media that can be used on its own or with other information to identify, contact or locate an individual, including any such other data or information that constitutes personal data or personal information under any applicable Law or Viskase’s or Enzon’s or any of their Subsidiaries’, as applicable, published privacy policies (including an individual’s combined first and last name, home address, telephone number, fax number, email address, Social Security number or other Governmental Entity-issued identifier (including state identification number, driver’s license number, or passport number), precise geolocation information of an individual or device, credit card or other financial information (including bank account information), cookie identifiers associated with registration information, or any other browser or device-specific number or identifier and any web or mobile browsing or usage information that can be used on its own or with other information to identify, contact or locate an individual).
“Proceeding” shall have the meaning set forth in Section 3.7.
“Proposed Enzon Action” shall have the meaning set forth in the Recitals hereto.
“Registration Statement” shall have the meaning set forth in Section 7.1(a).
“Registration Statement/Consent Solicitation Statement” shall have the meaning set forth in Section 7.1(a).
“Representative” shall mean, with respect to any Person, such Person’s Affiliates and its and their respective officers, directors, managers, partners, employees, accountants, counsel, financial advisors, consultants and other advisors or representatives.
“Required Consents” shall have the meaning set forth in Section 7.3.
“Required Financial Statements” shall have the meaning set forth in Section 5.2(a).
“Reverse Stock Split” shall have the meaning set forth in the Recitals hereto.
“Sarbanes-Oxley Act” means the U.S. Sarbanes-Oxley Act of 2002, as amended.
“SEC” shall mean the United States Securities and Exchange Commission.
“Secretary of State” shall have the meaning set forth in Section 1.3.
“Securities Act” shall have the meaning set forth in Section 3.4.
“Series C Exchange Offer” shall have the meaning set forth in Section 7.10.
“Subsidiary” shall mean, when used with respect to any Person, (a) any corporation, partnership or other organization, whether incorporated or unincorporated, (i) of which such Person or any other
Subsidiary of such Person is a general partner (excluding partnerships, the general partnership interests of which held by such Person or any Subsidiary of such Person do not have a majority of the voting interests in such partnership) or (ii) at least a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the Board of Directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries, or (b) any partnership, limited liability company, association, joint venture or other business entity, of which a majority of the partnership, joint venture or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof.
“Surviving Company” shall have the meaning set forth in Section 1.1.
“Surviving Company Conversion” shall have the meaning set forth in Section 1.1.
“Takeover Law” shall have the meaning set forth in Section 3.14(b).
“Tax” or “Taxes” shall mean all taxes, or imposts, levies or other like assessments or charges, in each case in the nature of a tax, imposed by a Governmental Entity, together with all interest, penalties and additions imposed with respect to such amounts.
“Tax Return” shall mean any report, return, information return, filing, claim for refund or other information filed or required to be filed with a Governmental Entity in connection with Taxes, including any schedules or attachments thereto, and any amendments to any of the foregoing.
“Termination Date” shall have the meaning set forth in Section 9.1(b).
“the other party” shall mean, with respect to Viskase, Enzon and shall mean, with respect to Enzon, Viskase.
“Total Closing Share Number” means the number equal to (i) the number of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time (after giving effect to the Reverse Stock Split, the IEH Share Exchange and the shares of Enzon Common Stock issued pursuant to the Series C Exchange Offer), divided by (ii) 0.1590.
“Trade Secrets” shall have the meaning set forth in the definition of “Intellectual Property”.
“Trading Day” shall mean with respect to Enzon Common Stock, a day on which shares of Enzon Common Stock are traded on OTC.
“Treasury Regulations” shall mean the Treasury regulations promulgated under the Code.
“Unaudited Financial Statements” shall have the meaning set forth in Section 3.5(c).
“Viskase” shall have the meaning set forth in the Preamble hereto.
“Viskase Additional Contract” shall have the meaning set forth in Section 3.16(b).
“Viskase Balance Sheet Date” shall mean March 31, 2025.
“Viskase Capitalization Date” shall have the meaning set forth in Section 3.2(a).
“Viskase Closing Share Number” means the number of shares of Enzon Common Stock equal to (i) the Total Closing Share Number, minus (ii) the number of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time (after giving effect to the Reverse Stock Split, the IEH Share Exchange and the shares of Enzon Common Stock issued pursuant to the Series C Exchange Offer), plus (iii) if there is an IEH Exchange Adjustment (as defined in the IEH Support Agreement) under the IEH Support Agreement, a number of shares of Enzon Common Stock (after giving effect to the Reverse Stock Split) equal to (A) the IEH Exchange Adjustment (as defined in the IEH Support Agreement), divided by (B) the Enzon 20-Day VWAP (as defined in the IEH Support Agreement).
“Viskase Common Stock” shall mean common stock of Viskase, par value $0.01 per share.
“Viskase Credit Agreement” shall mean that certain Credit Agreement, dated October 9, 2020, by and among Viskase, Bank of America, N.A., and other lenders, as amended by the First Amendment, dated August 13, 2021, as further amended by the Second Amendment, dated August 10, 2022, and as further amended by the Limited Waiver and Third Amendment to Credit Agreement, dated February 14, 2025.
“Viskase Disclosure Letter” shall mean the disclosure schedule delivered by Viskase on the date hereof.
“Viskase Environmental Permits” shall have the meaning set forth in Section 3.12.
“Viskase Financial Statements” shall have the meaning set forth in Section 3.5(c).
“Viskase Material Adverse Effect” shall mean any event, change, circumstance, effect, development or state of facts that, individually or in the aggregate, is or would reasonably be expected to (i) be materially adverse to the business, results of operations, assets or financial condition of Viskase and its Subsidiaries, taken as a whole, or (ii) materially delay, impede or prevent the transactions contemplated hereby on or before the Termination Date; provided, however, that for purposes of subclause (i), Viskase Material Adverse Effect shall not include the effect of any event, change, circumstance, effect, development or state of facts to the extent it results from or arises out of (A) general economic or political conditions or securities, credit, financial or other capital markets conditions, in each case in the United States or any foreign jurisdiction, (B) changes or conditions generally affecting the industries, businesses, or segments thereof, in which Viskase or its Subsidiaries operate, (C) any change after the date hereof in applicable Law, regulation, GAAP or accounting standards (or authoritative interpretation of any of the foregoing), (D) the announcement of this Agreement or the transactions contemplated hereby or the terms hereof or the consummation of the transactions contemplated by this Agreement, including the impact thereof on the relationships of Viskase or its Subsidiaries with customers, suppliers, distributors, partners, officers or employees, (E) pandemics, epidemics, COVID-19, acts of war (whether or not declared), armed hostilities, sabotage, terrorism or cyber-attack, or any escalation or worsening of any acts of war, armed hostilities, sabotage, terrorism or cyber-attack threatened or underway as of the date of this Agreement (including requirements for business closures, restrictions on operations or “sheltering-in-place”), (F) earthquakes, hurricanes, floods, or other natural disasters or other weather-related or force majeure events, (G) any failure, in and of itself, by Viskase to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period, (H) any change in the market price or trading volume of Viskase’s securities or downgrade in Viskase’s credit rating, (I) tariffs, trade wars or similar matters, (J) any demands, litigation or similar actions brought by stockholders of Viskase in connection with this Agreement and the transactions contemplated hereby or (K) the taking of any specific action expressly required by this Agreement or taken with Enzon’s written consent or the failure to take any specific action expressly prohibited by this Agreement and as for which Enzon declined to consent; except, in each case, with respect to the exceptions set forth in (A), (B), (C) or (E), to the extent materially disproportionately affecting Viskase and its Subsidiaries, taken as a whole, relative to other similarly situated companies in the industries in which Viskase operates, then the incremental material disproportionate impact of such event, change, circumstance, effect, development or state of facts shall be taken into account for the purpose of determining whether a Viskase Material Adverse Effect has occurred.
“Viskase Material Contract” shall have the meaning set forth in Section 3.16(a).
“Viskase Organizational Documents” shall mean Viskase’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, together with all amendments thereto.
“Viskase OTC Documents” shall have the meaning set forth in Section 3.5(a).
“Viskase Permit” shall have the meaning set forth in Section 3.8(a).
“Viskase Preferred Stock” shall have the meaning set forth in Section 3.2(a).
“Viskase Recommendation” shall have the meaning set forth in the Recitals hereto.
“Viskase Special Committee” shall have the meaning set forth in the Recitals hereto.
“Viskase Special Committee Recommendation” shall have the meaning set forth in the Recitals hereto.
“Viskase Stockholder Approval” shall have the meaning set forth in Section 3.3(d).
“Viskase Termination Fee” shall have the meaning set forth in Section 9.2(c).
“Viskase Transaction Litigation” shall have the meaning set forth in Section 7.6.
“wholly owned Subsidiary” shall have the meaning set forth in Section 10.10.
“Written Consent Delivery Time” shall have the meaning set forth in Section 7.1(d).
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
Enzon Pharmaceuticals, Inc.
By
/s/ Richard L. Feinstein
Name:
Richard L. Feinstein
Title:
Chief Executive Officer, Chief Financial Officer and Secretary
Viskase Companies, Inc.
By
/s/ Carolyn Zhang
Name:
Carolyn Zhang
Title:
Vice President & Chief Financial Officer
EPSC Acquisition Corp.
By
/s/ Richard L. Feinstein
Name:
Richard L. Feinstein
Title:
Chief Executive Officer, Chief Financial Officer and Secretary
Signature Page To The Merger Agreement
Index of Defined Terms
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Term
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Section
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$
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10.10
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382 Rights Agreement
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7.17
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Agreement
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Preamble
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Antitrust Division
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7.4(a)
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Antitrust Laws
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7.4(a)
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Audited Financial Statements
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3.5(c)
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Bankruptcy and Equity Exception
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3.3(a)
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Base Amount
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6.3(c)
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Cancelled Shares
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1.7(a)
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Certificate of Merger
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1.3
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Closing
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1.2
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Closing Date
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1.2
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Confidentiality Agreement
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7.2
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Consent Solicitation Statement
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7.1(a)
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Contract
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3.3(e)
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Delaware LLC Act
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Recitals
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DGCL
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Recitals
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Dissenting Viskase Shares
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2.9(a)
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dollars
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10.10
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Effective Time
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1.3
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Enzon
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Preamble
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Enzon Additional Contract
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4.16(b)
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Enzon Adverse Recommendation Change
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7.5(d)
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Enzon Balance Sheet Date
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4.6(a)
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Enzon Capitalization Date
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4.2(a)
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Enzon Environmental Permits
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4.12
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Enzon Material Contract
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4.16(a)
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Enzon Permit
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4.8(a)
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Enzon Preferred Stock
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4.2(a)
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Enzon Recommendation
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Recitals
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Enzon SEC Documents
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4.5(a)
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Enzon Series C Preferred Stock
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4.2(a)
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Enzon Special Committee
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Recitals
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Enzon Special Committee Recommendation
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Recitals
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Enzon Stockholder Approval
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4.3(e)
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Enzon Superior Proposal Termination
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7.5(d)
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Enzon Termination Fee
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9.2(b)
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Enzon Transaction Litigation
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7.6
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Exchange Act
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4.4
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Exchange Agent
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2.1
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Exchange Fund
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2.1
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Term
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Section
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Financial Statements Delivery Date
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5.2(a)
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FTC
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7.4(a)
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IEH
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Recitals
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IEH Share Exchange
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Recitals
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IEH Support Agreement
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Recitals
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Indemnified Parties
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6.3(a)
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Insurance Policies
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3.17
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Intended Tax Treatment
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Recitals
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Legal Restraint
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8.1(c)
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Letter of Transmittal
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2.2(a)
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Merger
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Recitals
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Merger Consideration
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1.7(a)
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Merger Sub
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Preamble
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Merger Sub Recommendation
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Recitals
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Merger Sub Stockholder Approval
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4.3(e)
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Minimum Cash Condition
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8.3(f)
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Most Recent Viskase Balance Sheet
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3.5(c)
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Multiemployer Plan
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3.10(c)
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Order
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3.7
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OTC
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2.5
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PCAOB Financial Statements
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5.2(a)
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Proceeding
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3.7
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Proposed Enzon Action
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Recitals
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Registration Statement
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7.1(a)
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Registration Statement/Consent Solicitation Statement
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7.1(a)
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Required Consents
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7.3
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Required Financial Statements
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5.2(a)
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Reverse Stock Split
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Recitals
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Secretary of State
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1.3
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Securities Act
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3.4
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Series C Exchange Offer
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7.10
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Surviving Company
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1.1
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Surviving Company Conversion
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1.1
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Takeover Law
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3.14(b)
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Termination Date
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9.1(b)
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Unaudited Financial Statements
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3.5(c)
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Viskase
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Preamble
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Viskase Additional Contract
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3.16(b)
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Viskase Capitalization Date
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3.2(a)
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Viskase Environmental Permits
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3.12
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Viskase Financial Statements
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3.5(c)
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Viskase Material Contract
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3.16(a)
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Viskase OTC Documents
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3.5(a)
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Term
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Section
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Viskase Permit
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3.8
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Viskase Preferred Stock
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3.2(a)
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Viskase Recommendation
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Recitals
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Viskase Special Committee
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Recitals
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Viskase Special Committee Recommendation
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Recitals
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Viskase Stockholder Approval
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3.3(d)
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Viskase Termination Fee
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9.2(c)
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Viskase Transaction Litigation
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7.6
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wholly owned Subsidiary
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10.10
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Written Consent Delivery Time
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7.1(d)
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EXHIBIT A
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Enzon
CERTIFICATE OF AMENDMENT TO THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ENZON PHARMACEUTICALS, INC.
(Pursuant to Section 242 of the General Corporation Law of the State of Delaware)
Enzon Pharmaceuticals, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify that:
FIRST: The present name of the Corporation is Enzon Pharmaceuticals, Inc.
SECOND: The name under which the corporation was originally incorporated is Enzon, Inc. and the date of the filing of the original certificate of incorporation of the Corporation with the Secretary of State of the State of Delaware is May 11, 1983 (as so amended, the “Certificate of Incorporation”).
THIRD: The Certificate of Incorporation is hereby amended by deleting ARTICLE FIRST in its entirety and inserting the following in lieu thereof:
“FIRST: The present name of the corporation (hereinafter called the “Corporation”) is Viskase Holdings, Inc.”
FOURTH: The Certificate of Incorporation is hereby amended by adding the following as a new clause (C) to Section 4 of ARTICLE FOURTH:
“(C) Effective [date and time] (the “Effective Time”), each one hundred (100) shares of the Corporation’s Common Stock that are issued and outstanding immediately prior to the Effective Time shall, automatically and without any action on the part of the Corporation or respective holders thereof, be reclassified and combined into one (1) share of Common Stock (the “Reverse Split”). If, upon aggregating all of the shares of Common Stock held by a holder of Common Stock immediately following the Reverse Split such holder would otherwise be entitled to a fractional share of Common Stock, the Corporation shall pay in cash (without interest) to each such holder an amount equal to such fraction multiplied by the closing price of the Common Stock on the OTCQX, or such other market or exchange as such shares of Common Stock may then be traded, on the last trading day immediately preceding the Effective Time (with such closing price proportionately adjusted to give effect to the Reverse Split).
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time into which the shares formerly represented by such certificate have been reclassified, as well as the right to receive cash in in lieu of fractional shares of Common Stock to which such holder may be entitled; provided, however, that each person of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been reclassified, as well as the right to receive cash in lieu of fractional shares of Common Stock to which such holder may be entitled.”
FIFTH: Resolutions were duly adopted by the Board of Directors of the Corporation setting forth this proposed Certificate of Amendment to the Certificate of Incorporation and declaring said amendment to be advisable and calling for the consideration and approval thereof at a meeting of the stockholders of the Corporation. Pursuant to the resolution of the Board of Directors, a meeting of the stockholders of the Company was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the foregoing amendment.
SIXTH: The foregoing amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
SEVENTH: That this Certificate of Amendment shall become effective immediately upon filing.
IN WITNESS WHEREOF, Enzon Pharmaceuticals, Inc. has caused this Certificate of Amendment to be executed by its duly authorized officer on this [•] day of [•], [•].
Enzon Pharmaceuticals, Inc.
By:
Name:
Title:
EXHIBIT B
IEH Support Agreement
[intentionally omitted]
EXHIBIT C
Amended and Restated Certificate of Incorporation of the Surviving Company
AMENDED & RESTATED
CERTIFICATE OF INCORPORATION
OF
VISKASE COMPANIES, INC.
1.
The name of the corporation is: Viskase Companies, Inc. (the “Corporation”).
2.
The address of the registered office in the State of Delaware is: Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808. The name of the registered agent at such address is: United States Corporation Company.
3.
The nature of the business or purpose to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware
4.
The total number of shares of stock, which the Corporation shall have authority to issue, is 10,000 shares of common stock, par value $0.0001 per share.
5.
The Corporation is to have perpetual existence.
6.
In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized to adopt, amend or repeal the By-Laws of the Corporation.
7.
To the fullest extent that the laws of the State of Delaware, as they exist on the date hereof or as they may hereafter be amended, permit the limitation or elimination of the liability of directors or officers, no director or officer of the Corporation shall be personally liable to the Corporation or its stockholders for damages for breach of any duty owed to the Corporation or its stockholders. Neither the amendment or repeal of this provision nor the adoption of any provision of this Amended and Restated Certificate of Incorporation which is inconsistent with this provision shall apply to or have any effect on the liability or alleged liability of any director or officer of the Corporation for or with respect to any act or omission of such director or officer occurring prior to such amendment, repeal or adoption.
8.
Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.
* * *
IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by its duly authorized officer, the day of , 2025
By:
Name:
Title: Authorized Person
EXHIBIT D
Post-Conversion Certificate of Formation and Limited Liability Company Agreement of
the Surviving Company
LIMITED LIABILITY COMPANY AGREEMENT
OF
VISKASE COMPANIES, LLC
This Limited Liability Company Agreement (this “Agreement”) of Viskase Companies, LLC, a Delaware limited liability company (the “Company”), is entered into by Enzon Pharmaceuticals, Inc., a Delaware corporation, as its sole member (the “Member”), effective as of [DATE].
WHEREAS, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act (6 Del. C. §18-101, et seq.) and any successor statute, as amended from time to time (the “Act”), pursuant to the Certificate of Formation (the “Certificate”) of the Company filed on [DATE], with the Secretary of State of the State of Delaware in accordance with the Act.
NOW, THEREFORE, the Member hereby adopts this Agreement to set forth the terms and conditions by which the Company will be governed from and after the date hereof:
1. Formation. The Company was formed and established as a Delaware limited liability company by the filing of the Certificate, pursuant to and in accordance with the Act, with the Secretary of State of the State of Delaware. The Member hereby agrees that its rights, duties and liabilities shall be as provided in the Act, except as otherwise provided herein.
2. Name. The name of the limited liability company is Viskase Companies, LLC or such other name or names as the Majority Unitholders may designate from time to time.
3. Purpose. The Company has been formed for the object and purpose of, and the nature of business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing.
4. Registered Office. The address of the registered office of the Company in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, DE 19808. The Company may have such other offices as the Board may designate from time to time.
5. Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is United States Corporation Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808.
6. Term. The Company shall exist in perpetuity, unless earlier dissolved and its affairs wound up in accordance with this Agreement and/or the Act.
7. Tax Status. The Company shall be treated as a disregarded entity for U.S. federal income tax purposes and, to the extent applicable, for state and local income tax purposes.
8. Income and Deductions. All items of income, gain, loss, deduction, and credit of the Company (including, without limitation, items not subject to federal or state income tax) shall be treated for federal and all relevant state income tax purposes as items of income, gain, loss, deduction, and credit of each Member.
9. Member. The Member’s initial percentage ownership interest in the Company (the “Membership Interests”) shall be one hundred percent (100%). Membership Interests shall not have a stated value, certificates shall not be issued evidencing Membership Interests and Membership Interests shall not have any right to distributions unless the Board shall have declared such a distribution out of funds lawfully available therefor. The Company may issue additional Membership Interests upon the approval of the Board and the Majority Unitholders.
10. Management of the Company.
(a) A board of managers of the Company (the “Board”) is hereby established and shall be comprised of natural Persons (each such Person, a “Manager”) who shall be appointed by Members representing a majority of the outstanding Membership Interests (the “Majority Unitholders”) and constitute the “managers” (as that term is defined in the Delaware Act) of the Company. The business
and affairs of the Company shall be managed, operated, and controlled by or under the direction of the Board, and the Board shall have, and is hereby granted, the full and complete power, authority, and discretion for, on behalf of and in the name of the Company, to take such actions as it may in its sole discretion deem necessary or advisable to carry out any and all of the objectives and purposes of the Company, subject only to the terms of this Agreement. A Manager may be removed or replaced at any time from the Board, with or without cause, upon, and only upon, the written request of the Majority Unitholders. A Manager may resign at any time from the Board by delivering their written resignation to the Board. Any such resignation shall be effective upon receipt thereof unless it is specified to be effective at some other time or upon the occurrence of some other event. The Board’s acceptance of a resignation shall not be necessary to make it effective. The Board shall meet at such time and at such place as the Board may designate. Meetings of the Board may be held either in person or by means of telephone or video conference or other communications device that permits all Managers participating in the meeting to hear each other, at the offices of the Company or such other place (either within or outside the State of Delaware) as may be determined from time to time by the Board. Written notice of each meeting of the Board shall be given to each Manager at least 24 hours prior to each such meeting. A majority of the Managers serving on the Board shall constitute a quorum for the transaction of business of the Board. At all times when the Board is conducting business at a meeting of the Board, a quorum of the Board must be present at such meeting. If a quorum shall not be present at any meeting of the Board, then the Managers present at the meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Each Manager shall have one vote on all matters submitted to the Board or any committee thereof. With respect to any matter before the Board, the act of a majority of the Managers constituting a quorum shall be the act of the Board. Any action required or permitted to be taken by the Board (or any committee of the Board) may be taken without a meeting if a written consent of a majority of the Managers on the Board (or committee) shall approve such action. Such consent shall have the same force and effect as a vote at a meeting where a quorum was present and may be stated as such in any document or instrument filed with the Secretary of State of Delaware.
11. Officers.
(a) The Board may, from time to time, designate one or more officers with such titles as may be designated by the Board to act in the name of the Company with such authority as may be delegated to such officers by the Board (each such designated person, an “Officer”). Any such Officer shall act pursuant to such delegated authority until such Officer is removed by the Board. Any action taken by an Officer designated by the Board pursuant to authority delegated to such Officer shall constitute the act of and serve to bind the Company. Persons dealing with the Company are entitled to rely conclusively on the power and authority of any Officer set forth in this Agreement and any instrument designating such officer and the authority delegated to him or her.
(b) [FILER] is hereby designated as an authorized person, within the meaning of the Act, to execute, deliver and file the certificate of formation of the Company (and any amendments and/or restatements thereof) and any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
12. Dissolution. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following: the written consent of the Board and the Majority Unitholders, the retirement, resignation, incapacity or bankruptcy of a Member or the occurrence of any other event which terminates the continued membership of a Member in the Company, or the entry of a decree of judicial dissolution under Section 18-802 of the Act.
13. Distributions. Distributions shall be made to the Members at the times and in the aggregate amounts determined by the Board from time to time.
14. Liability of the Members. Except to the extent required by the Act or other applicable law, the debts, obligations and liabilities of the Company whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company and the Members shall not have any personal liability for any such debt, obligation or liability of the Company solely by reason of being a member or participating
in the management of the Company. The failure of the Company to observe any formalities or requirements relating to the exercise of its powers or management of its business or affairs under this Agreement or the Act shall not be grounds for imposing personal liability on the Members for any liabilities of the Company.
15. Exculpation. No Covered Person (as defined below) shall be liable to the Company or any other Covered Person for any loss, damage or claim incurred by reason of any action taken or omitted to be taken by such Covered Person in good faith and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, so long as such action or omission does not constitute fraud or willful misconduct by such Covered Person.
16. Indemnification. The Company shall, to the fullest extent permitted by the LLC Act, as amended from time to time, indemnify all persons who it may indemnify pursuant thereto. The personal liability of the Managers is hereby eliminated to the fullest extent permitted by the LLC Act, as the same may be amended or supplemented. No amendment to or repeal of this Section 16 shall apply to or have any effect on the liability or alleged liabtility of any Manager for or with respect to any acts or omissions of such director occuring prior to such amendment.
17. Assignments. Any Member may assign in whole or in part its limited liability company interest.
18. Resignation. Any Member may resign from the Company.
19. Admission of Additional Members. One or more additional members of the Company may be admitted to the Company with the approval of the Board and the Majority Unitholders.
20. Amendment. This Agreement may be amended from time to time with the consent of the Majority Unitholders.
21. Severability. If any provision of this Agreement, or the application of a provision under any circumstances, is declared to be invalid, unlawful, or unenforceable, such provision shall survive to the extent it is not so declared, and the validity, legality and enforceability of the other provisions hereof shall not in any way be affected or impaired thereby, unless such action would substantially impair the benefits to any party of the remaining provisions of this Agreement.
22. Headings. Headings in this Agreement are for convenience of reference only and shall not be used in any way to interpret or construe this Agreement.
23. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware and all rights and remedies shall be governed by such laws without regard to the conflict of laws principles thereof.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Limited Liability Company Agreement as of the date first written above.
MEMBER:
Enzon Pharmaceuticals, Inc.
By:
Name:
Title:
[Limited Liability Company Agreement of Viskase Companies, LLC]
Annex A-1
Execution Version
FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER, dated as of October 24, 2025 (this “Amendment”), is by and among Enzon Pharmaceuticals, Inc., a Delaware corporation (“Enzon”), EPSC Acquisition Corp., a Delaware corporation (“Merger Sub”), and Viskase Companies, Inc., a Delaware corporation (“Viskase” and, together with Enzon and Merger Sub, the “Parties”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Parties entered into that certain Agreement and Plan of Merger, dated as of June 20, 2025 (as may be amended, modified or supplemented from time to time, the “Agreement”);
WHEREAS, concurrently with the execution and delivery of this Amendment, and as a condition and inducement to the Parties’ willingness to enter into this Amendment, (i) Icahn Enterprises Holdings L.P., a Delaware limited partnership (“IEH”), consented to this Amendment in accordance with Section 10 of the IEH Support Agreement and (ii) IEH and certain Affiliates thereof are entering into an amendment to the IEH Support Agreement in the form attached hereto as Exhibit A (the “IEH Support Agreement Amendment”) with Enzon and Viskase, pursuant to which, among other things, the parties thereto agreed to certain modifications to the IEH Support Agreement corresponding to the modifications made to the Agreement by this Amendment; and
WHEREAS, each of the Parties desires to amend the Agreement in accordance with Section 9.3 thereof as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE I
AMENDMENTS TO THE AGREEMENT
Section 1.1 Amendment to Recitals.
(a)
The sixth “Whereas” clause in the Recitals to the Agreement is hereby amended by deleting the sixth “Whereas” clause in the Recitals and replacing it in its entirety with the following:
“WHEREAS, the Enzon Special Committee has unanimously (i) determined that this Agreement and the transactions contemplated hereby are fair to, and in the best interests of, Enzon and Enzon’s stockholders, other than IEH and its Affiliates, and (ii) recommended that the Board of Directors of Enzon (A) determine that this Agreement and the transactions contemplated hereby, are fair to, and in the best interests of, Enzon and Enzon’s stockholders, other than IEH and its Affiliates, (B) approve this Agreement and the transactions contemplated hereby, including the Proposed Enzon Action and (C) recommend that the stockholders of Enzon entitled to vote thereon (x) adopt this Agreement, and (y) approve an amendment to the Amended and Restated Certificate of Incorporation of Enzon in the form set forth as Exhibit A hereto to, among other things, effect a consolidation of the issued and outstanding shares of Enzon Common Stock, pursuant to which the shares of Enzon Common Stock would be combined and reclassified at a ratio of 1 for 100 (the “Reverse Stock Split” or the “Proposed Enzon Action”) (this clause (ii)(C), the “Enzon Special Committee Recommendation”);”
(b)
The ninth “Whereas” clause in the Recitals to the Agreement is hereby amended by deleting the ninth “Whereas” clause in the Recitals and replacing it in its entirety with the following:
“WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the parties’ willingness to enter into this Agreement, Icahn Enterprises Holdings L.P., a Delaware limited partnership (“IEH”), and certain Affiliates thereof, are entering into a support agreement in the form attached hereto as Exhibit B (as may be amended, modified or supplemented from time to time, the “IEH Support Agreement”) with Enzon and Viskase, pursuant to which IEH has agreed to, among other things, (i) deliver or cause the delivery of written consents with respect to all of the issued and outstanding shares of Enzon Common Stock held by IEH and its Affiliates approving the Proposed Enzon Action and (ii) effectuate the conversion of each issued and outstanding share of Enzon Series C Preferred Stock into shares of Enzon Common Stock immediately prior to the consummation of the Closing, in each case on the terms and conditions set forth in the IEH Support Agreement (the “IEH Share Exchange”);”
Section 1.2 Amendment to Section 1.6(a) of the Agreement. Section 1.6(a) of the Agreement is hereby amended by deleting Section 1.6(a) of the Agreement and replacing it in its entirety with the following:
“(a) Directors. The parties hereto shall take all actions necessary such that, as of the Effective Time, the Board of Directors of Enzon and the Surviving Company shall be comprised of (i) individuals designated by the Viskase Board of Directors prior to the effectiveness of the Registration Statement, (ii) Jordan Bleznick and (iii) Randolph C. Read. Each such director shall hold office until his or her respective successor is duly elected or appointed and qualified or until his or her earlier death, resignation or removal in accordance with the governing documents of Enzon or the Surviving Company, as applicable, and applicable Law.”
Section 1.3 Amendment to Section 2.5 of the Agreement. Section 2.5 of the Agreement is hereby amended by deleting Section 2.5 of the Agreement and replacing it in its entirety with the following:
“No Fractional Shares of Enzon Common Stock. No fractional shares of Enzon Common Stock shall be issued upon the conversion of shares of Viskase Common Stock pursuant to Section 1.7, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Enzon. Notwithstanding any other provision of this Agreement, each holder of Viskase Common Stock converted pursuant to Section 1.7 that would otherwise have been entitled to receive a fraction of a share of Enzon Common Stock (after taking into account all shares of Viskase Common Stock evidenced by the Certificates and Book-Entry Shares delivered by such holder) shall receive, in lieu thereof, cash (without interest) in an amount equal to such fractional amount multiplied by the volume weighted averages of the trading prices of Enzon Common Stock on the “OTCQB tier” of the OTC market of the OTC Markets Group, Inc. (“OTC”) (as reported by Bloomberg or, if not reported thereby, in another authoritative source mutually selected by Enzon and Viskase) on the five (5) consecutive Trading Days ending on (and including) the Trading Day that is two (2) Trading Days prior to the date of the Effective Time, rounded down to the nearest penny.”
Section 1.4 Amendment to Section 3.19 of the Agreement. Section 3.19 of the Agreement is hereby amended by deleting Section 3.19 of the Agreement and replacing it in its entirety with the following:
“Opinion of Financial Advisors. The Viskase Special Committee has received the opinion of Alvarez & Marsal Valuation Services, LLC, dated as of October 22, 2025, to the effect that, as of the date of such opinion and subject to the limitations, qualifications and assumptions set forth therein, the Exchange Ratio is fair from a financial point of view to the holders of Viskase Common Stock (other than holders of the Cancelled Shares, Dissenting Viskase Shares and the Icahn Related Parties). As of October 24, 2025, such opinion has not been withdrawn, revoked or modified.”
Section 1.5 Amendment to Section 4.5(b) of the Agreement. Section 4.5(b) of the Agreement is hereby amended by deleting Section 4.5(b) of the Agreement and replacing it in its entirety with the following:
“Enzon is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of FINRA and OTC as to the quotation of the Enzon Common Stock on the “OTCQB tier” of OTC.”
Section 1.6 Amendment to Section 4.19 of the Agreement. Section 4.19 of the Agreement is hereby amended by deleting Section 4.19 of the Agreement and replacing it in its entirety with the following:
“Opinion of Financial Advisors. The Enzon Special Committee has received the opinion of A.G.P./Alliance Global Partners, dated as of October 21, 2025, to the effect that, as of the date of such opinion and subject to the limitations, qualifications and assumptions set forth therein, the Exchange Ratio in the Merger pursuant to this Agreement is fair from a financial point of view to Enzon. As of October 24, 2025, such opinion has not been withdrawn, revoked or modified.”
Section 1.7 Amendment to Section 7.16 of the Agreement. Section 7.16 of the Agreement is hereby amended by deleting Section 7.16 of the Agreement and replacing it in its entirety with the following:
“Reverse Stock Split. Prior to the Effective Time, Enzon shall take all actions necessary to effectuate the Reverse Stock Split.”
Section 1.8 Amendment to Section 7.17 of the Agreement. Section 7.17 of the Agreement is hereby amended by deleting Section 7.17 of the Agreement and replacing it in its entirety with the following:
“382 Rights Agreement. Prior to the Effective Time, the Board of Directors of Enzon shall (a) permit the rights issued pursuant to that certain Section 382 Rights Agreement dated as of August 14, 2020, as amended, by and between Enzon and Continental Stock Transfer & Trust Company (the “382 Rights Agreement”) to expire in accordance with the terms of the 382 Rights Agreement, and (b) cause the 382 Rights Agreement to be terminated or expire in accordance with its terms.”
Section 1.9 Amendment to Section 8.3(f) of the Agreement. Section 8.3(f) of the Agreement is hereby amended by deleting Section 8.3(f) of the Agreement and replacing it in its entirety with the following:
“Minimum Cash Condition. At the Closing, Enzon shall have Cash on Hand of an amount that is equal to or greater than $40,000,000 (the “Minimum Cash Condition”).”
Section 1.10 Amendment to Section 9.1(b) of the Agreement. Section 9.1(b) of the Agreement is hereby amended by deleting Section 9.1(b) of the Agreement and replacing it in its entirety with the following:
“By either Viskase or Enzon if the Effective Time shall not have occurred on or before 11:59 p.m., Eastern Time on March 31, 2026 (as such date may be extended in accordance with this Section 9.1(b), the “Termination Date”); provided, further, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose material breach of any obligation under this Agreement has been the primary cause of the failure of the Effective Time to occur on or before the Termination Date.”
Section 1.11 Amendments to Section 10.12 of the Agreement. Section 10.12 of the Agreement is hereby amended as follows:
(a)
Section 10.12 of the Agreement is hereby amended by deleting the definition of “IEH Exchange Adjustment” in its entirety.
(b)
Section 10.12 of the Agreement is hereby amended by deleting the definition of “Agreement” and replacing it in its entirety with the following:
“Agreement” shall have the meaning set forth in the Recitals to the Amendment.
(c)
Section 10.12 of the Agreement is hereby amended by deleting the definition of “Total Closing Share Number” and replacing it in its entirety with the following:
““Total Closing Share Number” means the number equal to (i) the number of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time (after giving effect to the Reverse Stock Split, the IEH Share Exchange and the shares of Enzon Common Stock issued pursuant to the Series C Exchange Offer), divided by (ii) 0.45.”
(d)
Section 10.12 of the Agreement is hereby amended by deleting the definition of “Viskase Closing Share Number” and replacing it in its entirety with the following:
““Viskase Closing Share Number” means the number of shares of Enzon Common Stock equal to (i) the Total Closing Share Number, minus (ii) the number of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time (after giving effect to the Reverse Stock Split, the IEH Share Exchange and the shares of Enzon Common Stock issued pursuant to the Series C Exchange Offer).”
(e)
Section 10.12 of the Agreement is hereby amended by adding the following words to the end of the definition of “Viskase Material Adverse Effect”:
“Notwithstanding the foregoing, if Enzon, Merger Sub or any of their respective Representatives knew of the material facts of a matter prior to October 24, 2025 (including in connection with any request made pursuant to Section 5.1), then no effect, change, event or occurrence arising out of, or resulting from, such facts shall constitute a Viskase Material Adverse Effect for all purposes under this Agreement; provided that, for the avoidance of doubt, a Viskase Material Adverse Effect may result from facts that Enzon, Merger Sub or any of their respective Representatives become aware of after October 24, 2025.”
Section 1.12 Amendment to Exhibit A to the Agreement. Exhibit A to the Agreement is hereby amended by deleting Exhibit A to the Agreement and replacing it in its entirety with Exhibit B to this Amendment.
ARTICLE II
MISCELLANEOUS
Section 2.1 Waivers of Enzon and Merger Sub.
(a)
Each of Enzon and Merger Sub (each, a “Waiving Party”) hereby unconditionally and irrevocably waives, consents to and releases (i) any inaccuracy in, breach of or failure to comply with any representation, warranty, covenant or agreement of Viskase in the Agreement, to the extent known to such Waiving Party as of the date hereof (each, a “Viskase Breach”) and (ii) any fact, event, circumstance or condition giving rise to a Viskase Breach, in each case to the extent known to such Waiving Party as of the date hereof and occurring or existing on or prior to the date hereof (the foregoing (i)-(ii), collectively, the “Pre-Amendment Matters”).
(b)
Any inaccuracy or breach to the extent resulting from any Pre-Amendment Matter shall be disregarded for purposes of determining the satisfaction of any condition to Closing set forth in Section 8.2(a) or Section 8.2(b) of the Agreement. Each Waiving Party further waives any right to terminate, delay or refuse to consummate the Closing by reason of any Pre-Amendment Matter. For the avoidance of doubt, nothing herein waives any claim for fraud or Intentional Breach with respect to facts first arising or becoming known by a Waiving Party after the date of this Amendment.
Section 2.2 No Other Amendments. Except to the extent that any provisions of, or any Exhibits or Schedules to, the Agreement are expressly amended by this Amendment, all terms and conditions of the Agreement shall remain in full force and effect, and, to the extent applicable, such terms shall apply to this Amendment as if it formed a part of the Agreement. In the event of any inconsistency or contradiction between the terms of this Amendment and the Agreement, the provisions of this Amendment shall prevail and control.
Section 2.3 Reference to the Agreement. After giving effect to this Amendment, each reference in the Agreement to “this Agreement,” “hereof,” “herein,” “herewith,” “hereunder” and words of similar import shall refer to the Agreement as amended by this Amendment. No reference to this Amendment need be made in any instrument or document at any time referring to the Agreement, and a reference to the Agreement in any such instrument or document shall be deemed to be a reference to the Agreement as amended by this Amendment.
Section 2.4 General Provisions. The provisions of Sections 9.3, Section 9.4 and Sections 10.3 through 10.11 of the Agreement shall, to the extent not already set forth in this Amendment, apply mutatis mutandis to this Amendment, and to the Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms as modified hereby.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written.
Enzon Pharmaceuticals, Inc.
By
/s/ Richard L. Feinstein
Name:
Richard L. Feinstein
Title:
CEO, CFO and Secretary
Viskase Companies, Inc.
By
/s/ Carolyn Zhang
Name:
Carolyn Zhang
Title:
Vice President & Chief Financial Officer
EPSC Acquisition Corp.
By
/s/ Richard L. Feinstein
Name:
Richard L. Feinstein
Title:
President and CEO
[Signature Page to the Amendment]
EXHIBIT A
IEH Support Agreement Amendment
[intentionally omitted]
EXHIBIT B
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Enzon
CERTIFICATE OF AMENDMENT TO THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ENZON PHARMACEUTICALS, INC.
(Pursuant to Section 242 of the General Corporation Law of the State of Delaware)
Enzon Pharmaceuticals, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify that:
FIRST: The present name of the Corporation is Enzon Pharmaceuticals, Inc.
SECOND: The name under which the corporation was originally incorporated is Enzon, Inc. and the date of the filing of the original certificate of incorporation of the Corporation with the Secretary of State of the State of Delaware is May 11, 1983 (as so amended, the “Certificate of Incorporation”).
THIRD: The Certificate of Incorporation is hereby amended by deleting ARTICLE FIRST in its entirety and inserting the following in lieu thereof:
“FIRST: The present name of the corporation (hereinafter called the “Corporation”) is Viskase Holdings, Inc.”
FOURTH: The Certificate of Incorporation is hereby amended by adding the following as a new clause (C) to Section 4 of ARTICLE FOURTH:
“(C) Effective [date and time] (the “Effective Time”), each one hundred (100) shares of the Corporation’s Common Stock that are issued and outstanding immediately prior to the Effective Time shall, automatically and without any action on the part of the Corporation or respective holders thereof, be reclassified and combined into one (1) share of Common Stock (the “Reverse Split”). If, upon aggregating all of the shares of Common Stock held by a holder of Common Stock immediately following the Reverse Split such holder would otherwise be entitled to a fractional share of Common Stock, the Corporation shall pay in cash (without interest) to each such holder an amount equal to such fraction multiplied by the closing price of the Common Stock on the OTCQX, or such other market or exchange as such shares of Common Stock may then be traded, on the last trading day immediately preceding the Effective Time (with such closing price proportionately adjusted to give effect to the Reverse Split).
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of Common Stock after the Effective Time into which the shares formerly represented by such certificate have been reclassified, as well as the right to receive cash in in lieu of fractional shares of Common Stock to which such holder may be entitled; provided, however, that each person of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been reclassified, as well as the right to receive cash in lieu of fractional shares of Common Stock to which such holder may be entitled.”
FIFTH: Resolutions were duly adopted by the Board of Directors of the Corporation setting forth this proposed Certificate of Amendment to the Certificate of Incorporation and declaring said amendment to be advisable and calling for the consideration and approval thereof at a meeting of the stockholders of the Corporation. Pursuant to the resolution of the Board of Directors, a meeting of the stockholders of the Company was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the foregoing amendment.
SIXTH: The foregoing amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
SEVENTH: That this Certificate of Amendment shall become effective immediately upon filing.
IN WITNESS WHEREOF, Enzon Pharmaceuticals, Inc. has caused this Certificate of Amendment to be executed by its duly authorized officer on this [•] day of [•], [•].
Enzon Pharmaceuticals, Inc.
Name:
Title:
Annex B
Execution Version
SUPPORT AGREEMENT
This SUPPORT AGREEMENT, dated as of June 20, 2025 (this “Agreement”), is made by and among:
(i)
Enzon Pharmaceuticals, Inc., a Delaware corporation (“Enzon”);
(ii)
Viskase Companies, Inc., a Delaware corporation (“Viskase”); and
(iii)
Icahn Enterprises Holdings L.P., a Delaware Limited Partnership (“IEH”), American Entertainment Properties Corp., a Delaware corporation (“AEP”), Icahn Partners LP, a Delaware limited partnership (“IPLP”) and Icahn Partners Master Fund LP, a Delaware limited partnership (“IPMF”) (collectively, the “IEH Parties”);
W I T N E S E T H
WHEREAS, concurrently with the execution and delivery of this Agreement, Enzon, Viskase, and EPSC Acquisition Corp., a Delaware corporation (“Merger Sub”) entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, among other things, the parties agreed to effect a merger of Merger Sub with and into Viskase, with Viskase as the surviving corporation (the “Merger”), upon the terms and subject to the conditions set forth therein;
WHEREAS, as of the date hereof, the IEH Parties Beneficially Own the number of outstanding shares of common stock, par value $0.01 per share, of Enzon (the “Enzon Voting Common Stock”) set forth on Schedule I hereto (all such shares of Enzon Voting Common Stock Beneficially Owned by the IEH Parties, together with all other shares of Enzon Common Stock acquired and Beneficially Owned after the date hereof and prior to the Expiration Time, collectively, the “Enzon Shares”);
WHEREAS, as of the date hereof, the IEH Parties Beneficially Own the number of outstanding shares of Enzon’s Series C Preferred Stock, par value $0.01 per share (the “Enzon Series C Preferred Stock”), set forth on Schedule I hereto; and
WHEREAS, the IEH Parties desire to exchange the Enzon Series C Preferred Stock Beneficially Owned by the IEH Parties for shares of Enzon Common Stock, and Enzon desires to effectuate such exchange, in each case on the terms and conditions contained herein; and
WHEREAS, Enzon and Viskase desire that IEH agrees, and IEH is willing to agree, on the terms and subject to the conditions set forth herein, (a) to vote or consent with respect to all of the Enzon Shares and the Enzon Preferred Shares to facilitate the consummation of the Merger, the approval of the Proposed Enzon Actions and the other transactions contemplated by the Merger Agreement and (b) to effectuate the IEH Share Exchange.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions and Related Matters.
1.1. Definitions. This Agreement is the “IEH Support Agreement” as defined in the Merger Agreement. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. As used in this Agreement, the following terms shall have the meanings indicated below:
“Affiliate” shall mean, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such Person; provided that, for purposes of this Agreement, (a) none of Enzon, Viskase or their respective Subsidiaries shall be deemed to be an Affiliate of IEH, (b) with respect to Enzon,
“Affiliate” means any Person that is Controlled by Enzon and (c) with respect to Viskase, “Affiliate” means any Person that is Controlled by Viskase.
“Agreement” shall have the meaning set forth in the Preamble.
“Beneficially Own” shall mean, with respect to any securities, having “beneficial ownership” of such securities for purposes of Rule 13d-3 or 13d-5 under the Exchange Act (or any successor statute or regulation).
“Control” shall mean the possession, directly or indirectly, of any other power to direct or cause the direction of the management and policies of such a Person, whether through ownership of voting securities, by contract or otherwise.
“Covered Persons” shall have the meaning set forth in Section 17.
“Enzon” shall have the meaning set forth in the Preamble.
“Enzon 20-Day VWAP” shall mean the price equal to the average of the volume-weighted average price of Enzon Common Stock on the “OTCQX tier” of OTC (as reported by Bloomberg or, if not reported thereby, in another authoritative source mutually selected by Enzon, Viskase and IEH) for the last twenty (20) Trading Days prior to (and including) the date hereof, rounded down to the nearest 1/100th of a penny (as adjusted to take into account the Reverse Stock Split, to the extent the Reverse Stock Split is effectuated prior to the date of the relevant issuance of Enzon Common Stock).
“Enzon Exchange Stock” shall have the meaning set forth in Section 4.
“Enzon Series C Preferred Stock” shall have the meaning set forth in the Recitals.
“Enzon Shares” shall have the meaning set forth in the Recitals.
“Enzon Transaction Litigation” shall have the meaning set forth in Section 9.2.
“Enzon Voting Common Stock” shall have the meaning set forth in the Recitals.
“Enzon Written Consent” shall have the meaning set forth in Section 2.
“Expiration Time” shall mean the earliest to occur of (a) the Effective Time, (b) the termination of the Merger Agreement in accordance with its terms and (c) the time of any modification, waiver or amendment to any provision of the Merger Agreement without IEH’s prior written consent which is adverse to the IEH Parties.
“IEH” shall have the meaning set forth in the Preamble.
“IEH Exchange Adjustment” shall mean an amount equal to the amount by which (i) the Cash on Hand of Enzon at the Closing, minus (ii) the aggregate Liquidation Preference of the shares of Enzon Series C Preferred Stock Beneficially Owned by any non-IEH Party (for the avoidance of doubt, excluding any shares of Enzon Series C Preferred Stock exchanged for Enzon Common Stock pursuant to the Series C Exchange Offer) is exceeded by $43,045,000 (if any); provided that the IEH Exchange Adjustment shall not exceed $1,000,000.
“IEH Parties” shall have the meaning set forth in the Preamble.
“IEH Share Exchange” shall have the meaning set forth in Section 4.
“IEH Transaction Litigation” shall have the meaning set forth in Section 9.3.
“Liquidation Preference” shall have the meaning ascribed to such term in the Series C Certificate of Designation.
“Merger” shall have the meaning set forth in the Recitals.
“Merger Agreement” shall have the meaning set forth in the Recitals.
“Merger Agreement Parties” shall mean each of Enzon, Viskase and Merger Sub.
“Organizational Documents” shall mean, with respect to any Person, such Person’s articles or certificate of association, incorporation, formation or organization, bylaws, limited liability company agreement, partnership agreement or other constituent document or documents, each in its currently effective form as amended from time to time.
“Person” shall mean an individual, corporation, limited liability company, partnership, association, trust, other entity or group (as defined in the Exchange Act).
“Subsidiary” shall mean, when used with respect to any Person, (a) any corporation, partnership or other organization, whether incorporated or unincorporated, (i) of which such Person or any other Subsidiary of such Person is a general partner (excluding partnerships, the general partnership interests of which held by such Person or any Subsidiary of such Person do not have a majority of the voting interests in such partnership) or (ii) at least a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the Board of Directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries, or (b) any partnership, limited liability company, association, joint venture or other business entity, of which a majority of the partnership, joint venture or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof.
“Takeover Law” shall have the meaning set forth in Section 7.5.
“Viskase” shall have the meaning set forth in the Preamble.
“Viskase Transaction Litigation” shall have the meaning set forth in Section 9.1.
1.2. Other Definitional Provisions. Unless the context of this Agreement clearly requires otherwise, words imparting the masculine gender shall include the feminine and neutral genders and vice versa, and the definitions of terms contained in this Agreement are applicable to the singular as well as the plural forms of such terms. The words “includes” or “including” shall mean “including without limitation.” The words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular section or article in which such words appear, the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if.” Any reference to a Law shall include any rules and regulations promulgated thereunder, and shall mean such Law as from time to time amended, modified or supplemented. References herein to any contract (including this Agreement) mean such contract as amended, supplemented or modified from time to time in accordance with the terms thereof. Each reference to a “wholly owned Subsidiary” of a Person shall be deemed to include any Subsidiary of such Person where all of the equity interests of such Subsidiary are directly or indirectly owned by such Person (other than directors qualifying shares, nominee shares or other equity interests that are required by law or regulation to be held by a director or nominee).
2. Agreement to Consent and Approve.
2.1. Each IEH Party agrees that, promptly (and in any event within one Business Day) after the Registration Statement/Consent Solicitation Statement is declared effective by the SEC, unless an Enzon Adverse Recommendation Change has occurred prior to such time and has not been rescinded, such IEH Party shall execute and deliver, or shall cause to be executed and delivered, a written consent approving the adoption of the Merger Agreement and approving the transactions contemplated thereby, including the Merger and the Proposed Enzon Actions, substantially in the form attached hereto as Exhibit A (the “Enzon Written Consent”), with respect to all of such IEH Party’s Enzon Shares and Enzon Preferred Shares. The Enzon Written Consent shall be given in accordance with such procedures relating thereto, including pursuant to the DGCL and the Enzon Organizational Documents, so as to ensure that it is duly counted for purposes of recording the results of such consent.
2.2. No IEH Party shall, directly or indirectly, sell, transfer, exchange or otherwise dispose of (including by merger, consolidation or otherwise by operation of law) the Enzon Shares or the Enzon Preferred Shares, other than to an Affiliate of such IEH Party that agrees to be bound by the terms of this Agreement by executing a joinder to this Agreement substantially in the form of Annex I. No IEH Party shall enter into any tender, voting or other agreement or arrangement with any Person prior to the Expiration Time, directly or indirectly, to vote, grant a proxy or power of attorney or give instructions with respect to the voting of the Enzon Shares or the Enzon Preferred Shares in any manner that is inconsistent with this Agreement or otherwise take any other action with respect to the Enzon Shares or the Enzon Preferred Shares that would in any way restrict, limit or interfere with the performance by the IEH Parties, of their obligations hereunder or the transactions contemplated hereby; provided, however, that the foregoing restriction shall cease to apply in the event an Enzon Adverse Recommendation Change has occurred prior to such time and not been rescinded. Except for the delivery of the Enzon Written Consent expressly contemplated by this Agreement, prior to the Expiration Time, no IEH Party shall call, seek to call or request the call of any meeting of Enzon stockholders with respect to any matter relating to the Merger or other transactions contemplated by the Merger Agreement, including by written consent, whether pursuant to the DGCL, the Enzon Organizational Documents or otherwise.
2.3. From the date hereof until the Expiration Time, no IEH Party shall take any action in contravention of, or that conflicts with, (a) the designation of the members of the Board of Directors of Enzon occurring at the Effective Time as contemplated by Section 1.6 of the Merger Agreement or (b) the Proposed Enzon Actions becoming effective at or prior to the Effective Time.
2.4. Each IEH Party agrees that, from the date hereof until the Expiration Time, it shall vote the Enzon Shares and the Enzon Preferred Shares, as applicable, or cause the Enzon Shares and the Enzon Preferred Shares, as applicable, to be voted against (including by written consent) (a) any Enzon Acquisition Proposal (and shall not vote or cause to be voted any other Enzon Shares or Enzon Preferred Shares, as applicable, in favor of any Enzon Acquisition Proposal), (b) any amendment of the Enzon Organizational Documents (other than the amendments of the Enzon Organizational Documents contemplated in connection with the Proposed Enzon Actions or the Merger, in each case as set forth in the Merger Agreement), which amendment would in any manner impede, interfere with, delay, postpone, adversely affect or prevent the consummation of the Proposed Enzon Actions, the Merger or the other transactions contemplated by the Merger Agreement or change in any manner the voting rights of Enzon Voting Common Stock (and shall not vote or cause to be voted any other Enzon Shares or Enzon Preferred Shares, as applicable, in favor of any such amendment), and (c) any other action, agreement or transaction involving Enzon that is intended, or would reasonably be expected, to impede, interfere with, delay, postpone, adversely affect or prevent the consummation of the Enzon Proposed Actions, the Merger or the other transactions contemplated by the Merger Agreement (and shall not vote or cause to be voted any other Enzon Shares or Enzon Preferred Shares, as applicable, in favor of any such action, agreement or transaction); provided, however, that the foregoing clauses (a) – (c) shall not apply to any transaction, proposal or action that is the subject of an Enzon Adverse Recommendation Change made in accordance with Section 7.5(d) of the Merger Agreement that has not been rescinded. Any attempt by any IEH Party to vote, or express consent or dissent with respect to (or otherwise to utilize the voting power of), its Enzon Shares or Enzon Preferred Shares, as applicable, in contravention of this Section 2 shall be null and void ab initio.
2.5. Each of Enzon and Viskase hereby agrees that, from the date hereof until the record date for the stockholder consent relating to the Enzon Stockholder Approval and the Viskase Stockholder Approval, respectively, it shall not allot or issue shares of Enzon Common Stock or Viskase Common Stock, as applicable, and shall not grant rights to subscribe for, or convert any security into, Enzon Common Stock or Viskase Common Stock, as applicable.
3. Agreement Not to Solicit. Each IEH Party agrees that, from the date hereof until the Expiration Time, it shall not, and shall cause each of its Affiliates and its and their respective Representatives not to, directly or indirectly, (a) solicit, initiate or knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an Enzon Acquisition Proposal, (b) engage in,
continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection with, or for the purpose of, encouraging or facilitating an Enzon Acquisition Proposal, or (c) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement constituting an Enzon Acquisition Proposal; provided, however, that if Enzon or any of its respective Representatives receives an Enzon Acquisition Proposal, which (i) such Enzon Acquisition Proposal did not result from any breach of this Section 3 or the Merger Agreement, and (ii) the Board of Directors of Enzon or the Enzon Special Committee, as applicable, determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Enzon Acquisition Proposal constitutes or is reasonably likely to lead to an Enzon Superior Proposal, then the IEH Parties and their Representatives may engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Enzon Acquisition Proposal, solely to the extent that Enzon and such IEH Parties and their Representatives, are permitted under the terms of the Merger Agreement to engage in or otherwise participate in discussions or negotiations with such Person or group of Persons; provided further, that, in such case, (x) the initial discussions or negotiations between the IEH Parties or their Representatives and such Person or group of Persons shall be subject to the consent of Enzon (such consent not to be unreasonably withheld, conditioned or delayed), (y) the IEH Parties and such Representatives shall coordinate in advance of such discussions with Enzon with respect to what will be communicated in such discussions or negotiations, and (z) the IEH Parties and such Representatives shall thereafter keep Enzon reasonably apprised with respect to any such discussions or negotiations. Each IEH Party agrees that, from the date hereof until the Expiration Time, it shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Enzon Acquisition Proposal or any inquiry or proposal that would reasonably be expected to lead to an Enzon Acquisition Proposal.
4. Enzon Series C Preferred Stock Exchange.
4.1. Immediately prior to the Closing, each IEH Party shall deliver to Enzon each share of Enzon Series C Preferred Stock Beneficially Owned by such IEH Party, and Enzon shall, in exchange therefor, deliver to the IEH Parties a number of shares of Enzon Common Stock equal to (A) (x) the aggregate Liquidation Preference of the shares of Enzon Series C Preferred Stock Beneficially Owned by such IEH Party, minus (y) $961,700, minus (z) the IEH Exchange Adjustment, divided by (B) the Enzon 20-Day VWAP (the “IEH Share Exchange”, and the shares of Enzon Common Stock issued in the IEH Share Exchange, the “Enzon Exchange Stock”). In connection with the IEH Share Exchange, Enzon shall (a) retire and cancel the Shares of Enzon Series C Preferred Stock delivered by the IEH Parties to Enzon, (b) cause Enzon’s transfer agent to issue to the IEH Parties, in book-entry form, the Enzon Exchange Stock issuable to the IEH Parties pursuant to the IEH Share Exchange, and (c) use commercially reasonable efforts to ensure that Enzon’s Cash on Hand at Closing is not less than $43,045,000, plus the aggregate Liquidation Preference of the shares of Enzon Series C Preferred Stock Beneficially Owned by any non-IEH Party (for the avoidance of doubt, excluding any shares of Enzon Series C Preferred Stock exchanged for Enzon Common Stock pursuant to the Series C Exchange Offer); provided that this Section 4(c) shall not prevent Enzon from paying customary and reasonable expenses incurred in connection with the transactions contemplated by the Merger Agreement or hereby.
4.2. Enzon shall, no less than twenty-five (25) Business Days prior to the anticipated Closing Date, commence the Series C Exchange Offer. The consummation of the Series C Exchange Offer shall be conditioned only upon the prior satisfaction or waiver of the conditions set forth in Article VIII of the Merger Agreement (excluding those portions of any condition set forth in Article VIII of the Merger Agreement that (i) reference the Series C Exchange Offer or (ii) cannot be satisfied prior to (A) the Closing or (B) the consummation of the Series C Exchange Offer) and the intent of the parties hereto to effectuate the Closing in accordance with the terms of the Merger Agreement. Enzon shall comply with applicable Law, including the Exchange Act, in commencing, performing and consummating the Series C Exchange Offer. Enzon shall use commercially reasonable efforts to (i) ensure that the Series C Exchange Offer is consummated prior to the Closing and (ii) seek maximum participation of the holders of Series C Preferred Stock (other than IEH and its Affiliates) in the Series C Exchange Offer. The IEH Parties shall not, and shall cause their controlled Affiliates not to, participate in the Series C
Exchange Offer. Enzon shall afford IEH a reasonable opportunity to review and comment on any documents to be filed with the SEC or any other Governmental Entity in connection with the Series C Exchange Offer.
4.3. Assuming the accuracy of the representations and warranties of the IEH Parties in Section 6 and subject to the filings described in Section 7.7 herein, the Enzon Common Stock issuable in connection with the IEH Share Exchange and the Series C Exchange Offer will be issued in compliance with all applicable federal and state securities laws.
5. Registration Statement/Consent Solicitation Statement. Prior to the filing of the Registration Statement/Consent Solicitation Statement (or any amendment or supplement thereto) with the SEC, the Merger Agreement Parties shall provide IEH with a reasonable opportunity to review and comment on the Registration Statement/Consent Solicitation Statement (or any amendment or supplement thereto) in advance (including the proposed final version of such document) and consider in good faith any reasonable comments provided by IEH or its representatives with respect to any of the disclosures proposed to be included in the Registration Statement/Consent Solicitation Statement (or any amendment or supplement thereto), including disclosures regarding or involving any of the IEH Parties. The Merger Agreement Parties shall promptly provide copies to IEH of any written comments received from the SEC with respect to the Registration Statement/Consent Solicitation Statement and promptly advise IEH of any oral comments received from the SEC. Prior to mailing the Consent Solicitation Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each of the Merger Agreement Parties shall provide IEH with a reasonable opportunity to review and comment on such document or response in advance (including the proposed final version of such document or response) and consider in good faith any comments provided by IEH or its representatives with respect to any of the disclosures proposed to be included in such document or response, including disclosures regarding or involving any of the IEH Parties.
6. Representations, Warranties and Covenants of the IEH Parties. Each IEH Party hereby represents and warrants to Enzon and Viskase as follows:
6.1. IEH is a limited partnership duly organized and validly existing and in good standing under the laws of the State of Delaware. The other IEH Parties are duly organized and validly existing and in good standing under the laws of the state in which such IEH Party is organized.
6.2. Such IEH Party has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. With respect to such IEH Party that is a corporation or other entity, the execution and delivery by such IEH Party of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary action of such IEH Parties. This Agreement has been duly executed and delivered by such IEH Party and, assuming the due authorization, execution and delivery of this Agreement by Enzon, Viskase and the other IEH Parties, constitutes the legal, valid and binding obligation of such IEH Party, enforceable against it in accordance with its terms, except as limited by the Bankruptcy and Equity Exception.
6.3. Subject to the accuracy of the representations and warranties of Enzon contained in Section 7.4, the execution and delivery of this Agreement by such IEH Party and the performance of its obligations hereunder will not: (a) with respect to such IEH Party that is a corporation or other entity, conflict or violate any provision of (i) the Organizational Documents of such IEH Party or (ii) the Organizational Documents of any of such IEH Party’s Subsidiaries, (b) violate any Law or Order applicable to such IEH Party or any of its Subsidiaries, (c) violate or constitute a breach of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, modification, or cancellation of any obligation or to the loss of any benefit pursuant to, any of the terms or provisions of any Contract to which such IEH Party or any of its Subsidiaries is a party or accelerate such IEH Party’s or, if applicable, any of its Subsidiaries’ obligations under any such Contract or (d) result in the creation of any Lien (other than a Permitted Lien) on any properties or assets of such IEH Party or any of its Subsidiaries, except, in the case of clause (a), (b), (c) and (d), for any breach, violation, termination, default, creation or acceleration that would not, individually or in the aggregate, reasonably be expected to impair the ability of such IEH Party to perform its obligations under this Agreement on a timely basis.
6.4. As of the date hereof, (a) each IEH Party owns the number and class of shares of Enzon Common Stock and Viskase Common Stock that appear across from its name on Schedule I to this Agreement and (b) the IEH Parties each have the sole and unencumbered right to vote all of the Enzon Shares that they own.
6.5. Except as contemplated by this Agreement and the Merger Agreement, such IEH Party has not entered into any tender, voting or other agreement or arrangement with respect to any Enzon Shares or entered into any other contract relating to the voting of any Enzon Shares. Any and all proxies in respect of the Enzon Shares are revocable, and such proxies either have been revoked prior to the date hereof or are hereby revoked.
6.6. As of the date hereof, there is no Proceeding pending or, to the knowledge of such IEH Party, threatened against or affecting such IEH Party that, individually or in the aggregate, would reasonably be expected to impair the ability of such IEH Party to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement on a timely basis.
6.7. Such IEH Party hereby (a) authorizes Enzon and Viskase to publish and disclose in any announcement or disclosure in connection with the transactions contemplated by the Merger Agreement, including the Registration Statement/Consent Solicitation Statement and any other applicable filings under the Exchange Act or the Securities Act, its identity and ownership of the Enzon Shares and the nature of its obligations under this Agreement, and (b) agrees to reasonably cooperate with Enzon and Viskase in connection with such filings.
6.8. Such IEH Party agrees that it shall promptly furnish to Enzon and Viskase any information that Enzon or Viskase may reasonably request for the preparation of any such announcement, disclosure or other applicable filings. None of the information supplied or to be supplied by such IEH Party specifically for inclusion or incorporation by reference in the Registration Statement/Consent Solicitation Statement will, at the time the Registration Statement/Consent Solicitation Statement is filed with the SEC, and at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, 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 the light of the circumstances under which they are made, not misleading. Such IEH Party hereby agrees that it shall promptly notify Enzon and Viskase of any required corrections with respect to any written information supplied by it specifically for use in any such announcement, disclosure or other applicable filings, if and to the extent that any such information contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, no representation or warranty is made by such IEH Party with respect to statements made or incorporated by reference therein based on information supplied by Enzon or Viskase specifically for inclusion or incorporation by reference in the Registration Statement/Consent Solicitation Statement.
6.9. As of the date hereof, none of such IEH Party or its “affiliates” or “associates” is restricted from engaging in a “business combination” with Enzon pursuant to Section 203 of the DGCL (with the meaning of each foregoing word in quotation marks as defined in Section 203 of the DGCL).
7. Representations, Warranties and Covenants of Enzon. Enzon hereby represents and warrants to Viskase and the IEH Parties as follows:
7.1. Enzon is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware.
7.2. Enzon has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by Enzon of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary action of Enzon. This Agreement has been duly executed and delivered by Enzon and, assuming the due authorization, execution and delivery of this Agreement by Viskase and the IEH Parties, constitutes the legal, valid and binding obligation of Enzon, enforceable against it in accordance with its terms, except as limited by the Bankruptcy and Equity Exception.
7.3. The execution and delivery of this Agreement by Enzon and the performance of its obligations hereunder will not (a) conflict or violate any provision of (i) the Organizational Documents of Enzon or (ii) the Organizational Documents of any Subsidiary of Enzon, (b) violate any Law or Order applicable to Enzon or any of its Subsidiaries, (c) violate or constitute a breach of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, modification, or cancellation of any obligation or to the loss of any benefit pursuant to, any of the terms or provisions of any Contract to which Enzon or any of its Subsidiaries is a party or accelerate the obligations of Enzon or, if applicable, any of its Subsidiaries under any such Contract or (d) result in the creation of any Lien (other than a Permitted Lien) on any properties or assets of Enzon or any of its Subsidiaries, except, in the case of clause (a), (b), (c) and (d), for any breach, violation, termination, default, creation or acceleration that would not, individually or in the aggregate, reasonably be expected to impair the ability of Enzon to perform its obligations under this Agreement on a timely basis.
7.4. All of the members of the Board of Directors of Enzon who are not affiliated or associated with the IEH Parties have approved the Merger Agreement and this Agreement, the Merger and the other transactions contemplated by this Agreement and the Merger Agreement.
7.5. Assuming the accuracy of the representations and warranties set forth in Section 6.9, no “business combination”, “control share acquisition”, “fair price”, “moratorium” or other anti-takeover Laws (each, a “Takeover Law”) apply or will apply to Enzon by reason of this Agreement, the Merger Agreement, the Merger or any of the transactions contemplated hereby or thereby.
7.6. The Enzon Exchange Stock, when issued, exchanged and delivered in accordance with the terms and for the consideration set forth in this Agreement, will be validly issued, fully paid and nonassessable and free and clear of all Liens other than any liens or encumbrances created by or imposed by and IEH Party.
7.7. Assuming the accuracy of the representations and warranties made by the IEH Parties in Section 6, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any Governmental Entity is required on the part of Enzon in connection with the Icahn Share Exchange, except for (a) compliance with any applicable requirements of the Exchange Act, the Securities Act and any other applicable U.S. state or federal securities, or Takeover Law and (b) compliance with any applicable rules of OTC.
8. Representations, Warranties and Covenants of Viskase. Viskase hereby represents and warrants to Enzon and the IEH Parties as follows:
8.1. Viskase is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware.
8.2. Viskase has all necessary corporate power and corporate authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by Viskase of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary action of Viskase. This Agreement has been duly executed and delivered by Viskase and, assuming the due authorization, execution and delivery of this Agreement by Enzon and the IEH Parties, constitutes the legal, valid and binding obligation of Viskase, enforceable against it in accordance with its terms, except as limited by the Bankruptcy and Equity Exception.
8.3. The execution and delivery of this Agreement by Viskase and the performance of its obligations hereunder will not (a) conflict or violate any provision of (i) the Viskase Organizational Documents or (ii) the Organizational Documents of any of Viskase’s Subsidiaries, (b) violate any Law or Order applicable to Viskase or any of its Subsidiaries, (c) violate or constitute a breach of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, modification, or cancellation of any obligation or to the loss of any benefit pursuant to, any of the terms or provisions of any Contract to which Viskase or any of its Subsidiaries is a party or accelerate Viskase’s or, if applicable, any of its Subsidiaries’ obligations under any such Contract or (d) result in the creation of any Lien (other than a Permitted Lien) on any properties or assets of Viskase or any of its Subsidiaries, except, in the case of clause (a), (b), (c) and (d), for any breach, violation, termination,
default, creation or acceleration that would not, individually or in the aggregate, reasonably be expected to impair the ability of Viskase to perform its obligations under this Agreement on a timely basis.
8.4. No Takeover Laws apply or will apply to Viskase by reason of this Agreement, the Merger Agreement, the Merger or any of the transactions contemplated hereby or thereby.
9. Stockholder Litigation.
9.1. Viskase shall provide IEH with prompt notice (in accordance with this Agreement) of any stockholder litigation or claim against Viskase or any of its directors or officers relating to this Agreement, the Merger Agreement, the Merger or any of the other agreements, transactions or filings contemplated by this Agreement or the Merger Agreement (“Viskase Transaction Litigation”) and, subject to applicable law, shall provide IEH copies of all material pleadings with respect thereto. If any IEH Party or any of their respective officers, directors or managers is also, and remains, a party to any Viskase Transaction Litigation, (a) Viskase shall (and shall cause each of its directors and officers to) consult with IEH with respect to the defense, settlement and prosecution of such Viskase Transaction Litigation and shall consider in good faith IEH’s advice with respect to such Viskase Transaction Litigation and (b) Viskase may not compromise, settle or come to an arrangement regarding, or offer or agree to compromise, settle or come to an arrangement regarding, such Viskase Transaction Litigation without the prior written consent of IEH (which consent shall not be unreasonably withheld, conditioned or delayed).
9.2. Enzon shall provide IEH with prompt notice (in accordance with this Agreement) of any stockholder litigation or claim against Enzon or any of its directors or officers relating to this Agreement, the Merger Agreement, the Merger or any of the other agreements, transactions or filings contemplated by this Agreement or the Merger Agreement (“Enzon Transaction Litigation”) and, subject to applicable law, shall provide IEH copies of all material pleadings with respect thereto. If any IEH Party or any of their respective officers, directors or managers is also, and remains, a party to any Enzon Transaction Litigation, (a) Enzon shall (and shall cause each of its directors and officers to) consult with IEH with respect to the defense, settlement and prosecution of such Enzon Transaction Litigation and shall consider in good faith IEH’s advice with respect to such Enzon Transaction Litigation and (b) Enzon may not compromise, settle or come to an arrangement regarding, or offer or agree to compromise, settle or come to an arrangement regarding, such Enzon Transaction Litigation without the prior written consent of IEH (which consent shall not be unreasonably withheld, conditioned or delayed).
9.3. The IEH Parties shall provide both Viskase and Enzon with prompt notice (in accordance with this Agreement) of any stockholder litigation or claim against any IEH Party or any of their respective officers, directors or managers relating to this Agreement, the Merger Agreement, the Merger or any of the other agreements, transactions or filings contemplated by this Agreement or the Merger Agreement (“IEH Transaction Litigation”) and, subject to applicable law, shall provide Viskase and Enzon copies of all material pleadings with respect thereto. If Viskase or any of its directors or officers is also, and remains, a party to any IEH Transaction Litigation, (a) each IEH Party shall (and shall cause its respective officers, directors or managers to) consult with Viskase with respect to the defense, settlement and prosecution of such IEH Transaction Litigation and shall consider in good faith Viskase’s advice with respect to such IEH Transaction Litigation and (b) no IEH Party may compromise, settle or come to an arrangement regarding, or offer or agree to compromise, settle or come to an arrangement regarding, such IEH Transaction Litigation without the prior written consent of Viskase (which consent shall not be unreasonably withheld, conditioned or delayed). If Enzon or any of its directors or officers is also, and remains, a party to any IEH Transaction Litigation, (a) each IEH Party shall (and shall cause its respective officers, directors or managers to) consult with Enzon with respect to the defense, settlement and prosecution of such IEH Transaction Litigation and shall consider in good faith Enzon’s advice with respect to such IEH Transaction Litigation and (b) no IEH Party may compromise, settle or come to an arrangement regarding, or offer or agree to compromise, settle or come to an arrangement regarding, such IEH Transaction Litigation without the prior written consent of Enzon (which consent shall not be unreasonably withheld, conditioned or delayed).
10. Modifications, Amendments and Waivers of the Merger Agreement. Each of the Merger Agreement Parties agrees not to modify, amend or waive (a) the provisions of Article 1, Section 7.10, Article 8, Article 9 or Article 10 of the Merger Agreement or Exhibit A thereto or (b) any other provision of the Merger Agreement in a manner inconsistent with Article 1, Section 7.10, Article 8, Article 9 or Article 10 of the Merger Agreement or Exhibit A or (c) any other provision of the Merger Agreement in a manner that could reasonably have an adverse impact on IEH or its Affiliates at any time without the express prior written consent of IEH (which consent shall not be unreasonably withheld, conditioned or delayed).
11. Notices under the Merger Agreement. Each of the Merger Agreement Parties shall deliver a copy of any notice, request, instruction or other communication or document it gives or makes under the Merger Agreement concurrently to IEH and its counsel in accordance with Section 19.4.
12. Third Party Beneficiaries of Section 7.13 of the Merger Agreement. Each of the Merger Agreement Parties agrees that each of the IEH Parties shall be a third-party beneficiary of Section 7.13 of the Merger Agreement, entitled to enforce such section in accordance with its terms.
13. Termination. Other than Sections 7.4, 9, 13 and 19, which shall survive any termination of this Agreement, this Agreement shall terminate and shall have no further force or effect immediately as of and following the Expiration Time. Notwithstanding the foregoing, nothing herein shall relieve any party hereto from liability for any breach of this Agreement that occurred prior to such termination; provided, however, that notwithstanding anything to the contrary contained herein, the IEH Parties will not be liable for any money damages for any breach of this Agreement, other than as a result of actual fraud or a willful and material breach by the IEH Parties of this Agreement.
14. Duties. The IEH Parties are entering into this Agreement solely in their capacities as Beneficial Owners of the Enzon Shares and the Enzon Preferred Shares or as an officer, director, manager, member, settlor, beneficiary or trust of such Beneficial Owners and nothing in this Agreement shall apply to any Person serving in his or her capacity as a director or officer of Enzon.
15. No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Enzon or Viskase any direct or indirect ownership or incidence of ownership of or with respect to the Enzon Shares or Enzon Preferred Shares, as applicable. All rights, ownership and economic benefits of and relating to the Enzon Shares and Enzon Preferred Shares shall remain vested in and belong to the IEH Parties, and neither Enzon nor Viskase shall have the authority to direct the IEH Parties in the voting or disposition of any Enzon Shares or Enzon Preferred Shares, as applicable, except as otherwise expressly provided herein.
16. No Obligation to Exercise. No provision of this Agreement shall require the IEH Parties to exercise any option, warrant, convertible security or other security or contract right convertible into shares of Enzon Common Stock or Viskase Common Stock (other than in connection with Section 4 and the Proposed Enzon Actions); provided, for the avoidance of doubt, that upon any such exercise, the shares of Enzon Voting Stock or Viskase Common Stock, as applicable, acquired by the IEH Parties pursuant thereto shall be Enzon Shares for all purposes hereunder.
17. Covenant Not to Sue. Each IEH Party, for itself and on behalf of each of its Affiliates, officers, directors, managers, employees, members, stockholders, agents, successors and assigns, covenants and agrees to the fullest extent permitted by Law, that neither such IEH Party nor any other such Person will sue, commence, assert, bring or file in any court or other tribunal, in any jurisdiction, any Proceeding against Enzon, Merger Sub, Viskase, the Surviving Corporation and their respective Affiliates, and each of their respective successors, assigns, directors, officers, employees, agents, partners, equity holders and representatives (collectively, the “Covered Persons”) in connection with the Merger Agreement or the transactions contemplated thereby, including the Merger and the Proposed Enzon Actions; provided, however, that this Section 17 shall not apply (a) with respect to the rights or obligations of any Covered Person under the Merger Agreement or this Agreement or (b) in the event of actual fraud or willful misconduct.
18. Private Placement Agreement. Viskase and IEH hereby agree that the certain Private Placement Agreement, dated as of October 9, 2020, by and between Viskase and IEH, shall be terminated and of no force or effect automatically upon the occurrence of the Effective Time without any additional action of the parties thereto.
19. Miscellaneous.
19.1. Further Assurances. Enzon, Viskase and each IEH Party will each execute and deliver, or cause to be executed and delivered, all further documents and instruments and use its reasonable best efforts to take, or cause to be taken, all actions necessary to comply with its obligations under this Agreement.
19.2. Assignment. No party hereto shall assign this Agreement or any rights or obligations hereunder without the prior written consent of each of Enzon, Viskase and IEH, and any such attempted assignment without such prior written consent shall be void and of no force and effect. This Agreement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the parties hereto. Any purported direct or indirect assignment in violation of this Section 19.2 shall be null and void ab initio.
19.3. Amendments and Waivers. No amendment, modification or discharge of this Agreement, and no waiver hereunder, and no extension of time for the performance of any of the obligations hereunder, shall be valid or binding unless set forth in writing and duly executed by the parties. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of any party granting any waiver in any other respect or at any other time. The waiver by any party of a breach of, or a default under, any of the provisions hereof, or to exercise any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. Except as expressly provided in this Agreement, the rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity.
19.4. Notices. All notices, requests, instructions or other communications or documents to be given or made hereunder by any party to the other parties to this Agreement shall be in writing and (a) served by personal delivery upon the party for whom it is intended, (b) by an internationally recognized overnight courier service upon the party for whom it is intended or (c) sent by e-mail, provided that a hard copy is also sent in accordance with the delivery methods set forth in clause (a) or (b) of this Section 19.4:
(i)
if to Enzon, to:
Enzon Pharmaceuticals, Inc.
20 Commerce Drive, Suite 135
Cranford, NJ 07016
E-mail:
rlfeinsteincpa@enzon.com
Attention:
Richard L. Feinstein
Copy to (such copy not to constitute notice):
Brownstein Hyatt Farber Schreck, LLP
675 15th Street, Suite 2900
Denver, CO 80202
E-mail:
aagron@bhfs.com
eleitch@bhfs.com
Attention:
Adam J. Agron
Evan J. Leitch
Copy to (such copy not to constitute notice):
Thompson Hine, LLP
300 Madison Avenue, 27th Floor
New York, NY 10017
E-mail:
Todd.Mason@ThompsonHine.com
Attention:
Todd E. Mason
(ii)
if to Viskase, to:
Viskase Companies, Inc.
333 East Butterfield Road Suite 400
Lombard, IL 60148-5679
Email:
tim.feast@viskase.com
Attention:
Timothy P. Feast, President & CEO
with a copy (which shall not constitute notice) to:
Viskase Companies, Inc.
333 East Butterfield Road Suite 400
Lombard, IL 60148-5679
Email:
joe.king@viskase.com
Attention:
Joseph D. King, Senior Vice President, General Counsel and Secretary
with a copy (which shall not constitute notice) to:
Troutman Pepper Locke LLP
875 Third Avenue
New York, NY 10022
Email:
steven.khadavi@troutman.com
Attention:
Steven Khadavi
(iii)
if to the IEH Parties, to:
Icahn Enterprises Holdings L.P.
16690 Collins Ave, PH-1
Sunny Isles Beach, FL 33160
Email:
Jlynn@sfire.com
Attention:
Jesse Lynn, General Counsel
with a copy (which shall not constitute notice) to:
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036
Email:
JApfelroth@proskauer.com
LRambo@proskauer.com
Attention:
Joshua A. Apfelroth
Louis E. Rambo
Any party may change its address for the purpose of this Section 19.4 by giving the other party written notice of its new address in the manner set forth above. Any notice, request, instruction or other communication or document given as provided above shall be deemed given to the receiving party (x) upon actual receipt, if delivered personally, (y) on the second (2nd) Business Day after deposit with an overnight courier, if sent by an overnight courier, or (z) upon confirmation of successful transmission if sent by email. Copies to outside counsel are for convenience only.
19.5. Governing Law; Jurisdiction; Specific Performance.
(a) This Agreement shall be construed, performed and enforced in accordance with, and governed by, the Laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Delaware. Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party(ies) hereto or its successors or assigns shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware, or in the event (but only in the event) that such court
does not have subject matter jurisdiction over such action or proceeding, any state or federal court within the State of Delaware. Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the courts set forth in this paragraph and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than such courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (i) any claim that it is not personally subject to the jurisdiction of the above named courts, (ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts and (iii) to the fullest extent permitted by applicable Law, any claim that (A) the suit, action or proceeding in such court is brought in an inconvenient forum, (B) the venue of such suit, action or proceeding is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of the parties hereto agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. To the fullest extent permitted by applicable Law, each of the parties hereto hereby consents to the service of process in accordance with Section 19.4; provided, that nothing herein shall affect the right of any party to serve legal process in any other matter permitted by Law.
(b) EACH PARTY HERETO HEREBY ON BEHALF OF ITSELF AND ITS SUBSIDIARIES IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE ANY OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 19.5.
(c) The parties agree that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed, or were threatened not to be performed, in accordance with their specific terms or were otherwise breached and that any defense in any action for specific performance that a remedy at law would be adequate is hereby waived. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement (in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative, except, in each case, as may be limited by Section 9.2 of the Merger Agreement). Any requirements for the securing or posting of any bond in connection with or as a condition to obtaining any such remedy are waived. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any person at law or in equity.
19.6. Interpretation. The section and paragraph headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. The parties have participated jointly in the negotiation and drafting of this Agreement. If any ambiguity or question of intent arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement.
19.7. Entire Agreement; No Other Representations. This Agreement, the Merger Agreement and the Confidentiality Agreement and the exhibits and schedules hereto and thereto contain the entire understanding among the parties hereto with respect to the matters contemplated hereby and supersede and replace all prior and contemporaneous agreements and understandings, oral or written, with regard to such matters.
19.8. No Third-Party Beneficiaries. Except for Covered Persons under Section 17, who shall be express third-party beneficiaries of Section 17, nothing in this Agreement is intended to confer, or does confer, any rights or remedies under or by reason of this Agreement on any Persons other than the parties hereto and their respective successors and permitted assigns.
19.9. Expenses. All fees and expenses incurred in connection with this Agreement and the obligations hereunder, including all legal, accounting, financial advisory, consulting and all other fees and expenses of third parties incurred by a party in connection with the negotiation and effectuation of the terms and conditions of this Agreement and the transactions contemplated hereby, shall be the obligation of the respective party incurring such fees and expenses.
19.10. Severability. In the event that any part of this Agreement is declared by any court or other judicial or administrative body to be null, void or unenforceable, all of the other provisions of this Agreement shall remain in full force and effect, with no effect on the validity or enforceability of such other provisions. If any provision of this Agreement, or the application of such provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application of such provision, in any other jurisdiction.
19.11. Counterparts. This Agreement may be executed in counterparts, (including by facsimile, “.pdf” files or other electronic transmission) each of which shall be deemed an original, but all of which when taken together shall constitute the same instrument.
19.12. Affiliated Entities. To the extent that any Controlled Affiliate of any IEH Party is a stockholder of Enzon or Viskase, such IEH Party shall cause such Controlled Affiliate to comply with all obligations under this Agreement applicable to the IEH Parties and the IEH Parties, and in furtherance of the foregoing, if any Controlled Affiliate of an IEH Party becomes a Beneficial Owner of Enzon Shares or Enzon Preferred Shares, as applicable, on or after the date hereof, (a) such IEH Party shall give each of Enzon and Viskase written notice thereof in advance of such Controlled Affiliate becoming a Beneficial Owner and (b) such Controlled Affiliate shall, and the applicable IEH Party shall cause such Controlled Affiliate to, promptly (and in advance of such Controlled Affiliate becoming a Beneficial Owner, if reasonably practicable) execute a joinder to this Agreement substantially in the form of Annex I, and to execute any and all documents or instruments and take such other actions required, or otherwise reasonably requested by Enzon or Viskase, to ensure that such Controlled Affiliate is subject to the obligations under this Agreement applicable to the IEH Parties and the IEH Parties and that such Enzon Shares are subject to this Agreement (provided, that any failure to execute such documents or instruments or take such other actions shall not affect such obligations hereunder).
[Signature page follows]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.
ENZON PHARMACEUTICALS, INC.
By:
/s/ Richard L. Feinstein
Name:
Richard L. Feinstein
Title:
Chief Executive Officer, Chief Financial Officer and Secretary
[Signature Page to Support Agreement]
VISKASE COMPANIES, INC.
By:
/s/ Carolyn Zhang
Name: Carolyn Zhang
Title: Vice President & Chief Financial Officer
[Signature Page to Support Agreement]
ICAHN ENTERPRISES HOLDINGS L.P.
By:
Icahn Enterprises G.P. Inc., its sole general partner
By:
/s/ Ted Papapostolou
Name: Ted Papapostolou
Title: Chief Financial Officer
[Signature Page to Support Agreement]
AMERICAN ENTERTAINMENT PROPERTIES CORP.
By:
/s/ Ted Papapostolou
Name: Ted Papapostolou
Title: Chief Financial Officer
[Signature Page to Support Agreement]
ICAHN PARTNERS LP
By:
/s/ Jesse Lynn
Name: Jesse Lynn
Title: Chief Operating Officer
[Signature Page to Support Agreement]
ICAHN PARTNERS MASTER FUND LP
By:
/s/ Jesse Lynn
Name: Jesse Lynn
Title: Chief Operating Officer
[Signature Page to Support Agreement]
Schedule I
SHARES OF VISKASE COMMON STOCK, ENZON VOTING COMMON STOCK &
ENZON SERIES C PREFERRED STOCK HELD BY THE IEH PARTIES AS OF THE DATE HEREOF
|
IEH Party
|
|
|
Viskase
Common Stock
|
|
|
AEP
|
|
|
|
|
100,664,375 |
|
|
|
IEH Party
|
|
|
Enzon Voting
Common Stock
|
|
|
Enzon Series C
Preferred Stock
|
|
|
Total
|
|
|
IPLP
|
|
|
|
|
21,132,725 |
|
|
|
|
|
22,975 |
|
|
|
|
|
21,155,700
|
|
|
|
IPMF
|
|
|
|
|
14,923,911 |
|
|
|
|
|
16,302 |
|
|
|
|
|
14,940,213
|
|
|
|
Total
|
|
|
|
|
36,056,636 |
|
|
|
|
|
39,277 |
|
|
|
|
|
36,095,913 |
|
|
Exhibit A
FORM OF ENZON WRITTEN CONSENT
Annex I
FORM OF JOINDER
JOINDER TO SUPPORT AGREEMENT
The undersigned has executed this Joinder to Support Agreement (this “Joinder”) as of the day of , , to join as a party in, and be subject to, that certain Support Agreement (the “Agreement”), dated [• ], 2025, by and among Enzon Pharmaceuticals, Inc., a Delaware corporation, Viskase Companies, Inc., a Delaware corporation, Icahn Enterprises Holdings L.P., a Delaware Limited Partnership, American Entertainment Properties Corp., a Delaware corporation, Icahn Partners LP, a Delaware limited partnership and Icahn Partners Master Fund LP, a Delaware limited partnership, and intending to be legally bound, hereby agrees to become a party to, and be bound in all respects by, the Agreement with respect to [ ] shares of Enzon Shares transferred from [Transferor] to [Transferee] on [ ], 202[•]. Neither this Joinder nor any associated transfer of any Enzon Shares shall in any way limit or modify the transferor’s liability hereunder, and, in addition to the transferee, the transferor shall be liable for any damages recoverable under the Agreement from the transferee. Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to them in the Agreement.
[ ]
By:
Name:
Title:
Address for Notices:
With copies to:
Annex B-1
FIRST AMENDMENT TO THE SUPPORT AGREEMENT
This FIRST AMENDMENT TO THE SUPPORT AGREEMENT (this “Amendment”), dated as of October 24, 2025, is by and among Enzon Pharmaceuticals, Inc., a Delaware corporation (“Enzon”), Viskase Companies, Inc., a Delaware corporation (“Viskase”), Icahn Enterprises Holdings L.P., a Delaware limited partnership (“IEH”), American Entertainment Properties Corp., a Delaware corporation (“AEP”), Icahn Partners LP, a Delaware limited partnership (“IPLP”), and Icahn Partners Master Fund LP, a Delaware limited partnership (“IPMF,” and together with IEH, AEP, and IPLP, the “IEH Parties”). Capitalized terms used but not otherwise defined in herein shall have the meanings assigned to such terms in the Support Agreement (as defined below).
RECITALS
WHEREAS, Enzon, Viskase and the IEH Parties (collectively, the “Parties”) entered into that certain Support Agreement, dated as of June 20, 2025 (as may be amended, modified or supplemented from time to time, the “Support Agreement”);
WHEREAS, concurrently with the execution and delivery of this Amendment, and as a condition and inducement to the Parties’ willingness to enter into this Amendment, Enzon, Viskase and EPSC Acquisition Corp., a Delaware corporation are entering into an amendment to the Merger Agreement in the form attached hereto as Exhibit A (the “Merger Agreement Amendment”), pursuant to which, among other things, the parties thereto agreed to certain modifications to the Merger Agreement corresponding to the modifications made to the Support Agreement by this Amendment; and
WHEREAS, each of the Parties desires to amend the Support Agreement in accordance with Section 19.3 thereof as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE I
AMENDMENTS TO THE SUPPORT AGREEMENT
Section 1.1 Amendments to Section 1.1 of the Support Agreement. Section 1.1 of the Support Agreement is hereby amended as follows:
(a)
Section 1.1 of the Support Agreement is hereby amended by deleting the definition of “IEH Exchange Adjustment” in its entirety.
(b)
Section 1.1 of the Support Agreement is hereby amended by deleting the definition of “Enzon 20-Day VWAP” and replacing it in its entirety with the following:
“Enzon 20-Day VWAP” shall mean the price equal to the average of the volume-weighted average price of Enzon Common Stock on the “OTCQB tier” of OTC (as reported by Bloomberg or, if not reported thereby, in another authoritative source mutually selected by Enzon, Viskase and IEH) for the last twenty (20) Trading Days prior to (and including) October 24, 2025, rounded down to the nearest 1/100th of a penny (as adjusted to take into account the Reverse Stock Split, to the extent the Reverse Stock Split is effectuated prior to the date of the relevant issuance of Enzon Common Stock).
Section 1.2 Amendment to Section 4.1 of the Support Agreement. Section 4.1 of the Support Agreement is hereby amended by deleting Section 4.1 of the Support Agreement and replacing it in its entirety with the following:
“4.1. Immediately prior to the Closing, each IEH Party shall deliver to Enzon each share of Enzon Series C Preferred Stock Beneficially Owned by such IEH Party, and Enzon shall, in exchange
therefor, deliver to the IEH Parties a number of shares of Enzon Common Stock equal to (A) the aggregate Liquidation Preference of the shares of Enzon Series C Preferred Stock Beneficially Owned by such IEH Party divided by (B) the Enzon 20-Day VWAP (the “IEH Share Exchange”, and the shares of Enzon Common Stock issued in the IEH Share Exchange, the “Enzon Exchange Stock”). In connection with the IEH Share Exchange, Enzon shall (a) retire and cancel the Shares of Enzon Series C Preferred Stock delivered by the IEH Parties to Enzon, (b) cause Enzon’s transfer agent to issue to the IEH Parties, in book-entry form, the Enzon Exchange Stock issuable to the IEH Parties pursuant to the IEH Share Exchange, and (c) use commercially reasonable efforts to ensure that Enzon’s Cash on Hand at Closing is not less than $40,000,000; provided that this Section 4.1(c) shall not prevent Enzon from paying customary and reasonable expenses incurred in connection with the transactions contemplated by the Merger Agreement or hereby.”
Section 1.3 Amendment to References to the Merger Agreement. Each reference in the Support Agreement to “the Merger Agreement” or other terms referring to the Merger Agreement shall refer to the Merger Agreement as may be amended, modified or supplemented from time to time.
ARTICLE II
MISCELLANEOUS
Section 2.1 No Other Amendments. Except to the extent that any provisions of the Support Agreement are expressly amended by this Amendment, all terms and conditions of the Support Agreement shall remain in full force and effect, and, to the extent applicable, such terms shall apply to this Amendment as if it formed a part of the Support Agreement. In the event of any inconsistency or contradiction between the terms of this Amendment and the Support Agreement, the provisions of this Amendment shall prevail and control.
Section 2.2 References to the Support Agreement. After giving effect to this Amendment, each reference in the Support Agreement to “this Agreement,” “hereof,” “herein,” “herewith,” “hereunder” and words of similar import shall refer to the Support Agreement as amended by this Amendment. No reference to this Amendment need be made in any instrument or document at any time referring to the Support Agreement, and a reference to the Support Agreement in any such instrument or document shall be deemed to be a reference to the Support Agreement as amended by this Amendment.
Section 2.3 General Provisions. The provisions of Section 19 (Miscellaneous) of the Support Agreement shall, to the extent not already set forth in this Amendment, apply mutatis mutandis to this Amendment, and to the Support Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms as modified hereby.
* * *
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed and delivered as of the date first written above.
ENZON PHARMACEUTICALS, INC.
By
/s/ Richard L. Feinstein
Name:
Richard L. Feinstein
Title:
Chief Executive Officer, Chief Financial Officer and Secretary
VISKASE COMPANIES, INC.
By
/s/ Carolyn Zhang
Name:
Carolyn Zhang
Title:
Vice President & Chief Financial Officer
ICAHN ENTERPRISES HOLDINGS L.P.
By:
Icahn Enterprises G.P. Inc., its sole general partner
By
/s/ Ted Papapostolou
Name:
Ted Papapostolou
Title:
Chief Financial Officer
AMERICAN ENTERTAINMENT PROPERTIES CORP.
By
/s/ Ted Papapostolou
Name:
Ted Papapostolou
Title:
Chief Financial Officer
ICAHN PARTNERS LP
By
/s/ Jesse Lynn
Name:
Jesse Lynn
Title:
Chief Operating Officer
ICAHN PARTNERS MASTER FUND LP
By
/s/ Jesse Lynn
Name:
Jesse Lynn
Title:
Chief Operating Officer
[Signature Page to Amendment to Support Agreement]
EXHIBIT A
Merger Agreement Amendment
[intentionally omitted]
Annex C
October 21, 2025
The Special Committee of the Board of Directors
Enzon Pharmaceuticals, Inc.
20 Commerce Drive, Suite 135
Cranford, NJ 07016
Dear Special Committee:
A.G.P./Alliance Global Partners, Incorporated (“A.G.P.” or “we”) understands that Enzon Pharmaceuticals, Inc. (the “Company” or “Enzon”) is considering entering into a First Amendment to the Agreement and Plan of Merger (such amendment, the “Amendment” and, such agreement and plan of merger, as amended by the Amendment, the “Amended Merger Agreement”) with Viskase Companies, Inc. (“Viskase”) and EPSC Acquisition Corp. (“Merger Sub”), a wholly owned subsidiary of the Company. It is our understanding that, pursuant to the Amended Merger Agreement, among other things, Merger Sub will merge with and into Viskase (the “Merger”), with Viskase continuing as the surviving corporation and a wholly owned subsidiary of Enzon, and, at the Effective Time (as defined in the Amended Merger Agreement), by virtue of the Merger, each share of common stock of Viskase, par value $0.01 per share (“Viskase Common Stock”), issued and outstanding immediately prior to the Effective Time, except for Cancelled Shares and Dissenting Viskase Shares (each as defined in the Amended Merger Agreement), will automatically be converted into the right to receive a number of shares of common stock of Enzon, par value $0.01 per share (“Enzon Common Stock”), equal to (i) the Viskase Closing Share Number (as defined in the Amended Merger Agreement and further described below), divided by (ii) the number of shares of Viskase Common Stock issued and outstanding as of immediately prior to the Effective Time. It is our understanding that the Amended Merger Agreement provides that the Viskase Closing Share Number will equal (i) the number of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time, divided by 0.45, minus (ii) the number of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time. Such number of shares of Enzon Common Stock for one share of Viskase Common Stock is referred to herein as the “Exchange Ratio.” It is our further understanding that (a) Icahn Enterprises Holdings L.P., certain affiliates thereof, Enzon and Viskase have entered into a support agreement (as amended, the “IEH Support Agreement”) pursuant to which, among other things, immediately prior to the closing of the Merger, each IEH Party (as defined in the IEH Support Agreement) will exchange its shares of Series C Non-Convertible Redeemable Preferred Stock of Enzon, par value $0.01 per share (“Enzon Series C Preferred Stock”), for a number of shares of Enzon Common Stock equal to (A) (x) the aggregate Liquidation Preference of such shares of Enzon Series C Preferred Stock, divided by (B) the Enzon 20-Day VWAP (as defined in the IEH Support Agreement) (the “IEH Share Exchange”), and (b) immediately prior to the closing of the Merger, all other outstanding shares of Enzon Series C Preferred Stock will be either converted into shares of Enzon Common Stock or redeemed for cash.
At the direction of the Company and without independent verification, we have relied upon and assumed for purposes of our analyses and this Opinion (as defined below), that, based on the Exchange Ratio, (a) the number of shares of Enzon Common Stock to be issued by the Company in the Merger for shares of Viskase Common Stock will be equal to 55% of the total number of shares of Enzon Common Stock issued and outstanding upon consummation of the Merger and (b) the number of shares of Enzon Common Stock issued and outstanding as of immediately prior to the Effective Time will be equal to 45% of the total number of shares of Enzon Common Stock issued and outstanding upon consummation of the Merger.
The Special Committee (the “Special Committee”) of the Board of Directors (the “Board”) of the Company has requested that A.G.P. render an opinion as to the fairness, from a financial point of view, to the Company of the Exchange Ratio in the Merger pursuant to the Amended Merger Agreement (the “Opinion”).
In rendering our Opinion, we have, among other things:
(i)
reviewed the original Agreement and Plan of Merger, dated as of June 20, 2025, and a draft dated October 20, 2025 of the Amendment;
(ii)
reviewed the audited consolidated financial statements of Enzon contained in its Annual Reports on Form 10-K for the years ended December 31, 2023, and December 31, 2024 as well as unaudited consolidated financial statements of Enzon contained in its Quarterly Reports on Form 10-Q for the quarters ended March 31, 2025 and June 30, 2025;
(iii)
reviewed the audited consolidated financial statements of Viskase for the years ended December 31, 2023, and December 31, 2024 as well as unaudited consolidated financial statements of Viskase for the quarters ended March 31, 2025 and June 30, 2025;
(iv)
reviewed and discussed with the Company’s management certain other publicly available information concerning the Company;
(v)
reviewed certain non-publicly available information concerning Enzon and Viskase, including internal financial analyses and forecasts for Viskase prepared by its management, and held discussions with the Company’s and Viskase’s respective senior managements regarding recent developments;
(vi)
reviewed publicly available financial and stock market information of certain public companies that were deemed by us to be reasonably comparable to Viskase;
(vii)
reviewed financial terms, to the extent publicly available, of certain transactions that were deemed by us to be reasonably comparable to the Merger; and
(viii)
reviewed publicly available stock market information of Enzon and Viskase, including current and historical market prices and trading volumes of publicly traded shares of Enzon Common Stock and Viskase Common Stock.
The Company has not provided us with any internal financial analyses or forecasts for Enzon. Given the de minimis revenue attributable to Enzon’s legacy intellectual property assets in its most recent fiscal periods, the Company has instructed us to disregard such legacy intellectual property assets for the purposes of evaluating the Exchange Ratio. Accordingly, no meaningful value has been ascribed for such purposes to such legacy intellectual property assets. For purposes of evaluating the Exchange Ratio, we have relied on an implied illustrative pre-Merger value of Enzon based on the closing price of Enzon Common Stock on October 20, 2025 as adjusted for an illustrative merger premium and the aggregate liquidation preference amount for the outstanding shares of Enzon Series C Preferred Stock. Since we have relied on such implied illustrative pre-Merger value of Enzon for purposes of evaluating the Exchange Ratio, we have not performed any financial analyses of Enzon.
In rendering our Opinion, we have relied upon and assumed, without independent verification, the accuracy and completeness of all of the financial and other information that was provided to or discussed with A.G.P. by or on behalf of the Company or Viskase, or that was otherwise reviewed by A.G.P., and have not assumed any responsibility for independently verifying any of such information. With respect to the financial forecasts supplied to us by Viskase, we have assumed that they have been prepared reasonably and in good faith and are based upon the best currently available estimates and judgments of the management of Viskase as to the matters covered thereby, and we have relied upon such forecasts in our analysis. As you are aware, in light of deterioration in the financial and operating performance of Viskase in the first half of 2025 (which accelerated during the second fiscal quarter of 2025), such forecasts have been revised significantly downward to reflect lower projected future financial results than previously projected by the management of Viskase. We have not been engaged to assess the reasonableness or achievability of such forecasts or the assumptions upon which they are based, and we express no views as to such forecasts or the assumptions on
which they are based. We have assumed that the financial and other information that was provided to or discussed with A.G.P. by or on behalf of the Company or Viskase provide a reasonable basis upon which we can form our opinion.
We also have assumed that there have been no material changes in the assets, liabilities, financial condition, results of operations, business or prospects of either Enzon or Viskase since the date of the last financial statements of each company made available to us. We have not made or obtained any independent evaluation, appraisal or physical inspection of either Enzon’s or Viskase’s assets or liabilities, nor have we been furnished with any such evaluation or appraisal. Estimates of values of companies and assets do not purport to be appraisals or necessarily reflect the prices at which companies or assets may actually be sold. Such estimates are inherently subject to uncertainty and should not be taken as our view of the actual value of any companies or assets. Our Opinion is not a solvency opinion and does not in any way address the solvency or financial condition of the Company, Viskase or any other party. We express no view or opinion as to Viskase’s ability to comply in the future with its covenant and other obligations under its debt agreement(s) or as to the ability of the Company (if the Merger is consummated) and Viskase to repay or refinance Viskase’s outstanding debt in 2026. We express no view or opinion as to recent covenant breaches by Viskase of its debt agreement(s) (which breaches we understand have been waived) or as to any other developments which resulted in the Amendment.
We have assumed, in all respects material to our analysis, that there are no factors that would delay or subject to any adverse conditions any necessary regulatory or governmental approval and that all conditions to the Merger will be satisfied without waiver or modification the effect of which would be in any respect material to our analysis. In addition, we have assumed that the definitive Amendment will not differ from the draft we have reviewed in any respect material to our analysis. We have also assumed, in all respects material to our analysis, that the representations and warranties of the parties set forth in the Amended Merger Agreement are and will be true and correct and that the Merger will be consummated substantially on the terms and conditions described in the Amended Merger Agreement, without any waiver of any terms or conditions by the Company or any other party in any respect material to our analysis, and that obtaining any necessary regulatory approvals or satisfying any other conditions for consummation of the Merger and related transactions will not have an adverse effect on the Company, Viskase or the Merger in any respect material to our analysis. In addition, we have assumed that any adjustments to the Exchange Ratio pursuant to the Amended Merger Agreement will not be material to this Opinion. We have assumed, in all respects material to our analysis, that the Merger and related transactions will be consummated in a manner that complies with all applicable federal and state statutes, rules and regulations. We have further assumed that the Company has relied upon the advice of its counsel, independent accountants and other advisors (other than A.G.P.) as to all legal, reporting, tax, accounting and regulatory matters with respect to the Company, Viskase, the Merger and related transactions, and the Amendment and the Amended Merger Agreement. Our Opinion does not constitute legal, regulatory, accounting, insurance, tax or other similar professional advice.
Our Opinion is limited to whether the Exchange Ratio in the Merger pursuant to the Amended Merger Agreement is fair, from a financial point of view, to the Company, and does not address any other terms, aspects or implications of the Merger or any related transaction, including, without limitation, the form or structure of the Merger or any related transaction or the treatment of Enzon Series C Preferred Stock in connection with the IEH Share Exchange or any other related transaction (including the number of shares of Enzon Common Stock into which shares of Enzon Series C Preferred Stock will convert or the price at which shares of Enzon Series C Preferred Stock will be redeemed). Our Opinion also does not consider, address or include: (i) any other strategic alternatives currently (or which have been or may be) contemplated by the Special Committee, the Board or the Company; (ii) the legal, tax or accounting consequences of the Merger or any related transaction on the Company (including, without limitation, whether or not the Merger will qualify as a tax-free reorganization pursuant to Section 368 of the Internal Revenue Code); (iii) the fairness of the amount or nature of any compensation to any of the Company’s officers, directors or employees, or class of such persons, relative to any compensation to the holders of the Company’s securities or relative to the Exchange Ratio; or (iv) the effect of the Merger or any related transaction on, or the fairness of the consideration to be received by, holders of any class of securities of the Company, Viskase or any other party to any transaction contemplated by the Amended Merger Agreement. A.G.P. does not
express any opinion as to what the actual value of Enzon Common Stock will be when issued in the Merger or any related transaction or the prices at which Enzon Common Stock or Viskase Common Stock will trade at any time.
Our Opinion is necessarily based on economic, market, financial and other conditions as they exist on, and on the information made available to us by or on behalf of the Company, Viskase or their respective advisors, or information otherwise reviewed by A.G.P., as of the date of this Opinion. It is understood that subsequent developments may affect the conclusion reached in this Opinion and that A.G.P. does not have any obligation to update, revise or reaffirm this Opinion. Further, as the Special Committee is aware, the credit, financial and stock markets have been experiencing unusual volatility and we express no opinion or view as to any potential effects of such volatility on the Company, Viskase or the Merger. In addition, we express no view or opinion as to what the actual number of shares of Enzon Common Stock issued in the Merger and related transactions will be.
Our Opinion is provided to the Special Committee (in its capacity as such) for its information and assistance in connection with its consideration of the financial terms of the Merger. Our Opinion does not constitute a recommendation to the Special Committee or the Board as to whether the Special Committee or the Board should vote to approve the Amendment or to any stockholder of the Company or Viskase as to how any such stockholder should vote at any stockholders’ meeting at which the Merger is considered, or whether or not any stockholder should enter into a voting, shareholders’, or affiliates’ agreement with respect to the Merger, or exercise any dissenters’ or appraisal rights that may be available to such stockholder. In addition, this Opinion does not compare the relative merits of the Merger with any other alternative transactions or business strategies which may have been available to the Company and does not address the underlying business decision of the Special Committee, the Board or the Company to proceed with or effect the Merger (including, without limitation, continuing to proceed with the Merger by way of the Amendment).
A.G.P. is a financial services firm engaged in the securities, investment management and individual wealth management businesses. Its securities business is engaged in securities underwriting, trading and brokerage activities, foreign exchange, commodities and derivatives trading, prime brokerage, as well as providing investment banking, financing and financial advisory services. A.G.P., its affiliates, directors and officers may at any time invest on a principal basis or manage funds that invest, hold long or short positions, finance positions, and may trade or otherwise structure and effect transactions, for their own account or for the accounts of their customers, in debt or equity securities or loans of the Company or Viskase, or any other company, or any currency or commodity, that may be involved in the Merger or any related transaction, or any related derivative instrument.
We have acted in the past as financial advisor to the Special Committee in connection with certain potential transactions, which included the potential combination of the Company with Viskase, and received a monthly fee for our services during the term of our engagement until its completion in June 2025. In addition, as part of a separate engagement, we received a fee in connection with the rendering of opinion services to the Special Committee in connection with the proposed merger transaction between the Company and Viskase as initially contemplated in June 2025. We will receive a fee upon the delivery of this Opinion, no portion of which is contingent upon either the conclusion herein or consummation of the Merger. In addition, the Company has agreed to indemnify us for certain liabilities arising out of our engagement. A.G.P. may seek to provide investment banking services to the Company or Viskase or their affiliates in the future. As part of our engagement, we have not been requested by the Special Committee to solicit and have not solicited the interest of any other parties with respect to the sale of all or any part of the Company or any other alternative transaction or strategy.
This Opinion was approved by A.G.P.’s fairness opinion committee, a committee of A.G.P. investment banking and other professionals, in accordance with A.G.P.’s customary practice.
Based upon and subject to the foregoing, we are of the opinion that, as of the date hereof, the Exchange Ratio in the Merger pursuant to the Amended Merger Agreement is fair, from a financial point of view, to the Company.
Yours truly,
A.G.P./ALLIANCE GLOBAL PARTNERS
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By:
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Name: Thomas J. Higgins
Title: Managing Director
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Annex D
October 22, 2025
Special Committee of the Board of Directors
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400
Lombard, Illinois 60148-5679
To the Special Committee of the Board of Directors:
The special committee of the board of directors (the “Special Committee”) of Viskase Companies, Inc. (“Viskase” or the “Company”) has requested Alvarez & Marsal Valuation Services, LLC (“A&M”) to provide to it A&M’s opinion (the “Opinion”) as to the fairness, from a financial point of view, to the holders of common stock of Viskase (“Viskase Common Stock”), other than Icahn Enterprises, L.P. (“IEP”) and its affiliates, of the Exchange Ratio (as defined below) in the Merger (as defined below), after giving effect to the Related Transactions (as defined below), pursuant to the Amended Agreement (as defined below), without giving effect to any impact of the Merger or the Related Transactions on any particular stockholder other than in its capacity as a stockholder.
1.
Description of the Proposed Transaction
We understand that Viskase proposes to enter into a First Amendment to the Agreement and Plan of Merger (the “Amendment”) among Enzon Pharmaceuticals, Inc. (“Enzon”), EPSC Acquisition Corp. (“Merger Sub”) and Viskase, amending the Agreement and Plan of Merger, dated as of June 20, 2025 (the “Original Agreement” and, the Original Agreement as amended by the Amendment, the “Amended Agreement”), among Enzon, Merger Sub and Viskase. We further understand that pursuant to the Amended Agreement, among other things, (i) Merger Sub will merge (the “Merger”) with Viskase, (ii) Viskase will survive the Merger as a wholly owned subsidiary of Enzon, and (iii) each outstanding share of Viskase Common Stock will be converted into the right to receive a number (the “Exchange Ratio”) of shares of common stock of Enzon (“Enzon Common Stock”), as determined in accordance with the Amended Agreement, after giving effect to the Related Transactions, which you have directed us to assume, for purposes of our analyses and this Opinion, will be equal to 0.07 and will result in the number of shares of Enzon Common Stock to be issued as consideration in the Merger constituting approximately 55.0% of the
![[MISSING IMAGE: ft_alvarezmarsal-4clr.jpg]](https://cdn.kscope.io/847757c48afdcdcf908582797ca1c682-ft_alvarezmarsal-4clr.jpg)
Special Committee of the Board of Directors
Viskase Companies, Inc.
October 22, 2025
Page 2
outstanding shares of Enzon after giving effect to the Related Transactions. We also understand that prior to the Merger (i) all shares of Enzon Common Stock will be combined at a ratio of 1 to 100 (the “Reverse Stock Split”), and (ii) all outstanding shares of Series C non-convertible redeemable preferred stock of Enzon (“Enzon Preferred Stock”) will be (a) exchanged for shares of Enzon Common Stock, in the case of shares of Enzon Preferred Stock held by IEP or its affiliates, or (b) either exchanged for shares of Enzon Common Stock or redeemed for cash, in the case of shares of Enzon Preferred Stock held by any party other than IEP and its affiliates (the “Preferred Exchange”). In addition, we understand that promptly following the Merger, Viskase will be converted to a limited liability company (the “Conversion” and, together with the Preferred Exchange and the Reverse Stock Split, the “Related Transactions” and the Related Transactions, together with the Merger, the “Proposed Transaction”).
2.
Scope of the Analysis
In connection with this Opinion, A&M has, among other things:
a)
Reviewed the Original Agreement and a draft, dated October 21, 2025, of the Amendment;
b)
Reviewed certain publicly available business and historical financial information relating to Viskase and Enzon;
c)
Reviewed certain historical financial information relating to Viskase and Enzon, including (i) audited financial statements for the fiscal years ended December 31, 2020 through December 31, 2024, as well as (ii) unaudited, internally prepared financial statements for the interim year-to-date periods ending:
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August 31, 2025 and August 31, 2024 for Viskase; and
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September 30, 2025 and September 30, 2024 for Enzon.
d)
Reviewed certain non-public internal financial information and other data relating to the business and financial prospects for the Company provided to us by the Company, including financial forecasts prepared by management of the Company (“Management’s Forecast”), which include projected utilization of the Company’s net operating losses (“NOLs”);
e)
Reviewed information regarding available federal net operating losses (“Enzon NOLs”) and certain research and development (“R&D”) tax credit carryforwards, and corresponding expiration schedules, for Enzon provided by Enzon management;
f)
Conducted discussions with members of the senior management of Viskase concerning the business, operations, historical financial results, and future prospects of Viskase and Enzon, and the Proposed Transaction;
Special Committee of the Board of Directors
Viskase Companies, Inc.
October 22, 2025
Page 3
g)
Reviewed a letter dated October 22, 2025 from the management of the Company which made certain representations as to historical financial statements, current financial condition, financial projections and the assumptions underlying such projections for Viskase;
h)
Considered the historical trading price and trading volume of the Viskase Common Stock and the Enzon Common Stock;
i)
Considered the historical trading price and trading volume of publicly traded securities of certain other companies we deemed relevant;
j)
Considered certain financial performance data of Viskase and compared that data with similar data for other companies in lines of business we deemed relevant;
k)
Considered the publicly available financial data and terms of certain transactions involving target companies we deemed relevant; and
l)
Considered such other information, financial studies, analyses and investigations and financial, economic and market criteria as we deemed relevant and appropriate for purposes of this Opinion.
3.
Assumptions, Qualifications, and Limiting Conditions
This Opinion is subject to the following additional qualifications and limitations, with the Special Committee’s consent:
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i.
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The Special Committee has advised us, and we have relied upon and assumed, that Enzon previously indicated it intended to terminate the Original Agreement based on purported breaches of the Original Agreement by the Company, as a result of which certain conditions to the consummation of the transactions contemplated thereby (collectively, the “Original Proposed Transaction”) could not have been satisfied.
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ii.
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At the Special Committee’s direction, this Opinion does not address nor does it express any view on (i) the Exchange Ratio as defined in the Original Agreement as compared to the Exchange Ratio as defined in the Amended Agreement, or (ii) the likelihood that the Company would be successful in completing the consummation of the Original Proposed Transaction in accordance with the terms of the Original Agreement.
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iii.
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In arriving at this Opinion, we have relied upon and assumed, without independent verification, the accuracy and completeness of all financial and other information that was publicly available or furnished to us by the Company, Enzon and their advisors, or otherwise reviewed by us for purposes of this Opinion, and we have not assumed and we do not assume any responsibility or liability for any such information.
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Special Committee of the Board of Directors
Viskase Companies, Inc.
October 22, 2025
Page 4
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iv.
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With respect to Management’s Forecast reviewed by us, we have assumed that they have been reasonably prepared on bases reflecting the best currently available information and good faith judgments of the Company’s management as to the future financial performance of Viskase;
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v.
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With respect to the projected utilization of the Company’s NOLs, we have assumed that they have been reasonably prepared on bases reflecting the best currently available information and good faith judgments of the Company’s management;
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vi.
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We have assumed, without independent verification, that the consummation of the Proposed Transaction will not constitute a change of control for Viskase pursuant to Internal Revenue Code Section 382 or otherwise limit the usage by the Company of its NOLs, including, without limitation, under the terms of the tax allocation agreement to which it is party;
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vii.
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We have assumed, without independent verification, that the consummation of the Proposed Transaction will constitute a change of control for Enzon pursuant to Internal Revenue Code Section 382 and will effectively limit the usage of Enzon NOLs and R&D tax credit carryforwards on a combined basis;
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viii.
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For purposes of our financial analyses, (a) we have assumed that any potential non-compliance with financial covenants (consisting of a consolidated leverage ratio and fixed charge ratio) related to its senior credit facilities through the Management Forecast will be sufficiently addressed with a waiver from its lenders, amendment to the financial covenant metric threshold, or by way of some other relief mechanism, and (b) at your direction, we have evaluated the Company on a going concern basis;
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ix.
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We have not made an independent evaluation or appraisal of the assets or liabilities (contingent or otherwise) of Viskase or Enzon, nor have we been furnished with any such evaluation or appraisals;
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x.
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A&M has not been requested to, and did not, (a) initiate any discussions with, or solicit any indications of interest from, third parties with respect to the Proposed Transaction, the assets, businesses or operations of Viskase, Enzon, or any alternatives to the Proposed Transaction, (b) negotiate the terms of the Proposed Transaction, or (c) advise the Special Committee or any other party with respect to alternatives to the Proposed Transaction;
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xi.
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We have assumed that the Proposed Transaction will be consummated in accordance with the Amended Agreement, without waiver or amendment of any material term or condition thereof, and that the parties to the Amended Agreement will comply in all material respects with all material terms of the Amended Agreement;
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Special Committee of the Board of Directors
Viskase Companies, Inc.
October 22, 2025
Page 5
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xii.
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We have assumed that the final form of the Amended Agreement will not differ from the draft of the Amended Agreement referenced above in any respect material to our analyses or this Opinion;
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xiii.
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We have assumed that all of the conditions required to implement the Proposed Transaction will be satisfied and that the Proposed Transaction will be completed in accordance with the Amended Agreement without any amendments thereto or any waivers of any material terms or conditions thereof;
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xiv.
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We have assumed that all non-IEP affiliated holders of Enzon Preferred Stock will elect to convert their shares to Enzon Common Stock and not redeem such shares for cash at their stated liquidation value;
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xv.
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We express no view regarding, and this Opinion does not address, any legal, regulatory, taxation or accounting matters, as to which we understand that the Special Committee has obtained such advice as it deemed necessary from qualified professionals;
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xvi.
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We further assumed that the Merger and Conversion would qualify for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code;
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xvii.
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This Opinion does not address, and should not be construed to address, the relative merits of the Proposed Transaction as compared to other business strategies or transactions that might be available with respect to Viskase, or the underlying business decision of the Special Committee to effect the Proposed Transaction;
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xviii.
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This Opinion does not address whether the consideration to be received for the Viskase Common Stock in the Proposed Transaction represents the best price obtainable;
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xix.
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This Opinion is based on business, economic, regulatory, monetary, market and other conditions as they exist as of the date hereof or as of the date of the information provided to us;
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xx.
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This Opinion is effective as of the date hereof. We have no obligation to update, revise, reaffirm or withdraw this Opinion or otherwise consider events occurring or coming to our attention after the date hereof; and
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xxi.
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We have assumed that all governmental, regulatory or other consents and approvals necessary for the consummation of the Proposed Transaction will be obtained without any adverse effect on Viskase or Enzon, or the contemplated benefits to be derived in the Proposed Transaction.
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Special Committee of the Board of Directors
Viskase Companies, Inc.
October 22, 2025
Page 6
To the extent that any of the foregoing assumptions or any of the facts on which this Opinion is based prove to be untrue in any material respect, this Opinion cannot and should not be relied upon. Furthermore, in our analysis and in connection with the preparation of this Opinion, A&M has made numerous assumptions with respect to industry performance, general business, market and economic conditions and other matters, many of which are beyond the control of any party involved in the Proposed Transaction.
This Opinion is not, and should not be construed as, a valuation opinion, credit rating or solvency opinion regarding, or an analysis of the credit worthiness of the Company, Enzon, or any other party, whether prior or subsequent to the Proposed Transaction or otherwise. In addition, A&M is not expressing any opinion as to the price or range of prices at which any of the securities of Viskase or Enzon may trade or be purchased or sold at any time.
In rendering this Opinion, A&M is not expressing any opinion with respect to the fairness of the amount or nature of any compensation to any officers, directors or employees of any party to the Proposed Transaction, or any class of such persons, relative to the Exchange Ratio in the Proposed Transaction or otherwise.
This Opinion may be reproduced in full in an information statement to shareholders of Viskase but may not otherwise be disclosed publicly in any manner without A&M’s prior written consent.
This Opinion is provided for the benefit of the Special Committee, in their capacity as such, in connection with and for the purposes of the Special Committee’s consideration of the Proposed Transaction. This Opinion does not constitute a recommendation by A&M to the Special Committee, any holder of securities of the Company or any other person as to how to vote or whether to take any action in relation to the Proposed Transaction or any form of assurance by A&M as to the condition of the Company or Enzon. This Opinion only addresses whether the Exchange Ratio in the Proposed Transaction is within a reference range suggested by certain financial analyses. The decision as to whether to proceed with the Proposed Transaction or any related transaction may depend on an assessment of factors unrelated to the financial analysis on which this Opinion is based.
4.
Disclosure of Prior Relationships
A&M will receive a fee as compensation for our services in rendering this Opinion, a portion of which was paid as a non-refundable retainer, a portion of became payable as an incremental fee and the remainder of which is payable upon A&M stating to the Special Committee that it has completed its work with respect to its Opinion. No portion of A&M’s fee is contingent upon either the conclusion expressed in the Opinion or whether or not the Proposed Transaction is successfully consummated. The Company has also agreed to reimburse A&M for certain expenses and to indemnify A&M in respect of certain liabilities that might arise out of our engagement. Other than this engagement, during the two years preceding the date of this Opinion, A&M has provided financial advisory services to the Special Committee for which A&M has received compensation, including in connection
Special Committee of the Board of Directors
Viskase Companies, Inc.
October 22, 2025
Page 7
with certain financing transactions between the Company and an affiliate of IEP and in connection with the Original Proposed Transaction.
5.
Conclusion
Based upon and subject to the foregoing, it is our opinion that, as of the date hereof, the Exchange Ratio provided for in the Merger, after giving effect to the Related Transactions, pursuant to the Amended Agreement is fair, from a financial point of view, to the holders of Viskase Common Stock other than IEP and its affiliates.
This Opinion has been approved by the internal opinion committee of A&M.
Yours faithfully,
Alvarez & Marsal Valuation Services, LLC
ANNEX E
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ENZON PHARMACEUTICALS, INC.
The undersigned, Jeffrey H. Buchalter, being the President and Chief Executive Officer of Enzon Pharmaceuticals, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies as follows:
FIRST: The present name of the corporation (hereinafter called the “Corporation”) is Enzon Pharmaceuticals, Inc.
SECOND: The name under which the corporation was originally incorporated is Enzon, Inc. and the date of filing the original certificate of incorporation of the Corporation with the Secretary of State of the State of Delaware is May 11, 1983.
THIRD: This Amended and Restated Certificate of Incorporation has been duly adopted by the Corporation’s Board of Directors and stockholders pursuant to the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware in the form set forth as follows:
1. NAME. The name of the corporation is Enzon Pharmaceuticals, Inc.
2. ADDRESS; REGISTERED AGENT. The Corporation’s registered office in the State of Delaware is located at Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle and the name of its registered agent at such address is The Corporation Trust Company.
3. PURPOSE. The nature of the business and purposes to be conducted or promoted by the Corporation are to engage in, carry on and conduct any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. NUMBER OF SHARES. (A) The total number of shares of capital stock which the Corporation shall have authority to issue is 173,000,000 shares, of which 170,000,000 shares shall be Common Stock, par value $.01 per share, and 3,000,000 shares shall be Preferred Stock, par value $.01 per share.
(B) The Preferred Stock may be issued from time to time in one or more series. The Board of Directors of the Corporation is hereby expressly authorized to provide, by resolution or resolutions duly adopted by it prior to issuance, for the creation of each such series and to fix the designation and the powers, preferences, rights, qualifications, limitations and restrictions relating to the shares of each such series. The authority of the Board of Directors with respect to each series of Preferred Stock shall include, but not be limited to, determining the following:
(a) the designation of such series, the number of shares to constitute such series and the stated value thereof if different from the par value thereof;
(b) whether the shares of such series shall have voting rights, in addition to any voting rights provided by law, and, if so, the terms of such voting rights, which may be general or limited;
(c) the dividends, if any, payable on such series, whether any such dividends shall be cumulative, and, if so, from what dates, the conditions and dates upon which such dividends shall be payable, and the preference or relation which such dividends shall bear to the dividends payable on any shares of stock of any other class or any other series of Preferred Stock;
(d) whether the shares of such series shall be subject to redemption by the Corporation, and, if so, the times, prices and other conditions of such redemption;
(e) the amount or amounts payable upon shares of such series upon, and the rights of the holders of such series in, the voluntary or involuntary liquidation, dissolution or winding up, or upon any distribution of the assets, of the Corporation;
(f) whether the shares of such series shall be subject to the operation of a retirement or sinking fund and, if so, the extent to and manner in which any such retirement or sinking fund shall be applied to the purchase or redemption of the shares of such series for retirement or other corporation purposes and the terms and provisions relating to the operation thereof;
(g) whether the shares of such series shall be convertible into, or exchangeable for, shares of stock of any other class or any other series of Preferred Stock or any other securities and, if so, the price or prices or the rate or rates of conversion or exchange and the method, if any, of adjusting the same, and any other terms and conditions of conversion or exchange;
(h) the conditions or restrictions, if any, upon the creation of indebtedness of the Corporation or upon the issue of any additional stock, including additional shares of such series or of any other series of Preferred Stock or of any other class; and
(i) any other powers, preferences and relative, participating, optional and other special rights, and any qualifications, limitations and restrictions, thereof.
The powers, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. All shares of any one series of Preferred Stock shall be identical in all respects with all other shares of such series, except that shares of any one series issued at different times may differ as to the dates from which dividends thereof shall be cumulative.
Pursuant to the authority conferred by this Article Fourth upon the Board of Directors of the Corporation, the Board of Directors created a series of Preferred Stock designated as Series B Preferred Stock by filing a Certificate of Designations of the Corporation with the Secretary of State of the State of Delaware (the “Secretary of State”) on May 22, 2002, and the voting powers, designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, of the Corporation’s Series B Preferred Stock are set forth in Appendix A hereto and are incorporated herein by reference.
5. NAME AND ADDRESS OF INCORPORATOR. The name and mailing address of the incorporator is Dan Brecher, 260 Madison Avenue, New York, New York, 10016.
6. ELECTION OF DIRECTORS. Members of the Board of Directors may be elected either by written ballot or by voice vote.
7. ADOPTION, AMENDMENT AND/OR REPEAL OF BY-LAWS. The Board of Directors may from time to time (after adoption by the undersigned of the original by-laws of the Corporation) make, alter or repeal the by-laws of the Corporation; provided, that any by-laws made, amended or repealed by the Board of Directors may be amended or repealed, and any by-laws may be made, by the stockholders of the Corporation.
8. COMPROMISES AND ARRANGEMENTS. Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.
9. NUMBER OF DIRECTORS. (A) The Board of Directors shall consist of not less than three nor more than fifteen directors, the exact number of directors to be determined from time to time by resolution adopted by affirmative vote of a majority of the whole Board of Directors, and such exact number shall be four until otherwise determined by resolution adopted by affirmative vote of a majority of the whole Board of Directors. As used in this Article 9, the term “whole Board” means the total number of directors, which the Corporation would have if there were no vacancies. The Board of Directors shall divide the directors into three classes and, when the number of directors is changed, shall determine the class or classes to which the increased or decreased number of directors shall be apportioned; provided, that no decrease in the number of directors shall affect the term of any director then in office. Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of Preferred Stock shall have the right, voting separately as a class, to elect one or more directors of the Corporation, the terms of the director or directors elected by such holders shall expire at the next succeeding annual meeting of stockholders. The term of office of directors elected at the 1986 Annual Meeting of Stockholders held on January 20, 1987 shall be as follows: the term of office of directors of the first class shall expire at the first annual meeting of stockholders after their election; the term of office of directors of the second class shall expire at the second annual meeting of stockholders after their election; and the term of office of directors of the third class shall expire at the third annual meeting of stockholders after their election; and as to directors of each class, when their respective successors are elected and qualified. At each annual meeting of stockholders subsequent to the 1986 Annual Meeting of Stockholders, directors elected to succeed those whose terms are expiring shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders and when their respective successors are elected and qualified.
(B) Vacancies in the Board of Directors, however caused, and newly created directorships shall be filled solely by a majority vote of the directors then in office, whether or not a quorum, and any director so chosen shall hold office for a term expiring at the annual meeting of stockholders at which the term of the class to which the director has been chosen expires and when the director’s successor is elected and qualified.
(C) The affirmative vote of the holders of not less than two-thirds of the outstanding voting shares of capital stock of the Corporation entitled to vote generally in the election of directors shall be required to amend, alter, change or repeal, or adopt any provisions inconsistent with this Article 9, provided, however, that this paragraph shall not apply to, and such two-thirds vote shall not be required for, any amendment, alteration, change, repeal or adoption of any inconsistent provision declared advisable by the Board of Directors by the affirmative vote of two-thirds of the Board and submitted to stockholders for their consideration, but only if a majority of the members of the Board of Directors acting upon such matter shall be Continuing Directors. The term “Continuing Director” shall mean a director who was a member of the Board as of October 1, 1986.
10. LIMITATION OF DIRECTORS’ LIABILITY; INDEMNIFICATION. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, as the same exists or hereafter may be amended, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law hereafter is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended Delaware General Corporation Law. Any repeal or modification of this paragraph by the stockholders of the Corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the corporation existing at the time of such repeal or modification.
(SIGNATURE ON FOLLOWING PAGE)
I, Jeffrey H. Buchalter, President and Chief Executive Officer of the Corporation, for the purpose of amending and restating the Corporation’s Certificate of Incorporation pursuant to the Delaware General Corporation Law, do make this certificate, hereby declaring and certifying that the facts stated herein are true and this is my act and deed on behalf of the Corporation this 18th day of May, 2006.
By:
/S/ JEFFREY H. BUCHALTER
Jeffrey H. Buchalter
Title: President and Chief Executive Officer
Appendix A to Restated Certificate of Incorporation
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF
SERIES B PREFERRED STOCK
OF
ENZON, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
Enzon, Inc. (the “Corporation”), a corporation organized and existing under the laws of the State of Delaware, does hereby certify that, pursuant to the authority conferred on the Board of Directors of the Corporation by the Certificate of Incorporation, as amended, of the Corporation and in accordance with Section 151 of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation adopted the following resolution creating the preferences and rights of its series of 600,000 shares of Preferred Stock, no shares of which have been issued, designated as “ Series B Preferred Stock.”
RESOLVED, that pursuant to the authority vested in the Board of Directors of this Corporation in accordance with the provisions of its Certificate of Incorporation, as amended, a series of preferred stock of the Corporation is hereby created and the designation and amount of such series and the voting powers, preferences and relative, participating, optional and other special rights of the shares of such series, and the qualifications, limitations or restrictions thereof are as follows:
a)
DESIGNATION AND AMOUNT. The shares of such series shall be designated as “Series B Preferred Stock” (the “SERIES B PREFERRED STOCK”) and the number of shares constituting the Series B Preferred Stock shall be six hundred thousand (600,000). Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series B Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series B Preferred Stock.
b)
DIVIDENDS AND DISTRIBUTIONS.
(i)
Subject to the rights of the holders of any shares of any series of preferred stock (or any similar stock) ranking prior and superior to the Series B Preferred Stock with respect to dividends, the holders of shares of Series B Preferred Stock, in preference to the holders of Common Stock, par value $.01 (the “COMMON STOCK”), of the Corporation, and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the first day of March, June, September and December in each year (each such date being referred to herein as a “QUARTERLY DIVIDEND PAYMENT DATE”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series B Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $1.00 or (b) subject to the provision for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series B Preferred Stock. In the event the Corporation shall at any time after June 3, 2002, declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Series B Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(ii)
The Corporation shall declare a dividend or distribution on the Series B Preferred Stock as provided in paragraph (A) of this Section immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock or a subdivision of the outstanding Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series B Preferred Stock shall nevertheless be payable, out of funds legally available for such purpose, on such subsequent Quarterly Dividend Payment Date.
(iii)
Dividends shall begin to accrue and be cumulative on outstanding shares of Series B Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series B Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series B Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series B Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than 60 days prior to the date fixed for the payment thereof.
c)
VOTING RIGHTS. The holders of shares of Series B Preferred Stock shall have the following voting rights:
(i)
Subject to the provision for adjustment hereinafter set forth, each share of Series B Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at any time after June 3, 2002, declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Series B Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(ii)
Except as otherwise provided herein, in any other Certificate of Designation creating a series of preferred stock or any similar stock, or by law, the holders of shares of Series B Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.
(iii)
Except as set forth herein, or as otherwise provided by law, holders of Series B Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action.
d)
CERTAIN RESTRICTIONS.
(i)
Whenever quarterly dividends or other dividends or distributions payable on the Series B Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series B Preferred Stock outstanding shall have been paid in full, the Corporation shall not:
(1)
declare or pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series B Preferred Stock;
(2)
declare or pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series B Preferred Stock, except dividends paid ratably on the Series B Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled;
(3)
redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series B Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series B Preferred Stock; or
(4)
redeem or purchase or otherwise acquire for consideration any shares of Series B Preferred Stock, or any shares of stock ranking on a parity with the Series B Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes.
(ii)
The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner.
e)
REACQUIRED SHARES. Any shares of Series B Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of preferred stock and may be reissued as part of a new series of preferred stock subject to the conditions and restrictions on issuance set forth herein, in the Certificate of Incorporation, as amended, or in any other certificate of designation creating a series of preferred stock or any similar stock or as otherwise required by law.
f)
LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made (1) to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the Series B Preferred Stock unless, prior thereto, the holders of shares of Series B Preferred Stock shall have received the greater of (i) $1,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, or (ii) an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount to be distributed per share to holders of shares of Common Stock, or (2) to the holders of shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series B Preferred Stock, except distributions made ratably on the Series B Preferred Stock and all such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Corporation shall at any time after June 3, 2002, declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the aggregate amount to which holders of shares of Series B Preferred Stock were entitled immediately prior to such event under clause (1)(ii) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
g)
CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of Series B Preferred Stock shall at the same time be similarly exchanged or changed into an amount per share, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time after June 3, 2002, declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series B Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
h)
NO REDEMPTION. The shares of Series B Preferred Stock shall not be redeemable.
i)
RANK. The Series B Preferred Stock shall rank, with respect to the payment of dividends and the distribution of assets, junior to all series of any other class of the Corporation’s preferred stock.
j)
FRACTIONAL SHARES. Series B Preferred Stock may be issued in fractions of a share which shall entitle the holder, in proportion to such holder’s fractional shares, to receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series B Preferred Stock.
k)
AMENDMENT. The Certificate of Incorporation, as amended of the Corporation shall not be amended in any manner which would materially alter or change the powers, preferences or rights of the Series B Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least two-thirds of the outstanding shares of Series B Preferred Stock, voting together as a single class.
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ENZON PHARMACEUTICALS, INC.
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
Enzon Pharmaceuticals, Inc., a Delaware corporation (hereinafter called the “CORPORATION”), does hereby certify as follows:
FIRST: Article 9, Paragraphs A and B of the Corporation’s Amended and Restated Certificate of Incorporation are hereby amended to read in their entirety as set forth below:
9. NUMBER OF DIRECTORS. (A) The Board of Directors shall consist of not less than three nor more than fifteen directors, the exact number of directors to be determined from time to time by resolution adopted by affirmative vote of a majority of the whole Board of Directors, and such exact number shall be four until otherwise determined by resolution adopted by affirmative vote of a majority of the whole Board of Directors. As used in this Article 9, the term “whole Board” means the total number of directors, which the Corporation would have if there were no vacancies. The Board of Directors shall not be classified. From and after the 2010 Annual Meeting of Stockholders, directors shall be elected at each annual meeting of stockholders for a one-year term expiring at the next annual meeting of stockholders and until such director’s successor is elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal; provided that no decrease in the number of directors shall affect the term of any director then in office. Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of Preferred Stock shall have the right, voting separately as a class, to elect one or more directors of the Corporation, the terms of the director or directors elected by such holders shall be governed by the terms of this Amended and Restated Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock) applicable thereto.
(B) Unless otherwise required by law or this Amended and Restated Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock), vacancies on the Board of Directors, however caused, and newly created directorships shall be filled solely by a majority vote of the directors then in office, whether or not a quorum, and any director so chosen shall hold office until the next annual meeting of stockholders and until such director’s successor is elected and qualified.
SECOND: The foregoing amendments were duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware.
[EXECUTION PAGE FOLLOWS.]
IN WITNESS WHEREOF, Enzon Pharmaceuticals, Inc. has caused this Certificate to be duly executed in its corporate name this 13th day of July, 2010.
ENZON PHARMACEUTICALS, INC.
By:
/s/ Ralph del Campo
Name: Ralph del Campo
Title: Principal Executive Officer
[Signature Page to Certificate of Amendment]
ANNEX F
SECOND AMENDED AND RESTATED
BY-LAWS
OF
ENZON PHARMACEUTICALS, INC.,*
(A Delaware corporation)
*(As amended by Amendment No. 1 thereto, effective February 15, 2013. Additions made by such amendment are underlined in boldface type, and deletions made by such amendment are struck through.)
ARTICLE I
DEFINITION
As used in these By-laws as amended, unless the context otherwise requires, the term:
Section 1.1 “Assistant Secretary” means an Assistant Secretary of the Corporation.
Section 1.2 “Assistant Treasurer” means an Assistant Treasurer of the Corporation.
Section 1.3 “Board” means the Board of Directors of the Corporation.
Section 1.4 “By-laws” means the initial by-laws of the Corporation, as amended from time to time.
Section 1.5 “Certificate of Incorporation” means the initial certificate of incorporation of the Corporation, as amended, supplemented or restated from time to time.
Section 1.6 “Corporation” means Enzon Pharmaceuticals, Inc.
Section 1.7 “Directors” means directors of the Corporation.
Section 1.8 “General Corporation Law” means the General Corporation Law of the State of Delaware, as amended from time to time.
Section 1.9 “Office of the Corporation” means the executive office of the Corporation, anything in Section 131 of the General Corporation law to the contrary notwithstanding.
Section 1.10 “President” means the President of the Corporation.
Section 1.11 “Secretary” means the Secretary of the Corporation.
Section 1.12 “Stockholders” means stockholders of the Corporation.
Section 1.13 “Treasurer” means the Treasurer of the Corporation.
Section 1.14 “Vice President” means a Vice President of the Corporation.
ARTICLE II
STOCKHOLDERS
Section 2.1 Place of Meetings.
Every meeting of the Stockholders shall be held at the office of the Corporation or at such other place within or without the State of Delaware as shall be specified or fixed in the notice of such meeting or in the waiver of notice hereof.
Section 2.2 Annual Meeting.
A meeting of Stockholders shall be held annually for the election of directors or the transaction of other business at such hour and on such business day as may be determined by the Board and designated in the notice of meeting.
Section 2.3 Deferred Meeting for Election of Directors, Etc.
If the annual meeting of Stockholders for the election of directors and the transaction of other business is not held on the date fixed in Section 2.2, the Board shall call a meeting of Stockholders for the election of directors and the transaction of other business as soon thereafter as convenient.
Section 2.4 Other Special Meetings.
A special meeting of Stockholders (other than a special meeting for the election of directors), unless otherwise prescribed by statute, may be called at any time by the Board or by the President or by the Secretary. At any special meeting of Stockholders only such business may be transacted which is related to the purpose or purposes of such meeting set forth in the notice thereof given pursuant to Section 2.6 of the By-laws or in any waiver of notice thereof given pursuant to Section 2.7 of the By-laws.
Section 2.5 Fixing Record Date.
For the purpose of determining the Stockholders entitled to notice of or to vote at any meeting of Stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or for the purpose of determining Stockholders entitled to receive payment of any dividend or the allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix, in advance, a date as the
record date for any such determination of Stockholders. Such date shall not be more than sixty nor less then ten days before the date of such meeting, nor more than sixty days prior to any other action.
Section 2.5.1 If no such record date is fixed, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held;
Section 2.5.2 Without limiting the foregoing, in order that the Corporation may determine the Stockholders entitled to consent to corporate action in writing without a meeting, the Board may fix a record date, which record date shall not precede the date upon which the Resolution fixing the record date is adopted by the Board, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board. Any Stockholder of record seeking to have the Stockholders authorize or take corporate action by written consent shall, by written notice to the Secretary, request the Board to fix a record date. The Board shall promptly, but in all events within ten (10) days after the date on which such a request is received, adopt a resolution fixing the record date. If no record date has been fixed by the Board within ten (10) days of the date on which such a request is received, the record date for determining Stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or any officer or agent of the Corporation having custody of the book in which proceedings of Stockholders meetings are recorded, to the attention of the Secretary of the Corporation. Delivery shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board and prior action by the Board is required by applicable law, the record date for determining Stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the date on which the Board adopts the resolution taking such prior action.
Section 2.5.3 The record date for determining Stockholders for any purpose other than that specified in Sections 2.5.1 and 2.5.2 shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
When a determination of Stockholders entitled to notice of or to vote at any meeting of Stockholders has been made as provided in this Section 2.5 such determination shall apply to any adjournment thereof, unless the Board fixes a new record date for the adjourned meeting.
Section 2.6 Notice of Meeting of Stockholders.
Except as otherwise provided in Sections 2.5 and 2.7 of the By-laws, whenever under the General Corporation Law or the Certificate of Incorporation or the By-laws, stockholders are required or permitted to take any action at a meeting, written notice shall be given stating the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. A copy of the notice of any meeting shall be given, personally or by mail, not less than ten nor more than sixty days before the date of the meeting, to each Stockholder entitled to notice of or to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, with postage prepaid, and directed to the Stockholder at his address as it appears on the records of the corporation. An affidavit of the Secretary or an Assistant Secretary or of the transfer agent of the Corporation that the notice required by this Section 2.6 has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken, and at the adjourned meeting any business may be transacted that might have been transacted at the meeting as originally called. If, however, the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Stockholder of record entitled to vote at the meeting.
Section 2.7 Waivers of Notice.
Whenever notice is required to be given to any Stockholder under any provision of the General Corporation Law or of the Certificate of Incorporation or the By-laws, a written waiver thereof, signed by the Stockholder entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a Stockholder at a meeting shall constitute a waiver of notice of such meeting, except when the Stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Stockholders need be specified in any written waiver of notice.
Section 2.8 List of Stockholders.
The Secretary shall prepare and make, or cause to be prepared and made, at least ten days before every meeting of Stockholders, a complete list of the Stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each Stockholder and the number of shares registered in the name of each Stockholder. Such list shall be open to the examination of any Stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Stockholder who is present.
Section 2.9 Quorum of Stockholders; Adjournment.
The holders of one-third of the shares of stock entitled to vote at any meeting of Stockholders, present in person or represented by proxy, shall constitute a quorum for the transaction of any business at such meeting. When a quorum is once present to organize a meeting of Stockholders, it is not broken by the subsequent withdrawal of any Stockholders. The holders of a majority of the shares of stock present in person or represented by proxy at any meeting of Stockholders, including an adjourned meeting, whether or not a quorum is present, may adjourn such meeting to another time and place.
Section 2.10 Voting; Proxies.
Unless otherwise provided in the Certificate of Incorporation every Stockholder of record shall be entitled at every meeting of Stockholders to one vote for each share of capital stock standing in his name on the record of Stockholders determined in accordance with Section 2.5 of the By-laws. If the Certificate of Incorporation provides for more or less than one vote for any share, on any matter, every reference in the By-laws or the General Corporation Law to a majority or other proportion of stock shall refer to such majority or other proportion of the votes of such stock. The provisions of Sections 212 and 217 of the General Corporation Law shall apply in determining whether any shares of capital stock may be voted and the persons, if any, entitled to vote such shares; but the Corporation shall be protected in treating the persons in whose names shares of capital stock stand on the record of Stockholders as owners thereof for all purposes. At any meeting of Stockholders (at which a quorum was present to organize the meeting), all matters, except as otherwise provided by law or by the Certificate of Incorporation or by the By-laws, shall be decided by a majority of the votes cast at such meeting by the holders of shares present in person or represented by proxy and entitled to vote thereon, whether or not a quorum is present when the vote is taken. Commencing with the 2011 Annual Meeting of Stockholders, a nominee for director shall be elected to the Board if the votes cast for such nominee’s election exceed the votes cast against such nominee’s election; provided, however, that directors shall be elected by a plurality of the votes cast at any meeting of stockholders for which (i) the Secretary receives a notice that a stockholder has nominated a person for election to the Board in compliance with the Certificate of Incorporation and these By-laws, to the extent applicable, and applicable law and (ii) such nomination has not been withdrawn by such stockholder on or before the tenth day before the Corporation first mails its notice of meeting for such meeting to the Stockholders. If Directors are to be elected by a plurality of the votes cast, stockholders shall not be permitted to vote against a nominee. All elections of directors shall be by written ballot unless otherwise provided in the Certificate of Incorporation. In voting on any other question on which a vote by ballot is required by law or is demanded by any Stockholder entitled to vote, the voting shall be by ballot. Each ballot shall be signed by the Stockholder voting or by his proxy, and shall state the number of shares voted. On all other questions, the voting may be viva voce. Every Stockholder entitled to vote at a meeting of Stockholders or to express consent or dissent without a meeting may authorize another person or persons to act for him by proxy. The validity and enforceability of any proxy shall be determined in accordance with Section 212 of the General Corporation Law.
Section 2.11 Selection and Duties of Inspectors at Meetings of Stockholders.
The Board, in advance of any meeting of Stockholders, may appoint one or more inspectors to act at the meeting or any adjournment thereof. If inspectors are not so appointed, the person presiding at such meeting may, and on the request of any Stockholder entitled to vote thereat shall, appoint one or more inspectors. In case any person appointed fails to appear or act, the vacancy may be filled by appointment made by the Board in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability. The inspector or inspectors shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all Stockholders. On request of the person presiding at the meeting or any Stockholder entitled to vote thereat, the inspector or inspectors shall make a report in writing of any challenge, question or matter determined by him or them and execute a certificate of any fact found by him or them. Any report or certificate made by the inspector or inspectors shall be prima facie evidence of the facts stated and of the vote as certified by him or them.
Section 2.12 Organization.
At every meeting of Stockholders, the President, or in the absence of the President a Vice President, and in case more than one Vice President shall be present, that Vice President designated by the Board (or in the absence of any such designation, the most senior Vice President, based on age, present), shall act as chairman of the meeting. The Secretary, or in his absence one of the Assistant Secretaries, shall act as secretary of the meeting. In case none of the officers above designated to act as chairman or secretary of the meeting, respectively, shall be present, a chairman or a secretary of the meeting, as the case may be, shall be chosen by a majority of the votes cast at such meeting by the holders of shares of capital stock present in person or represented by proxy and entitled to vote at the meeting.
Section 2.13 Order of Business.
The order of business at all meetings of Stockholders shall be as determined by the chairman of the meeting, but the order of business to be followed at any meeting at which a quorum is present may be changed by a majority of the votes cast at such meeting by the holders of shares of capital stock present in person or represented by proxy and entitled to vote at the meeting.
Section 2.14 Written Consent of Stockholders Without a Meeting.
Any action which could be taken at any annual or special meeting of Stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall (a) be signed by the holders of outstanding stock entitled to vote thereon (as determined in accordance with subsection 2.5.2 hereof) having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and (b) be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the records of proceedings of meetings of Stockholders. Delivery made to the corporation’s registered office shall be by hand or by certified mail or registered mail, return receipt requested. Every written consent shall bear the date of signature of each Stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless written consents signed by the holders of outstanding stock entitled to vote thereon (as determined in accordance with subsection 2.5.2 hereof) having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, are delivered to the Corporation, in the manner required by this Section, within sixty (60) days of the earliest dated consent delivered to the Corporation in the manner required by this Section 2.14. The validity of any consent executed by a proxy for a Stockholder pursuant to a telegram, cablegram or other means of electronic transmission transmitted to such proxy holder by or upon the authorization of the Stockholder shall be determined by or at the direction of the secretary. A written record of the information upon which the person making such determination relied shall be made and kept in the records of the proceedings of the Stockholders. Any such consent shall be inserted in the minute book as if it were the minutes of a meeting of the Stockholders.
Section 2.15 Notifications of Nominations and Proposed Business.
No business may be transacted at an annual meeting of Stockholders (an “Annual Meeting”), other than business that is either (a) specified in the notice of such meeting (or any supplement thereto) given by or at the direction of the Board (or any duly authorized committee thereof), (b) otherwise properly brought before the Annual Meeting by or at the direction of the Board (or any duly authorized committee thereof), or (c) otherwise properly brought before the Annual Meeting by any Stockholder (i) who is a Stockholder of record on the date of the giving of the notice provided for in this Section 2.15 and on the record date for the determination of Stockholders entitled to notice of and to vote at such Annual Meeting, and (ii) who complies with the notice procedures set forth in this Section 2.15.
Only persons who are nominated in accordance with the following procedures shall be eligible for election as Directors, except as may be otherwise provided in the Certificate of Incorporation with respect to the right of holders of preferred stock of the Corporation to nominate and elect a specified number of Directors in certain circumstances. Nominations of persons for election as Directors may be made at any Annual Meeting, or at any special meeting of Stockholders (a “Special Meeting”) called for the purpose of electing Directors, (a) by or at the direction of the Board (or any duly authorized committee thereof) or (b) by any Stockholder (i) who is a Stockholder of record on the date of the giving of the notice provided for in this Section 2.15 and on the record date for the determination of Stockholders entitled to notice of and to vote at such Annual Meeting or Special Meeting, and (ii) who complies with the notice procedures set forth in this Section 2.15.
In addition to any other applicable requirements, for (a) business to be properly brought before an Annual Meeting by a Stockholder or (b) a nomination to be made at any Annual Meeting or Special Meeting by a Stockholder, such Stockholder must have given timely notice thereof in proper written form to the Secretary.
To be timely, a Stockholder’s notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation (a) in the case of an Annual Meeting that is held during calendar year 2013, not earlier than the date on which public disclosure of the date of such Annual Meeting is made nor later than the close of business on the tenth (10th) day following the day on which public disclosure of the date of such Annual Meeting is made; (b) in the case of an Annual Meeting (other than an Annual Meeting that is held during calendar year 2013), not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding Annual Meeting of Stockholders; provided, however, that in the event that the Annual Meeting is called for a date that is not within twenty-five (25) days before or after such anniversary date, notice by the Stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which notice of the date of the Annual Meeting was mailed or public disclosure of the date of the Annual Meeting was made, whichever first occurs; and (c) in the case of nominations of persons for election as Directors at a Special Meeting called for the purpose of electing Directors, not later than the close of business on the tenth (10th) day following the day on which notice of the date of the Special Meeting was mailed or public disclosure of the date of the Special Meeting was made, whichever first occurs.
With respect to matters proposed to be brought before an Annual Meeting, to be in proper written form, a Stockholder’s notice to the Secretary must set forth as to each matter (i) a brief description of the business desired to be brought before the Annual Meeting and the reasons for conducting such business at the Annual Meeting, (ii) the name and record address of such Stockholder, (iii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such Stockholder, (iv) a description of all arrangements or understandings between such Stockholder and any other person or persons (including their names) in connection with the proposal of such business by such Stockholder and any material interest of such Stockholder in such business and (v) a representation that such Stockholder intends to appear in person or by proxy at the Annual Meeting to bring such business before the meeting.
With respect to each person proposed to be nominated for election as a Director, to be in proper written form, a Stockholder’s notice to the Secretary must set forth (a) as to each person, (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by the person (iv) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder and (v) a statement whether such person, if elected, intends to tender, promptly following such person’s election or re-election, an irrevocable resignation effective upon such person’s failure to receive the required vote for re-election at the next annual meeting at which such person would face re-election, in accordance with the Corporation’s Board Resignation Policy; and (b) as to the Stockholder giving the notice, (i) the name and record address of such Stockholder, (ii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such Stockholder, (iii) a description of all arrangements or understandings between such Stockholder and each proposed nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made by such Stockholder, (iv) a representation that such Stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice and (v) all other information relating to such Stockholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a Director if elected.
No business shall be conducted at any Annual Meeting except business brought before such Annual Meeting in accordance with the procedures set forth in this Section 2.15; provided, however, that, once business has been properly brought before such Annual Meeting in accordance with such procedures, nothing in this Section 2.15 shall be deemed to preclude discussion by any Stockholder of any such business. No person shall be eligible for election as a Director unless nominated in accordance with the procedures set forth in this Section 2.15. If (i) the chairman of any Annual Meeting determines that business was not properly brought before the Annual Meeting or (ii) the chairman of any Annual Meeting or Special Meeting determines that a nomination was not made in accordance with the foregoing procedures, the chairman shall declare to the meeting that the business was not properly brought before the meeting or that the nomination was defective, as applicable, and such business shall not be transacted and such defective nomination shall be disregarded.
ARTICLE III
DIRECTORS
Section 3.1 General Powers.
Except as otherwise provided in the Certificate of Incorporation, the business and affairs of the corporation shall be managed by or under the direction of the Board. The Board may adopt such rules and regulations, not inconsistent with the Certificate of Incorporation or the By-laws or applicable laws, as it may deem proper for the conduct of its meetings and the management of the Corporation. In addition to the powers expressly conferred by the By-laws, the Board may exercise all powers and perform all acts which are not required, by the By-laws or the Certificate of Incorporation or by law, to be exercised and performed by the Stockholders.
Section 3.2 Number.
The Board shall consist of not less than three nor more than fifteen directors, the exact number of directors to be determined from time to time by resolution adopted by affirmative vote of a majority of the whole Board and such exact number shall be four until otherwise determined by resolution adopted by affirmative vote of a majority of the whole Board. As used in this Article 3, the term “whole Board” means the total number of directors which the Corporation would have if there were no vacancies.
Section 3.3 No Classification of the Board.
The Board shall not be classified.
Section 3.4 Election.
Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of preferred stock shall have the right, voting separately as a class, to elect one or more directors of the Corporation, the terms of the director or directors elected by such holders shall be governed by the terms of the Certificate of Incorporation (including any certificate of designation relating to any series of preferred stock) applicable thereto.
Section 3.5 Term.
From and after the 2010 Annual Meeting of Stockholders, directors shall be elected at each annual meeting of Stockholders for a one-year term expiring at the next annual meeting of Stockholders and until such director’s successor is elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal; provided that no decrease in the number of directors shall affect the term of any director then in office.
Section 3.6 Vacancies.
Unless otherwise required by law or the Certificate of Incorporation (including any certificate of designation relating to any series of preferred stock), vacancies on the Board, however caused, and newly created directorships shall be filled solely by a majority vote of the directors then in office, whether or not a quorum, and any director so chosen shall hold office until the next annual meeting of Stockholders and until such director’s successor is elected and qualified.
Section 3.7 Resignations.
Any director may resign at any time by written notice to the Corporation. Such resignation shall take effect at the time therein specified, and unless otherwise specified, the acceptance of such resignation shall not be necessary to make it effective.
Section 3.8 Removal of Directors.
Except as otherwise provided by law, any or all of the directors may be removed only for cause, by vote of the holders of a majority of the shares then entitled to vote at an election of directors.
Section 3.9 Compensation.
Each director, in consideration of his service as such, shall be entitled to receive from the Corporation such amount per annum or such fees for attendance at directors’ meetings, or both, as the Board may from time to time determine, together with reimbursement for the reasonable expenses incurred by him in connection with the performance of his duties. Each director who shall serve as a member of any committee of directors in consideration of his serving as such shall be entitled to such additional amount per annum or such fees for attendance at committee meetings, or both, as the Board may from time to time determine, together with reimbursement for the reasonable expenses incurred by him in the performance of his duties. Nothing in this Section 3.9 shall preclude any director from serving the Corporation or its subsidiaries in any other capacity and receiving proper compensation therefore.
Section 3.10 Place and Time of Meetings of the Board.
Meetings of the Board, regular or special, may be held at any place within or without the State of Delaware. The times and places for holding meetings of the Board may be fixed from time to time by resolution of the Board or (unless contrary to resolution of the Board) in the notice of the meeting.
Section 3.11 Annual Meetings.
On the day when and at the place where the annual meeting of Stockholders for the election of directors is held, and as soon as practicable thereafter, the Board may hold its annual meeting without notice of such meeting, for the purpose of organization, the election of officers and the transaction of other business. The annual meeting of the Board may be held at any other time and place specified in a notice given as provided in Section 3.13 of the By-laws for special meetings of the Board or in a waiver of notice thereof.
Section 3.12 Regular Meetings.
Regular meetings of the Board may be held at such times and places as may be fixed from time to time by the Board. Unless otherwise required by the Board, regular meetings of the Board may be held without notice. If any day fixed for a regular meeting of the Board shall be a Saturday or Sunday or a legal holiday at the place where such meeting is to be held, then such meeting shall be held at the same hour at the same place on the first business day thereafter which is not a Saturday, Sunday or legal holiday.
Section 3.13 Special Meetings.
Special meetings of the Board shall be held whenever called by the President or the Secretary or by any two or more directors. Notice of each special meeting of the Board shall, if mailed,. be addressed to each director at the address designated by him for that purpose or, if none is designated, at his last known address at least two days before the date on which the meeting is to be held; or such notice shall be sent to each director at such address by telegraph cable or wireless, or be delivered to him personally, not later than the day before the date on which such meeting is to be held. Every such notice shall state the time and place of the meeting but need not state the purposes of the meeting, except to the extent required by law. If mailed, each notice shall be deemed given when deposited with postage thereon prepaid, in a post office or official depository under the exclusive care and custody of the United States Postal Service. Such mailing shall be by first class mail.
Section 3.14 Adjourned Meetings.
A majority of the directors present at any meeting of the Board, including an adjourned meeting, whether or not a quorum is present, may adjourn such meeting to another time and place. Notice of any adjourned meeting of the Board need not be given to any director whether or not present at the time of the adjournment. Any business may be transacted at any adjourned meeting that might have been transacted at the meeting as originally called.
Section 3.15 Waiver of Notice.
Whenever notice is required to be given to any director or member of a committee of directors under any provision of the General Corporation Law or of the Certificate of Incorporation or By-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors, or members of a committee of directors, need be specified in any written waiver of notice.
Section 3.16 Organization.
At each meeting of the Board, the President of the Corporation, or in the absence of the president, a chairman chosen by the majority of the directors present, shall preside. The Secretary shall act as secretary at each meeting of the Board. In case the Secretary shall be absent from any meeting of the Board, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and Assistant Secretaries, the person presiding at the meeting may appoint any person to act as secretary of the meeting.
Section 3.17 Quorum of Directors.
One-third of the directors then in office shall constitute a quorum for the transaction of business or of any specified item of business at any meeting of the Board.
Section 3.18 Action by the Board.
All corporate action taken by the Board or any committee thereof shall be taken at a meeting of the Board, or of such committee, as the case may be, except that any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or Committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. Members of the Board, or any committee designated by the Board, may participate in a meeting of the Board, or of such committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.18 shall constitute presence in person at such meeting. Except as otherwise provided by the Certificate of Incorporation or by law, the vote of a majority of the directors present (including those who participate by means of conference telephone or similar communications equipment) at the time of the vote, if a quorum is present at such time, shall be the act of the Board.
ARTICLE IV
COMMITTEES OF THE BOARD
The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting on agreement of merger or consolidation, recommending to the Stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the Stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation; and, unless the resolution designating it expressly so provides, no such Committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.
ARTICLE V
OFFICERS
Section 5.1 Officers.
The Board shall elect a President, a Secretary and a Treasurer, and may elect or appoint one or more Vice Presidents and such other officers as it may determine. The Board may designate one or more Vice Presidents as Executive Vice President and may use descriptive words or phrases to designate the standing, seniority or area of special competence of the vice Presidents elected or appointed by it. Each officer shall hold his office until his successor is elected and qualified or until his earlier death, resignation or removal in the manner provided in Section 5.2 of the By-laws. Any two or more offices may be held by the same person. The Board may require any officer to give a bond or other security for the faithful performance of his duties, in such amount and with such sureties as the Board may determine. All officers as between themselves and the Corporation shall have such authority and perform such duties in the management of the Corporation as may be provided in the By-laws or as the Board may from time to time determine.
Section 5.2 Removal of Officers.
Any officers elected or appointed by the Board may be removed by the Board with or without cause. The removal of an officer without cause shall be without prejudice to his contract rights, if any. The election or appointment of an officer shall not of itself create contract rights.
Section 5.3 Resignations.
Any officer may resign at any time in writing by notifying the Board or the President or the Secretary. Such resignation shall take effect at the date of receipt of such notice or at such later time as is therein specified, and, unless otherwise specified, the acceptance of such resignation shall not be necessary to make it effective. The resignation of an officer shall be without prejudice to the contract rights of the Corporation, if any.
Section 5.4 Vacancies.
A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in the By-laws for the regular election or appointment to such office.
Section 5.5 Compensation.
Salaries or other compensation of the officers may be fixed from time to time by the Board. No officer shall be prevented from receiving a salary or other compensation by reason of the fact that he is also a director.
Section 5.6 President.
The President shall be the chief executive officer of the Corporation and shall have general supervision over the business of the Corporation, subject, however, to the control of the Board and of any duly authorized committee of directors. The President shall, if present, preside at all meetings of the Stockholders and at all meetings of the Board. He may, with the Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer, sign certificates for shares of capital stock of the Corporation. He may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except in cases where the signing and execution thereof shall be expressly delegated by the Board or by the By-laws to some other officer or agent of the Corporation, or shall be required by law otherwise to be signed or executed; and, in general, he shall perform all duties incident to the Office of President and such other duties as from time to time may be assigned to him by the Board.
Section 5.7 Vice Presidents.
At the request of the President, or in his absence, at the request of the Board, the vice Presidents shall (in such order as may be designated by the Board or in the absence of any such designation in order of seniority based on age) perform all of the duties of the President and so acting shall have all the powers of and be subject to all restrictions upon the President. Any Vice President may also, with the Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer, sign certificates for shares of capital stock of the Corporation; may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments authorized by the Board, except in cases where the signing and execution thereof shall be expressly delegated by the Board or by the By-laws to some other officer or agent of the Corporation, or shall be required by law otherwise to be signed or executed; and shall perform such other duties as from time to time may be assigned to him by the Board or by the President.
Section 5.8 Secretary.
The Secretary, if present, shall act as secretary of all meetings of the Stockholders and of the Board, and shall keep the minutes thereof in the proper book or books to be provided for that purpose; he shall see that all notices required to be given by the Corporation are duly given and served; he may, with the President or a Vice President, sign certificates for shares of capital stock of the Corporation; he shall be custodian of the seal of the Corporation and may seal with the seal of the Corporation, or a facsimile thereof, all certificates for shares of capital stock of the Corporation and all documents the execution of which on behalf of the corporation under its corporate seal is authorized in accordance with the provisions of the By-laws; he shall
have charge of the stock ledger and also of the other books, records and papers of the Corporation relating to its organization and management as a Corporation, and shall see that the reports, statements and other documents required by law are properly kept and filed; and shall, in general, perform all the duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the Board or by the President.
Section 5.9 Treasurer.
The Treasurer shall have charge and custody of, and be responsible for, all funds, securities and notes of the Corporation; receive and give receipts for moneys due and payable to the Corporation from any sources whatsoever; deposit all such moneys in the name of the Corporation in such banks, trust companies or other depositaries as shall be selected in accordance with these By-laws; against proper vouchers, cause such funds to be disbursed by checks or drafts on the authorized depositaries of the Corporation signed in such manner as shall be determined in accordance with any provisions of the By-laws, and be responsible for the accuracy of the amounts of all moneys so disbursed; regularly enter or cause to be entered in books to be kept by him or under his direction full and adequate account of all moneys received or paid by him for the account of the Corporation; have the right to require, from time to time reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation from the officers or agents transacting the same; render to the President or the Board, whenever the President or the Board, respectively, shall require him so to do, an account of the financial condition of the Corporation and of all his transactions as Treasurer; exhibit at all reasonable times his books of account and other records to any of the directors upon application at the office of the Corporation where such books and records are kept; and in general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the Board or by the President; and he may sign with the President or a Vice President certificates for shares of capital stock of the Corporation.
Section 5.10 Assistant Secretaries and Assistant Treasurers.
Assistant Secretaries and Assistant Treasurers shall perform such duties as shall be assigned to them by the Secretary or by the Treasurer, respectively, or by the Board or by the President. Assistant Secretaries and Assistant Treasurers may, with the President or a Vice President, sign certificates for shares of capital stock of the Corporation.
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 6.1 Execution of Contracts.
The Board may authorize any officer, employee or agent, in the name and on behalf of the Corporation, to enter into any contract or execute and satisfy any instrument, and any such authority may be general or confined to specific instances, or otherwise limited.
Section 6.2 Loans.
The President or any other officer, employee or agent authorized by the By-laws or by the Board may effect loans and advances at any time for the Corporation from any bank, trust company or other institutions or from any firm, corporation or individual and for such loans and advances may make, execute and deliver promissory notes, bonds or other certificates or evidences of indebtedness of the Corporation, and when authorized so to do may pledge and hypothecate or transfer any securities or other property of the Corporation as security for any such loans or advances. Such authority conferred by the Board may be general or confined to specific instances or otherwise limited.
Section 6.3 Checks, Drafts, Etc.
All checks, drafts and other orders for the payment of money out of the funds of the Corporation and all notes or other evidences of indebtedness of the corporation shall be signed on behalf of the Corporation in such manner as shall from time to time be determined by resolution of the Board.
Section 6.4 Deposits.
The funds of the Corporation not otherwise employed shall be deposited from time to time to the order of the Corporation in such banks, trust companies or other depositaries as the Board may select or as may be selected by an officer, employee, or agent of the Corporation to whom such power may from time to time be delegated by the Board.
ARTICLE VII
STOCK AND DIVIDENDS
Section 7.1 Shares of Stock.
The shares of capital stock of the Corporation shall be represented by a certificate, unless and until the Board of Directors of the Corporation adopts a resolution permitting shares to be uncertificated. Notwithstanding the adoption of any such resolution providing for uncertificated shares, every holder of capital stock of the Corporation theretofore represented by certificates and, upon request, every holder of uncertificated shares, shall be entitled to have a certificate for shares of capital stock of the Corporation signed by, or in the name of the Corporation by, (a) the Chairman of the Board, the Chief Executive Officer, the President or any Executive Vice President, and (b) the Chief Financial Officer, the Secretary or an Assistant Secretary, certifying the number of shares owned by such stockholder in the Corporation.
Section 7.2 Transfer of Shares of Stock.
Stock of the Corporation shall be transferable in the manner prescribed by applicable law and in these By-laws. Transfers of stock shall be made on the books of the Corporation, and in the case of certificated shares of stock, only by the person named in the certificate or by such person’s attorney lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary transfer taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the registered holder of the shares or by such person’s attorney lawfully constituted in writing, and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the officers of the Corporation shall determine to waive such requirement. With respect to certificated shares of stock, every certificate exchanged, returned or surrendered to the Corporation shall be marked “Cancelled,” with the date of cancellation, by the Secretary or Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred.
Section 7.3 Transfer and Registry Agents.
The Corporation may from time to time maintain one or more transfer offices or agent and registry offices or agents at such place of places as may be determined from time to time by the Board.
Section 7.4 Lost, Destroyed, Stolen and Mutilated Certificates.
The holder of any shares of capital stock of the Corporation shall immediately notify the Corporation of any loss, destruction, theft or mutilation of the certificate representing such shares, and the Corporation may issue a new certificate to replace the certificate alleged to have been lost, destroyed, stolen or mutilated. The Board may, in its discretion, as a condition to the issue of any such new certificate, require the owner of the lost, destroyed, stolen or mutilated certificate, or his legal representatives, to make proof satisfactory to the Board of such loss, destruction, theft or mutilation and to advertise such fact in such manner as the Board may require, and to give the corporation and its transfer agents and registrars, or such of them as the Board may require, a bond in such form, in such sum and with such surety or sureties as the Board may
direct, to indemnify the Corporation and its transfer agents and registrars against any claim that may be made against any of them on account of the continued existence of any such certificate so alleged to have been lost, destroyed, stolen or mutilated and against any expense in connection with such claim.
Section 7.5 Regulations.
The Board may make such rules and regulations as it may deem expedient, not inconsistent with the By-laws or with the Certificate of Incorporation, concerning the issue, transfer and registration of certificates representing shares of its capital stock.
Section 7.6 Restriction on Transfer of Stock.
A written restriction on the transfer or registration of transfer of capital stock of the Corporation, if permitted by Section 202 of the General Corporation Law and noted conspicuously on the certificate representing such capital stock, may be enforced against the holder of the restricted capital stock or any successor or transferee of the holder including an executor, administrator, trustee, guardian or other fiduciary entrusted with like responsibility for the person or estate of the holder. Unless noted conspicuously on the certificate representing such capital stock, a restriction, even though permitted by Section 202 of the General Corporation Law, shall be ineffective except against a person with actual knowledge of the restriction. A restriction on the transfer or registration of transfer of capital stock of the Corporation may be imposed either by the Certificate of Incorporation or by an agreement among any number of Stockholders or among such Stockholders and the Corporation. No restriction so imposed shall be binding with respect to capital stock issued prior to the adoption of the restriction unless the holders of such capital stock are parties to an agreement or voted in favor of the restriction.
Section 7.7 Dividends, Surplus, Etc.
Subject to the provisions of the Certificate of Incorporation and of law, the Board:
Section 7.7.1 May declare and pay dividends or make other distributions on the outstanding shares of capital stock in such amounts and at such time or times as, in its discretion, the condition of the affairs of the Corporation shall render advisable;
Section 7.7.2 May use and apply, in its discretion, any of the surplus of the Corporation in purchasing or acquiring any shares of capital stock of the Corporation, or purchase warrants therefore, in accordance with law, or any of its bonds, debentures, notes, scrip or other securities or evidences of indebtedness; and
Section 7.7.3 May set aside from time to time out of such surplus or net profits such sum or sums as, in its discretion, it may think proper, as a reserve fund to meet contingencies, or for equalizing dividends or for the purpose of maintaining or increasing the property or business of the Corporation, or for any purpose it may think conducive to the best interests of the Corporation.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnification of Officers and Directors.
The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or an officer of the Corporation, against expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding to the fullest extent and in the manner set forth in and permitted by the General Corporation Law, and any other applicable law, as from time to time in effect. Such right of indemnification shall not be deemed exclusive of any other rights to which such director or officer may be entitled apart from the foregoing provisions. The foregoing provisions of this Section 8.1 shall be deemed to be a contract between the Corporation and each director and officer who serves in such capacity at any time while this Article 8 and the relevant provisions of the General corporation Law and other applicable law, if any, are in effect and any repeal or modification thereof shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.
Section 8.2 Indemnification of Other Persons.
The Corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he is or was an employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another Corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding to the extent and in the manner set forth in and permitted by the General Corporation Law, and any other applicable law, as from time to time in effect. Such right of indemnification shall not be deemed exclusive of any other rights to which any such person may be entitled apart from the foregoing provisions.
Section 8.3 Insurance.
The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation or a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of Sections 8.1 and 8.2 of the By-laws or under Section 145 of the General Corporation Law or any other provision of Law.
ARTICLE IX
BOOKS AND RECORDS
Section 9.1 Books and Records.
The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of the Stockholders, the Board and any committee of the Board. The Corporation shall keep at the office designated in the Certificate of Incorporation or at the office of the transfer agent or registrar of the Corporation in Delaware, a record containing the names and addresses of all Stockholders, the number and class of shares held by each and the dates when they respectively became the owners of record thereof.
Section 9.2 Form of Records.
Any records maintained by the Corporation in the regular course of its business including its stock ledger, books of account, and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs, or any other information storage device, provided that the records so kept can be converted into clearly legible written form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect the same.
Section 9.3 Inspection of Books and Records.
Except as otherwise provided by law, the Board shall determine from time to time whether, and, if allowed, when and under what conditions and regulations the accounts, books, minutes and other records of the Corporation, shall be open to the inspection of any Stockholder or director.
ARTICLE X
SEAL
The Board may adopt a corporate seal which shall be in the form of a circle and shall bear the full name of the corporation, the year of its incorporation and the word “Delaware.”
ARTICLE XI
FISCAL YEAR
The fiscal year of the Corporation shall be determined, and may be changed, by resolution of the Board.
ARTICLE XII
VOTING OF SHARES HELD
Unless otherwise provided by resolution of the Board, the President may, from time to time, appoint one or more attorneys or agents of the Corporation, in the name and on behalf of the Corporation, to cast the votes which the Corporation may be entitled to cast as a Stockholder or otherwise in any other corporation, any of whose shares or securities may be held by the Corporation, at meetings of the holders of stock or other securities of such other corporation, or to consent in writing to any action by any such other corporation, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf of the Corporation and under its corporate seal, or otherwise, such written proxies, consents, waivers or other instruments as he may deem necessary or proper in the premises; or the President may himself attend any meeting of the holders of the stock or other securities of any such other corporation and thereat vote or exercise any or all other powers of the Corporation as the holder of such stock or other securities of such other corporation.
ARTICLE XIII
AMENDMENTS
The By-laws may be altered, amended, supplemented or repealed, or new By-laws may be adopted, by vote of the holders of the shares entitled to vote in the election of directors, provided that Articles 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 may only be amended by the affirmative vote of the holders of not less than two-thirds of the outstanding voting shares of capital stock of the Corporation entitled to vote generally in the election of directors; provided, however, that such two-thirds vote shall not be required for, any amendment, alteration, change, repeal or adoption of any inconsistent provision declared advisable by the Board by the affirmative vote of two-thirds of the Board and submitted to Stockholders for their consideration, but only if a majority of the members of the Board acting upon such matter shall be Continuing Directors. The term “Continuing Director” shall mean a director who was a member of the Board as of October 1, 1986. With the exception of Articles 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8, the By-laws may also be altered, amended,
supplemented, repealed, or new By-laws may be adopted, by the Board. Any By-laws adopted, altered, amended, or supplemented by the Board may be altered, amended, or supplemented or repealed by the Stockholders entitled to vote thereon in accordance with the provisions hereof.
ANNEX G
WRITTEN CONSENT OF THE STOCKHOLDERS OF
ENZON PHARMACEUTICALS, INC.
This written consent is solicited by
the board of directors of Enzon Pharmaceuticals, Inc.
Please return this consent no later than [•] [a.m./p.m.], Eastern Time, on [•], which is the final date that the board of directors of Enzon Pharmaceuticals, Inc., a Delaware corporation (“Enzon”), has set for receipt of written consents. Any written consent not returned will have the same effect as a consent returned that elects to “WITHHOLD CONSENT” on the proposals. Any stockholder that signs, dates and returns this consent but does not indicate whether such stockholder consents, withholds consent or abstains from any particular proposal will be deemed to have elected to “CONSENT” to such proposal in accordance with the recommendation of the board of directors of Enzon.
The undersigned, being a holder of record as of the close of business on [•] of common stock of Enzon, par value $0.01 per share (“Enzon Common Stock”), hereby consents, withholds consent or abstains as indicated below, by written consent without a meeting pursuant to Section 228 of the General Corporation Law of the State of Delaware, to the proposals as set forth below with respect to all of the shares of Enzon Common Stock that the undersigned holds of record as of the close of business on [•].
By its signature below, the undersigned acknowledges receipt of the consent solicitation statement dated [•], which is part of the registration statement on Form S-4 (No. 333-[•]) of Enzon and which more fully describes the proposals below.
Proposal 1.
The approval of the proposed charter amendment to the Amended and Restated Certificate of Incorporation of Enzon to effect the consolidation of the issued and outstanding shares of Enzon common stock at a ratio of 1 for 100.
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CONSENT
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WITHHOLD CONSENT
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ABSTAIN
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Proposal 2.
The adoption of the Merger Agreement, dated as of June 20, 2025, by and among Enzon, EPSC Acquisition Corp. (“Merger Sub”) and Viskase Companies, Inc. (“Viskase”), as amended by the Merger Agreement Amendment, dated as of October 24, 2025, pursuant to which Merger Sub will merge with and into Viskase, with Viskase surviving the merger as a wholly owned subsidiary of Enzon, and the separate corporate existence of Merger Sub will cease.
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CONSENT
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WITHHOLD CONSENT
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ABSTAIN
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IMPORTANT: PLEASE SIGN AND DATE THE CONSENT BELOW.
If held in joint tenancy, all persons must sign. When signing as attorney, trustee, executor, administrator, guardian or corporate officer, please give full title as such. If Enzon Common Stock is held by a corporation, please sign the full corporate name by president or other authorized officer. If Enzon Common Stock is held by a partnership or other entity, please sign the full partnership or other entity name by authorized person.
Please sign, date and return this written consent promptly to Enzon c/o Continent Stock Transfer & Trust Company, 1 State Street Plaza, 30th Floor, New York, New York 10004. Enzon recommends that you also email a .pdf copy of your executed written consent to Enzon’s consent solicitor, HKL & Co., LLC, at enzn@hklco.com.
Your written consent may be changed or revoked any time before [•] by delivering a notice of revocation to the Secretary of Enzon, or by delivering a later-dated written consent to Enzon at the address set forth above.
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IF AN INDIVIDUAL:
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IF JOINT HOLDER:
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Name:
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Title:
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Date:
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Date:
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PART II — INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers of Enzon
Delaware General Corporation Law. Section 145(a) of the DGCL provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact that the Person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Person in connection with such action, suit or proceeding if the Person acted in good faith and in a manner the Person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the Person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Person did not act in good faith and in a manner which the Person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the Person’s conduct was unlawful.
Section 145(b) of the DGCL states that a corporation may indemnify any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the Person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the Person in connection with the defense or settlement of such action or suit if the Person acted in good faith and in a manner the Person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which the Person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Person is fairly and reasonably entitled to indemnity for such expenses as the Court or such other court shall deem proper.
Section 145(c) of the DGCL provides that to the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Person in connection therewith. A corporation may indemnify any other Person who is not a present or former director or officer of the corporation against expenses (including attorney’s fees) actually and reasonably incurred by such Person to the extent he or she has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein.
Section 145(d) of the DGCL states that any indemnification under subsections (a) and (b) of Section 145 (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the Person has met the applicable standard of conduct set forth in subsections (a) and (b) of Section 145. Such determination shall be made with respect to a Person who is a director or officer at the time of such determination (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, (ii) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (iv) by the stockholders.
Section 145(f) of the DGCL states that the indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such Person’s official capacity and as to action in another capacity while holding such office.
Section 145(g) of the DGCL provides that a corporation shall have the power to purchase and maintain insurance on behalf of any Person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such Person and incurred by such Person in any such capacity or arising out of such Person’s status as such, whether or not the corporation would have the power to indemnify such Person against such liability under the provisions of Section 145.
Section 145(j) of the DGCL states that the indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a Person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a Person.
Section 102(b)(7) of the DGCL permits a corporation to provide in its charter that a director or officer of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except for liability (i) for any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for payments of unlawful dividends or unlawful stock purchases or redemptions, (iv) for any transaction from which the director or officer derived an improper Personal benefit or (v) for any officer in any action by or in the right of the corporation.
Bylaws and Certificate of Incorporation.
In accordance with Article VIII, Section 8.1 of the Enzon By-Laws, Enzon will indemnify any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or an officer of Enzon, against expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding to the fullest extent and in the manner set forth in and permitted by the DGCL, and any other applicable law, as from time to time in effect. Such right of indemnification will not be deemed exclusive of any other rights to which such director or officer may be entitled apart from the foregoing. The provisions of Section 8.1 are deemed to be a contract between Enzon and each director and officer who serves in such capacity at any time while Article VIII and the relevant provisions of the DGCL and other applicable law, if any, are in effect and any repeal or modification thereof will not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.
Pursuant to Section 8.2 of the Enzon By-Laws, Enzon may indemnify any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he is or was an employee or agent of Enzon, or is or was serving at the request of Enzon as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding to the extent and in the manner set forth in and permitted by the DGCL, and any other applicable law, as from time to time in effect. Such right of indemnification will not be deemed exclusive of any other rights to which any such Person may be entitled apart from the foregoing provisions.
Section 8.3 of the Enzon By-Laws allows Enzon to purchase and maintain insurance on behalf of any Person who is or was a director, officer, employee or agent of Enzon, or is or was serving at the request of Enzon or a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not Enzon would have the power to indemnify him against such
liability under the provisions of Sections 8.1 and 8.2 of the Enzon By-laws or under Section 145 of the DGCL or any other provision of law.
Article X of the Enzon Charter provides that a director of Enzon will not be personally liable to Enzon or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to Enzon or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, as it may be amended, or (iv) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of Enzon, in addition to the limitation on personal liability provided in the Enzon Charter, will be limited to the fullest extent permitted by the DGCL. Any repeal or modification of Article X by the stockholders of Enzon shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of Enzon existing at the time of such repeal or modification.
Merger Agreement. Section 6.3 of the Merger Agreement requires that, for six (6) years following the Effective Time, Enzon and the Surviving Company are required to, indemnify and hold harmless all Indemnified Parties against any costs (including reasonable attorneys’ fees) and expenses (including advancing costs (including reasonable attorneys’ fees) and expenses and applicable retention amounts under applicable insurance policies) prior to the final disposition of any actual or threatened claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by applicable law, the Enzon Organizational Documents or the Viskase Organizational Documents, as applicable, and any indemnification agreements with any Indemnified Party set forth in Section 6.3(a) of the Enzon Disclosure Letter, as defined in the Merger Agreement, judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, investigation, suit or proceeding, whether civil, criminal, administrative or investigative process, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Effective Time (including acts or omissions occurring in connection with the approval of the Merger Agreement and the consummation of the Merger), whether asserted or claimed prior to, at or after the Effective Time, by reason of the fact of such Indemnified Party’s serving or having served as an officer, director or manager of Enzon or any of Enzon’s Subsidiaries or Viskase or any of Viskase’s Subsidiaries. The foregoing rights to indemnification and advancement also apply with respect to any action to enforce Section 6.3(a) and that all rights to elimination of liability, indemnification and advancement of expenses for acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, then existing in favor of the Indemnified Parties as provided in their respective certificate of incorporation or bylaws (or comparable organizational documents) or in any indemnification agreement in existence on the date of the Merger Agreement and provided to Enzon or Viskase, as applicable, prior to the date of the Merger Agreement shall survive the Merger and shall continue in full force and effect in accordance with the terms thereof. Notwithstanding anything in Section 6.3 to the contrary, if any Indemnified Party notifies Enzon or the Surviving Company on or prior to the sixth (6th) anniversary of the Effective Time of a matter in respect of which such Person may seek indemnification or advancement of expenses pursuant to Section 6.3, the provisions of Section 6.3 that require Enzon and the Surviving Company to indemnify and advance expenses shall continue in effect with respect to such matter until the final disposition of all claims, actions, investigations, suits and proceedings relating thereto.
Further, the Merger Agreement requires that, for six (6) years following the Effective Time, Enzon and the Surviving Company are required to maintain in effect the provisions in (i) the Enzon Organizational Documents and Viskase Organizational Documents, respectively, and (ii) certain indemnification agreements of Enzon with any Indemnified Party, subject to certain limited exceptions. Such provisions may not be amended, modified or repealed in a manner that would adversely affect the rights or protections of any Indemnified Party with respect to acts or omissions occurring or alleged to have occurred at or prior to the Effective Time (including acts or omissions occurring in connection with the approval of the Merger Agreement and the consummation of the Merger) without the prior written consent of such Indemnified Party or such Person’s heirs, executors, administrators or Representatives.
In addition, the Merger Agreement requires that, at or prior to the Effective Time, Viskase (or, at Enzon’s election, Enzon) will purchase a six (6) year prepaid “tail” policy for the benefit of Enzon’s
directors and officers who served prior to the transactions contemplated by the Merger Agreement, which Enzon and the Surviving Company will maintain in effect for the duration of such policy. The policy must provide coverage on terms and conditions (including retentions, limits and other material terms) that are substantially equivalent to the current directors’ and officers’ liability insurance and fiduciary liability insurance policies maintained by Enzon and its Subsidiaries with respect to matters arising at or prior to the Effective Time. However, the aggregate cost of such “tail” policy may not exceed 300% of the last aggregate annual premium paid by Enzon prior to the date of the Merger Agreement for such policies, and if the cost would exceed such amount, Viskase will be permitted to purchase as much coverage as is reasonably practicable for such amount.
In the event that Enzon, the Surviving Company, or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of Enzon or the Surviving Company will assume the obligations set forth in Section 6.3 of the Merger Agreement. The rights and obligations under Section 6.3 of the Merger Agreement will survive the consummation of the Merger and will not be terminated or amended in a manner that is adverse to any Indemnified Party without the written consent of such Indemnified Party. The parties to the Merger Agreement acknowledged and agreed that the Indemnified Parties will be third party beneficiaries of Section 6.3, each of whom may enforce the provisions thereof.
Please see the section titled “D&O Insurance and Indemnification” in the consent solicitation statement that forms a part of this Registration Statement on Form S-4 for further information regarding the indemnification and directors’ and officers’ insurance provisions in the Merger Agreement.
EXHIBIT INDEX
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Exhibit Description
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2.1†
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Agreement and Plan of Merger, dated as of June 20, 2025, by and between Enzon Pharmaceuticals, Inc., EPSC Acquisition Corp., and Viskase Companies, Inc. (included as Annex A to the prospectus/consent solicitation statement).
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2.2*†
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First Amendment to Agreement and Plan of Merger, dated as of October 24, 2025, by and between Enzon Pharmaceuticals, Inc., EPSC Acquisition Corp., and Viskase Companies, Inc. (included as Annex A-1 to the prospectus/consent solicitation statement).
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3.1
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Amended and Restated Certificate of Incorporation dated May 18, 2006, together with that Certificate of Amendment to the Amended and Restated Certificate of Incorporation dated July 13, 2010 (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q of Enzon Pharmaceuticals, Inc. filed on August 9, 2010).
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3.2
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Second Amended and Restated By-Laws effective March 11, 2011, as amended by Amendment No. 1 to the Second Amended and Restated By-Laws effective February 15, 2013 (incorporated by reference to Exhibit 3.2 to the Annual Report on Form 10-K of Enzon Pharmaceuticals, Inc. filed with the SEC on March 18, 2013).
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3.3
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First Amendment to the Second Amended and Restated By-Laws, effective February 24, 2022 (incorporated by reference to Exhibit 10.7 to the Annual Report on Form 10-K of Enzon Pharmaceuticals, Inc. filed with the SEC on February 25, 2022).
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3.4
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|
Certificate of Designation of Series A-1 Junior Participating Preferred Stock of Enzon Pharmaceuticals, Inc. filed with the Secretary of State of the State of Delaware on August 14, 2020 (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K of Enzon Pharmaceuticals, Inc. filed with the SEC on August 14, 2020).
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3.5
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Certificate of Designation of Series C Non-Convertible Redeemable Preferred Stock of Enzon Pharmaceuticals, Inc., filed with the Secretary of State of the State of Delaware on September 21, 2020 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K of Enzon Pharmaceuticals, Inc. filed with the SEC on September 23, 2020).
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3.6*
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|
Amended and Restated Certificate of Incorporation of Viskase Companies, Inc., filed with the Secretary of State of the State of Delaware on April 3, 2003.
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3.7*
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|
Amended and Restated Bylaws of Viskase Companies, Inc., as amended and restated through August 10, 2017.
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3.8*
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Viskase Companies, Inc., filed with the Secretary of State of the State of Delaware on October 7, 2020.
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4.1
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Description of Enzon Pharmaceuticals, Inc.’s Registered Securities (incorporated by reference to Exhibit 4.1 to the Annual Report on Form 10-K of Enzon Pharmaceuticals, Inc. filed with the SEC on February 21, 2025).
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4.2
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|
Section 382 Rights Agreement, dated as of August 14, 2020, by and between Enzon Pharmaceuticals, Inc. and Continental Stock Transfer & Trust Company, which includes the Form of Certificate of Designation as Exhibit A, Form of Rights Certificate as Exhibit B and the Form of Summary of Rights as Exhibit C (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K of Enzon Pharmaceuticals, Inc. filed with the SEC on August 14, 2020).
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4.3
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First Amendment to the Section 382 Rights Agreement, dated as of June 4, 2021 and effective as of June 2, 2021, by and between Enzon Pharmaceuticals, Inc. and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K of Enzon Pharmaceuticals, Inc. filed with the SEC on June 8, 2021).
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4.4
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Second Amendment to the Section 382 Rights Agreement, dated as of May 16, 2024, by and between Enzon Pharmaceuticals, Inc., and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K of Enzon Pharmaceuticals, Inc. filed with the SEC on May 22, 2024).
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Exhibit
Number
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Exhibit Description
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4.5
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Third Amendment to the Section 382 Rights Agreement, dated as of March 31, 2025, by and between Enzon Pharmaceuticals, Inc., and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K of Enzon Pharmaceuticals, Inc. filed with the SEC on April 1, 2025).
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4.6
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Fourth Amendment to the Section 382 Rights Agreement, dated as of August 13, 2025, by and between Enzon Pharmaceuticals, Inc. and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.1 to the Quarterly Report on Form 10-Q of Enzon Pharmaceuticals, Inc. filed with the SEC on August 14, 2025).
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4.7
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Fifth Amendment to the Section 382 Rights Agreement, dated as of September 30, 2025, by and between Enzon Pharmaceuticals, Inc. and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K of Enzon Pharmaceuticals, Inc. filed with the SEC on September 30, 2025).
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5.1**
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Legal Opinion of Thompson Hine LLP
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10.1
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Development, License and Supply Agreement between Enzon, Inc. (now known as Enzon Pharmaceuticals, Inc.) and Schering Corporation dated November 14, 1990, as amended (incorporated by reference to Exhibit 10.15 to the Annual Report on Form 10-K of Enzon Pharmaceuticals, Inc. filed with the SEC on September 26, 2002).
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10.2
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Amended and Restated Exclusive IP Marketing Agreement, dated as of June 28, 2004, by and between Micromet AG and Enzon Pharmaceuticals, Inc (incorporated by reference to Exhibit 10.28 to the Annual Report on Form 10-K of Enzon Pharmaceuticals, Inc. filed with the SEC on February 21, 2019).
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10.3
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Letter Agreement, dated January 30, 2019, between Servier IP UK Limited and Enzon Pharmaceuticals, Inc. (incorporated by reference to Exhibit 10.29 to the Annual Report on Form 10-K of Enzon Pharmaceuticals, Inc. filed with the SEC on February 21, 2019).
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10.4
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Investment Agreement, dated as of September 1, 2020, by and between Enzon Pharmaceuticals, Inc. and Icahn Capital LP (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K of Enzon Pharmaceuticals, Inc. filed with the SEC on September 1, 2020).
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10.5#
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Independent Contractor Agreement, effective as of February 24, 2022, between Enzon Pharmaceuticals, Inc. and Richard L. Feinstein (incorporated by reference to Exhibit 3.5 to the Annual Report on Form 10-K of Enzon Pharmaceuticals, Inc. filed with the SEC on February 25, 2022).
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10.6#
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Form of Indemnification Agreement for members of the Board of Directors (incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q of Enzon Pharmaceuticals, Inc. filed with the SEC on April 26, 2022).
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10.7*†
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Credit Agreement, dated October 9, 2020, by and between Viskase Companies, Inc., Bank of America, N.A., BMO Harris Bank N.A., Truist Bank, BOFA Securities, Inc., BMO Capital Markets Corp., and BOFA Securities, Inc.
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10.8*
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First Amendment to Credit Agreement, dated August 13, 2021
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10.9*
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Second Amendment to Credit Agreement, dated August 10, 2022
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10.10*#
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Employment Agreement, dated September 6, 2022, by and between Timothy Feast and Viskase Companies, Inc.
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10.11*#
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Viskase Companies, Inc. 2022 Long-Term Incentive Plan
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10.12*#
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Viskase Companies, Inc. 2024 Management Incentive Plan
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10.13*
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Limited Waiver and Third Amendment to Credit Agreement, dated February 14, 2025
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10.14†
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Support Agreement, dated as of June 20, 2025, by and between Icahn Enterprises Holdings L.P. and certain of its affiliates, Enzon Pharmaceuticals, Inc. and Viskase Companies, Inc. (included as Annex B to the prospectus/consent solicitation statement).
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10.15*
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Fourth Amendment to Credit Agreement, dated July 25, 2025
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10.16*
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Fourth Amendment Fee Letter to Credit Agreement, dated July 25, 2025
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10.17*
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Joseph King Offer Letter, dated May 4, 2022, by and between Viskase Companies, Inc. and Joseph King
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Exhibit
Number
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Exhibit Description
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10.18*
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Thomas Holz Offer Letter, dated December 19, 2022, by and between Viskase Companies, Inc. and Thomas Holz
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10.19*
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Armando Herrara Offer Letter, dated March 15, 2024, by and between Viskase Companies, Inc. and Armando Herrara
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10.20*
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Jan Stevens Offer Letter, dated June 7, 2024, by and between Viskase Companies, Inc. and Jan Stevens
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10.21*
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Marcelo Passos Offer Letter, dated September 13, 2024, by and between Viskase Companies, Inc. and Marcelo Passos
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10.22*
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Joseph Marigliano Offer Letter, dated January 30, 2025, by and between Viskase Companies, Inc. and Joseph Marigliano
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10.23*
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Silverman Consulting, Inc. Engagement Letter, dated November 1, 2025, by and between Viskase Companies, Inc. and Silverman Consulting, Inc.
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10.24*
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First Amendment to Support Agreement, dated as of October 24, 2025, by and between Icahn Enterprises Holdings L.P. and certain of its affiliates, Enzon Pharmaceuticals, Inc. and Viskase Companies, Inc. (included as Annex B-1 to the prospectus/consent solicitation statement).
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10.25*#
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Employment Agreement between Viskase Companies, Inc. and Thomas D. Davis, effective December 1, 2025.
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10.26*
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John Plescia Offer Letter, dated December 8, 2025, by and between Viskase Companies, Inc. and John Plescia.
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10.27*
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Robert Schouten Offer Letter, dated September 23, 2025, by and between Viskase GmbH and Robert Schouten.
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21.1
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Subsidiaries of Registrant (incorporated by reference to Exhibit 21.1 to the Annual Report on Form 10-K of Enzon Pharmaceuticals, Inc. filed with the SEC on February 21, 2025).
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23.1**
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Consent of EisnerAmper LLP, independent registered public accounting firm for Enzon Pharmaceuticals, Inc.
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23.2**
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Consent of Grant Thornton LLP, independent registered public accounting firm for Viskase Companies, Inc.
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23.3**
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Consent of Thompson Hine LLP (included in Exhibit 5.1)
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24.1**
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Power of Attorney (included on signature page hereto)
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99.1*
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Form of Written Consent of Holders of Common Stock of Enzon Pharmaceuticals, Inc. (included as Annex G to the prospectus/consent solicitation statement).
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99.2**
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Consent of [•] to be named as a director.
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99.3**
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Consent of A.G.P./Alliance Global Partners LLC, financial advisor for Enzon Pharmaceuticals, Inc.
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99.4**
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Consent of Alvarez & Marsal Valuation Services, LLC, financial advisor for Viskase Companies, Inc.
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107**
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Filing Fee Table
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*
Filed herewith
**
Filed by amendment
^
Portions of this exhibit have been redacted and filed separately with the SEC pursuant to a confidential treatment request.
#
Management contracts or compensatory plans and arrangements required to be filed pursuant to Item 601(b)(10)(ii)(A) or (iii) of Regulation S-K.
†
Schedules, exhibits and/or annexes have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any such omitted item will be furnished supplementally to the Securities and Exchange Commission upon request.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Enzon Pharmaceuticals, Inc. has duly caused this registration statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cranford, State of New Jersey, on [ ], 2025.
ENZON PHARMACEUTICALS, INC.
By:
Name: Richard L. Feinstein
Title:
Chief Executive Officer, Chief Financial Officer and Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Richard L. Feinstein, acting alone or together with another attorney-in-fact, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, to sign any or all further amendments (including post-effective amendments) to this registration statement (and any additional registration statement related hereto permitted by Rule 462(b) promulgated under the Securities Act (and all further amendments, including post-effective amendments, thereto)), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated, on , 2025
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Signature
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Title
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Richard L. Feinstein
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Chief Executive Officer, Chief Financial Officer, Secretary (Principal Executive Officer, Principal Financial Officer)
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Randolph C. Read
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Director (Chairman of the Board)
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Jordan Bleznick
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Director
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Jaffrey A. Firestone
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Director
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Stephen T. Wills
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Director
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Exhibit 3.6
| |
Delaware |
Page 1 |
| |
The First State |
|
I, JEFFREY W. BULLOCK,
SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS FILED FROM AND
INCLUDING THE RESTATED CERTIFICATE OR A MERGER WITH A RESTATED CERTIFICATE ATTACHED OF “VISKASE COMPANIES, INC.” AS RECEIVED
AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS
HAVE BEEN CERTIFIED:
RESTATED CERTIFICATE,
FILED THE THIRD DAY OF APRIL, A.D. 2003, AT 3:24 O`CLOCK P.M.
CERTIFICATE OF OWNERSHIP,
FILED THE THIRTIETH DAY OF JANUARY, A.D. 2004, AT 3:04 O`CLOCK P.M.
CERTIFICATE OF DESIGNATION,
FILED THE EIGHTH DAY OF NOVEMBER, A.D. 2006, AT 8:10 O`CLOCK A.M.
CERTIFICATE OF AMENDMENT,
FILED THE SEVENTEENTH DAY OF OCTOBER, A.D. 2017, AT 2:25 O`CLOCK P.M.
CERTIFICATE OF AMENDMENT,
FILED THE NINETEENTH DAY OF DECEMBER, A.D. 2018, AT 5:50 O`CLOCK P.M.
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|
/s/ Jeffrey W. Bullock, Secretary of State |
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|
Jeffrey W. Bullock, Secretary of State |
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 |
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|
757401 8100X
SR# 20195651804 |
Authentication: 203097668
Date: 06-25-19 |
| You may verify this certificate online at corp.delaware.gov/authver.shtml |
| |
|
| |
STATE OF DELAWARE |
| |
SECRETARY OF STATE |
| |
DIVISION OF CORPORATIONS |
| |
FILED 03:24 PM 04/03/2003 |
| |
030223440 - 0757401 |
AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION
OF
VISKASE COMPANIES, INC.
VISKASE COMPANIES,
INC., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), pursuant to Sections
242 and 245 of the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the “GCL”),
DOES HEREBY CERTIFY:
1. That
the name of the Corporation is Viskase Companies, Inc., and the original Certificate of Incorporation of the Corporation was filed with
the Secretary of State of Delaware on July 21, 1970.
2. That
the name under which the Corporation was originally incorporated was MGN, Inc. The name was changed to Envirodyne Industries, Inc. in
a merger filed September 3, 1970. A merger was filed on September 4, 1998 which changed its name to Viskase Companies, Inc.
3. That
this Amended and Restated Certificate of Incorporation restates and integrates and further amends the Certificate of Incorporation of
the Corporation by restating the Certificate of Incorporation in its entirety.
4. That
this Amended and Restated Certificate of Incorporation is being filed pursuant to 8 Del. C. Section 303, the Corporation’s Prepackaged
Plan of Reorganization as Modified, and the Order Pursuant To Sections 1125 And l 129(a) Of The Bankruptcy Code And Rules 3017 And 3020
Of The Federal Rules Of Bankruptcy Procedure Finally Approving Shares Disclosure Statement And Confirming Viskase Companies, Inc.’s
Prepackaged Plan Of Reorganization As Modified, entered by the United States Bankruptcy Court for the Northern District of Illinois, Eastern
Division, on December 20, 2002.
5. That
the Certificate of Incorporation of the Corporation is hereby amended and restated to read in its entirety as follows:
“FIRST: The name
of the corporation is Viskase Companies, Inc. (hereinafter, the “Corporation”).
SECOND: The
address of the Corporation’s registered office in the State of Delaware is 2711 Centerville Road — Suite 400, in the City
of Wilmington, County of New Castle. The name of its registered agent at such address is United States Corporation Company.
THIRD: The
purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware as set forth in Title 8 of the Delaware Code.
FOURTH: The
total number of shares of all classes of stock which the Corporation shall have the authority to issue is 100,000,000 shares, consisting
of (i) 50,000,000 shares of Common Stock, $0.01 par value per share, and (ii) 50,000,000 shares of Preferred Stock, $0.01 par value per
share.
The Corporation
shall not issue any additional shares of stock, other than upon the exercise of any options, warrants or other convertible securities
outstanding as of the date hereof, without approval of the board of directors of the Corporation (the “Board of Directors”)
upon the affirmative vote of no less than 80% of the authorized number of directors constituting the Board of Directors, including authorized
but vacant directorships (the “Whole Board”). The Corporation shall not issue non-voting equity securities, Common Stock or
otherwise.
The designations,
powers, preferences and relative participating, optional or other special rights and the qualifications, limitations and restrictions
thereof in respect of each class of capital stock of the Corporation are as follows:
Each
holder of record of shares of Common Stock shall be entitled to vote at all meetings of the stockholders and shall have one vote for each
share held by him of record.
Subject
to the prior rights of the holders of all classes or series of stock at the time outstanding having prior rights as to dividends, the
holders of shares of Common Stock shall be entitled to receive, when and as declared by the Board of Directors, out of the assets of the
Corporation legally available therefor, such dividends as may be declared from time to time by the Board of Directors.
Subject
to the terms contained in any designation of a series of Preferred Stock, the Board of Directors is expressly authorized, at any time
and from time to time, to fix, by resolution or resolutions, the following provisions for shares of any class or classes of Preferred
Stock of the Corporation or any series of any class of Preferred Stock:
(1) the
designation of such class or series, the number of shares to constitute such class or series which may be increased or decreased (but
not below the number of shares of that class or series then outstanding) by resolution of the Board of Directors, and the stated value
thereof if different from the par value thereof;
(2) the
terms of the voting rights of the shares of such class or series, in addition
to any voting rights provided by law;
(3) the
dividends, if any, payable on such class or series, whether any such dividends shall be cumulative, and, if so, from what
dates, the conditions and dates upon which such dividends shall be payable, and the preference or
relation which such dividends shall bear to the dividends payable on any shares of stock of any other class or any other series of the
same class;
(4) whether
the shares of such class or series shall be subject to redemption by the Corporation, and, if so, the times, prices and other conditions
of such redemption;
(5) the
amount or amounts payable upon shares of such series upon, and the rights of the holders of such class or series in, the voluntary or
involuntary liquidation, dissolution or winding up, or upon any distribution of the assets, of
the Corporation;
(6) whether
the shares of such class or series shall be subject to the operation of a retirement or sinking fund, and, if so, the extent to and manner
in which any such retirement or sinking fund shall be applied to the purchase or redemption of the shares of such class or series for
retirement or other corporate purposes and the terms and provisions relative to the operation thereof;
(7) whether
the shares of such class or series shall be convertible into, or exchangeable for, shares of stock of any other class or any other series
of the same class or any other securities and, if so, the price or prices or the rate or rates of conversion or exchange and the method,
if any, of adjusting the same, and any other terms and conditions of conversion or exchange;
(8) the
limitations and restrictions, if any, to be effective while any shares of such class or series are outstanding upon the payment of dividends
or the making of other distributions on, and upon the purchase, redemption or other acquisition by the Corporation of the Common Stock
or shares of stock of any other class or any other series of the same class.
(9) the
conditions or restrictions, if any, upon the creation of indebtedness of the Corporation or upon the issue of any additional stock, including
additional shares of such class or series or of any other series of the same class or of any other class;
(l0) the
ranking (be it pari passu, junior or senior) of each class or series vis-a vis any other class or series of any class of Preferred Stock
as to the payment of dividends, the distribution of assets and all other matters; and
(11) any
other powers, preferences and relative, participating, optional and other special rights, and any qualifications, limitations and restrictions
thereof, insofar as they are not inconsistent with the provisions of this Amended and Restated Certificate of Incorporation, to the full
extent permitted in accordance with the laws of the State of Delaware.
The
powers, preferences and relative, participating, optional and other special rights of each class
or series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all
other class or series at any time outstanding.
FIFTH: The
following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:
(1) The
business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors consisting of not less than
three nor more than fifteen directors, the exact number of directors to be determined from time to time by resolution adopted by the
affirmative vote of a majority of the directors then in office. Directors shall be elected by the stockholders at each annual meeting
of stockholders. Each director shall hold office until the following annual meeting of stockholders and until his successor shall be
elected and shall qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office.
(2) Subject
to the rights of holders of any series of Preferred Stock then outstanding, any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by the affirmative vote of a majority of the Board of Directors then in office, provided
that a quorum is present, and any other vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority
of the directors then in office, even if less than a quorum, or by a sole remaining director.
(3)
Notwithstanding the foregoing, whenever the holders of any one or more classes or series of Preferred Stock issued by the Corporation
shall have the right, voting separately by class or series, to elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships shall be governed by the terms of this Amended and Restated
Certificate of Incorporation applicable thereto.
(4)
Election of directors need not be by ballot unless the Bylaws so provide.
(5)
In addition to the powers and authorities hereinabove or by statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless, to
the provisions of the statutes of Delaware, of this Amended and Restated Certificate of Incorporation, and to any Bylaws from time to
time made by the stockholders; provided, however, that no Bylaw so made shall invalidate any prior act of the directors which would have
been valid if such Bylaw had not been made.
(6)
The Board of Directors shall have the concurrent power with the stockholders to make, alter, amend, change, add to or repeal the
Bylaws of the Corporation.
(7)
The Corporation shall not adopt any new stockholder rights or similar plan without the affirmative
vote of not less than (i) 90% of the then outstanding shares of Common Stock and Preferred Stock, if any, entitled to vote thereon and
(ii) 80% of the Whole Board, except that in response to an unsolicited tender offer, the Board of Directors may on one occasion after
April 3, 2003 adopt a stockholder rights or similar plan having a term of not more than 60 days.
SIXTH:
Whenever a compromise or
arrangement is proposed between this Corporation
and its creditors or any
class of them and/or between this Corporation and
its stockholders or any class of them, any court
of equitable jurisdiction within the State of Delaware may, on the application in
a summary way of this Corporation
or of any creditor
or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation
under Section 291 of the GCL or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation
under Section 279 of the GCL order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders
of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing
three-fourths (3/4) in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation,
as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise
or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.
SEVENTH: The
Corporation shall, to the fullest extent permitted by Section 145 of the GCL, as amended from time to time, indemnify all persons whom
it may indemnify pursuant thereto. The personal liability of the directors of the Corporation is hereby eliminated to the fullest extent
permitted by Section 102 of the GCL, as the same may be amended or supplemented. No amendment to or repeal of this Article SEVENTH shall
apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment.
EIGHTH: Special
meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time by the President, by a majority
of the members of the Board of Directors or by the holders of ten percent (10%) or more of the total combined voting power of the outstanding
capital stock of the Corporation having voting power for the election of directors.”
IN WITNESS
WHEREOF, the Corporation has caused this Amended and Restated Certificate to be executed on its behalf this 3rd day of April,
2003.
| |
VISKASE COMPANIES, INC. |
| |
|
| |
By: |
/s/ Gordon S. Donovan |
| |
|
Name: Gordon S. Donovan |
| |
|
Title: Vice President |
State of Delaware
Secretary of State
Division of Corporations |
|
Delivered 03:04 PM 01/30/2004
FILED 03:04 PM 01/30/2004 |
|
| SRV 040066787 - 0757401 FILE |
|
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING EACH OF
VISKASE HOLDING CORPORATION
AND
VISKASE SALES CORPORATION
INTO
VISKASE COMPANIES, INC.
* * * * * * *
Viskase Companies,
Inc. a corporation organized and existing under the laws of Delaware,
DOES HEREBY
CERTIFY:
FIRST: That
this corporation was incorporated on the 21st day of July, 1970, pursuant to the General Corporation Law of the State of Delaware.
SECOND: (a)
That this corporation owns all of the outstanding shares of the capital stock of Viskase Holding Corporation, a corporation incorporated
on the 1st day of April, 1987, pursuant to the General Corporation Laws of Delaware.
(b) That this
corporation owns all of the outstanding shares of the capital stock of Viskase Sales Corporation, a corporation incorporated on the 21st
day of January, 1986, pursuant to the General Corporation Law of the State of Delaware.
THIRD: That
this corporation, by the following resolutions of its Board of Directors, duly adopted on January 30, 2004 by the unanimous written consent
of its members, filed with the minutes of the Board, determined to and will merge into itself each of said Viskase Holding Corporation
and Viskase Sales Corporation
| RESOLVED: | that it is deemed advisable and in the bests interests of the Corporation and each of Viskase Holding
Corporation and Viskase Sales Corporation, that the Corporation merge, and it hereby does merge into itself, Viskase Holding Corporation
and Viskase Sales Corporation, such that the Corporation survives and assumes all of their respective obligations; and |
| FURTHER
RESOLVED: |
that the merger shall be effective upon the date of filing with the Secretary of the State of Delaware; and |
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| FURTHER RESOLVED: |
that the proper officers of the Corporation be, and each of them acting singly hereby is, authorized to execute and deliver a Certificate of Ownership and Merger setting forth a copy of the resolutions to merge each of said Viskase Holding Corporation and Viskase Sales Corporation, and assume each of their respective liabilities and obligations, and to cause the same to be filed with the Secretary of State and to do all acts and things whatsoever, whether within or without the State of Delaware, which may be in any ways necessary or proper to effect said mergers. |
IN WITNESS
WHEREOF, said Viskase Companies, Inc. has caused this Certificate to be signed by Jon F. Weber, its President, this 30th day of January,
2004.
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VISKASE COMPANIES, INC. |
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By: |
/s/ Jon F. Weber |
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Jon F. Weber, President |
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State of Delaware
Secretary of State
Division of Corporations |
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Delivered 08:10 AM 11/08/2006 |
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FILED 08:10 AM 11/08/2006 |
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SRV 061020800 - 0757401 FILE |
CERTIFICATE OF DESIGNATIONS
OF
SERIES A PREFERRED STOCK
OF
VISKASE COMPANIES, INC.
PURSUANT TO SECTION 151
OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
Viskase Companies,
Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware
(the “DGCL”), DOES HEREBY CERTIFY that, in accordance with the provisions of Section 151 of such law and pursuant to
Article IV of the Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”),
the Board of Directors (the “Board”) of the Corporation is authorized to issue a series of preferred stock of the Corporation
(“Preferred Stock”), has authorized the series of Preferred Stock hereinafter provided for and has adopted the following
resolutions creating a series of Preferred Stock, par value $0.01 per share, designated as “Series A Preferred Stock,”
as follows:
RESOLVED,
that, pursuant to the authority vested in the Board in accordance with the
provisions of the Certificate of Incorporation, a series of Preferred Stock of the Corporation be, and hereby is, created and that the
designation and amount thereof and the voting powers, preferences and relative, participating, optional or other special rights of the
shares of such series, and the qualifications, limitations or restrictions thereon, are as follows:
| 1. | Designation and Amount. |
1.1 Series
A Preferred Stock. Fifteen Million (15,000,000) shares of the authorized and unissued
Preferred Stock of the Corporation are hereby designated “Series
A Preferred Stock” with the following rights, preferences, powers, privileges and restrictions, qualifications and limitations.
2.1 General.
From the date of the issuance of
any shares of Series A Preferred Stock and until the earlier of (i)
the expiration or earlier termination of the offering of rights
to acquire common stock, par value $0.01 per share, of the
Corporation (“Common Stock”) on the terms and subject to the conditions set forth
in that certain Series A Preferred Stock Purchase Agreement,
dated November 7, 2006 (as amended, the “Purchase Agreement”),
among the Corporation and the Investors identified therein (the
“Rights Offering”) and (ii) six (6) months from such issuance, each share of Series A Preferred Stock shall accrue
a minimum dividend of Twenty-One
and Nine Thousand Three Hundred Seventy-Five Ten Thousandths Cents ($0.219375) (the period from the date of issuance through the earlier
of the dates specified in clauses (i) and (ii) being hereinafter referred to as the “Initial Dividend Period”).
After the expiration of the Initial Dividend Period, dividends at the rate of 15% per annum on the
Series A Liquidation Value plus accrued and unpaid dividends thereon shall accrue on each share of Series A Preferred Stock. Dividends
on the Series A Preferred Stock shall be cumulative and, except as set forth in Section 3.1, shall be payable when, as and if
declared by the Board. Dividends shall accrue daily and compound quarterly. The Corporation shall not declare, pay or set aside any dividends
on Common Stock unless the holders of the Series A Preferred Stock (the “Series A Holders”) then outstanding shall
have received payment in full for all accrued but unpaid dividends. The “Series A Liquidation Value” shall mean One
Dollar and Ninety-Five Cents ($1.95) per share.
2.2 Payment-in-Kind.
Notwithstanding any other provision of this Certificate of Designations, in the sole discretion of the Corporation, any dividends accruing
on the Series A Preferred Stock may be paid in lieu of cash dividends by the issuance of additional shares of Series A Preferred Stock
(including fractional shares) having an aggregate Series A Liquidation Value at the time of such payment equal to the amount of the dividend
to be paid; provided that if the Corporation pays less than the total amount of dividends then accrued on the Series A Preferred
Stock in the form of additional shares of Series A Preferred Stock, such payment in additional shares and the cash portion of any such
dividend shall be made pro rata among the Series A Holders based upon the aggregate accrued but unpaid dividends on the Series A
Preferred Stock held by each such Series A Holder. If and when any Series A Preferred Stock is authorized
and issued under this Section 2.2 for the payment of accrued dividends, such Series A Preferred Stock shall be deemed to be validly
issued and outstanding and fully paid and nonassessable.
| 3. | Liquidation, Dissolution or Winding Up; Deemed Liquidation Event. |
3.1 Preferential
Payments to Series A Holders. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation,
or any Deemed Liquidation Event (as defined in Section 3.2
below) the Series A Holders
at the time of such event
shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders
(on a pari passu basis with the holders of any series of Preferred Stock of the Corporation
ranking in liquidation on a parity with the Series A Preferred Stock) before any payment shall be
made to the holders of Common Stock or any other class or series of
capital stock ranking in liquidation junior to the Series A Preferred
Stock by reason of their ownership thereof, an amount per share equal to the Series A Liquidation Value plus any dividends accrued
but unpaid thereon, whether or not declared.
If upon any such liquidation, dissolution or winding up of the
Corporation or Deemed Liquidation Event, the assets of the Corporation
available for distribution to its stockholders shall be insufficient to pay the Series A Holders
and any other series of Preferred Stock ranking in liquidation on a parity with the Series A Preferred Stock the full amount to which
they shall be entitled under this Section 3.1,
the Series A Holders and any other
series of Preferred Stock ranking in liquidation on a parity with the Series A Preferred Stock shall share ratably in any distribution
of the assets available for distribution in proportion to the respective
amounts that would otherwise be payable in respect of the shares held by them
upon such distribution if all amounts payable on
or with respect to such shares were paid
in full.
3.2 Deemed
Liquidation Event.
(a) Each
of the following events shall be considered a “Deemed Liquidation Event” unless the holders of at least majority of
the outstanding shares of Series A Preferred Stock elect otherwise by written notice sent to the Corporation at least ten (10) business
days prior to the effective date of any such event:
(i) a
merger or consolidation in which (A) the Corporation is a constituent party or (B) a subsidiary of the Corporation is a constituent party
and the Corporation issues shares of its capital stock pursuant to such merger or consolidation, except in either case any such merger
or consolidation involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately
prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent,
immediately following such merger or consolidation, at least a
majority, by voting power, of the capital stock of (1) the surviving or resulting corporation or (2) if the surviving or resulting corporation
is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such
surviving or resulting corporation (provided that, for the purpose of this Section 3.2, all shares of Common Stock issuable
upon exercise of Options (as defined below) outstanding immediately prior to such merger or consolidation or upon conversion of Convertible
Securities (as defined below) outstanding immediately prior to such merger or consolidation shall be deemed to be outstanding immediately
prior to such merger or consolidation and, if applicable, converted or exchanged in such merger or consolidation on the same terms as
the actual outstanding shares of Common Stock are converted or
exchanged); or
(ii) the
sale, lease, transfer, exclusive license or other disposition,
in a single transaction or series of related transactions, by the Corporation or
any subsidiary of the Corporation of all or substantially all
the assets of the Corporation and its subsidiaries taken as a whole, or the sale or disposition (whether by merger or otherwise) of one
or more subsidiaries of the Corporation if
substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held
by such subsidiary or subsidiaries, except where such sale, lease,
transfer, exclusive license or other disposition is to a wholly owned
subsidiary of the Corporation.
(b) The
Corporation shall not have the power to effect a
Deemed Liquidation Event unless
the agreement or plan of merger or consolidation for such
transaction provides that the
consideration payable to the stockholders of the Corporation shall be allocated among the holders of capital stock of the Corporation
in accordance with Section 3.1.
(c) In
the event of a Deemed Liquidation Event, if the Corporation does
not effect a dissolution of the Corporation under the DGCL within
ninety (90) calendar days after such Deemed Liquidation
Event, then (i) the Corporation shall send a written notice to each
Series A Holder no later than the ninetieth (90th) calendar day
after the Deemed Liquidation Event advising such Series A Holder
of its right (and the requirements to be met to secure such right)
pursuant to the terms of the following clause (ii) to require the redemption of such shares of Series A Preferred Stock, and (ii)
if the holders of at least a majority of the then outstanding shares of Series A Preferred Stock so request in a written instrument delivered
to the Corporation not later than one hundred twenty (120) calendar days after such Deemed Liquidation Event, the Corporation shall use
the consideration received by the Corporation in connection with such Deemed Liquidation Event (net of any retained liabilities associated
with the assets sold or licensed, as determined in good faith by the Board), together with any other assets of the Corporation available
for distribution to its stockholders (the “Available Proceeds”), to the extent legally available therefor, on the
one hundred fiftieth (150th) calendar day after such Deemed Liquidation Event, to redeem all outstanding shares of Series A Preferred
Stock at a price per share equal to the Series A Liquidation Value plus all accrued and unpaid dividends thereon. Notwithstanding the
foregoing, in the event of a redemption pursuant to the preceding sentence, if the Available Proceeds are not sufficient to redeem all
outstanding shares of Series A Preferred Stock and of any other series of Preferred Stock ranking in redemption on parity with the Series
A Preferred Stock that is required to then be redeemed, the Corporation shall redeem a pro rata portion of each Series A Holder’s
shares of Series A Preferred Stock and any such other series of Preferred Stock to the fullest extent of such Available Proceeds, based
on the respective amounts that would otherwise be payable in respect of the shares to be redeemed if the Available Proceeds were sufficient
to redeem all such shares, and shall redeem the remaining shares to have been redeemed as soon as practicable after the Corporation has
funds legally available therefor. Prior to the distribution or redemption provided for in this Section 3.2, the Corporation shall
not expend or dissipate the consideration received for such Deemed Liquidation Event, except to discharge expenses incurred in connection
with such Deemed Liquidation Event or in the ordinary course
of business.
(d) The
amount deemed paid or distributed to the holders of capital stock of the
Corporation upon any such merger, consolidation, sale, transfer, exclusive license, other disposition
or redemption shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation
or the acquiring person, firm or other entity. The value of such
property, rights or securities shall be determined in good faith by the Board.
4.1 General.
On any matter presented to the stockholders of the Corporation for their action or
consideration at any meeting of stockholders of the Corporation (or by written consent of stockholders in
lieu of meeting), each Series
A Holder shall be entitled to cast the number of votes equal
to the number of whole shares of Common
Stock into which the shares of Series A Preferred Stock held by such Series A Holder are convertible pursuant to Section 5 as of
the record date for determining stockholders entitled to vote on
such matter. Fractional votes shall not be permitted, but shall be rounded up to the nearest
whole number based on the aggregate number of shares of Series
A Preferred Stock held by such Series A Holder. Except as provided by law or by
the other provisions of the Certificate of Incorporation, Series A Holders shall
vote together with the holders of Common Stock, and with the holders
of any other series of Preferred Stock the terms of which so provide,
as a single class.
4.2 Series
A Preferred Stock Protective Provisions. At any time when
shares of Series A Preferred
Stock are outstanding, the Corporation shall not, either directly
or indirectly by amendment, merger, consolidation or otherwise, consummate any transaction outside the ordinary course of business (other
than the Rights Offering) or do any of the following without (in addition to any other vote required by law or the Certificate of Incorporation)
the written consent or affirmative vote of the holders of at least a majority of the then outstanding shares of Series A Preferred Stock
(voting on a common-equivalent basis in accordance with Section 4.1), given in writing or by vote at a meeting, consenting or
voting (as the case may be) separately as a class:
(a) liquidate,
dissolve or wind-up the business and affairs of the Corporation, effect any Deemed Liquidation Event or consent to any of the foregoing;
(b) amend,
alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation (other than in connection with the authorization
and issuance of Exempted Securities);
(c) create,
or authorize the creation of, or issue or obligate itself to issue shares of, any additional class or series of capital stock (other than
Exempted Securities), or increase the authorized number of shares of Series A Preferred Stock or increase the authorized number of shares
of any additional class or series of capital stock (other than in connection with the authorization and issuance of Exempted Securities);
(d) purchase
or redeem (or permit any subsidiary to purchase or redeem) or pay or declare any dividend or make any distribution on, any shares of capital
stock of the Corporation other than (i) redemptions of or dividends or distributions on the Series A Preferred Stock as expressly authorized
herein, (ii) dividends or other distributions payable on the Common Stock solely in the form of additional shares of Common Stock, (iii)
dividends or other distributions of Exempted Securities, and (iv) repurchases of stock from former employees, officers, directors, consultants
or other persons who performed services for the Corporation or any
subsidiary in connection with the cessation of such employment
or service; or
(e) declare
or pay dividends or other distributions in respect of the Common Stock (other than in connection with dividends or other distributions
of Exempted Securities).
5.1 Optional
Conversion. The Series A Holders shall have conversion
rights as follows (the “Conversion Rights”):
(a) Conversion
Rights. Unless theretofore converted in accordance with the provisions of Section 5.2,
(i) (A)
each share of Series A Preferred Stock shall be convertible, at the
option of the holder thereof and (B) all shares of Series A Preferred Stock shall be convertible
upon the written request of the holders of
at least a majority of the
outstanding Series A Preferred Stock; in case of clauses (A)
and (B), at any time on or after
the six-month anniversary of the date of issuance; and
(ii) each
share of Series A Preferred Stock shall be convertible, at the option of the holder thereof to the extent (and only to the extent) that,
in the good faith judgment of the holder thereof (with the advice of legal counsel), the holding of such share of Series A Preferred
Stock by such holder, in conjunction with any other stock of the Corporation that is held (directly or indirectly) by such holder or
a member of such holder’s Controlled Group (as defined below), is reasonably likely to result in the Corporation becoming included
in a Controlled Group that includes such holder;
into a number of fully paid and
nonassessable shares of Common Stock equal to (x) the per share Series A Liquidation Value plus accrued and unpaid dividends thereon divided
by (y) 70% of the Conversion Price (as defined below).
The “Conversion Price”
shall initially be equal to One Dollar and Ninety-Five Cents ($1.95). Such initial Conversion Price, and the rate at which shares of Series
A Preferred Stock may be converted into shares of Common Stock, shall be subject to adjustment as provided below. “Controlled
Group” shall mean (i) a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of
1986, as amended (the “Code”) and the regulations thereunder and (ii) two or more trades or businesses under common
control within the meaning of Section 414(c) of the Code and the regulations thereunder.
(b) Procedural
Requirements. In order for a Series A Holder to voluntarily convert shares of Series A Preferred Stock into shares of Common Stock,
such Series A Holder shall surrender the certificate or certificates for such shares of Series A Preferred Stock (or, if such Series A
Holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable
to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss,
theft or destruction of such certificate), at the office of the transfer agent for the Series A Preferred Stock (or at the principal office
of the Corporation if the Corporation serves as its own transfer agent), together with written notice that such Series A Holder elects
to convert all or any number of the shares of the Series A Preferred Stock represented by such certificate or certificates and, if applicable,
any event on which such conversion is contingent. Such notice shall state such Series A Holder’s name or the names of the nominees
in which such Series A Holder wishes the certificate or certificates for shares of Common Stock to be issued. If required by the Corporation,
certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory
to the Corporation, duly executed by the registered Series A Holder or his, her or its attorney duly authorized in writing. The close
of business on the date of receipt by the transfer agent (or by the Corporation if the Corporation serves as its own transfer agent) of
such certificates (or lost certificate affidavit and agreement) and notice shall be the time of conversion (the “Conversion Time”),
and the shares of Common Stock issuable upon conversion of the shares represented by such certificate shall be deemed to be outstanding
of record as of such date. The Corporation shall, as soon as practicable after the Conversion Time, issue and deliver to such Series A
Holder, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable upon such
conversion in accordance with the provisions hereof, rounded to the nearest whole number of shares.
(c) Effect
of Optional Conversion. All shares of Series A Preferred Stock that shall have been surrendered for conversion as herein provided
shall no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate at the Conversion
Time, except only the right of the Series A Holders thereof to receive shares of Common Stock in exchange therefor. Any shares of Series
A Preferred Stock so converted shall be retired and cancelled and may not be reissued as shares of such series, and the Corporation may
thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number
of shares of Series A Preferred Stock accordingly. Upon any such conversion, no adjustment to the Conversion Price shall be made for any
declared but unpaid dividends on the Series A Preferred Stock surrendered for conversion or on the Common Stock delivered upon conversion.
| 5.2 | Mandatory and Controlled Group Conversions. |
(a) Mandatory
Conversion. Upon the (i) expiration of the Rights Offering or (ii) early termination of the Rights Offering with the written consent
or affirmative vote of the holders of at least a majority of the then outstanding shares of Series A Preferred Stock (voting on a common-equivalent
basis in accordance with Section 4.1), which, in each case, has been initiated no later than ninety (90) calendar days after the
date of initial issuance of the Series A Preferred Stock (the “Trigger Event”), each outstanding share of Series A
Preferred Stock remaining outstanding after the fifth (5th) calendar day following the Trigger Event (such date being the “Mandatory
Redemption Date”) and not otherwise subject to Mandatory Redemption pursuant to Section 6.2 shall automatically be converted
following the close of business on the first business day following the Mandatory Redemption Date into a number of shares of Common Stock
equal to (i) the per share Series A Liquidation Value plus accrued and unpaid dividends divided by (ii) 70% of the Conversion Price (a
“Mandatory Conversion”).
(b) Controlled
Group Conversion. Shares
of Series A Preferred Stock held by any holder shall be automatically converted to the extent (and only to the extent)
that the holding of such shares by the holder, in conjunction with any other stock of the Corporation
that is held (directly or indirectly) by such holder or a member of such holder’s Controlled Group (as defined below), would cause
the Corporation to be included in a Controlled Group that includes such holder, into a number of shares of Common Stock equal to (i) the
per share Series A Liquidation Value plus accrued and unpaid dividends divided by (ii) 70% of the Conversion Price (the “Automatic
Controlled Group Conversion”). Any Automatic Controlled Group Conversion shall be effective as of the date immediately preceding
the date of holding of such shares by the holder would cause the Corporation to be included in such a Controlled Group.
(c) Procedural
Requirements. Upon a Mandatory Conversion or Automatic Controlled Group Conversion, each affected Series A Holder shall surrender
his, her or its certificate or certificates for all such shares (or, if such Series A Holder alleges that such certificate has been lost,
stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation
against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate)
to the Corporation at the place designated by the Corporation, and shall thereafter receive certificates
for the number of shares of Common Stock to which such Series A Holder is entitled pursuant to this
Section 5.2. Upon a Mandatory Conversion, all outstanding shares of Series A Preferred Stock, and upon an Automatic Controlled
Group Conversion, that number of shares automatically converted in accordance with Section 5.2(b), shall be deemed to have been
converted into shares of Common Stock, which shall be deemed to be outstanding of record, and all rights with respect to the Series A
Preferred Stock so converted, shall terminate, except only the rights of the Series A Holders, upon surrender of their certificate or
certificates (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the last sentence of this Section
5.2(c). If so required by the Corporation, certificates surrendered for conversion shall be endorsed or accompanied by written instrument
or instruments of transfer, in form satisfactory to the Corporation, duly executed by the Series A Holder or by his, her or its attorney
duly authorized in writing. As soon as practicable after the conversion and the surrender of the certificate or certificates (or lost
certificate affidavit and agreement) for Series A Preferred Stock, the Corporation shall issue and deliver to such Series A Holder, or
to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable on such conversion
in accordance with the provisions hereof, rounded to the nearest whole number of shares.
(d) Effect
of Conversion. All converted shares of Series A Preferred Stock shall, from and after conversion pursuant to this Section 5.2,
no longer be deemed to be outstanding. Such converted Series A Preferred Stock shall be retired and cancelled and may not be reissued
as shares of such series, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as
may be necessary to reduce the authorized number of shares of
Series A Preferred Stock accordingly.
5.3 Fractional
Shares. No fractional shares of Common Stock shall be issued upon conversion of the Series A Preferred Stock. In lieu of any fractional
shares of Common Stock to which the Series A Holder would otherwise
be entitled, the Corporation shall round the number of shares of Common Stock into which the Series A Preferred Stock may be converted
to the nearest whole number of shares.
| 5.4 | Mechanics of Conversion. |
| (a) | Reservation of Shares. |
(i) The
Corporation shall at all times when the Series A Preferred Stock shall be outstanding, reserve and keep available out of its authorized
but unissued capital stock, for the purpose of effecting the conversion
of the Series A Preferred Stock, such number of its duly authorized
shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding
Series A Preferred Stock, and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of the Series A
Preferred Stock, the Corporation shall take such corporate action
as may be necessary to increase its authorized but unissued shares
of Common Stock to such number of shares as shall be sufficient
for such purposes, including, without limitation, engaging in best efforts to obtain the requisite stockholder approval
of any necessary amendment to
the Certificate of Incorporation.
(ii) The
Corporation shall at all times
when the Series A Preferred Stock shall
be outstanding, reserve and keep available
out of its authorized but
unissued capital stock, for the purpose of effecting the payment of Series A Preferred Stock in lieu
of cash dividends pursuant to Section 2.2, such number of its duly authorized shares of Series A Preferred Stock as shall from
time to time be sufficient to effect the payment of Series A Preferred Stock in lieu of all then accrued and unpaid cash dividends, and
if at any time the number of authorized but unissued shares of Series A Preferred Stock shall not be sufficient to effect such payment
of Series A Preferred Stock, the Corporation shall take such corporate action as may be necessary to increase its authorized but unissued
shares of Series A Preferred Stock to such number of shares as shall be sufficient for such purposes, including, without limitation,
engaging in best efforts to obtain any requisite stockholder approval of any necessary amendment to the Certificate of Incorporation.
(iii) Before
taking any action that would cause an adjustment reducing the Conversion Price below the then par value of the shares of Common Stock
issuable upon conversion of the Series A Preferred Stock, the Corporation shall take any corporate
action that may, in the opinion of its counsel, be necessary in order that the Corporation may validly
and legally issue fully paid and nonassessable shares of Common
Stock at such adjusted Conversion Price.
(b) Taxes.
The Corporation shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or delivery of shares
of Common Stock upon conversion of shares of Series A Preferred Stock pursuant to this Section 5. The Corporation shall not, however,
be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of shares of Common Stock
in a name other than that in which the shares of Series A Preferred Stock so converted were registered, and no such issuance or delivery
shall be made unless and until the person or entity requesting such issuance has paid to the Corporation the amount of any such tax or
has established, to the satisfaction of the Corporation, that such tax has been paid. In addition, the Corporation shall not be required
to pay any tax that may be payable in respect of any dividends paid upon conversion of the Series A Preferred Stock.
| 5.5 | Adjustments to Conversion Price for Diluting Issues. |
(a) Special
Definitions. For purposes of this Certificate of Designations, the following definitions shall apply:
(i) “Additional
Shares of Capital Stock” shall mean all shares of capital stock
issued (or, pursuant to Section 5.5(c) below, deemed to
be issued) by the Corporation after the Series A Original Issue
Date, other than the following shares of capital stock, and shares
of capital stock deemed issued pursuant to the following Options and Convertible Securities
(collectively “Exempted Securities”):
(1) shares
of capital stock issued as stock dividends, stock splits, recapitalizations
and similar transactions completed with respect to both the Common
Stock and Series A Preferred Stock;
(2) shares
of capital stock or Options issued to employees or directors of, or consultants or advisors to, the Corporation or any of its subsidiaries
pursuant to a plan, agreement or arrangement approved by the Board;
(3) shares
of capital stock actually issued upon the conversion or exercise of Series A Preferred Stock, or other derivative securities outstanding
as of the Series A Original Issue Date; or
(4) shares
of capital stock, Options or Convertible Securities issued in connection with business acquisitions or to financial institutions or lessors
in connection with commercial credit arrangements, equity financings or similar transactions that are primarily of a non-equity financing
nature, strategic partners or licensors, or other third parties with whom the Corporation engages in a transaction, in each case, as approved
by the Board.
(ii) “Convertible
Securities” shall mean any evidences of indebtedness, shares or other securities directly or indirectly convertible into or
exchangeable for Common Stock, but excluding Options.
(iii) “Option”
shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.
(iv) “Series
A Original Issue Date” shall mean the date on which the first share of Series A Preferred Stock was issued.
(b) No
Adjustment of Conversion Price. No adjustment in the Conversion Price shall be made as the result of the issuance or deemed issuance
of Additional Shares of Capital Stock if the Corporation receives written notice from the holders of at
least a majority of the then outstanding shares of Series A Preferred Stock agreeing that no such
adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Capital
Stock.
(c) Deemed
Issuance of Additional Shares of Capital Stock.
(i) If
the Corporation at any time or from time to time after the Series A Original Issue Date shall issue
any Options or Convertible Securities (excluding Exempted Securities) or shall fix a record date for
the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then
the maximum number of shares
of Common Stock (as set forth in
the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility
or exchangeability but without regard to any provision contained therein
for a subsequent adjustment of such number) issuable upon the
exercise of such Options
or, in the case of Convertible Securities and Options therefor, the conversion or
exchange of such Convertible Securities, shall be deemed to be Additional Shares of Capital Stock issued as of the time
of such issue or, in case such a record
date shall have been fixed, as of the close
of business on such record date.
(ii) If
the terms of any Option or Convertible Security, the issuance of which
resulted in an adjustment to the Conversion Price pursuant to
the terms of Section 5.5(d) below,
are revised as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible
Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible
Security) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion
and/or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation
upon such exercise, conversion and/or exchange, then, effective upon such increase or decrease becoming effective, the Conversion Price
computed upon the original issue of such Option or Convertible Security (or upon the occurrence of a record date with respect thereto)
shall be readjusted to such Conversion Price as would have obtained had such revised terms been in effect upon the original date of issuance
of such Option or Convertible Security. Notwithstanding the foregoing, no readjustment pursuant to this clause (ii) of this Section
5.5(c) shall have the effect of increasing the Conversion Price to an amount which exceeds
the lesser of (i) the Conversion Price in effect immediately prior to the original adjustment made
as a result of the issuance of such Option or Convertible Security, or (ii) the Conversion Price that would have resulted from any issuances
of Additional Shares of Capital Stock (other than deemed issuances of Additional Shares of Capital
Stock as a result of the issuance of
such Option or Convertible Security) between the original adjustment date and such readjustment date.
(iii) If
the terms of any Option or Convertible Security (excluding Options or Convertible Securities that are themselves Exempted Securities),
the issuance of which did not result in an adjustment to the Conversion Price pursuant to the terms of Section 5.5(d) below (either
because the consideration per share (determined pursuant to Section 5.5(e) hereof) of the Additional Shares of Capital Stock subject
thereto was equal to or greater than the Conversion Price then in effect, or because such Option or Convertible
Security was issued before the Series A Original Issue Date), are revised after the Series A Original
Issue Date as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible
Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible
Security) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion
or exchange of any such Option or Convertible Security or
(2) any increase or decrease in the consideration
payable to the Corporation upon such exercise, conversion or exchange, then such Option or Convertible Security, as so amended or adjusted,
and the Additional Shares of Capital Stock subject thereto (determined in the
manner provided in clause (i) of this Section 5.5(c)) shall be deemed to have been issued effective upon such
increase or decrease becoming effective.
(iv) Upon
the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security (or portion thereof) that resulted
(either upon its original issuance or upon a revision of its terms)
in an adjustment to the Conversion Price pursuant to the terms
of Section 5.5(d) below, the Conversion Price shall be readjusted to such Conversion Price
as would have obtained had such Option or Convertible Security
(or portion thereof) never been issued.
(v) If
the number of shares of Common Stock issuable upon the exercise, conversion
and/or exchange of any Option or Convertible Security, or the
consideration payable to the Corporation upon such exercise, conversion
and/or exchange, is calculable at the time such Option or Convertible Security is issued or amended but is subject to adjustment
based upon subsequent events, any adjustment to the Conversion Price provided for in this Section 5.5(c) shall be effected at
the time of such issuance or amendment based on such number of shares or amount of consideration without regard to any provisions
for subsequent adjustments (and any subsequent adjustments shall be treated as provided in clauses (ii) and (iii) of
this Section 5.5(c)). If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any
Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange,
cannot be calculated at all at the time such Option or Convertible Security is issued or amended, any adjustment to the Conversion
Price that would result under the terms of this Section 5.5 at the time of such issuance or amendment shall instead be
effected at the time such number of shares and/or amount of consideration is first calculable (even if subject to subsequent
adjustments), assuming for purposes of calculating such adjustment to the Conversion Price that such issuance or amendment took
place at the time such calculation can first be made.
(d) Adjustment
of Conversion Price Upon Issuance of Additional Shares of Capital Stock. In the event the Corporation shall at any time after the
Series A Original Issue Date issue Additional Shares of Capital Stock (including Additional Shares of Capital Stock deemed to be issued
pursuant to Section 5.5(c)), without consideration or for a consideration per
share less than the applicable Conversion Price in effect immediately prior to such issue, then the Conversion Price shall be reduced,
concurrently with such issue, to the consideration per share received by the Corporation for such issue or deemed issue of the Additional
Shares of Capital Stock; provided that if such issuance or deemed issuance was without consideration, then the Corporation shall
be deemed to have received an aggregate of $0.01 of consideration for all such Additional Shares of Capital Stock issued or deemed to
be issued.
(e) Determination
of Consideration. For purposes of this Section 5.5,
the consideration received by the Corporation for the issue of any Additional Shares of Capital Stock shall
be computed as follows:
(i) Cash
and Property: Such consideration shall:
(l)
insofar as it consists of
cash, be computed at the aggregate amount of cash received by
the Corporation, excluding amounts paid or payable for accrued interest;
(2) insofar
as it consists of property other
than cash, be computed at the fair market
value thereof at the time of such issue, as determined in good faith by
the Board; and
(3) in
the event Additional Shares of Capital Stock are issued together
with other shares or
securities or other assets of the Corporation for consideration that
covers both, be the proportion of such consideration so received, computed
as provided in clauses (1) and (2) above, as determined in good
faith by the Board.
(ii) Options
and Convertible Securities. The consideration per share received
by the Corporation for Additional Shares of Capital Stock deemed to have been issued pursuant to Section 5.5(c), relating to Options
and Convertible Securities, shall be determined by dividing
(1) the
total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities,
plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options
or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such
Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by
(2) the
maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible
Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion
or exchange of such Convertible Securities.
(f) Multiple
Closing Dates. In the event the Corporation shall issue on more than one date Additional Shares of Capital Stock that are a part of
one transaction or a series of related transactions and that would result in an adjustment to the Conversion Price pursuant to the terms
of Section 5.5(d) above then, upon the final such issuance, the Conversion Price shall be readjusted to give effect to all such
issuances as if they occurred on the date of the first such issuance (and without giving effect to any additional adjustments as a result
of any such subsequent issuances within such period).
(g) Certificate
as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Conversion Price pursuant to this Section 5.5,
the Corporation at its expense shall, as promptly as reasonably
practicable but in any event not later than ten (10) calendar days thereafter, compute such adjustment or readjustment in accordance with
the terms hereof and furnish to each Series A Holder a certificate setting forth such adjustment or readjustment (including the kind and
amount of securities, cash or other property into which the Series A Preferred Stock is convertible) and showing in detail the facts upon
which such adjustment or readjustment is based. The Corporation shall, as promptly as reasonably
practicable after the written request at
any time of any Series A Holder (but in any event not later than ten (10) calendar days thereafter),
furnish or cause to be furnished to such holder a certificate setting forth (i) the Conversion Price then in effect, and (ii) the number
of shares of Common Stock and the amount, if any, of other securities, cash or property that then would be received upon the
conversion of Series A Preferred Stock.
(h) Notice
of Record Date. In the event:
(i) the
Corporation shall establish a record date for the holders of its Common
Stock (or other capital stock or securities at the time issuable upon conversion of the Series A
Preferred Stock) for the
purpose of entitling or enabling them to receive any dividend
or other distribution, or to receive any right to subscribe for or purchase any shares of
capital stock of any class or any other securities, or to receive any other security;
(ii) of
any capital reorganization of the Corporation, Deemed Liquidation Event or any reclassification of the Common Stock of the Corporation;
or
(iii) of
the voluntary or involuntary dissolution, liquidation or winding-up of the Corporation,
then, and in each such case, the
Corporation shall send or cause to be sent to the Series A Holders a notice specifying, as the case may be, (i) the record date for such
dividend, distribution or right, and the amount and character of such dividend, distribution or right, or (ii) the effective date on which
such reorganization, reclassification, Deemed Liquidation Event, dissolution, liquidation or winding-up is proposed to take place, and
the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other capital stock or securities at the time
issuable upon the conversion of the Series A Preferred Stock) shall be entitled to exchange their shares of Common Stock (or such other
capital stock or securities) for securities or other property deliverable upon such reorganization, reclassification, Deemed Liquidation
Event, dissolution, liquidation or winding-up, and the amount per share and character of such exchange applicable to the Series A Preferred
Stock and the Common Stock. Such notice shall be sent at least ten (10) calendar days prior to the record date or effective date for the
event specified in such notice.
6.1 Optional
Redemption. The Corporation shall have the right to redeem, and each Series A Holder shall have the right to require the Corporation
to redeem, in whole or in part, each then outstanding share of Series A Preferred Stock held by such Series A Holder at any time after
September 30, 2011 for cash consideration equal to the per share Series A Liquidation Value plus all accrued but unpaid dividends thereon;
provided that until immediately prior to the Redemption Date, each Series A Holder shall have the right to convert such outstanding
Series A Preferred Stock as and to the extent provided in Section 5.1. In the event that a Series A Holder elects to require the
Corporation to redeem Series A Preferred Stock in accordance with this Section 6.1,
the Corporation shall, within ten (10) business days following the Corporation’s receipt of notice from such Series A Holder, redeem
the shares of Series A Preferred Stock as to which such Series A Holder has elected redemption.
6.2 Mandatory
Redemption. On or before the Mandatory Redemption Date, for cash consideration equal to the Rights Offering Consideration, the Corporation
shall be required to redeem the percentage of shares of outstanding Series A Preferred Stock, equal to the gross proceeds to the Corporation
of the Rights Offering divided by Twenty Four Million ($24,000,000) multiplied by One Hundred (100) and expressed as a
percentage. For example, if the Corporation receives gross proceeds in the Rights Offering equal to Twelve Million ($12,000,000), then
the Corporation would be required to redeem 50% of the outstanding Series A Preferred Stock (or 6,153,846 shares of Series A Preferred
Stock) for $13,350,000 of cash consideration. “Rights Offering Consideration” shall mean an amount equal to (a) the
gross proceeds to the Corporation of the Rights Offering plus (b) an amount equal to the product of Two Million Seven Hundred
Thousand Dollars ($2,700,000) multiplied by a fraction the numerator of which is equal to the gross proceeds to the Corporation
of the Rights Offering and the denominator of which is Twenty-Four Million Dollars ($24,000,000).
6.3 Partial
Redemption. Upon the exercise of redemption rights or obligations pursuant to Section 6.1 or this Section 6.2, if the
Corporation does not have sufficient funds legally available to redeem all shares of Series A Preferred Stock to be redeemed pursuant
to such rights or obligations, the Corporation shall redeem a pro rata portion of each Series A Holder’s redeemable shares of such
Series A Preferred Stock out of funds legally available therefor, based on the respective amounts that would otherwise be payable in respect
of the shares to be redeemed if the legally available funds were sufficient to redeem all such shares, and shall redeem the remaining
shares to have been redeemed as soon as practicable after the Corporation has funds legally available therefor.
6.4 Redemption
Notice. Written notice of a redemption pursuant to Section 6.1 or 6.2 (the “Redemption Notice”) shall
be sent to each Series A Holder, in the case of a redemption pursuant to Section 6.1, not less than ten (10) calendar days, and in the
case of a redemption pursuant to Section 6.2, not less than one
(1) calendar day, prior to the date of each redemption (the “Redemption Date”). Each Redemption Notice shall state:
(a) the
number of shares of Series A Preferred Stock held by the Series A Holder
that the Corporation shall redeem;
(b) the
Redemption Date and the redemption price, in accordance with Sections
6.1 and 6.2 (the “Redemption Price”); and
(c) that
the Series A Holder is to surrender to the Corporation, in the manner and at the place designated, his, her or its certificate
or certificates representing the shares of Series A Preferred Stock to be redeemed.
6.5 Surrender
of Certificates; Payment. On or before the applicable Redemption Date, each
Series A Holder of shares of Series A Preferred Stock to be redeemed on such Redemption Date, unless such Series A Holder has exercised
his, her or its right to convert
such shares as provided in Section 5.1, shall surrender the certificate or certificates
representing such shares (or, if such Series A Holder alleges that such certificate has been lost, stolen or
destroyed, a lost certificate
affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against
the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation, in the manner and at the
place designated in the Redemption Notice, and thereupon the Redemption
Price for such shares shall be payable to the order of the person
whose name appears on such certificate or certificates as the owner thereof. In the event less than all of the shares of
Series A Preferred Stock represented by
a certificate are redeemed, a new certificate
representing the unredeemed shares of Series
A Preferred Stock shall promptly be issued to such Series A Holder.
6.6 Rights
Subsequent to Redemption.
If the Redemption Notice shall have been duly given, and if on the applicable Redemption Date the Redemption Price payable upon redemption
of the shares of Series A Preferred Stock to be redeemed on such
Redemption Date is paid or tendered for payment or deposited with an independent payment agent
so as to be available therefor, then notwithstanding that the certificates evidencing any of the shares of Series A Preferred Stock so
called for redemption shall not have been surrendered, dividends with respect to such shares of Series A Preferred Stock shall cease
to accrue after such Redemption Date and all rights with respect to such shares shall forthwith after the Redemption Date terminate,
except only the right of the Series A Holders to receive the Redemption Price without interest upon surrender of their certificate or
certificates therefor.
7.1 Redeemed
or Otherwise Acquired Shares. Any shares of Series A Preferred Stock that are redeemed or otherwise acquired by the Corporation or
any of its subsidiaries shall be automatically and immediately cancelled and retired and shall not be reissued, sold or transferred. Neither
the Corporation nor any of its subsidiaries may exercise any voting or other rights granted to the holders of Series A Preferred Stock
following redemption.
7.2 Waiver.
Any of the rights, powers, preferences and other terms of the Series A Preferred Stock set forth herein may be waived on behalf of all
Series A Holders by the affirmative written consent or vote of the Series A Holders of at least a majority of the shares of Series A Preferred
Stock then outstanding.
7.3 Notices.
Any notice required or permitted by the provisions of this Certificate of Designations to be given to a Series A Holder shall be mailed,
postage prepaid, to the post office address last shown on the records of the Corporation, or given by electronic communication in compliance
with the provisions of the DGCL, and shall be deemed sent upon such mailing or electronic transmission. In the event a Series A Holder
shall not by written notice designate the name to whom payment upon redemption of Series A Preferred Stock should be made or the address
to which the certificate or certificates representing, or other evidence of ownership of, such shares, or such payment, should be sent,
the Corporation shall be entitled to register such shares, and
make such payment, in the name of the Series A Holder of such Series A Preferred Stock as shown on the records of the Corporation and
to send the certificate or certificates representing such shares, or such payment, to the address of such Series A Holder shown on the
records of the Corporation.
7.4 Severability
of Provisions. Whenever possible, each provision hereof shall be interpreted in a manner as to be effective and valid under applicable
law, but if any provision hereof is held to by prohibited by or invalid under applicable law, such provision shall be ineffective only
to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions hereof.
If a court of competent jurisdiction should determine that a provision hereof would be valid or enforceable if a period of time were extended
or shortened or a particular percentage were increased or decreased, then such court may make such change as shall be necessary to render
the provision in question effective and valid under applicable law.
7.5 No
Impairment. Unless approved by a vote of the holders of a majority of the Series A Preferred Stock, the Corporation will not, (and
shall be without authority to) directly or indirectly by amendment of this Certificate of Designation or of the Certificate of Incorporation
of the Corporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities,
agreement, contract, or undertaking or through any other action:
(a) diminish,
impair, limit, restrict, avoid or seek to impair, limit, restrict or avoid, any of the rights, powers or privileges of the Series A Preferred
Stock or the Series A Holders hereunder or the observances or performance of any of the terms to be observed or performed hereunder by
the Corporation; or
(b) permit,
allow or agree to the diminishment, impairment, limitation, restriction or avoidance of, the observance or performance of any of the terms
to be observed or performed hereunder by the Corporation,
but will at all times in good
faith assist in, facilitate and assure the carrying out of all the provisions of this Certificate of Designation and the taking of all
such action as may be necessary or appropriate in order to protect the rights, powers and privileges of the holders of the Series A Preferred
Stock hereunder, including, without limitation, the Conversion Rights of the Series A Holders and the Series A Preferred Stock.
[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK]
IN WITNESS WHEREOF,
the undersigned has executed this Certificate of Designations on November 7, 2006.
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VISKASE COMPANIES, INC. |
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By: |
/s/ Gordon S. Donovan |
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Gordon S. Donovan, Vice President |
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and Chief Financial Officer |
Signature Page to Certificate
of Designations
CERTIFICATE OF AMENDMENT TO
THE AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION OF
VISKASE COMPANIES, INC.
Viskase
Companies, Inc. (the “Corporation”),
organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does
hereby certify:
FIRST: The
name of the Corporation is Viskase Companies, Inc.
SECOND: This
Certificate of Amendment amends the Amended and Restated Certificate of Incorporation of the Corporation to amend and restate the first
sentence of Article FOURTH of the Amended and Restated Certificate of Incorporation to read in its entirety as follows:
The total number of
shares of all classes of stock which the Corporation shall have the authority to issue is 150,000,000, consisting of (i) 100,000,000 shares
of Common Stock, $0.01 par value per share, and (ii) 50,000,000 shares of Preferred Stock, $0.01 par value per share.
THIRD: The
amendment of the Amended and Restated Certificate of Incorporation of the Corporation set forth in this Certificate of Amendment was duly
adopted in accordance with the applicable provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS
WHEREOF, the Corporation has caused this certificate to be duly executed by Thomas D. Davis, its President and Chief Executive Officer,
this 17th day of October, 2017.
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VISKASE COMPANIES, INC. |
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By |
/s/ Thomas D. Davis |
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Name: |
Thomas D. Davis |
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Title: |
President and Chief Executive Officer |
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State of Delaware
Secretary
of State
Division
of Corporations |
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Delivered
02:25 PM 10/17/2017
FILED
02:25 PM 10/17/2017 |
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| SR 20176656000 – File Number 757401 |
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State of Delaware |
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Secretary of State |
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Division of Corporations |
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Delivered 05:50 PM 12/19/2018 |
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FILED 05:50 PM 12/19/2018 |
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SR 20188266923 - File Number 757401 |
CERTIFICATE OF AMENDMENT TO
THE AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION OF
VISKASE COMPANIES, INC.
Viskase Companies,
Inc. (the “Corporation”), organized and existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify:
FIRST: The
name of the Corporation is Viskase Companies, Inc.
SECOND: This
Certificate of Amendment amends the Amended and Restated Certificate of Incorporation of the Corporation to amend and restate Article
FOURTH of the Amended and Restated Certificate of Incorporation to read in its entirety as follows:
FOURTH:
The total number of shares of all classes of stock which the Corporation shall have the authority to issue is 150,000,000
shares, consisting of (i) 100,000,000 shares of Common Stock, $0.01 par value per share, and (ii)
50,000,000 shares of Preferred Stock, $0.01 par value per share.
The
designations, powers, preferences and relative participating, optional or other special rights and the qualifications, limitations and
restrictions thereof in respect of each class of capital stock of the Corporation are as follows:
A. Common
Stock
Each
holder of record of shares of Common Stock shall be entitled to vote at all meetings of the stockholders and shall have one vote for each
share held by him of record.
Subject
to the prior rights of the holders of all classes or series of stock at the time outstanding having prior rights as to dividends, the
holders of shares of Common Stock shall be entitled to receive, when and as declared by the Board of Directors, out of the assets of the
Corporation legally available therefor, such dividends as may be declared from time to time by the Board of Directors.
B. Preferred
Stock
Subject
to the terms contained in any designation of a series of Preferred Stock, the Board of Directors is expressly authorized, at any time
and from time to time, to fix, by resolution or resolutions, the following provisions for shares of any class or classes of Preferred
Stock of the Corporation or any series of any class of Preferred Stock:
(1) the
designation of such class or series, the number of shares to constitute such class or series which may be increased or decreased (but
not below the number of shares of that class or series
then outstanding) by resolution of the Board of Directors, and the stated value thereof if different
from the par value thereof;
(2) the
terms of the voting rights, if any, of the shares of such class or series, in addition to any voting rights provided by law;
(3) the
dividends, if any, payable on such class or series, whether any such dividends shall be cumulative, and, if so, from what dates, the conditions
and dates upon which such dividends shall be payable, and the preference or relation which such dividends shall bear to the dividends
payable on any shares of stock of any other class or any other series of the same class;
(4) whether
the shares of such class or series shall be subject to redemption by the Corporation, and, if so, the times, prices and other conditions
of such redemption;
(5) the
amount or amounts payable upon shares of such series upon, and the rights of the holders of such class or series in, the voluntary or
involuntary liquidation, dissolution or winding up, or upon any distribution of the assets, of the Corporation;
(6) whether
the shares of such class or series shall be subject to the operation of a retirement or sinking fund, and, if so, the extent to and manner
in which any such retirement or sinking fund shall be applied to the purchase or redemption of the shares of such class or series for
retirement or other corporate purposes and the terms and provisions relative to the operation thereof;
(7) whether
the shares of such class or series shall be convertible into, or exchangeable for, shares of stock of any other class or any other series
of the same class or any other securities and, if so, the price or prices or the rate or rates of conversion or exchange and the method,
if any, of adjusting the same, and any other terms and conditions of conversion or exchange;
(8) the
limitations and restrictions, if any, to be effective while any shares of such class or series are outstanding upon the payment of dividends
or the making of other distributions on, and upon the purchase, redemption or other acquisition by the Corporation of the Common Stock
or shares of stock of any other class or any other series of the same class;
(9) the
conditions or restrictions, if any, upon the creation of indebtedness of the Corporation or upon the issue of any additional stock, including
additional shares of such class or series or of any other series of the same class or of any other class;
(10) the
ranking (be it pari passu, junior or senior) of each class or series vis-a-vis any other class or series of any class of Preferred Stock
as to the payment of dividends, the distribution of assets and all other matters; and
(11) any
other powers, preferences and relative, participating, optional and other special rights, and any qualifications, limitations and restrictions
thereof, insofar as they are not inconsistent with the provisions
of this Amended and Restated Certificate of Incorporation, to the full extent permitted in accordance with the laws of the State of Delaware.
The
powers, preferences and relative, participating, optional and other special rights of each class or series of Preferred Stock,
and the qualifications, limitations or restrictions thereof, if any, may differ from those of any
and all other class or series at any time outstanding.
THIRD: This
Certificate of Amendment amends the Amended and Restated Certificate of Incorporation to amend and restate Section 7 of Article FIFTH
of the Amended and Restated Certificate of Incorporation to read in its entirety as follows:
(7) The
Corporation shall not adopt any new stockholder rights or similar plan without the affirmative vote of not less than (i) 90% of the then
outstanding shares of Common Stock and Preferred Stock, if any, entitled to vote thereon and (ii) 80% of the authorized number of directors
constituting the Board of Directors, including authorized but
vacant directorships, except that in response to an unsolicited tender offer, the Board of Directors may on one occasion after April 3,
2003 adopt a stockholder rights or similar plan having a term of not more than 60 days.
FOURTH: This
Certificate of Amendment amends the Amended and Restated Certificate of Incorporation to add a new Article NINTH which shall read in its
entirety as follows:
NINTH.
To the fullest extent permitted by Section 122(17) of the GCL and except as may be otherwise expressly agreed in writing by the Corporation
and Icahn Enterprises L.P. (“IELP”), the Corporation, on behalf of itself and its subsidiaries, renounces any interest or
expectancy of the Corporation and its subsidiaries in, or in being offered an opportunity to participate in,
business opportunities that are from time to time presented to IELP or its affiliates or subsidiaries
or any of their respective employees, officers, directors, agents, stockholders, members or partners (other than the Corporation and
its subsidiaries), even if the opportunity is one that the Corporation or its subsidiaries might reasonably be deemed to have pursued
or had the ability or desire to pursue if granted the opportunity to do so, and no such person or entity shall be liable to the Corporation
or any of its subsidiaries for breach of any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that
such person or entity pursues or acquires such business opportunity, directs such business opportunity to another person or entity or
fails to present such business opportunity, or information regarding such business opportunity, to the Corporation or its subsidiaries
unless, in the case of any such person who is a director or
officer of the Corporation, such business opportunity is expressly offered to such director or officer in
writing solely in his or her capacity as a director or officer of the Corporation. Any person purchasing
or otherwise acquiring any interest in any shares of stock of the Corporation shall be deemed to have notice of and consented to the
provisions of this Article Ninth. Neither the alteration, amendment or repeal of this Article Ninth nor the adoption of any provision
of this Amended and Restated Certificate of Incorporation inconsistent with this Article Ninth shall eliminate or reduce the effect of
this Article Ninth in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit
or claim that, but for this Article Ninth, would accrue or arise, prior to such alteration, amendment, repeal or adoption.
FIFTH: The
amendment of the Amended and Restated Certificate of Incorporation of the Corporation set forth in this Certificate of Amendment was duly
adopted in accordance with the applicable provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS
WHEREOF, the Corporation has caused this certificate to be duly executed by Thomas D. Davis, its Chairman of the Board, President and
Chief Executive Officer, this 19th day of December, 2018.
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VISKASE COMPANIES, INC. |
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By |
/s/ Thomas D. Davis |
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Name: |
Thomas D. Davis |
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Title: |
Chairman of the Board, |
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President and Chief |
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Executive Officer |
Exhibit 3.7
AMENDED AND RESTATED BYLAWS
OF
VISKASE COMPANIES, INC.
(hereinafter called the “Corporation”)
(As amended and restated through August 10,
2017)
ARTICLE I
OFFICES
Section 1. Registered
Office. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other
Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place
of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place,
either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual
Meetings. The Annual Meetings of Stockholders shall be held on such date and at such time as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting. Written notice of the Annual Meeting of Stockholders stating
the place, date and hour of the meeting, and the means of remote communication, if any, by which stockholders and proxyholders may
be deemed to be present in person and vote at such meeting, shall be given not less than ten nor more than sixty days before the
date of the meeting to each stockholder entitled to vote at such meeting. Notice to stockholders may be given in writing or in the
form of electronic transmission as permitted by this Section 2 of this Article II. Notice may be delivered personally, may
be delivered by mail, or, with the consent of the stockholder entitled to receive notice, may be delivered by facsimile
telecommunication or any of the other means of electronic transmission specified in this Section 2 of this Article II.
Notice given by electronic transmission pursuant to this Section 2 of this Article II shall be deemed given: (1) if
by facsimile telecommunication, when directed to a facsimile telecommunication number at which the stockholder has consented to
receive notice; (2) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented
to receive notice; (3) if by posting on an electronic network together with separate notice to the stockholder of such specific
posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (4) if by any other form
of electronic transmission, when directed to the stockholder. An affidavit of the Secretary or an Assistant Secretary or of the
transfer agent or other agent of the Corporation that the notice has been given by personal delivery, by mail, or by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
Section 3. Stockholder
Nominations of Directors. Nominations of persons for election to the Board of Directors may be made at any meeting of stockholders
either (a) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (b) by any stockholder
of the Corporation who is a stockholder of record on the record date for the determination of stockholders entitled to vote at such meeting.
Section 4. Stockholder
Proposals of Business. Any business may be transacted at an annual meeting of stockholders either (a) as specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof),
(b) otherwise properly brought before the annual meeting by or at the direction of the Board of Directors (or any duly authorized
committee thereof) or (c) otherwise properly brought before the annual meeting by any stockholder of the Corporation who is a stockholder
of record on the record date for the determination of stockholders entitled to vote at such annual meeting.
Section 5. Special
Meetings. Special Meetings of Stockholders may be called as provided for in the Amended and Restated Certificate of Incorporation.
Written notice of a Special Meeting of Stockholders, stating the place, date and hour of the meeting and the purpose or purposes for which
the meeting is called, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present
in person and vote at such meeting, shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder
entitled to vote at such meeting. Notice to stockholders may be given in writing or in the form of electronic transmission as permitted
by this Section 5 of this Article II. Notice may be delivered personally, may be delivered by mail, or, with the consent of
the stockholder entitled to receive notice, may be delivered by facsimile telecommunication or any of the other means of electronic transmission
specified in this Section 5 of this Article II. Notice given by electronic transmission pursuant to this Section 5 of this
Article II shall be deemed given: (1) if by facsimile telecommunication, when directed to a facsimile telecommunication number
at which the stockholder has consented to receive notice; (2) if by electronic mail, when directed to an electronic mail address
at which the stockholder has consented to receive notice; (3) if by posting on an electronic network together with separate notice
to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice;
and (4) if by any other form of electronic transmission, when directed to the stockholder. An affidavit of the secretary or an assistant
secretary or of the transfer agent or other agent of the Corporation that the notice has been given by personal delivery, by mail, or
by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein. Business transacted
at all Special Meetings of Stockholders shall be confined to the purposes stated in the notice.
Section 6. Quorum.
Except as otherwise provided by law or by the Amended and Restated Certificate of Incorporation, the holders of a majority of the capital
stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting
of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented.
At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted
at the meeting as originally noticed. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.
Section 7. Voting.
Unless otherwise required by law, the Amended and Restated Certificate of Incorporation or these Amended and Restated Bylaws, (i) any
question brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the stock represented
and entitled to vote thereat and (ii) each stockholder represented at a meeting of stockholders shall be entitled to cast one vote
for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy but
no proxy shall be voted on or after three years from its date, unless such proxy provides for a longer period. Without limiting the manner
in which a stockholder may authorize another person or persons to act for him or her as proxy, a stockholder may validly authorize another
person or persons to act for him or her as proxy by: (a) executing a writing to that effect, which execution may be accomplished
by the stockholder or his authorized officer, director, employee or agent signing the writing or causing his signature to be affixed to
the writing by any reasonable means including, but not limited to, facsimile signature; or (b) transmitting or authorizing an electronic
transmission setting forth an authorization to act as proxy to the person designated as the holder of the proxy or to a proxy solicitation
firm, proxy support service organization or like agent. Proxies by electronic submission must either set forth or be submitted with information
from which it can be determined that the electronic submission was authorized by the stockholder. Any copy, facsimile telecommunication
or other reliable reproduction of the writing or electronic transmission created pursuant to this paragraph may be substituted or used
in lieu of the original writing or electronic transmission for any and all purposes for which the original writing or electronic transmission
could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire
original writing or electronic transmission. The Board of Directors, in its discretion, or the officer of the Corporation presiding at
a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 8. List
of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours,
for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder
of the Corporation who is present.
Section 9. Stock
Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 8 of this Article II or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
ARTICLE III
DIRECTORS
Section 1. Number
and Qualification. The authorized number of directors that shall constitute the entire Board of Directors shall be not less than three
or more than fifteen directors, the exact number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office.
Section 2. Duties
and Powers. The business of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Amended and Restated Certificate
of Incorporation or by these Amended and Restated Bylaws directed or required to be exercised or done by the stockholders.
Section 3. Meetings.
The Board of Directors may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of
the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by resolution
of the Board of Directors. Advance notice of regular meetings need not be given; provided, that if the Board of Directors shall change
the time or place of any regular meeting, notice of such changed time or place shall be given to each member of the Board of Directors
at least 24 hours in advance, if such notice is sent to such director by facsimile, by email or by any other form of electronic transmission
approved by such director (each, a “Specified Transmission”), or such notice is delivered to him or her by telephone
or personally, or at least 48 hours in advance, if such notice is mailed to such director, addressed to him or her at his or her usual
place of business or other designated address. Special meetings of the Board of Directors may be called by the President or by a majority
of the Board of Directors. Notice of any special meeting of the Board of Directors stating the purpose, time and place of the meeting
shall be given to each member of the Board of Directors at least 24 hours in advance, if such notice is sent to such director by Specified
Transmission, or such notice is delivered to him or her by telephone or personally, or at least 48 hours in advance, if such notice is
mailed to such director, addressed to him or her at his or her usual place of business or other designated address. Notices need not be
given to any director who attends a meeting of the Board of Directors without protesting the lack of notice to him or her, prior to or
at the commencement of such meeting, or to any director who submits a signed waiver of notice (including by Specified Transmission), whether
before or after such meeting. In the event a director is unable to attend a meeting in person, the Board of Directors shall use all reasonable
efforts to allow such director to attend such meeting by conference telephone or similar communications equipment.
Section 4. Quorum.
Except as may be otherwise specifically provided by law, the Amended and Restated Certificate of Incorporation or these Amended and Restated
Bylaws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction
of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board
of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 5. Actions
of Board. Unless otherwise provided by the Amended and Restated Certificate of Incorporation or these Amended and Restated Bylaws,
any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without
a meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing or by Specified Transmission,
and the writing or writings or Specified Transmissions are filed with the minutes or proceedings of the Board of Directors or committee.
Section 6. Regulations;
Manner of Acting. To the extent consistent with applicable law, the Amended and Restated Certificate of Incorporation and these Amended
and Restated Bylaws, the Board of Directors may adopt such rules and regulations for the conduct of meetings of the Board of Directors
and for the management of the property, affairs and business of the Corporation as the Board of Directors may deem appropriate.
Section 7. Meetings
by Means of Conference Telephone. Unless otherwise provided by the Amended and Restated Certificate of Incorporation or these Amended
and Restated Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting
of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 7 shall constitute
presence in person at such meeting.
Section 8. Committees.
The Board of Directors may designate and establish one or more committees of the Board of Directors only by resolution passed by not less
than 80% of the authorized number of directors constituting the Board of Directors, including authorized but vacant directorships (the
“Whole Board”). In the absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any absent or disqualified member. Such appointee must meet any criteria for
directors set forth in these Amended and Restated Bylaws, in the resolutions of the Board of Directors designating any committee and in
applicable law. Except as set forth in these Amended and Restated Bylaws, any such committee, to the extent provided in the resolution
of the Board of Directors passed by not less than 80% of the Whole Board and subject to any restrictions or limitations on the delegation
of power and authority imposed by applicable law, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors
when required.
Section 9. Reliance
on Accounts and Reports, etc. A director, or a member of any Committee designated by the Board of Directors shall, in the performance
of his or her duties, be fully protected in relying in good faith upon the records of the Corporation and upon information, opinions,
reports or statements presented to the Corporation by any of the Corporation’s officers or employees, or Committees designated
by the Board of Directors, or by any other person as to the matters the member reasonably believes are within such other person’s
professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
Section 10. Compensation.
The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors and/or a stated salary as director. No such payment shall preclude any director
from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
ARTICLE IV
OFFICERS
Section 1. General.
The officers of the Corporation shall be chosen by the Board of Directors and shall be a President, a Secretary and a Treasurer. The Board
of Directors, in its discretion, may also choose one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers.
Any number of offices may be held by the same person, unless otherwise prohibited by law, the Amended and Restated Certificate of Incorporation
or these Amended and Restated Bylaws.
Section 2. Election.
The Board of Directors at its first meeting held after each Annual Meeting of Stockholders shall elect the officers of the Corporation,
who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified,
or until their earlier resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative
vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors.
The salaries of all officers of the Corporation shall be fixed by the Board of Directors.
Section 3. Voting
Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President or any Vice President
and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable
to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the ownership of such securities and which,
as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time
to time confer like powers upon any other person or persons.
Section 4. President.
The President shall preside at all meetings of the stockholders and the Board of Directors at which he or she is present. He or she shall
be the Chief Executive Officer of the Corporation and shall, subject to the control of the Board of Directors, have general supervision
of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. He
or she shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the
Corporation may sign and execute documents when so authorized by these Amended and Restated Bylaws, the Board of Directors or the President.
The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him or
her by these Amended and Restated Bylaws or by the Board of Directors.
Section 5. Vice
Presidents. At the request of the President or in his or her absence or in the event of his or her inability or refusal to act, the
Vice President or the Vice Presidents if there is more than one (in the order designated by the Board of Directors) shall perform the
duties of the President and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each
Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If
there be no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the President.
Section 6. Secretary.
The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings thereat
in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required.
The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and, where applicable, meetings of the Board
of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision
he or she shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and,
where applicable, meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation
and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and
when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his or her
signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to
be kept or filed are properly kept or filed, as the case may be.
Section 7. Treasurer.
The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit
of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President
and the Board of Directors, at its regular meetings, or when the President or the Board of Directors so requires, an account of all his
or her transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer
shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his or her office and for the restoration to the Corporation, in case of his or her death,
resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her
possession or under his or her control belonging to the Corporation.
Section 8. Assistant
Secretaries. Except as may be otherwise provided in these Amended and Restated Bylaws, Assistant Secretaries, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his or her disability or refusal
to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the Secretary.
Section 9. Assistant
Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer
or in the event of his or her disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer
shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his or her office and for the restoration to the Corporation, in case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession
or under his or her control belonging to the Corporation.
Section 10. Other
Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the
power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of
Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation
(i) by the President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation, certifying the number of shares owned by him or her in the Corporation.
Section 2. Signatures.
Where a certificate is countersigned by (i) a transfer agent other than the Corporation or its employee, or (ii) a registrar
other than the Corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she
were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost
Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his or her legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 4. Transfers.
Stock of the Corporation shall be transferable in the manner prescribed by law and in these Amended and Restated Bylaws. Transfers of
stock shall be made on the books of the Corporation only by the person named in the certificate or by his or her attorney lawfully constituted
in writing and upon the surrender of the certificate therefor, which shall be cancelled before a new certificate shall be issued.
Section 5. Record
Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board
of Directors may fix, in advance, a record date, which shall not be more than 60 days nor less than ten days before the date of such meeting,
nor more than 60 days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting
of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date
for the adjourned meeting.
Section 6. Beneficial
Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices.
Whenever written notice is required by law, the Amended and Restated Certificate of Incorporation or these Amended and Restated Bylaws
to be given to any director, member of a committee or stockholder, such notice (a) may be given by mail, addressed to such director,
member of a committee or stockholder, at his or her address as it appears on the records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail or (b) may be
given by any other method authorized by law, the Amended and Restated Certificate of Incorporation or these Amended and Restated Bylaws.
Section 2. Waivers
of Notice. Whenever any notice is required by law, the Amended and Restated Certificate of Incorporation or these Amended and Restated
Bylaws to be given to any director, member of a committee or stockholder, a waiver thereof in writing or by Specified Transmission, signed
or provided by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends.
Dividends upon the capital stock of the Corporation, subject to the provisions of the Amended and Restated Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property, or in shares
of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends
such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose,
and the Board of Directors may modify or abolish any such reserve.
Section 2. Disbursements.
All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons
as the Board of Directors may from time to time designate.
Section 3. Fiscal
Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
Section 4. Corporate
Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate
Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 5. Electronic
Transmission. “Electronic transmission”, as used in these Amended and Restated Bylaws, means any form of communication,
not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power
to Indemnify in Actions, Suits or Proceedings Other Than Those by or in the Right of the Corporation. Subject to Section 3 of
this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or
in the right of the Corporation) by reason of the fact that he or she is or was a director or officer of the Corporation, or is or was
a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action,
suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct
was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his or her conduct was unlawful.
Section 2. Power
to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 3 of this Article VIII,
the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he or she is or was
a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 3. Authorization
of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII,
as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum
of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent,
however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred by him or her in connection therewith, without the necessity of authorization
in the specific case.
Section 4. Good
Faith Defined. For purposes of any determination under Section 3 of this Article VIII, a person shall be deemed to have
acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had no reasonable cause to believe his or her conduct was unlawful, if his
or her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him
or her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term “another enterprise” as used in this Section 4 of this Article VIII shall mean any other corporation or
any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request
of the Corporation as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII shall not
be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard
of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification
by a Court. Notwithstanding any contrary determination in the specific case under Section 3 of this Article VIII, and notwithstanding
the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under Section 1 and Section 2 of this Article VIII. The
basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper
in the circumstances because he or she has met the applicable standards of conduct set forth in Section 1 or Section 2 of this
Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 3 of this Article VIII
nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this
Section 5 of this Article VIII shall be given to the Corporation promptly upon the filing of such application. If successful,
in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses
Payable in Advance. Notwithstanding the provisions of Section 3, expenses incurred by a director or officer in defending or investigating
a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately
be determined that he or she is not entitled to be indemnified by the Corporation as authorized in this Article VIII.
Section 7. Nonexclusivity
of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to
this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses
may be entitled under any Bylaw, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (howsoever
embodied) of any court of competent jurisdiction or otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Section 1
and Section 2 of this Article VIII or designated under Section 12 of this Article VIII shall be made to the fullest
extent permitted by law. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who
is not specified in Section 1 or Section 2 of this Article VIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the General Corporation Law of the State of Delaware, under Section 12 of this Article VIII
or otherwise.
Section 8. Insurance.
The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted
against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation
would have the power or the obligation to indemnify him or her against such liability under the provisions of this Article VIII.
Section 9. Certain
Definitions. For purposes of this Article VIII, references to “the Corporation” shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or
agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was a director
or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position
under the provisions of this Article VIII with respect to the resulting or surviving corporation as he or she would have with respect
to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to “fines”
shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the
request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes
duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants
or beneficiaries; and a person who acted in good faith and in a manner he or she reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Article VIII.
Section 10. Survival
of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Any repeal or modification
of this Article VIII by the stockholders of the Corporation shall not adversely affect any rights to indemnification and advancement
of expenses existing pursuant to this Article VIII with respect to any acts or omissions occurring prior to such repeal or modification.
Section 11. Limitation
on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce
rights to indemnification (which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding
(or part thereof) was authorized or consented to by the Board of Directors.
Section 12. Indemnification
of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights
to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article VIII
to directors and officers of the Corporation.
ARTICLE IX
EXCLUSIVE FORUM
Unless the Corporation consents in writing to the
selection of an alternative forum, the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of
the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee
of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim against the Corporation
or any director or officer or other employee of the Corporation arising pursuant to any provision of the General Corporation Law of the
State of Delaware or the Amended and Restated Certificate of Incorporation or these Amended and Restated Bylaws (as any of the same may
be amended from time to time), or (d) any action asserting a claim against the Corporation or any director or officer or other employee
of the Corporation governed by the internal affairs doctrine shall be a state court located within the State of Delaware (or, if no state
court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware).
ARTICLE X
AMENDMENTS
These Amended and Restated Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the Board of Directors only by a vote of at least 80% of the
Whole Board.
Exhibit 3.8
| |
|
| |
State
of Delaware
|
| |
Secretary
of State
|
| |
Division
of Corporations |
| |
Delivered
04:14 PM
10/07/2020 |
| |
FILED
04:14 PM
10/07/2020 |
| |
SR 20207703755
– File Number 757401 |
CERTIFICATE OF AMENDMENT TO
THE AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION OF
VISKASE COMPANIES, INC.
Viskase Companies, Inc.
(the “Corporation”), organized and existing under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify that:
FIRST: The name of
the Corporation is Viskase Companies, Inc.
SECOND: This
Certificate of Amendment amends the Amended and Restated Certificate of Incorporation of the Corporation to amend and restate the first
sentence of Article FOURTH of the Amended and Restated Certificate of Incorporation to read in its entirety as follows:
The total number of shares
of all classes of stock which the Corporation shall have the authority to issue is 200,000,000 shares, consisting of (i) 150,000,000
shares of Common Stock, $0.01 par value per share, and (ii) 50,000,000 shares of Preferred Stock, $0.01 par value per share.
THIRD: The
amendment of the Amended and Restated Certificate of Incorporation of the Corporation set forth in this Certificate of Amendment was
duly adopted in accordance with the applicable provisions of Sections 228 and 242 of the General Corporation Law of the State of Delaware.
IN WITNESS
WHEREOF, the Corporation has caused this certificate to be duly executed by Michael Schenker, its General Counsel, Executive Vice President,
Chief Administrative Officer & Secretary, this 7th day of October, 2020.
| |
VISKASE COMPANIES, INC. |
| |
|
| |
By: |
/s/
Michael Schenker |
| |
Name: |
Michael
Schenker |
| |
Title: |
General Counsel, Executive Vice President,
Chief Administrative Officer & Secretary |
Exhibit 10.7
CREDIT AGREEMENT
Dated as of October 9, 2020
among
VISKASE COMPANIES, INC.,
as the Borrower,
CERTAIN SUBSIDIARIES OF THE BORROWER PARTY HERETO,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swingline Lender and
L/C Issuer,
and
THE LENDERS PARTY HERETO
BMO HARRIS BANK N.A.,
as Syndication Agent
TRUIST BANK,
as Documentation Agent
BOFA SECURITIES, INC.,
and
BMO CAPITAL MARKETS CORP.,
as Joint Lead Arrangers
BOFA SECURITIES, INC.,
as Sole Bookrunner
TABLE OF CONTENTS
| |
|
|
| |
Page |
| |
|
| ARTICLE I DEFINITIONS AND ACCOUNTING
TERMS |
1 |
| 1.01 |
Defined Terms |
1 |
| 1.02 |
Other Interpretive Provisions |
39 |
| 1.03 |
Accounting Terms |
40 |
| 1.04 |
Rounding |
41 |
| 1.05 |
Times of Day |
41 |
| 1.06 |
Letter of Credit Amounts |
41 |
| 1.07 |
UCC Terms |
42 |
| 1.08 |
Rates |
42 |
| 1.09 |
Limited Condition Acquisitions |
42 |
| ARTICLE II COMMITMENTS AND CREDIT
EXTENSIONS |
43 |
| 2.01 |
Loans |
43 |
| 2.02 |
Borrowings, Conversions
and Continuations of Loans |
44 |
| 2.03 |
Letters of Credit. |
45 |
| 2.04 |
Swingline Loans |
54 |
| 2.05 |
Prepayments |
56 |
| 2.06 |
Termination or Reduction
of Commitments |
59 |
| 2.07 |
Repayment of Loans |
59 |
| 2.08 |
Interest and Default
Rate |
60 |
| 2.09 |
Fees |
61 |
| 2.10 |
Computation of Interest
and Fees; Retroactive Adjustments of Applicable Rate |
62 |
| 2.11 |
Evidence of Debt |
62 |
| 2.12 |
Payments Generally;
Administrative Agent’s Clawback |
63 |
| 2.13 |
Sharing of Payments
by Lenders |
65 |
| 2.14 |
Cash Collateral |
65 |
| 2.15 |
Defaulting Lenders |
66 |
| 2.16 |
Increase in Commitments;
Borrower Request |
69 |
| 2.17 |
Affiliated Lender Term
Loan Purchases |
72 |
| ARTICLE III TAXES, YIELD PROTECTION
AND ILLEGALITY |
72 |
| 3.01 |
Taxes |
72 |
| 3.02 |
Illegality |
76 |
| 3.03 |
Inability to Determine
Rates |
77 |
| 3.04 |
Increased Costs; Reserves
on Eurodollar Rate Loans |
80 |
| 3.05 |
Compensation for Losses |
81 |
| 3.06 |
Mitigation Obligations;
Replacement of Lenders |
82 |
| 3.07 |
Survival |
82 |
| ARTICLE IV CONDITIONS PRECEDENT TO
CREDIT EXTENSIONS |
83 |
| 4.01 |
Conditions of Initial
Credit Extension |
83 |
| 4.02 |
Conditions to all Credit
Extensions |
85 |
| ARTICLE V REPRESENTATIONS AND WARRANTIES |
86 |
| 5.01 |
Organization; Power |
86 |
| 5.02 |
Authorization; No Conflict |
86 |
| 5.03 |
Enforceability |
86 |
| 5.04 |
Governmental Approvals |
87 |
| 5.05 |
Financial
Statements |
87 |
| 5.06 |
No Material Adverse
Change |
87 |
| 5.07 |
Title to Properties;
Possession Under Leases |
87 |
| 5.08 |
Subsidiaries |
88 |
| 5.09 |
Litigation; Compliance
with Laws |
88 |
| 5.10 |
Agreements |
88 |
| 5.11 |
Federal Reserve Regulations |
88 |
| 5.12 |
Investment Company Act |
89 |
| 5.13 |
Tax Returns |
89 |
| 5.14 |
No Material Misstatements |
89 |
| 5.15 |
Employee Benefit Plans |
89 |
| 5.16 |
Environmental Matters |
90 |
| 5.17 |
Insurance |
90 |
| 5.18 |
Sanctions Concerns and
Anti-Corruption Laws |
91 |
| 5.19 |
Collateral Documents |
91 |
| 5.20 |
Location of Real Property
and Leased Premises |
93 |
| 5.21 |
Compliance with FDA
and USDA, Permits |
93 |
| 5.22 |
Labor Matters |
94 |
| 5.23 |
Use of Proceeds |
94 |
| 5.24 |
Solvency |
94 |
| 5.25 |
No Burdensome Restrictions |
94 |
| 5.26 |
Intellectual Property |
94 |
| 5.27 |
No Default |
95 |
| 5.28 |
Senior Indebtedness |
95 |
| 5.29 |
Representations as to
Foreign Obligors |
95 |
| 5.30 |
EEA Financial Institutions |
95 |
| 5.31 |
Covered Entities |
95 |
| 5.32 |
Beneficial Ownership
Certification |
95 |
| ARTICLE VI AFFIRMATIVE COVENANTS |
95 |
| 6.01 |
Existence; Compliance
with Laws; Business and Properties |
96 |
| 6.02 |
Insurance |
96 |
| 6.03 |
Payment of Obligations
and Taxes |
97 |
| 6.04 |
Financial Statements,
Reports, Etc. |
97 |
| 6.05 |
Litigation and Other
Notices |
100 |
| 6.06 |
Information Regarding
Collateral |
100 |
| 6.07 |
Maintaining Records;
Access to Properties and Inspections; Annual Meetings |
101 |
| 6.08 |
Use of Proceeds |
101 |
| 6.09 |
Employee Benefits |
101 |
| 6.10 |
Compliance with Environmental
Laws |
101 |
| 6.11 |
Environmental Reporting |
102 |
| 6.12 |
Further Assurances |
102 |
| 6.13 |
Designation of Subsidiaries |
103 |
| 6.14 |
Anti-Corruption Laws;
Sanctions |
104 |
| 6.15 |
Approvals and Authorizations |
104 |
| 6.16 |
Cash Management |
104 |
| 6.17 |
Post-Closing Requirements |
104 |
| ARTICLE VII NEGATIVE COVENANTS |
104 |
| 7.01 |
Indebtedness |
105 |
| 7.02 |
Liens |
106 |
| 7.03 |
Investments, Loans and
Advances |
108 |
| 7.04 |
Mergers, Consolidations
and Acquisitions; Sales of Assets |
110 |
| 7.05 |
Restricted Payments;
Restrictive Agreements |
111 |
| 7.06 |
Transaction with Affiliates |
113 |
| 7.07 |
Transactions with Affiliates |
113 |
| 7.08 |
Other Indebtedness and
Agreements |
113 |
| 7.09 |
Fiscal Year |
114 |
| 7.10 |
Sale and Leaseback Transaction |
114 |
| 7.11 |
Financial Covenants |
114 |
| 7.12 |
Sanctions |
114 |
| 7.13 |
Anti-Corruption Laws |
115 |
| 7.14 |
Negative Pledge on Owned
Real Property |
115 |
| ARTICLE VIII EVENTS OF DEFAULT AND
REMEDIES |
115 |
| 8.01 |
Events of Default |
115 |
| 8.02 |
Remedies upon Event
of Default |
117 |
| 8.03 |
Application of Funds |
118 |
| ARTICLE IX ADMINISTRATIVE AGENT |
119 |
| 9.01 |
Appointment and Authority |
119 |
| 9.02 |
Rights as a Lender |
120 |
| 9.03 |
Exculpatory Provisions |
120 |
| 9.04 |
Reliance by Administrative
Agent |
121 |
| 9.05 |
Delegation of Duties |
122 |
| 9.06 |
Resignation of Administrative
Agent |
122 |
| 9.07 |
Non-Reliance on Administrative
Agent and Other Lenders |
123 |
| 9.08 |
No Other Duties, Etc. |
124 |
| 9.09 |
Administrative Agent
May File Proofs of Claim; Credit Bidding |
124 |
| 9.10 |
Collateral and Guaranty
Matters |
126 |
| 9.11 |
Secured Cash Management
Agreements and Secured Hedge Agreements |
127 |
| 9.12 |
Certain ERISA Matters |
127 |
| ARTICLE X CONTINUING GUARANTY |
128 |
| 10.01 |
Guaranty |
128 |
| 10.02 |
Rights of Lenders |
129 |
| 10.03 |
Certain Waivers |
129 |
| 10.04 |
Obligations Independent |
129 |
| 10.05 |
Subrogation |
129 |
| 10.06 |
Termination; Reinstatement |
130 |
| 10.07 |
Stay of Acceleration |
130 |
| 10.08 |
Condition of Borrower |
130 |
| 10.09 |
Appointment of Borrower |
130 |
| 10.10 |
Right of Contribution |
130 |
| 10.11 |
Keepwell |
131 |
| ARTICLE XI MISCELLANEOUS |
131 |
| 11.01 |
Amendments, Etc. |
131 |
| 11.02 |
Notices; Effectiveness;
Electronic Communications |
133 |
| 11.03 |
No Waiver;
Cumulative Remedies; Enforcement |
135 |
| 11.04 |
Expenses; Indemnity;
Damage Waiver |
136 |
| 11.05 |
Payments Set Aside |
138 |
| 11.06 |
Successors and Assigns |
138 |
| 11.07 |
Treatment of Certain
Information; Confidentiality |
146 |
| 11.08 |
Right of Setoff |
147 |
| 11.09 |
Interest Rate Limitation |
148 |
| 11.10 |
Counterparts; Integration;
Effectiveness |
148 |
| 11.11 |
Survival of Representations
and Warranties |
148 |
| 11.12 |
Severability |
149 |
| 11.13 |
Replacement of Lenders |
149 |
| 11.14 |
Governing Law; Jurisdiction;
Etc. |
150 |
| 11.15 |
Waiver of Jury Trial |
151 |
| 11.16 |
No Advisory or Fiduciary
Responsibility |
151 |
| 11.17 |
Electronic Execution;
Electronic Records |
152 |
| 11.18 |
USA Patriot Act Notice |
153 |
| 11.19 |
Acknowledgement and
Consent to Bail-In of Affected Financial Institutions |
153 |
| 11.20 |
Acknowledgement Regarding
Any Supported QFCs |
154 |
BORROWER PREPARED SCHEDULES
| |
|
| Schedule
1.01(e) |
Immaterial Subsidiaries |
| Schedule
1.01(f) |
Unrestricted Subsidiaries |
| Schedule
5.04 |
Governmental Approvals |
| Schedule
5.07 |
Title to Properties |
| Schedule
5.08 |
Subsidiaries |
| Schedule
5.09 |
Litigation |
| Schedule
5.15 |
Pension Plans |
| Schedule
5.16 |
Environmental Matters |
| Schedule
5.17 |
Insurance |
| Schedule
5.19(a) |
Filing Offices |
| Schedule
5.19(b) |
Registered Intellectual
Property |
| Schedule
5.19(c) |
Deposit Accounts &
Securities Accounts |
| Schedule
5.19(d) |
Tangible Chattel Paper |
| Schedule
5.19 (e) |
Electronic Chattel Paper &
Letter-of-Credit Rights |
| Schedule
5.19 (f) |
Commercial Tort Claims |
| Schedule
5.19 (g) |
Pledged Equity Interests |
| Schedule
5.20(a) |
Owned Real Property |
| Schedule
5.20(b) |
Leased Real Property |
| Schedule
5.26 |
Intellectual Property Matters |
| Schedule
6.17 |
Post-Closing Requirements |
| Schedule
7.01 |
Existing Indebtedness |
| Schedule
7.02 |
Existing Liens |
| Schedule
7.03 |
Existing Investments |
| Schedule 7.05 |
Restrictive Agreements |
| Schedule
7.08(a) |
Material Contracts |
ADMINISTRATIVE AGENT PREPARED SCHEDULES
| |
|
| Schedule
1.01(a) |
Certain Addresses for Notices |
| Schedule
1.01(b) |
Initial Commitments and
Applicable Percentages |
| Schedule
1.01(c) |
Existing Letters of Credit |
| Schedule
2.01 |
Swingline Commitments |
| Schedule
2.03 |
Letter of Credit Commitments |
EXHIBITS
| |
|
| Exhibit A |
Form of Administrative
Questionnaire |
| Exhibit B-1 |
Form of Assignment
and Assumption |
| Exhibit B-2 |
Form of Affiliated
Lender Assignment and Assumption |
| Exhibit C |
Form of Compliance
Certificate |
| Exhibit D |
Form of Joinder Agreement |
| Exhibit E |
Form of Loan Notice |
| Exhibit F |
Form of Permitted
Acquisition Certificate |
| Exhibit G |
Form of Revolving
Note |
| Exhibit H |
Form of Secured Party
Designation Notice |
| Exhibit I |
Form of Solvency Certificate |
| Exhibit J |
Form of Swingline
Loan Notice |
| Exhibit K |
Form of Term Note |
| |
|
| Exhibit L |
Forms of U.S. Tax Compliance
Certificates |
| Exhibit M |
Form of Funding Indemnity
Letter |
| Exhibit N |
[Reserved] |
| Exhibit O |
Form of Notice of
Loan Prepayment |
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated
as of October 9, 2020, is by and among VISKASE COMPANIES, INC., a Delaware corporation (the “Borrower”),
the Guarantors from time to time party hereto, the Lenders from time to time party hereto, and BANK OF AMERICA, N.A., as Administrative
Agent, Swingline Lender and L/C Issuer.
PRELIMINARY
STATEMENTS:
WHEREAS, the Loan Parties
(as hereinafter defined) have requested that the Lenders, the Swingline Lender and the L/C Issuer make loans and other financial accommodations
to the Loan Parties in an aggregate amount of up to $180,000,000.
WHEREAS, the Lenders, the
Swingline Lender and the L/C Issuer have agreed to make such loans and other financial accommodations to the Loan Parties on the terms
and subject to the conditions set forth herein.
NOW
THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto hereby covenant and
agree as follows:
Article I
DEFINITIONS
AND ACCOUNTING TERMS
1.01 Defined
Terms
As used in this Agreement,
the following terms shall have the meanings set forth below:
“Acquisition”
means the acquisition, whether through a single transaction or a series of related transactions, of (a) a majority of the Voting
Stock or other controlling ownership interest in another Person (including the purchase of an option, warrant or convertible or similar
type security to acquire such a controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase of
such equity or other ownership interest or upon the exercise of an option or warrant for, or conversion of securities into, such equity
or other ownership interest, or (b) assets of another Person which constitute all or substantially all of the assets of such Person
or of a division or line of business of such Person.
“Additional Guarantor”
has the meaning specified in Section 6.12(b).
“Additional Secured
Obligations” means (a) all obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements
and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the reasonable
and documented out-of-pocket fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired
by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and
fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in
such proceeding; provided, however, that Additional Secured Obligations of a Loan Party shall exclude any
Excluded Swap Obligations with respect to such Loan Party.
“Adjustment”
has the meaning specified in Section 3.03(c).
“Administrative
Agent” means Bank of America (or any of its designated branch offices or affiliates) in its capacity as administrative
agent under any of the Loan Documents, or any successor administrative agent.
“Administrative
Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and,
as appropriate, account as set forth on Schedule 1.01(a) with respect to such currency, or such other address or account
with respect to such currency as the Administrative Agent may from time to time notify the Borrower and the Lenders in writing.
“Administrative
Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit A or any other form
approved by the Administrative Agent.
“AEPC”
means American Entertainment Properties Corp., a Delaware corporation.
“Affected Financial
Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the Person specified.
“Affiliated Lender”
means a Lender that is any Person included in the definition of “Icahn Group” or an Affiliate of the Borrower (including
AEPC)(in each case, other than the Borrower, any Subsidiary of the Borrower or a natural person), or is managed or advised by any of
the foregoing.
“Affiliated Lender
Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Affiliated Lender, and accepted
by the Administrative Agent, in substantially the form of Exhibit B-2 or any other form approved by the Administrative Agent.
“Agent Parties”
has the meaning specified in Section 11.02(c).
“Aggregate Commitments”
means the Commitments of all the Lenders.
“Agreement”
means this Credit Agreement, including all schedules, exhibits and annexes hereto.
“Annualized Basis”
means, with respect to the calculation of the Consolidated Fixed Charge Coverage Ratio for any applicable Measurement Period, the product
of (i) the applicable components of Consolidated Fixed Charge Coverage Ratio made after the Closing Date through the last day of
such period (the “Post-Closing Period”) divided by the number of calendar days in such Post-Closing Period
times (ii) 365.
“Applicable Foreign
Obligor Documents” has the meaning specified in Section 5.29(a).
“Applicable Law”
means, as to any Person, all applicable Laws binding upon such Person or to which such a Person is subject.
“Applicable Percentage”
means (a) in respect of the Term Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth
decimal place) of the Term Facility represented by (i) on or prior to the Closing Date, such Term Lender’s Term Commitment
at such time and (ii) thereafter, the outstanding principal amount of such Term Lender’s Term Loans at such time, and (b) in
respect of the Revolving Facility, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal
place) of the Revolving Facility represented by such Revolving Lender’s Revolving Commitment at such time, subject to adjustment
as provided in Section 2.15. If the Commitment of all of the Revolving Lenders to make Revolving Loans and the obligation
of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Revolving Commitments
have expired, then the Applicable Percentage of each Revolving Lender in respect of the Revolving Facility shall be determined based
on the Applicable Percentage of such Revolving Lender in respect of the Revolving Facility most recently in effect, giving effect to
any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of determination. The Applicable Percentage
of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 1.01(b) or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.16,
as applicable.
“Applicable Rate”
means, for any day, the rate per annum set forth below opposite the applicable Level then in effect (based on the Consolidated Leverage
Ratio), it being understood that the Applicable Rate for (a) Revolving Loans that are Base Rate Loans shall be the percentage set
forth under the column “Revolving Loans” and “Base Rate”, (b) Revolving Loans that are Eurodollar Rate Loans
shall be the percentage set forth under the column “Revolving Loans” and “Eurodollar Rate & Letter of Credit
Fee”, (c) that portion of the Term Loan comprised of Base Rate Loans shall be the percentage set forth under the column “Term
Loan” and “Base Rate”, (d) that portion of the Term Loan comprised of Eurodollar Rate Loans shall be the percentage
set forth under the column “Term Loan” and “Eurodollar Rate & Letter of Credit Fee”, (e) the Letter
of Credit Fee shall be the percentage set forth under the column “Revolving Loans” and “Eurodollar Rate &
Letter of Credit Fee”, and (f) the Commitment Fee shall be the percentage set forth under the column “Commitment Fee”:
| Level |
Consolidated
Leverage Ratio |
Eurodollar
Rate
& Letter of Credit Fee |
Base
Rate |
Commitment
Fee |
| Revolving
Loans |
Term
Loan |
Revolving
Loans |
Term
Loan |
| 1 |
>3.50:1.00 |
3.25% |
3.25% |
2.25% |
2.25% |
0.40% |
| 2 |
<3.50:1.00,
but
>3.00:1.00 |
3.00% |
3.00% |
2.00% |
2.00% |
0.375% |
| 3 |
<3.00:1.00,
but
>2.50:1.00 |
2.75% |
2.75% |
1.75% |
1.75% |
0.35% |
| 4 |
<2.50:1.00,
but
>2.00:1.00 |
2.25% |
2.25% |
1.25% |
1.25% |
0.325% |
| 5 |
<2.00:1.00 |
2.00% |
2.00% |
1.00% |
1.00% |
0.30% |
Any increase or decrease
in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to Section 6.04(d); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with Section 6.04(d), then,
upon the request of the Required Lenders, Pricing Level 1 shall apply, in each case as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the first Business Day
following the date on which such Compliance Certificate is delivered, whereupon the Applicable Rate shall be adjusted based upon the
calculation of the Consolidated Leverage Ratio contained in such Compliance Certificate. In addition, at all times while the Default
Rate is in effect, the highest rate set forth in each column of the Applicable Rate shall apply.
Notwithstanding anything
to the contrary contained in this definition, (i) the determination of the Applicable Rate for any period shall be subject to the
provisions of Section 2.10(b), (ii) the initial Applicable Rate shall be set at Pricing Level 2 until the first Business
Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.04(d) for the first fiscal
quarter to occur following the Closing Date to the Administrative Agent and (iii) the Applicable Rate with respect to any Incremental
Term Loan shall be as set forth in the definitive documentation therefor (subject to the requirements of Section 2.16). Any
adjustment in the Applicable Rate shall be applicable to all Credit Extensions then existing or subsequently made or issued.
The Applicable Rate set forth
above shall be increased as, and to the extent, required by Section 2.16.
“Applicable Revolving
Percentage” means with respect to any Revolving Lender at any time, such Revolving Lender’s Applicable Percentage
in respect of the Revolving Facility at such time.
“Appropriate
Lender” means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to such
Facility or holds a Loan under such Facility at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer
and (ii) if any Letters of Credit have been issued pursuant to Section 2.03, the Revolving Lenders and (c) with
respect to the Swingline Sublimit, (i) the Swingline Lender and (ii) if any Swingline Loans are outstanding pursuant to Section 2.04(a),
the Revolving Lenders.
“Approved Fund”
means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
“Arrangers”
means BofA Securities and BMO Capital Markets Corp., in their capacities as joint lead arrangers.
“Assets”
has the meaning specified in Section 7.02.
“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any
party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form
of Exhibit B or any other form (including an electronic documentation form generated by use of an electronic platform) approved
by the Administrative Agent.
“Attributable
Indebtedness” means, on any date, (a) in respect of any Capital Lease Obligation of any Person, the capitalized amount
thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of
any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease,
(c) all Synthetic Debt of such Person and (d) in respect of any Sale and Leaseback Transaction, the present value (discounted
in accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the lessee for rental payments during
the term of such lease.
“Audited Financial
Statements” means the audited Consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended
December 31, 2019 and the related Consolidated statements of income or operations, shareholders’ equity and cash flows for
such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.
“Auto-Extension
Letter of Credit” has the meaning specified in Section 2.03(b)(ii).
“Availability
Period” means in respect of the Revolving Facility, the period from and including the Closing Date to the earliest of (i) the
Maturity Date for the Revolving Facility, (ii) the date of termination of the Revolving Commitments pursuant to Section 2.06,
and (iii) the date of termination of the Commitment of each Revolving Lender to make Revolving Loans and of the obligation of the
L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of
any liability of an Affected Financial Institution.
“Bail-In
Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU
of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such
EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United
Kingdom,Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable
in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their
affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank of America”
means Bank of America, N.A. and its successors.
“Base Rate”
means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%,
(b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,”
and (c) the Eurodollar Rate plus 1.00%, subject to the interest rate floors set forth therein; provided, however,
that if the Base Rate shall be less than 1.75%, such rate shall be deemed 1.75% for purposes of this Agreement. The “prime rate”
is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in
the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03
hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without
reference to clause (c) above.
“Base Rate Loan”
means a Revolving Loan or a Term Loan that bears interest based on the Base Rate. All Base Rate Loans are only available to the Borrower
and Loans denominated in Dollars.
“Beneficial
Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership
Regulation.
“Beneficial Ownership
Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan”
means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan”
as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42)
or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan”
or “plan”.
“BHC Act Affiliate”
of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of
such party.
“BofA Securities”
means BofA Securities, Inc.
“Borrower”
has the meaning specified in the introductory paragraph hereto.
“Borrower Materials”
has the meaning specified in Section 6.04(l).
“Borrowing”
means a Revolving Borrowing, a Swingline Borrowing or a Term Borrowing, as the context may require.
“Business Day”
means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent’s Office is located; provided that, if such day relates to any interest
rate settings as to a Eurodollar Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in
respect of any such Eurodollar Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of
any such Eurodollar Rate Loan, means any such day that is also a London Banking Day
“Capital Expenditures”
means, for any period, with respect to the Borrower or any Guarantor, the aggregate of all expenditures by the Borrower or any Guarantor
for the purchase or other acquisition of any asset (excluding normal replacements and maintenance which are properly charged to current
operations) which would be classified as a fixed or capital asset on a consolidated balance sheet of the Borrower and its Subsidiaries
prepared in accordance with GAAP, subject to Section 1.03; provided, however, that (i) the
term “Capital Expenditures” shall not include expenditures that are Permitted Acquisitions and (ii) the purchase price
of equipment that is purchased simultaneously with the trade-in of existing equipment or with insurance proceeds shall be included in
Capital Expenditures only to the extent of the gross amount by which such purchase price exceeds the credit granted by the seller of
such equipment for the equipment being traded in at such time or the amount of such insurance proceeds, as the case may be.
“Capital Lease
Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified
and accounted for as capital leases or financing leases (but excluding for the avoidance of doubt, any “operating lease”)
on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
“Cash Collateralize”
means to deposit in a Controlled Account or pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or
more of the L/C Issuer or Swingline Lender (as applicable) or the Lenders, as Collateral for L/C Obligations, the Obligations in respect
of Swingline Loans, or obligations of the Revolving Lenders to fund participations in respect of L/C Obligations or Swingline Loans (as
the context may require), (a) cash or deposit account balances, (b) backstop letters of credit entered into on terms, from
issuers and in amounts satisfactory to the Administrative Agent and the applicable L/C Issuer, and/or (c) if the Administrative
Agent and the applicable L/C Issuer or Swingline Lender shall agree, in their sole discretion, other credit support, in each case, in
Dollars and pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer or the Swingline
Lender (as applicable).
“Cash Collateral”
shall have a meaning correlative to the foregoing and shall include the proceeds of such Cash Collateral and other credit support.
“Cash Equivalents”
means any of the following types of Investments:
(i) readily
marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof
having maturities of not more than one year from the date of acquisition thereof; provided, however, that
the full faith and credit of the United States is pledged in support thereof;
(ii) time
deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender
or (B) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia, and
is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause
(c) of this definition and (iii) has combined capital and surplus of at least $500,000,000, in each case with maturities
of not more than one year from the date of acquisition thereof (each such commercial bank, an “Approved Bank”);
(iii) commercial
paper and variable of fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued
by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof)
or better by Moody’s and maturing within two hundred seventy (270) days of the date of acquisition thereof;
(iv) repurchase
obligations of any commercial bank satisfying the requirements of clause (b) above or of any recognized securities dealer having
combined capital and surplus of not less than $250,000,000, having a term of not more than seven (7) days, with respect to securities
satisfying the criteria in clauses (i) or (ii) above;
(v) debt
securities with maturities of six (6) months or less from the date of acquisition backed by standby letters of credit issued by
any commercial bank satisfying the criteria described in clause (ii) above;
(vi) Investments
in money market funds or money market mutual funds substantially all of whose assets are invested in the types of assets described in
clauses (i) through (iii) above; and
(vii) in
the case of a Foreign Subsidiary, substantially similar investments of the type described above denominated in foreign currencies and
from governments or agencies and instrumentalities thereof, similarly rated political subdivisions thereof or similarly capitalized and
rated foreign banks, in each case, in the jurisdiction in which such Foreign Subsidiary is organized.
“Cash Management
Agreement” means any agreement that is not prohibited by the terms hereof to provide treasury or cash management services,
including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds
transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation
and reporting and trade finance services and other cash management services.
“Cash Management
Bank” means any Person in its capacity as a party to a Cash Management Agreement that, (a) at the time it enters into
a Cash Management Agreement with a Loan Party or any Subsidiary, is a Lender or an Affiliate of a Lender, or (b) at the time it
(or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement with a Loan Party or any Subsidiary, in each case, in
its capacity as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate
ceased to be a Lender); provided, however, that for any of the foregoing to be included as a “Secured Cash Management
Agreement” on any date of determination by the Administrative Agent, the applicable Cash Management Bank (other than the Administrative
Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent
prior to such date of determination.
“Change in Law”
means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not
having the force of law) by any Governmental Authority; provided, however, that notwithstanding anything herein
to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith or in the implementation thereof and (ii) all requests, rules, guidelines or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority)
or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change
in Law”, regardless of the date enacted, adopted, issued or implemented.
“Change of Control”
means and shall be deemed to have occurred if (a) the Permitted Holders shall at any time not legally and beneficially own, in the
aggregate, directly or indirectly, at least 35% of the voting power of the outstanding Voting Stock of the Borrower, or (b) any
person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended), other than the Permitted Holders, shall at any time have acquired direct or indirect beneficial ownership of a percentage
of the voting power of the outstanding Voting Stock of the Borrower that exceeds 35% thereof, unless, in the case of either clause (a) or
(b) above, the Permitted Holders have, at such time, the right or the ability by voting power, contract or otherwise to elect or
designate for election at least a majority of the board of directors of the Borrower.
“Class”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Term Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or Term Commitment.
“Closing Date”
means the date hereof.
“Code”
means the Internal Revenue Code of 1986.
“Collateral”
means all of the “Collateral” referred to in the Collateral Documents and all other property with respect to which Liens
in favor of the Administrative Agent for the benefit of the Secured Parties are purported to be granted to and in accordance with the
Collateral Documents.
“Collateral Account”
has the meaning specified in Section 2.03(q)(i).
“Collateral Documents”
means, collectively, the Security Agreement, the Qualifying Control Agreements, each Joinder Agreement, the Intercompany Note, each of
the collateral assignments, security agreements, pledge agreements, account control agreements or other similar agreements delivered
to the Administrative Agent pursuant to Section 6.12, and each of the other agreements, instruments or documents that creates
or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
“Commitment”
means a Term Commitment, a Revolving Commitment or an Incremental Commitment, as the context may require.
“Commodity Exchange
Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor
statute.
“Communication”
has the meaning set forth in Section 11.17(a).
“Competitor”
means any Person that is a competitor of the Borrower or any of its Restricted Subsidiaries engaged in substantially similar business
operations as Borrower or any of its Restricted Subsidiaries, or any business activity that is related, ancillary or complementary thereto.
“Compliance Certificate”
means a certificate substantially in the form of Exhibit C.
“Connection Income
Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise
Taxes or branch profits Taxes.
“Consolidated”
means, when used with reference to financial statements or financial statement items of the Borrower and its Restricted Subsidiaries
or any other Person, such statements or items on a consolidated basis in accordance with the consolidation principles of GAAP, but excluding
any items attributable to Unrestricted Subsidiaries.
“Consolidated
EBITDA” means, for any period, the sum of:
(a) Consolidated Net
Income for such Measurement Period plus
(b) without duplication
and to the extent deducted (and not already added back) (other than with respect to clauses (ix) below) in determining such Consolidated
Net Income, the sum of:
(i) Consolidated
Net Interest Expense for such Measurement Period,
(ii) all
amounts for taxes based on income, profits or capital and commercial activity payments to taxing authorities (or in each case similar
taxes or payments), including income tax expense of Consolidated foreign subsidiaries and foreign withholding tax expense, for such Measurement
Period,
(iii) all
amounts attributable to depreciation and amortization for such Measurement Period,
(iv) any
non-cash charges (including, but not limited to, the write down or impairment of any assets, whether or not current assets), losses or
expenses for such period,
(v) any
non-cash compensation charges and deferred compensation charges, including arising from stock options,
(vi) any
pension expense in respect of defined benefit plans in an aggregate amount not to exceed $3,000,000 in any fiscal year,
(vii) severance
expenses related to the termination of employees and other restructuring, integration and relocation charges and costs; provided,
however, that, in no event shall the aggregate amount added back to Consolidated EBITDA under this clause (vii) for
any Measurement Period, together with any increase to Consolidated EBITDA for such Measurement Period under clause (y) of the definition
of “Pro Forma Basis”, exceed 15% of Consolidated EBITDA for such period (giving Pro Forma Effect to all such relevant adjustments
during such Measurement Period),
(viii) costs
and expenses incurred in connection with the transactions on the Closing Date and any Permitted Acquisitions; provided,
however, that, in the case of any Permitted Acquisition which is not consummated, in no event shall the aggregate amount
added to Consolidated EBITDA under this clause (viii) for any Measurement Period exceed $3,000,000,
(ix) to
the extent (A) actually reimbursed in cash from insurance proceeds or (B) as to which the Borrower has made a determination
that a reasonable basis exists for reimbursement by a third party and only to the extent that such amount (i) is not denied by the
applicable carrier in writing within 180 days of the occurrence of such event and (ii) is in fact reimbursed within 365 days of
such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within
such 365-day period), expenses with respect to any business interruption, liability or casualty; and
(x) any
net unrealized non-cash foreign currency translation loss (or minus net unrealized non-cash foreign currency translation gains);
minus
(c) without duplication
(i) all cash payments made during such Measurement Period on account of reserves, restructuring charges and other non-cash charges
for a prior period added to Consolidated Net Income for a prior Measurement Period, and (ii) any non-cash gains for such Measurement
Period, all determined on a Consolidated basis in accordance with GAAP; provided, however, that Consolidated
EBITDA shall be calculated on a Pro Forma Basis to give effect to any Permitted Acquisitions, permitted Investments, Acquisitions and
permitted Dispositions (other than any Permitted Transfer) consummated at any time on or after the first day of the applicable Measurement
Period and, except as expressly set forth in the definition of Pro Forma Basis, prior to the date of determination as if each such Permitted
Acquisition, or other Investment, Acquisition, or Disposition (other than any Permitted Transfer) had been effected on the first day
of such period and as if each such Disposition (other than any Permitted Transfer) had been consummated on the day prior to the first
day of such Measurement Period.
Notwithstanding the foregoing,
Consolidated EBITDA for the following fiscal quarters shall be the amounts set forth opposite such fiscal quarter below:
| Fiscal
Quarter Ending |
Consolidated
EBITDA |
| December 31,
2019 |
$10,534,000 |
| March 31,
2020 |
$14,383,000 |
| June 30,
2020 |
$16,045,000 |
“Consolidated
Fixed Charge Coverage Ratio” means, for any Measurement Period, the ratio of (a) the sum of (i) Consolidated
EBITDA less (ii) the aggregate amount of all Capital Expenditures paid with internally generated cash of the Loan Parties
or Revolving Loans during such period to (b) the sum of (i) the aggregate principal amount of all redemptions or similar acquisitions
for value of outstanding debt for borrowed money or regularly scheduled principal payments to the extent paid in cash (excluding principal
payments on any revolving, overdraft, factoring or similar facilities, unless such payments are in conjunction with a commitment reduction),
plus (ii) Consolidated Net Interest Expense, plus (iii) the aggregate amount of all Restricted Payments and earnout
obligations paid in cash (other than Permitted Tax Distributions), plus (iv) the aggregate amount of Taxes paid in cash (including
Permitted Tax Distributions). For purposes hereof, the components of Consolidated Fixed Charge Coverage Ratio set out in clause (b)(i) and
(b)(ii) above for each Measurement Period through the Measurement Period ending June 30, 2021 shall be calculated on an Annualized
Basis.
“Consolidated
Leverage Ratio” means, as of any date of determination, the ratio of (a) Total Funded Debt of the Borrower and its
Restricted Subsidiaries as of such date to (b) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries on a Consolidated
basis for the most recently completed Measurement Period.
“Consolidated
Net Income” means, for any Measurement Period, the net income or loss of the Borrower and its Restricted Subsidiaries for
such period determined on a Consolidated basis in accordance with GAAP; provided, however, that there shall
be excluded (a) the net income or loss of any Restricted Subsidiary to the extent that the declaration or payment of dividends or
similar distributions by the Restricted Subsidiary of that income is not at the time permitted by operation of the terms of its charter
or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Restricted Subsidiary
(provided, however, that, if any approval of any Governmental Authority is required for any such payment
or distribution, this clause (a) shall not apply unless and until the applicable Governmental Authority has issued an order restricting
such payment or distribution), (b) the income or loss of any Person accrued prior to the date it becomes a subsidiary or is merged
into or Consolidated with the Borrower or any Restricted Subsidiary or prior to the date that such Person’s assets are acquired
by the Borrower or any Restricted Subsidiary, (c) the net income or loss of any Person in which any other Person (other than the
Borrower or a wholly owned Restricted Subsidiary or any director holding qualifying shares in accordance with applicable law) has a joint
interest to the extent such net income is subject to restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Person, directly or indirectly, to the Borrower or any Restricted Subsidiary and (d) any non-cash gains
or losses attributable to sales of assets outside of the ordinary course of business or any other non-cash non-recurring gains or losses,
including, without limitation, any non-cash impairment charges.
“Consolidated
Net Interest Expense” means, for any period, (a) the sum of (i) the interest expense (including imputed interest
expense in respect of Capital Lease Obligations and Synthetic Lease Obligations or any dividends or other payments made in respect of
any Equity Interest) of the Borrower and the Restricted Subsidiaries for such period, determined on a Consolidated basis in accordance
with GAAP, plus (ii) any interest accrued during such period in respect of Indebtedness of the Borrower and the Restricted
Subsidiaries that is required to be capitalized rather than included in consolidated interest expense for such period in accordance with
GAAP minus (b) the sum of (i) total interest income of the Borrower and the Restricted Subsidiaries for such period,
in each case determined in accordance with GAAP plus (ii) non-cash charges related to the amortization or write-off of debt
discount or debt issuance costs and commissions to the extent included in the interest expense for such period. For purposes of the foregoing,
interest expense shall be determined after giving effect to any net payments made or received by the Borrower and the Restricted Subsidiary
or any Restricted Subsidiaries with respect to interest rate Swap Contracts.
Consolidated Net Interest
Expense shall be calculated on a Pro Forma Basis to give effect to any Indebtedness (other than Indebtedness incurred for ordinary course
working capital needs under ordinary course revolving or letter of credit facilities) incurred, assumed or permanently repaid or extinguished
at any time on or after the first day of the Measurement Period and prior to the date of determination in connection with any Permitted
Acquisitions and Disposition (other than any Permitted Transfer) as if such incurrence, assumption, repayment or extinguishment had been
effected on the first day of such period.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Controlled Account”
means each deposit account and securities account that is subject to a Qualifying Control Agreement.
“Covered Entity”
means any of the following:(a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
382.2(b).
“Covered Party”
has the meaning specified in Section 11.20.
“Credit Extension”
means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Debt Issuance”
means the issuance by any Loan Party or any Restricted Subsidiary of any Indebtedness other than Indebtedness permitted under Section 7.01.
“Debtor Relief
Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment
for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default”
means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
“Default Rate”
means (a) with respect to any Obligation for which a rate is specified, a rate per annum equal to two percent (2%) in excess of
the rate otherwise applicable thereto and (b) with respect to any Obligation for which a rate is not specified or available, a rate
per annum equal to the Base Rate plus the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent
(2%), in each case, to the fullest extent permitted by Applicable Law.
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable.
“Defaulting Lender”
means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within
two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative
Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent
to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing)
has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swingline Lender or any other Lender any other
amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within
two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the
Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement
to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states
that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together
with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has
failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing
to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided,
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation
by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become
the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or
assets, including the Federal Deposit Insurance Corporation or any other state, provincial or federal regulatory authority acting in
such a capacity or (iii) become the subject of a Bail-In Action; provided, however, that a Lender shall
not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect
parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its
assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements
made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses
(a) through (d) above, and the effective date of such status, shall be conclusive and binding absent manifest error,
and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date established therefor
by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower,
the L/C Issuer, the Swingline Lender and each other Lender promptly following such determination.
“Designated Jurisdiction”
means any country or territory to the extent that such country or territory is the subject of any Sanction.
“Disposition”
or “Dispose” means the sale, transfer or other disposition (including any Sale and Leaseback Transaction) of
any property by any Loan Party or Restricted Subsidiary, including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified
Institution” means, on any date, (a) any Person identified by name by the Borrower to the Administrative Agent in
writing prior to the Closing Date and (b) any other Person that is a Competitor of the Borrower or any of its Subsidiaries, in each
case that is separately identified in writing by name by the Borrower to the Administrative Agent from time to time (other than upon
and during the continuance of an Event of Default) or (c) any Affiliate of any person identified in clause (a) or (b) that
is clearly identifiable as an affiliate on the basis of its name (other than bona fide debt funds that purchase commercial loans
in the ordinary course of business, other than such debt funds excluded pursuant to clause (a) of this paragraph), which designation
shall not have retroactive effect to any prior assignment or participation to any Lender permitted hereunder or under the Loan Documents
at the time of such assignment or participation.
“Disqualified
Preferred Stock” means all redeemable preferred Equity Interests of any Person, to the extent mandatorily redeemable in
cash (other than as a result of a change of control if the documentation regarding such preferred Equity Interests provides for no payment
unless, prior to any such payment, all Loans and other Obligations under the Loan Documents are paid in full in cash or the Lenders consent
to such payment) on or prior to the date that is ninety-one (91) days after the Maturity Date.
“Dollar”
and “$” mean lawful money of the United States.
“Domestic Restricted
Subsidiary” shall mean a Domestic Subsidiary that is a Restricted Subsidiary.
“Domestic Subsidiary”
means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.
“DQ List”
has the meaning specified in Section 11.06(g)(iv).
“EEA Financial
Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which
is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated
supervision with its parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution
Authority” means any public administrative authority or any Person entrusted with public administrative authority of any
EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee”
means any Person that meets the requirements to be an assignee under Section 11.06 (subject to such consents, if any, as
may be required under Section 11.06(b)(iii)). For the avoidance of doubt, any Disqualified Institution is subject to Section 11.06(g).
“Environmental
Laws” means all applicable current and future Federal, state and local laws (including common law), regulations, rules,
ordinances, codes, and any legally binding decrees, judgments, directives and orders (including consent orders), in each case, relating
to protection of the environment or natural resources, human health and safety as it relates to environmental protection, the presence,
Release of, or exposure to, Hazardous Materials, or the generation, manufacture, processing, distribution, use, treatment, storage, transport,
recycling or handling of, or the arrangement for such activities with respect to, Hazardous Materials.
“Environmental
Liability” means all liabilities, obligations, damages, losses, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs (including administrative oversight costs, natural resource damages and remediation costs), whether contingent
or otherwise, arising out of or relating to (a) non-compliance with any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
Release of any Hazardous Materials, or (e) any contract, agreement or other written consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
“Equity Interests”
means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all
of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership
or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such
shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or
trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
“Equity Issuance”
means any issuance or sale by the Borrower or any Restricted Subsidiary of any Qualified Equity Interests of the Borrower or any such
Restricted Subsidiary, as applicable, except in each case for (a) any such issuance or sale by a Restricted Subsidiary to the Borrower,
any Loan Party or another Restricted Subsidiary, (b) any issuance of directors’ qualifying shares, and (c) sales or issuances
of Equity Interests of the Borrower to directors, management, consultants or any other employee of the Borrower or any Restricted Subsidiary
under any employee stock option or stock purchase plan or employee benefit plan or similar plan in existence from time to time.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or
(c) of the Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer
under Section 414 of the Code.
“ERISA Event”
means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder,
with respect to a Plan (other than an event for which the 30-day notice period is waived), (b) the failure by any Plan to satisfy
the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan,
whether or not waived, (c) the filing pursuant to Section 412 of the Code or Section 302 of ERISA of an application for
a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by the Borrower or any of its ERISA Affiliates
of any liability with respect to the termination of any Plan or the withdrawal or partial withdrawal of the Borrower or any of its ERISA
Affiliates from any Plan or Multiemployer Plan, (e) a determination that any Plan is, or is reasonably expected to be, in “at
risk” status (within the meaning of Section 3030 of ERISA or Section 430 of the Code), the receipt by the Borrower or
any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to terminate any Plan or Plans
or to appoint a trustee to administer any Plan, (f) the adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 436(f) of the Code, (g) the receipt by the Borrower or any of its ERISA Affiliates of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any of its ERISA Affiliates of any notice, concerning the imposition
of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Title
IV of ERISA, or (h)the occurrence of a “prohibited transaction” (within the meaning of Section 4975 of the Code
or 406 of ERISA) with respect to which the Borrower or any of the Restricted Subsidiaries is a “disqualified person”
(within the meaning of Section 4975 of the Code) or “party in interest” (within the meaning of Section 406
of ERISA) or with respect to which the Borrower or any such Restricted Subsidiary could otherwise be liable.
“EU Bail-In
Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
person), as in effect from time to time.
“Eurodollar Rate”
means:
(a) for
any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate as administered
by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for U.S. Dollars for a period equal
in length to such Interest Period) (“LIBOR”), as published on the applicable Bloomberg screen page (or
such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time)
(in such case, the “LIBOR Rate”) at or about 11:00 a.m., London time, two (2) Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period; and
(b) for
any interest rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate, at or about 11:00
a.m. (London time) determined two (2) Business Days prior to such date for Dollar deposits being delivered in the London interbank
market for deposits in Dollars with a term of one (1) month commencing that day;
provided,
however, that, (i) to the extent a comparable or successor rate is approved by the Administrative Agent in connection
with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided,
further that, to the extent such market practice is not administratively feasible for the Administrative Agent, such approved
rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and (ii) if the Eurodollar Rate
shall be less than 0.75%, such rate shall be deemed 0.75% for purposes of this Agreement.
“Eurodollar Rate
Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurodollar
Rate”.
“Event of Default”
has the meaning specified in Section 8.01.
“Excluded Account”
means any (i) account holding assets used solely for purposes of paying payroll obligations, (ii) account holding assets solely
held in escrow for third parties established in the ordinary course of business, (iii) account holding assets used solely for purposes
of paying trust obligations, (iv) account holding assets used solely for purposes of paying employee benefits obligations, (v) account
holding assets used solely for purposes of paying 401(k) obligations, (vi) account holding assets used solely for purposes
of paying pension fund obligations, (vii) account holding assets consisting solely of treasury shares, (viii) account holding
assets used solely for purposes of paying taxes and (ix) unless otherwise elected by the Borrower, any deposit account or securities
account of a Loan Party in any jurisdiction other than the United States.
“Excluded Property”
has the meaning specified in the Security Agreement.
“Excluded Subsidiary”
means, as of any date of determination, any Subsidiary that is an Immaterial Subsidiary or an Unrestricted Subsidiary.
“Excluded Swap
Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the
Guaranty of such Guarantor of, or the grant by such Guarantor of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is
or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or
the application or official interpretation thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible
contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.11 and
any other “keepwell”, support or other agreement for the benefit of such Guarantor and any and all guarantees of such Guarantor’s
Swap Obligations by other Guarantors) at the time the Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective
with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such
exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or Lien
is or becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes”
means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to
a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in
each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the
case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that
are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the
account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which
(i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under
Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Sections
3.01(b) or (d), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before
such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to
such Recipient’s failure to comply with Section 3.01(f) and (d) any U.S. federal withholding Taxes imposed
pursuant to FATCA.
“Existing ABL
Credit Agreement” means that certain Loan and Security Agreement dated as of November 14, 2007 (as amended, restated,
supplemented or otherwise modified prior to the Closing Date), by and between the Borrower and Icahn Enterprises Holdings L.P.
“Existing Letters
of Credit” means those certain letters of credit set forth on Schedule 1.01(c).
“Existing Term
Loan Credit Agreement” means that certain Credit Agreement dated as of January 30, 2014 (as amended, restated, supplemented
or otherwise modified prior to the Closing Date), by and among the Borrower, the lenders party thereto and UBS AG, Stamford Branch, as
administrative agent and collateral agent.
“Facility”
means the Term Facility or the Revolving Facility, as the context may require.
“Facility Termination
Date” means the date as of which all of the following shall have occurred: (a) the Aggregate Commitments have terminated,
(b) all Obligations have been paid in full (other than contingent indemnification obligations for which no claim or demand has yet
been made), and (c) all Letters of Credit have terminated or expired (other than Letters of Credit as to which other arrangements
with respect thereto satisfactory to the Administrative Agent and the L/C Issuer shall have been made).
“FASB ASC”
means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and
any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“FDA”
has the meaning specified in Section 5.21.
“Federal Funds
Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s
federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set
forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York
as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall
be deemed to be zero for the purposes of this Agreement.
“Fee Letter”
means the letter agreement, dated August 14, 2020, among the Borrower, the Administrative Agent and BofA Securities.
“Financial Officer”
means of any Person shall mean the chief financial officer, principal accounting officer, vice president of finance, treasurer or controller
of such Person.
“Foreign Lender”
means, (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person,
a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
“Foreign Obligation
Loan Documents” means all legal documentation entered into between the applicable Foreign Subsidiary and the Foreign Obligation
Provider, to the extent evidencing Foreign Subsidiary Secured Obligations.
“Foreign Obligation
Provider” means any Person in its capacity as a party to a Foreign Obligation Loan Document that, (a) at the time
it enters into such Foreign Obligation Loan Document with a Loan Party or any Subsidiary, is a Lender or an office, branch or Affiliate
of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to such Foreign Obligation Loan Document with
a Loan Party or any Subsidiary, in each case in its capacity as a party to such Foreign Obligation Loan Documents (even if such Person
ceases to be a Lender or such Person’s Affiliate ceased to be a Lender).
“Foreign Obligor”
means a Loan Party that is a Foreign Subsidiary.
“Foreign Subsidiary”
means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District
of Columbia.
“Foreign Subsidiary
Secured Obligations” means all unpaid principal of, accrued and unpaid interest and fees and reimbursement obligations,
and all expenses, reimbursements, indemnities and other obligations under or with respect to, any loans, letters of credit, acceptances,
guarantees, overdraft facilities, other credit extensions or accommodations or similar obligations owing by any Foreign Subsidiary to
a Foreign Obligation Provider; provided that any such obligations constituting Indebtedness shall only constitute Foreign Subsidiary
Secured Obligations to the extent permitted under Section 7.01(m).
“FRB”
means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure”
means, at any time there is a Defaulting Lender that is a Revolving Lender, (a) with respect to the L/C Issuer, such Defaulting
Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s
participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof,
and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans other than
Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or
Cash Collateralized in accordance with the terms hereof.
“Fund”
means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its activities.
“Funding Indemnity
Letter” means a funding indemnity letter, substantially in the form of Exhibit M.
“GAAP”
means generally accepted accounting principles in the United States set forth from time to time in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession)
including, without limitation, the FASB Accounting Standards Codification, that are applicable to the circumstances as of the date of
determination, consistently applied and subject to Section 1.03.
“Governmental
Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including, without limitation,
the FDA, the USDA, the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European
Union or the European Central Bank).
“Guarantee”
of or by any Person means any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing
any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment of such Indebtedness or other obligation, (b) to purchase or lease property, assets, securities
or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of such Indebtedness or other
obligation, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, (d) as an account party in respect of
any letter of credit or letter of guaranty issued to support such Indebtedness or obligation, or (e) to otherwise assure or hold
harmless the owner of such Indebtedness or other obligation against loss in respect thereof; provided, however, that
the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.
The amount of any obligation under a Guarantee of a guarantor shall be deemed to be the lower of (A) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such Guarantee is made, and (B) the maximum amount for which
such guarantor may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation and the
maximum amount for which such guarantor may be liable are not stated or determinable, in which case the amount of such obligation shall
be such guarantor’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.
“Guaranteed Obligations”
has the meaning set forth in Section 10.01.
“Guarantors”
means, collectively, (a) the Restricted Subsidiaries of the Borrower as are or may from time to time become parties to this Agreement
pursuant to Section 6.12, and (b) with respect to Additional Secured Obligations owing by any Loan Party or any of its
Subsidiaries and any Swap Obligation of a Specified Loan Party (determined before giving effect to Sections 10.01 and 10.11)
under the Guaranty, the Borrower. For the avoidance of doubt, no Excluded Subsidiary shall be required to be a Guarantor.
“Guaranty”
means, collectively, the Guarantee made by the Guarantors under Article X in favor of the Secured Parties, together with
each other guaranty delivered pursuant to Section 6.12.
“Hazardous Materials”
means (a) any petroleum products or byproducts, (b) per- and polyfluoroalkyl substances, and (c) any chemical, material,
substance or waste defined or characterized as toxic, hazardous, a pollutant, or a contaminant or words of similar meaning that is prohibited,
limited, or regulated by or pursuant to, or gives rise to liability under, any Environmental Law or requiring removal, remediation or
reporting under any Environmental Law.
“Hedge Bank”
means any Person in its capacity as a party to a Swap Contract that, (a) at the time it enters into a Swap Contract not prohibited
under Articles VI or VII, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes
a Lender, is a party to a Swap Contract not prohibited under Articles VI or VII, in each case, in its capacity as a party
to such Swap Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided,
however, in the case of a Secured Hedge Agreement with a Person who is no longer a Lender (or Affiliate of a Lender), such
Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Secured Hedge
Agreement and provided further that for any of the foregoing to be included as a “Secured Hedge Agreement”
on any date of determination by the Administrative Agent, the applicable Hedge Bank (other than the Administrative Agent or an Affiliate
of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of
determination.
“Icahn Group”
means, from time to time, (1) Carl Icahn and his siblings, his and their respective spouses and descendants (including stepchildren
and adopted children) and the spouses of such descendants (including stepchildren and adopted children) (collectively, the “Family
Group”); (2) any trust, estate, partnership, corporation, company, limited liability company or unincorporated association
or organization (each an “Entity” and collectively “Entities”) Controlled by one
or more members of the Family Group; (3) any Entity over which one or more members of the Family Group, directly or indirectly,
have rights that, either legally or in practical effect, enable them to make or veto significant management decisions with respect to
such Entity, whether pursuant to the constituent documents of such Entity, by contract, through representation on a board of directors
or other governing body of such Entity, through a management position with such Entity or in any other manner (such rights hereinafter
referred to as “Veto Power”); (4) the estate of any member of the Family Group; (5) any trust created
(in whole or in part) by any one or more members of the Family Group; (6) any individual or Entity who receives an interest in any
estate or trust listed in clauses (4) or (5), to the extent of such interest; (7) any trust or estate, substantially all the
beneficiaries of which (other than charitable organizations or foundations) consist of one or more members of the Family Group; (8) any
organization described in Section 501(c) of the Code, over which any one or more members of the Family Group and the trusts
and estates listed in clauses (4), (5) and (7) have direct or indirect Veto Power, or to which they are substantial contributors
(as such term is defined in Section 507 of the Code); (9) any organization described in Section 501(c) of the Code
of which a member of the Family Group is an officer, director or trustee; or (10) any Entity, directly or indirectly (a) owned
or Controlled by or (b) a majority of the economic interests in which are owned by, or are for or accrue to the benefit of, in either
case, any Person or Persons identified in clauses (1) through (9) above.
For the purposes of this
definition of Icahn Group, and for the avoidance of doubt, in addition to any other Person or Persons that may be considered to possess
Control, (x) a partnership shall be considered Controlled by a general partner or managing general partner thereof, (y) a limited
liability company shall be considered Controlled by a managing member of such limited liability company, and (z) a trust or estate
shall be considered Controlled by any trustee, executor, personal representative, administrator or any other Person or Persons having
authority over the control, management or disposition of the income and assets therefrom.
“Immaterial Subsidiary”
means, at any date of determination, each Restricted Subsidiary of the Borrower that has been designated by the Borrower in writing to
the Administrative Agent as an “Immaterial Subsidiary” for purposes of this Agreement (and not redesignated as a Material
Subsidiary as provided below); provided that, (a) for purposes of this Agreement, at no time shall (i) the fair market value
or the book value (whichever is greater) of the total assets of any Immaterial Subsidiary at the last day of the most recent Measurement
Period be equal to or exceed $2,000,000, or (ii) the revenues of any Immaterial Subsidiary be equal to exceed $1,000,000 during
the last twelve months preceding the Closing Date and, thereafter, during the twelve months preceding the Borrower’s most recent
fiscal quarter, and (b) the Borrower shall not designate any new Immaterial Subsidiary if such designation would not comply with
the provisions set forth in clause (a) above; provided, further that, the Borrower may designate and re-designate a Subsidiary
as an Immaterial Subsidiary at any time, subject to the terms set forth in this definition. As of the Closing Date, each Immaterial Subsidiary
of the Borrower is listed on Schedule 1.01(e).
“Impacted Loans”
has the meaning assigned to such term in Section 3.03(a).
“Increase Effective
Date” has the meaning assigned to such term in Section 2.16.
“Increase Joinder”
has the meaning assigned to such term in Section 2.16(b).
“Incremental
Commitments” means Incremental Revolving Commitments and/or the Incremental Term Commitments.
“Incremental
Revolving Commitment” has the meaning assigned to such term in Section 2.16.
“Incremental
Term Commitment” has the meaning assigned to such term in Section 2.16.
“Incremental
Term Loan Maturity Date” has the meaning assigned to such term in Section 2.16(c).
“Incremental
Term Loans” means any loans made pursuant to any Incremental Term Commitments.
“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities
in accordance with GAAP:
(a) all
obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements
or other similar instruments;
(b) all
direct or contingent obligations of such Person arising under standby letters of credit, bankers’ acceptances, bank guaranties
and similar instruments;
(c) the
Swap Termination Value of any Swap Contract;
(d) all
obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable and accrued
obligations incurred in the ordinary course of business);
(e) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person
or is limited in recourse (other than customary reservations or retentions of title under agreements with suppliers entered into in the
ordinary course of business); provided, however, that, if such indebtedness has not been assumed by such
Person or is limited in recourse to such Person then the amount of Indebtedness of any Person will be deemed to be equal to the lesser
of (x) the aggregate unpaid amount of such Indebtedness and (y) the fair market value (as determined by such Person in good
faith) of the property encumbered thereby as determined by such Person in good faith;
(f) all
Attributable Indebtedness of such Person;
(g) all
mandatory and non-discretionary obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment prior to
the date that is ninety-one (91) days after the Maturity Date in respect of any Equity Interest in such Person or any other Person,
valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued
and unpaid dividends, including Disqualified Preferred Stock; and
(h) all
Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof,
the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness
is expressly made non-recourse to such Person.
“Indemnified
Taxes” means all (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account
of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a),
Other Taxes.
“Indemnitee”
has the meaning specified in Section 11.04(b).
“Information”
has the meaning specified in Section 11.07(a).
“Intellectual
Property” has the meaning set forth in the Security Agreement.
“Intercompany
Note” means that certain Global Intercompany Note, dated as of the Closing Date, by and among the Borrower and certain
of its Subsidiaries party thereto.
“Interest Payment
Date” means, (a) as to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and
the Maturity Date of the Facility under which such Loan was made; provided, however, that if any Interest Period for a
Eurodollar Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of
such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or Swingline Loan, the last Business
Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made (with
Swingline Loans being deemed made under the Revolving Facility for purposes of this definition).
“Interest Period”
means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued
as a Eurodollar Rate Loan and ending on the date one (1), two (2), three (3) or six (6) months thereafter (in each case, subject
to availability), as selected by the Borrower in its Loan Notice, or such other period that is twelve months or less requested by the
Borrower and consented to by all of the Appropriate Lenders; provided, however, that:
(a) any
Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any
Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of
such Interest Period; and
(c) no
Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.
“Investment”
means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or
other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption
of debt of, or purchase or other acquisition of any other debt or interest in, another Person (including any partnership or joint venture
interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person), or (c) the
purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person which constitute all or substantially
all of the assets of such Person or of a division or line of business of such Person. For purposes of covenant compliance, the amount
of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.The amount of any Investment will be the original cost of such Investment plus (x) the cost of all additions
thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment
minus (y) the amount of any dividend, distribution, interest payment, return of capital, repayment or other amount
received in cash by the Borrower or a Subsidiary in respect of such Investment.
“Involuntary
Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any
property of any Loan Party or any Subsidiary.
“IRS”
means the United States Internal Revenue Service.
“ISP”
means the International Standby Practices, International Chamber of Commerce Publication No. 590 (or such later version thereof
as may be in effect at the applicable time).
“Issuer Documents”
means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.
“Joinder Agreement”
means a joinder agreement substantially in the form of Exhibit D executed and delivered in accordance with the provisions
of Section 6.12.
“Latest Maturity
Date” shall mean, at any time, the latest Maturity Date applicable to any Term Loan hereunder at such time, including the
latest maturity date of any Incremental Term Loan, in each case as extended in accordance with this Agreement from time to time.
“Laws”
means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed
duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“L/C
Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing
in accordance with its Applicable Revolving Percentage.
“L/C
Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed
on the date when made or refinanced as a Revolving Borrowing.
“L/C
Commitment” means, with respect to the L/C Issuer, the commitment of the L/C Issuer to issue Letters of Credit hereunder.
The initial amount of the L/C Issuer’s Letter of Credit Commitment is set forth on Schedule 2.03. The Letter of Credit Commitment
of the L/C Issuer may be modified from time to time by agreement between the L/C Issuer and the Borrower, and notified to the Administrative
Agent.
“L/C
Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof,
or the increase of the amount thereof.
“L/C Disbursement”
means any payment made by the L/C Issuer pursuant to a Letter of Credit.
“L/C
Issuer” means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters
of Credit hereunder.
“L/C
Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters
of Credit plus the aggregate amount of all Unreimbursed Amounts (including all L/C Borrowings). For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.
For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still
be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding”
in the amount so remaining available to be drawn.
“LCA Test Date”
has the meaning specified in Section 1.09.
“Lender”
means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender”
in accordance with this Agreement and, their successors and assigns and, unless the context requires otherwise, includes the Swingline
Lender.
“Lending Office”
means, as to the Administrative Agent, the L/C Issuer or any Lender, the office or offices of such Person described as such in such Person’s
Administrative Questionnaire, or such other office or offices as such Person may from time to time notify the Borrower and the Administrative
Agent; which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.
“Letter of Credit”
means any standby letter of credit issued hereunder and shall include the Existing Letters of Credit.
“Letter of Credit
Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time
to time in use by the L/C Issuer.
“Letter of Credit
Fee” has the meaning specified in Section 2.03(l).
“Letter of Credit
Sublimit” means, as of any date of determination, an amount equal to the lesser of (a) $5,000,000 and (b) the
Revolving Facility. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Facility.
“LIBOR”
has the meaning specified in the definition of Eurodollar Rate.
“LIBOR
Screen Rate” means the LIBOR quote on the applicable screen page the Administrative Agent designates to determine
LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time
to time).
“LIBOR Successor
Rate” has the meaning specified in Section 3.03(c).
“LIBOR
Successor Rate Conforming Changes” has the meaning specified in Section 3.03(f).
“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge, or preference,
priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real
property and any financing lease having substantially the same economic effect as any of the foregoing).
“Limited Condition
Acquisition” means a Permitted Acquisition that is not conditioned on the availability of, or on obtaining, third party
financing.
“Liquidity”
means, on any date of determination, an amount equal to the excess of (x) the aggregate Revolving Commitments of all Revolving Lenders
as of such date plus the aggregate amount of cash and Cash Equivalents held by the Borrower and its Restricted Subsidiaries on
such date (which shall be determined without giving Pro Forma Effect to the proceeds of any Indebtedness incurred on such date) that
are not restricted over (y) the Outstanding Amount of Revolving Loans and L/C Obligations.
“Loan”
means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan, a Revolving Loan or
a Swingline Loan.
“Loan Documents”
means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the Collateral Documents, (e) the
Fee Letter, (f) the Loan Purchase Agreement, (g) each Issuer Document, (h) each Joinder Agreement, (i) any agreement
creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14, and (j) all other certificates,
agreements, documents and instruments executed and delivered, in each case, by or on behalf of any Loan Party pursuant to the foregoing
(but specifically excluding any Secured Hedge Agreement or any Secured Cash Management Agreement) and any amendments, modifications or
supplements thereto or to any other Loan Document or waivers hereof or to any other Loan Document; provided, however, that
for purposes of Section 11.01, “Loan Documents” shall mean this Agreement, the Guaranty and the Collateral Documents.
“Loan Notice”
means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar
Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit E
or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission
system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Loan Parties”
means, collectively, the Borrower and each Guarantor.
“Loan Purchase
Agreement” means the Loan Purchase Agreement, dated as of the Closing Date, by and between AEPC and Bank of America, and
acknowledged by the Borrower.
“London Banking
Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar
market.
“Margin Stock”
means the meaning assigned to such term in Regulation U.
“Master Agreement”
has the meaning set forth in the definition of “Swap Contract.”
“Material Adverse
Effect” means (a) a material adverse effect on the business, assets, operations, condition (financial or otherwise)
or operating results of the Borrower and the Restricted Subsidiaries, taken as a whole; (b) a material impairment of the ability
of the Loan Parties, taken as a whole, to perform their material obligations under the Loan Documents; (c) a material impairment
of the validity or enforceability of any of the Loan Documents or the rights and remedies of, or benefits available to, the Secured Parties
or the Administrative Agent under any Loan Document, or (d) a material adverse effect on the validity, perfection or priority of
the Liens granted pursuant to any of the Collateral Documents.
“Material Indebtedness”
shall mean any Indebtedness (other than the Obligations hereunder), or obligations in respect of one or more Swap Contracts, whenever
incurred or arising, of any one or more of the Borrower or any Restricted Subsidiary in an aggregate principal amount exceeding $7,500,000.
For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Restricted
Subsidiary in respect of any Swap Contract at any time shall be the maximum aggregate amount (giving effect to any netting agreements)
that the Borrower or such Restricted Subsidiary would be required to pay if such Swap Contract were terminated at such time.
“Material Subsidiary”
means any Restricted Subsidiary other than an Immaterial Subsidiary.
“Maturity Date”
means (a) with respect to the Revolving Facility, October 9, 2023 and (b) with respect to the Term Facility, October 9,
2023; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall
be the next preceding Business Day.
“Maximum Rate”
has the meaning set forth in Section 11.09.
“Measurement
Period” means, for any date of determination under this Agreement, the four consecutive fiscal quarters of the Borrower
most recently ended as of such date of determination.
“Minimum Collateral
Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances, an
amount equal to 103% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time
and (b) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.
“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.
“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Cash Proceeds”
means (a) with respect to any Disposition or Involuntary Disposition, the cash proceeds actually received by the Borrower or any
of its Restricted Subsidiaries (including cash proceeds subsequently received (as and when received) in respect of non-cash consideration
initially received and valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt
securities and valued at fair market value at the time of such Disposition in the case of other non-cash proceeds), net of (i) selling
expenses (including broker’s fees or commissions, accountants’ fees, investment banking fees, consulting fees, reasonable
and documented legal fees and any other customary reasonable and documented fees and out-of-pocket expenses actually incurred in connection
therewith, transfer and similar taxes), (ii) amounts provided as a reserve, in accordance with GAAP, against any liabilities, for
any taxes, or under any indemnification obligation or purchase price adjustment associated with such Disposition (provided that,
to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds), (iii) the
principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money, Capital Lease Obligations
or Synthetic Lease Obligations which are secured by the assets sold in such Disposition sold and which are required to be repaid with
such proceeds (other than any such Indebtedness assumed by the purchaser of such assets) and (iv) any amounts received by the Borrower
or any of its Restricted Subsidiaries which would not at the applicable time of determination be permitted to be distributed to its immediate
parent, the Borrower or the Administrative Agent by operation of the terms of such receiving party’s charter or any agreement,
instrument, judgment, decree, statute, rule or governmental regulation applicable to such receiving party, and (b) with respect
to any issuance or incurrence of Indebtedness for borrowed money or any Equity Issuance, the cash proceeds thereof actually received
by the Borrower or such Restricted Subsidiary, net of all attorneys’ fees, consulting fees, investment banking fees, taxes and
other customary fees, underwriting discounts, commissions, costs and other expenses incurred in connection therewith.
“Non-Consenting
Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of
all Lenders or all affected Lenders, in accordance with the terms of Section 11.01 and (b) has been approved by the
Required Lenders.
“Non-Defaulting
Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Extension
Notice Date” has the meaning specified in Section 2.03(b)(ii).
“Note”
means a Term Note or a Revolving Note, as the context may require.
“Notice of Loan
Prepayment” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit O
or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission
system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer.
“Obligations”
means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document
or otherwise with respect to any Loan, or Letter of Credit and (b) all costs and expenses incurred in connection with enforcement
and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest,
expenses and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof pursuant to any proceeding
under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees
are allowed claims in such proceeding; provided, however, that, without limiting the foregoing, the
Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.
“OFAC”
means the Office of Foreign Assets Control of the United States Department of the Treasury.
“OID”
has the meaning specified in Section 2.16(b).
“Organization
Documents” means, (a) with respect to any corporation, the charter or certificate or articles of incorporation and
the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any
limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company
agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction); (c) with respect to any partnership,
joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization
(or equivalent or comparable documents with respect to any non-U.S. jurisdiction) and (d) with respect to all entities, any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental
Authority in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).
“Other Connection
Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient
and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party
to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction
pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made
under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest
under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to
an assignment (other than an assignment made pursuant to Section 3.06).
“Outstanding
Amount” means (a) with respect to Term Loans, Revolving Loans and Swingline Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any Borrowings and prepayments or repayments of Term Loans, Revolving Loans and Swingline
Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
“Participant”
has the meaning specified in Section 11.06(d).
“Participant
Register” has the meaning specified in Section 11.06(d).
“Patriot Act”
has the meaning specified in Section 11.18.
“PBGC”
means the Pension Benefit Guaranty Corporation.
“Perfection Certificate”
means the Perfection Certificate delivered in accordance with Section 4.01(e)(i).
“Permit”
has the meaning assigned to such term in Section 5.21(b).
“Permitted Acquisition”
means an Acquisition by a Loan Party (the Person or division or line of business of the Person to be acquired in such Acquisition shall
be referred to herein as the “Target”), in each case that is a type of business (or assets used in a type of
business) permitted to be engaged in by the Borrower and its Restricted Subsidiaries pursuant to the terms of this Agreement, in each
case so long as:
(a) (i) no
Default shall then exist or would exist after giving effect thereto or (ii) in the case of a Limited Condition Acquisition (x) no
Event of Default exists at the time of entry into the definitive agreement in respect of such Acquisition immediately after giving effect
to such Acquisition and (y) no Specified Event of Default exists at the time of consummation of such Acquisition;
(b) in
the event such Acquisition is consummated by a merger, the Borrower or a Restricted Subsidiary is the surviving entity;
(c) a
description of the Acquisition shall have been delivered to the Administrative Agent prior to the consummation of the Acquisition (and
the Administrative Agent shall deliver a copy to any Lender who requests a copy);
(d) the
Borrower shall have delivered to the Administrative Agent copies of the most recent financial statements (audited, if then available)
of the Target, together with any other information that Administrative Agent may reasonably request (and the Administrative Agent shall
deliver a copy to any Lender who requests a copy);
(e) such
Acquisition shall be consummated in all material respects in accordance with Applicable Law;
(f) to
the extent such Person is required to become a Guarantor under the Loan Documents, such Person shall have executed a Joinder Agreement
in accordance with the terms of Section 6.12, and, to the extent required under the Loan Documents, the Administrative Agent,
on behalf of the Secured Parties, shall have received (or shall receive in connection with the closing of such Acquisition) a first priority
perfected security interest (subject to Permitted Liens) in all property (including Equity Interests but excluding any Excluded Property)
acquired with respect to the Target in accordance with the terms of Section 6.12;
(g) on
or prior to the proposed date of such Acquisition, the Administrative Agent and the Lenders shall have received, a Permitted Acquisition
Certificate, executed by a Responsible Officer of the Borrower certifying that such Permitted Acquisition complies with the requirements
of this Agreement;
(h) the
Borrower shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 7.11 after giving
effect to the consummation of the Acquisition (or, if applicable in accordance with Section 1.09, on the LCA Test Date) and,
for any such Acquisition for which the consideration to be paid is greater than $25,000,000, the Borrower shall have delivered to the
Administrative Agent a Compliance Certificate demonstrating such compliance;
(i)
the aggregate amount of consideration for any Acquisitions (without duplication)
(A) in assets that are not (and do not become at the time of such acquisition) directly owned by a Loan Party, or (B) in
Equity Interests of Persons that do not become Guarantors shall not exceed $25,000,000 during the term of this Agreement; and
(j)
Liquidity shall be greater than $10,000,000 on a Pro Forma Basis after giving effect to the
consummation of such Acquisition (or, if applicable in accordance with Section 1.09, on the LCA Test Date).
“Permitted Acquisition
Certificate” means a certificate substantially the form of Exhibit F or any other form approved by the Administrative
Agent.
“Permitted Business”
shall mean the business currently conducted by the Borrower and its Restricted Subsidiaries, businesses substantially similar to the
business currently conducted by the Borrower and its Restricted Subsidiaries, or any business or activity that is related, ancillary
or complementary thereto or an extension, development or expansion thereof.
“Permitted Holders”
means the Icahn Group and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act
or any successor provision) of which any of the foregoing are members from time to time.
“Permitted Liens”
has the meaning set forth in Section 7.02.
“Permitted Tax
Distributions” mean any dividend, payment or distribution to the Borrower, any Subsidiary or the parent of a consolidated,
combined or unitary group of which the Borrower is a member for income tax purposes to pay Taxes due and payable solely in respect of
income of the Borrower or any Subsidiary; provided, however, that, for each taxable period, the amount of
such payments made by the Borrower and its Subsidiaries to a parent of a group of which the Borrower is a member in respect of such taxable
period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries that are members of such group would have
been required to pay as a stand-alone consolidated, combined or similar income tax group; provided, further, that
the Permitted Tax Distributions hereunder with respect to any Taxes that are attributable to the activities or income of any Unrestricted
Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary
to the Borrower or its Restricted Subsidiaries for the purposes of paying such Consolidated, combined or similar income Taxes.
“Permitted Transfers”
means (a) Dispositions of inventory in the ordinary course of business; (b) Dispositions of property to the Borrower or any
Subsidiary; provided, however, that if the transferor of such property is a Loan Party then the transferee
thereof must be a Loan Party; (c) Dispositions of accounts receivable in connection with the collection or compromise thereof; (d) licenses,
sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Borrower and its
Subsidiaries; (e) the sale or disposition of Cash Equivalents for fair market value; (f) the sale or other disposition of surplus,
damaged, obsolete, scrap, idle or worn-out assets in the ordinary course of business; (g) the sale, transfer, conveyance, assignment,
lease or other disposition of furniture, fixtures and equipment in the ordinary course of business; and (h) any sale, transfer,
conveyance, assignment, lease or other disposition or series of related sales, transfers, conveyances, assignments, leases or other related
dispositions that have a purchase price not in excess of $1,000,000.
“Permitted Unsecured
Debt” shall mean (a) unsecured subordinated Indebtedness issued or incurred by the Borrower, any Guarantor or any
Foreign Subsidiary, and (b) unsecured senior Indebtedness issued by the Borrower, any Guarantor or any Foreign Subsidiary, in each
case (other than with respect to any such Indebtedness of Foreign Subsidiaries), (i) the terms of which (A) do not provide
for any amortization, scheduled repayment, mandatory redemption or sinking fund obligation prior to the date that is twelve (12) months
after the Latest Maturity Date, other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary
acceleration rights after an event of default, (B) provide for covenants and events of default customary for Indebtedness of a similar
nature as such Permitted Unsecured Debt but in any event the terms and conditions thereof, excluding pricing, fees, rate floors and premiums
are, taken as a whole, no more restrictive in any material respect than the terms set forth in this Agreement and (C) in the case
of subordinated Indebtedness, provide for subordination of payments in respect of such Indebtedness to the Obligations and guarantees
thereof under the Loan Documents customary for subordinated high yield securities or on terms reasonably acceptable to the Administrative
Agent, and (ii) in respect of which no Subsidiary of the Borrower that is not an obligor or guarantor under the Loan Documents is
an obligor or guarantor (other than Foreign Subsidiaries); provided, however, that immediately prior to and
after giving effect to any incurrence of Permitted Unsecured Debt and the application of proceeds therefrom, no Default shall have occurred
and be continuing or would result therefrom. Notwithstanding the foregoing, Disqualified Preferred Stock shall not constitute Permitted
Unsecured Debt.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
“Plan”
means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412
of the Code, maintained, sponsored or contributed to by Borrower or any ERISA Affiliate or in respect of which Borrower or any ERISA
Affiliate has or could have any liability.
“Plan of Reorganization”
has the meaning specified in Section 11.06(g).
“Platform”
has the meaning specified in Section 6.04(l).
“Pledged Equity”
has the meaning specified in the Security Agreement.
“Pro
Forma Basis” and “Pro Forma Effect” means, for purposes of calculating compliance with any test
or covenant under this Agreement, including the financial covenants set forth in Section 7.11, with respect to any relevant
transaction or series of related transactions, immediately after giving effect to such transaction or series of related transactions
on a pro forma basis as if occurring during the relevant period or thereafter and on or prior to the date of determination with such
transaction(s), and all other subject applicable transactions (including debt incurrences and repayments, Acquisitions, Dispositions
of all or substantially all of the assets or stock of a Restricted Subsidiary (or any line of business or division of the Borrower or
any Restricted Subsidiary) and the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary
as a Restricted Subsidiary) occurring during the relevant period or thereafter and on or prior to the date of determination shall be
deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant, and with supporting detail
provided, however, by the Borrower to the Administrative Agent as to any pro forma adjustments; provided,
however, that the foregoing pro forma adjustments may only be applied to the calculation of Consolidated EBITDA (x) to
the extent such adjustments are consistent with the definition of Consolidated EBITDA and such supporting detail demonstrates such pro
forma adjustments are factually supportable and expected to have a continuing impact, in each case determined on a basis consistent with
Article 11 of Regulation S-X of the Securities Act of 1933, as interpreted by the Securities and Exchange Commission, or (y) with
respect to any additional pro forma expense and cost reductions or synergies, to the extent set forth in a certificate of a Responsible
Officer itemizing any such additional pro forma expense and cost reductions or synergies, net of the benefit received, calculated in
good faith, each of which such items must have been realized or be reasonably anticipated to be realizable within 12 months of the initial
closing of such transaction or series of transactions; provided further, that any increase in Consolidated EBITDA as a
result of such pro forma expense and cost reductions or synergies shall not exceed, together with all amounts added back to Consolidated
EBITDA for such test period under clause (vii) of the definition of Consolidated EBITDA, 15% of Consolidated EBITDA for such period
(giving pro forma effect to all such relevant transactions occurring during such period). Notwithstanding the foregoing, when calculating
Consolidated EBITDA for purposes of (i) the definition of “Applicable Rate,” and (ii) determining actual compliance
(and not pro forma compliance or compliance on a Pro Forma Basis) with the financial covenants set forth in Section 7.11,
any events described in this definition of “Pro Forma Basis” that occurred subsequent to the end of the applicable Measurement
Period shall not be given pro forma effect.
“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time
to time.
“Public Lender”
has the meaning specified in Section 6.04(l).
“QFC”
has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
“QFC Credit Support”
has the meaning specified in Section 11.20.
“Qualified ECP
Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as
an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible
contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualified Equity
Interests” of any person shall mean any Equity Interests of such person that are not Disqualified Preferred Stock.
“Qualifying Control
Agreement” means an agreement, among a Loan Party, a depository institution or securities intermediary and the Administrative
Agent, which agreement is in form and substance reasonably acceptable to the Administrative Agent and which provides the Administrative
Agent with “control” (as such term is used in Article 9 of the UCC) over the deposit account(s) or securities account(s) described
therein.
“Recipient”
means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation
of any Loan Party hereunder.
“Register”
has the meaning specified in Section 11.06(c).
“Regulation U”
means Regulation U of the FRB, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees,
administrators, managers, advisors, and representatives of such Person and of such Person’s Affiliates.
“Release”
means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration
into or through the environment or within or upon any building, structure, facility or fixture.
“Relevant Governmental
Body” has the meaning specified in Section 3.03(g).
“Removal Effective
Date” has the meaning set forth in Section 9.06(b).
“Request for
Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Loans,
a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swingline
Loan, a Swingline Loan Notice.
“Required Class Lenders”
means, at any time with respect to any Class of Loans or Commitments, Lenders having Total Credit Exposures with respect to such
Class representing more than 50% of the Total Credit Exposures of all Lenders of such Class. The Total Credit Exposure of
any Defaulting Lender with respect to such Class shall be disregarded in determining Required Class Lenders at any time.
“Required Lenders”
means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders. The
Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided,
however, that, the amount of any participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Lender
has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the
Swingline Lender or the L/C Issuer, as the case may be, in making such determination; provided further that, notwithstanding
the foregoing, in each case, if there are at any time two (2) or more Lenders, at least two (2) Lenders shall be required to
constitute “Required Lenders” (Lenders that are Affiliates of one another being considered as one Lender for purposes of
this proviso).
“Resignation
Effective Date” has the meaning set forth in Section 9.06(a).
“Responsible
Officer” means the chief executive officer, president, chief operating officer, chief administrative officer, executive
vice president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party, solely for purposes of the delivery
of incumbency certificates pursuant to Section 4.01(b), the secretary or any assistant secretary of a Loan Party and, solely
for purposes of notices given pursuant to Article II, any other officer or employee or equivalent representative of the applicable
Loan Party so designated by any of the foregoing officers, directors or managers in a notice to the Administrative Agent or any other
officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the
Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. To the extent requested by the Administrative
Agent, each Responsible Officer will provide an incumbency certificate and to the extent requested by the Administrative Agent, appropriate
authorization documentation, in form and substance reasonably satisfactory to the Administrative Agent.
“Restricted Payment”
means (a) any dividend or other distribution (including without limitation Permitted Tax Distributions), on account of any shares
(or equivalent) of any class of Equity Interests of the Borrower or any of its Subsidiaries, now or hereafter outstanding, (b) any
redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares (or
equivalent) of any class of Equity Interests of the Borrower or any of its Subsidiaries, now or hereafter outstanding, and (c) any
payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class
of Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding.
“Restricted Subsidiaries”
means (i) each Subsidiary of the Borrower that is not an Unrestricted Subsidiary on the Closing Date, and (ii) any other Subsidiary
acquired or formed by the Borrower or any of its Restricted Subsidiaries, directly or indirectly, that is not an Unrestricted Subsidiary.
“Revolving Borrowing”
means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same
Interest Period made by each of the Revolving Lenders pursuant to Section 2.01(b).
“Revolving Commitment”
means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01(b),
(b) purchase participations in L/C Obligations, and (c) purchase participations in Swingline Loans, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01(b) under
the caption “Revolving Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The Revolving
Commitment of all of the Revolving Lenders on the Closing Date shall be $30,000,000.
“Revolving Exposure”
means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Lender’s
participation in L/C Obligations and Swingline Loans at such time.
“Revolving Facility”
means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.
“Revolving Lender”
means, at any time, (a) so long as any Revolving Commitment is in effect, any Lender that has a Revolving Commitment at such time
or (b) if the Revolving Commitments have terminated or expired, any Lender that has a Revolving Loan or a participation in L/C Obligations
or Swingline Loans at such time.
“Revolving Loan”
has the meaning specified in Section 2.01(b).
“Revolving Note”
means a promissory note made by the Borrower in favor of a Revolving Lender evidencing Revolving Loans or Swingline Loans, as the case
may be, made by such Revolving Lender, substantially in the form of Exhibit G.
“S&P”
means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and any successor thereto.
“Sale and Leaseback
Transaction” means, with respect to any Loan Party or any Restricted Subsidiary, any arrangement, directly or indirectly,
with any Person whereby such Loan Party or such Restricted Subsidiary shall sell or transfer any property used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially
the same purpose or purposes as the property being sold or transferred.
“Sanction(s)”
means any sanction administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations
Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.
“Scheduled
Unavailability Date” has the meaning specified in Section 3.03(c).
“Secured Cash
Management Agreement” means any Cash Management Agreement between any Loan Party and any of its Restricted Subsidiaries
and any Cash Management Bank.
“Secured Hedge
Agreement” means any interest rate, currency, foreign exchange, or commodity Swap Contract required by or not prohibited
under Article VI or VII between any Loan Party and any of its Restricted Subsidiaries and any Hedge Bank.
“Secured Obligations”
means all Obligations, all Foreign Subsidiary Secured Obligations and all Additional Secured Obligations.
“Secured Parties”
means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, Foreign Obligation
Providers and the Indemnitees.
“Secured Party
Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit H.
“Securities Act”
means the Securities Act of 1933, including all amendments thereto and regulations promulgated thereunder.
“Security Agreement”
means the security and pledge agreement, dated as of the Closing Date, executed in favor of the Administrative Agent by each of the U.S.
Loan Parties.
“SOFR”
has the meaning specified in Section 3.03(g).
“SOFR-Based Rate”
has the meaning specified in Section 3.03(g).
“Solvency Certificate”
means a solvency certificate in substantially in the form of Exhibit I.
“Solvent”
and “Solvency” mean, with respect to any Person on any date of determination considered on a consolidated basis
with other applicable Persons, that on such date (a) the fair value of the property of such Person is greater than the total amount
of liabilities, including contingent liabilities, of such Person, which for this purpose shall include rights of contribution in respect
of obligations for which such Person has provided a Guarantee, (b) the present fair saleable value of the assets of such Person
is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and
matured, which for this purpose shall include rights of contribution in respect of obligations for which such Person has provided a Guarantee,
(c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability
to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such
Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of
business. For purposes of this definition, the amount of contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
“Specified Event
of Default” means an Event of Default under Sections 8.01(b), (c), (j) or (k).
“Specified Loan
Party” means any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange
Act (determined prior to giving effect to Section 10.11).
“Subordinated
Indebtedness” means Indebtedness incurred by any Loan Party which by its terms (a) is subordinated in right of payment
to the prior payment of the Obligations and (b) contains other terms, including, without limitation, standstill, interest rate,
maturity and amortization, and insolvency-related provisions, in all respects reasonably acceptable to the Administrative Agent.
“Subsidiary”
of a Person means a corporation, partnership, limited liability company or other business entity of which a majority of the shares of
Voting Stock is at the time beneficially owned, directly or indirectly, by such Person. Unless otherwise specified, all references herein
to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Supported QFC”
has the meaning specified in Section 11.20.
“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any
and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligation”
means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a
“swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Termination
Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).
“Swingline Borrowing”
means a borrowing of a Swingline Loan pursuant to Section 2.04.
“Swingline
Commitment” means, as to any Lender (a) the amount set forth opposite such Lender’s name on Schedule 2.01
hereof or (b) if such Lender has entered into an Assignment and Assumption or has otherwise assumed a Swingline Commitment after
the Closing Date, the amount set forth for such Lender as its Swingline Commitment in the Register maintained by the Administrative Agent
pursuant to Section 11.06(c).
“Swingline Lender”
means Bank of America in its capacity as provider of Swingline Loans, or any successor swingline lender hereunder.
“Swingline Loan”
has the meaning specified in Section 2.04(a).
“Swingline Loan
Notice” means a notice of a Swingline Borrowing pursuant to Section 2.04(b), which shall be substantially in
the form of Exhibit J or such other form as approved by the Administrative Agent (including any form on an electronic platform
or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible
Officer of the Borrower.
“Swingline Sublimit”
means an amount equal to the lesser of (a) $5,000,000 and (b) the Revolving Facility. The Swingline Sublimit is part of, and
not in addition to, the Revolving Facility.
“Synthetic Debt”
means, with respect to any Person as of any date of determination thereof, all obligations of such Person in respect of transactions
entered into by such Person that are intended to function primarily as a borrowing of funds (including any minority interest transactions
that function primarily as a borrowing) but are not otherwise included in the definition of “Indebtedness” or as a liability
on the Consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.
“Synthetic Lease
Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property, in each case, creating obligations that do not appear on the balance
sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness
of such Person (without regard to accounting treatment).
“Target”
has the meaning set forth in the definition of “Permitted Acquisition.”
“Taxes”
means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees
or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Borrowing”
means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest
Period made by each of the Term Lenders pursuant to Section 2.01(a).
“Term Commitment”
means, as to each Term Lender, its obligation to make Term Loans to the Borrower pursuant to Section 2.01(a) in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth opposite such Term Lender’s name on Schedule 1.01(b) under
the caption “Term Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The Term Commitment
of all of the Term Lenders on the Closing Date shall be $150,000,000.
“Term Facility”
means, at any time, (a) on or prior to the Closing Date, the aggregate amount of the Term Commitments at such time and (b) thereafter,
the aggregate principal amount of the Term Loans of all Term Lenders outstanding at such time.
“Term Lender”
means (a) at any time on or prior to the Closing Date, any Lender that has a Term Commitment at such time and (b) at any time
after the Closing Date, any Lender that holds Term Loans at such time.
“Term Loan”
means an advance made by any Term Lender under the Term Facility.
“Term Note”
means a promissory note made by the Borrower in favor of a Term Lender evidencing Term Loans made by such Term Lender, substantially
in the form of Exhibit K.
“Term SOFR”
has the meaning specified in Section 3.03(g).
“Total Assets”
shall mean, as of any date, the total assets of the Borrower and its Restricted Subsidiaries as of the most recent fiscal quarter end
for which financial statements have been delivered pursuant to Section 6.04(a) or (b), minus total goodwill
and other intangible assets of the Borrower and its Restricted Subsidiaries reflected on such financial statements, all calculated on
a Consolidated basis in accordance with GAAP.
“Total Credit
Exposure” means, as to any Lender at any time, the unused Commitments, Revolving Exposure and Outstanding Amount of all
Term Loans of such Lender at such time.
“Total Funded
Debt” means, as to any Person at a particular time, without duplication, the sum of: (a) the outstanding principal
amount of all obligations of such Person, whether current or long-term, for borrowed money and all obligations evidenced by bonds, debentures,
notes or other similar instruments (including Obligations thereunder); (b) all obligations of such Person under conditional sale
or other title retention agreements relating to property or assets purchased by such Person; (c) all outstanding reimbursement obligations
of such Person as an account party in respect of letters of credit and in respect of bankers’ acceptances; (d) all obligations
of such Person in respect of the deferred purchase price of property or services (other than trade accounts payable and accrued obligations
in the ordinary course of business); (e) all Attributable Indebtedness; (f) the liquidation value of all Disqualified Preferred
Stock of such Person; (g) without duplication, all Guarantees of such Person with respect to outstanding indebtedness of the types
specified in clauses (a) through (f) above of Persons other than the Borrower or any Restricted Subsidiary; and (h) all
indebtedness of such Person of the types referred to in clauses (a) through (g) above of any partnership in which the Borrower
or a Restricted Subsidiary is a general partner, unless such indebtedness is expressly made non-recourse to the Borrower or such Restricted
Subsidiary.
“Total Revolving
Exposure” means, as to any Revolving Lender at any time, the unused Commitments and Revolving Exposure of such Revolving
Lender at such time.
“Total Revolving
Outstandings” means the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and L/C Obligations.
“Trade Date”
has the meaning specified in Section 11.06(g)(i).
“Transactions”
shall mean, collectively, the transactions contemplated by this Agreement to occur on or substantially concurrently with the Closing
Date, including, without limitation, the Borrowing of Term Loans by the Borrower, the making of Guarantees of the Secured Obligations
by the Guarantors (if any as of the Closing Date), the granting of the Collateral by the U.S. Loan Parties, the repayment of the Existing
Term Loan Credit Agreement and the Existing ABL Credit Agreement and the payment of fees and expenses connection therewith.
“Type”
means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
“UCC”
means the Uniform Commercial Code as in effect in the State of New York; provided, however, that, if perfection
or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial
Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code
as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of
perfection or non-perfection or priority.
“UCP”
means the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such
later version thereof as may be in effect at the applicable time).
“UK
Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from
time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook
(as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions
and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK
Resolution Authority” means the Bank of England or any other public administrative authority having responsibility
for the resolution of any UK Financial Institution.
“United States”
and “U.S.” mean the United States of America.
“Unreimbursed
Amount” has the meaning specified in Section 2.03(f).
“Unrestricted
Subsidiary” means any Subsidiary of the Borrower listed on Schedule 1.01(f) as of the Closing Date, any
Subsidiary of the Borrower designated as an “Unrestricted Subsidiary” pursuant to and in compliance with Section 6.13
and any Subsidiary of an Unrestricted Subsidiary, in each case unless subsequently designated as a Restricted Subsidiary pursuant to
and in compliance with Section 6.13.
“USDA”
has the meaning specified in Section 5.21.
“U.S.
Loan Party” means any Loan Party that is organized under the laws of the United States, any state thereof for the District
of Columbia.
“U.S.
Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the
Code.
“U.S. Special
Resolution Regimes” has the meaning specified in Section 11.20.
“U.S.
Tax Compliance Certificate” has the meaning specified in Section 3.01(f)(ii)(B)(3).
“Voting Stock”
means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right to so
vote has been suspended by the happening of such contingency.
“Weighted Average
Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by
(b) the then outstanding principal amount of such Indebtedness.
“wholly owned
Restricted Subsidiary” shall mean a Restricted Subsidiary of the Borrower or a Restricted Subsidiary of which securities
(except for directors’ qualifying shares) or other ownership interests representing 100% of the Equity Interests are, at the time
any determination is being made, owned, Controlled or held by the Borrower or one or more wholly owned Restricted Subsidiaries of the
Borrower or by the Borrower and one or more wholly owned Restricted Subsidiaries.
“Withdrawal Liability”
means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part 1 of Subtitle E of Title IV of ERISA.
“Withholding
Agent” means the Borrower and the Administrative Agent.
“Write-Down
and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers
of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers
of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any
UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into
shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect
as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In
Legislation that are related to or ancillary to any of those powers.
1.02 Other
Interpretive Provisions
With reference to this Agreement
and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The
definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including the Loan Documents and any Organization Document)
shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, modified,
extended, restated, replaced or supplemented from time to time (subject to any restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,”
and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not
to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits
and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory rules, regulations,
orders and provisions consolidating, amending, replacing or interpreting such law and any reference to any law, rule or regulation
shall, unless otherwise specified, refer to such law, rule or regulation as amended, modified, extended, restated, replaced or supplemented
from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract
rights.
(b) In
the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including;” the words “to” and “until” each mean “to but excluding;” and the word “through”
means “to and including.”
(c) Section headings
herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this
Agreement or any other Loan Document.
(d) Any
reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall
be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability
company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment,
sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability
company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint
venture or any other like term shall also constitute such a Person or entity).
1.03 Accounting
Terms
(a) Generally.
All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of
determining compliance with any covenant (including the computation of any financial covenant) contained herein, (i) Indebtedness
of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects
of FASB ASC 825 and FASB ASC 470 20 on financial liabilities shall be disregarded, (ii) all liability amounts shall be determined
excluding any liability relating to any operating lease, all asset amounts shall be determined excluding any right-of-use assets relating
to any operating lease, all amortization amounts shall be determined excluding any amortization of a right-of-use asset relating to any
operating lease, and all interest amounts shall be determined excluding any deemed interest comprising a portion of fixed rent payable
under any operating lease, in each case to the extent that such liability, asset, amortization or interest pertains to an operating lease
under which the covenantor or a member of its consolidated group is the lessee and would not have been accounted for as such under GAAP
as in effect on December 31, 2015, and (iii) all terms of an accounting or financial nature used herein shall be construed,
and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB ASC Topic
825 “Financial Instruments” (or any other financial accounting standard having a similar result or effect) to value any Indebtedness
of the Borrower or any Subsidiary at “fair value”, as defined therein. For purposes of determining the amount of any outstanding
Indebtedness, no effect shall be given to any election by the Borrower to measure an item of Indebtedness using fair value (as permitted
by Financial Accounting Standards Board Accounting Standards Codification 825–10–25 (formerly known as FASB 159) or any similar
accounting standard).
(b) Changes
in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject
to the approval of the Required Lenders); provided, however, that, until so amended, (i) such ratio
or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide
to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such
change in GAAP.
1.04 Rounding
Any financial ratios required
to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).
1.05 Times
of Day
Unless otherwise specified,
all references herein to times of day shall be references to Central time (daylight or standard, as applicable).
1.06 Letter
of Credit Amounts
Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such
time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document
related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall
be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time.
1.07 UCC
Terms
Terms defined in the UCC
in effect on the Closing Date and not otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided
by those definitions. Subject to the foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in
effect.
1.08 Rates
The Administrative Agent
does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration,
submission or any other matter related to the rates in the definition of “Eurodollar Rate” or with respect to any rate that
is an alternative or replacement for or successor to any of such rates (including, without limitation, any LIBOR Successor Rate) or the
effect of any of the foregoing, or of any LIBOR Successor Rate Conforming Changes.
1.09 Limited
Condition Acquisitions
Notwithstanding anything
to the contrary herein, to the extent that the terms of this Agreement require (a) compliance with any basket, financial ratio or
test (including any Consolidated Leverage Ratio test or any Consolidated Fixed Charge Coverage Ratio test), (b) the absence of a
Default or an Event of Default, or (c) a determination as to whether the representations and warranties contained in this Agreement
or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith,
shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by
materiality or reference to Material Adverse Effect), in each case in connection with the consummation of a Limited Condition Acquisition,
the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower, (A) on the date of
the execution of the definitive agreement with respect to such Limited Condition Acquisition (such date, the “LCA Test Date”),
or (B) on the date on which such Limited Condition Acquisition is consummated, in either case, after giving effect to the relevant
Limited Condition Acquisition and any related incurrence of Indebtedness, on a Pro Forma Basis; provided, however,
that, notwithstanding the foregoing, in connection with any Limited Condition Acquisition: (1) the condition set forth in clause
(a) of the definition of “Permitted Acquisition” shall be satisfied if (x) no Event of Default shall have occurred
and be continuing as of the applicable LCA Test Date, and (y) no Specified Event of Default shall have occurred and be continuing
at the time of consummation of such Limited Condition Acquisition; (2) if the proceeds of an Incremental Term Loan are being used
to finance such Limited Condition Acquisition, then (x) the conditions set forth in Section 2.16(a)(ii) and Section 4.02(a) shall
be required to be satisfied at the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan but,
if the lenders providing such Incremental Term Loan so agree, the representations and warranties which must be accurate at the time of
closing of the Limited Condition Acquisition and funding of such Incremental Term Loan may be limited to customary “specified representations”
and such other representations and warranties as may be required by the lenders providing such Incremental Term Loan, and (y) the
conditions set forth in Section 2.16(a)(ii) shall, if and to the extent the lenders providing such Incremental Term
Loans so agree, be satisfied if (I) no Default shall have occurred and be continuing as of the applicable LCA Test Date, and (II) no
Specified Event of Default shall have occurred and be continuing at the time of the funding of such Incremental Term Loans in connection
with the consummation of such Limited Condition Acquisition; and (3) such Limited Condition Acquisition and the related Indebtedness
to be incurred in connection therewith and the use of proceeds thereof shall be deemed incurred and/or applied at the LCA Test Date (until
such time as the Indebtedness is actually incurred or the applicable definitive agreement is terminated without actually consummating
the applicable Limited Condition Acquisition) and outstanding thereafter for purposes of determining compliance on a Pro Forma Basis
with the financial covenants set forth in Section 7.11 (other than for purposes of determining compliance in connection with
the making of any Restricted Payment) with any financial ratio or test (including any Consolidated Leverage Ratio test or any Consolidated
Fixed Charge Coverage Ratio test, or any calculation of the financial covenants set forth in Section 7.11) (it being understood
and agreed that for purposes of determining compliance on a Pro Forma Basis with the financial covenants set forth in Section 7.11
in connection with the making of any Restricted Payment, the Borrower shall demonstrate compliance with the applicable test both after
giving effect to the applicable Limited Condition Acquisition and assuming that such transaction had not occurred). For the avoidance
of doubt, if any of such ratios or amounts for which compliance was determined or tested as of the LCA Test Date are thereafter exceeded
or otherwise failed to have been complied with as a result of fluctuations in such ratio or amount (including due to fluctuations in
Consolidated EBITDA), at or prior to the consummation of the relevant Limited Condition Acquisition, such ratios or amounts will not
be deemed to have been exceeded or failed to be complied with as a result of such fluctuations solely for purposes of determining whether
the relevant Limited Condition Acquisition is permitted to be consummated or taken. Except as set forth in clause (2) in
the proviso to the first sentence in this Section 1.09 in connection with the use of the proceeds of an Incremental Term
Loan to finance a Limited Condition Acquisition (and, in the case of such clause (2), only if and to the extent the lenders providing
such Incremental Term Loan so agree as provided in such clause (2)), it is understood and agreed that this Section 1.09
shall not limit the conditions set forth in Section 4.02 with respect to any proposed Credit Extension, in connection with
a Limited Condition Acquisition or otherwise.
Article II
COMMITMENTS
AND CREDIT EXTENSIONS
2.01 Loans
(a) Term
Borrowing. Subject to the terms and conditions set forth herein, each Term Lender severally agrees to make a single loan to the Borrower,
in Dollars, on the Closing Date in an amount not to exceed such Term Lender’s Applicable Percentage of the Term Facility. The Term
Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance with their respective Applicable Percentage
of the Term Facility. Term Borrowings repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurodollar Rate Loans,
as further provided herein; provided, however, any Term Borrowing made on the Closing Date or any of the three (3) Business
Days following the Closing Date shall be made as Base Rate Loans unless the Borrower delivers a Funding Indemnity Letter not less than
three (3) Business Days prior to the date of such Term Borrowing.
(b) Revolving
Borrowings. Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (each such
loan, a “Revolving Loan”) to the Borrower, in Dollars, from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided,
however, that after giving effect to any Revolving Borrowing, (i) the Total Revolving Outstandings shall not exceed the Revolving
Facility, and (ii) the Revolving Exposure of any Lender shall not exceed such Revolving Lender’s Revolving Commitment.
Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower
may borrow Revolving Loans, prepay under Section 2.05, and reborrow under this Section 2.01(b). Revolving Loans
may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein; provided, however, any Revolving Borrowings
made on the Closing Date or any of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless
the Borrower delivers a Funding Indemnity Letter not less than three (3) Business Days prior to the date of such Revolving Borrowing.
2.02 Borrowings,
Conversions and Continuations of Loans
(a) Notice
of Borrowing. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans
shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by: (i) telephone or
(ii) a Loan Notice; provided, however, that any telephonic notice must be confirmed immediately by delivery
to the Administrative Agent of a Loan Notice. Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three
(3) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of
any conversion of Eurodollar Rate Loans to Base Rate Loans, and (B) on the requested date of any Borrowing of Base Rate Loans; provided,
however, that if the Borrower wishes to request Eurodollar Rate Loans having an Interest Period other than one (1), two (2),
three (3) or six (6) months in duration as provided in the definition of “Interest Period”, the applicable notice
must be received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date
of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Appropriate Lenders
of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m., three
(3) Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify
the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders.
Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple
of $100,000 in excess thereof (or, in connection with any conversion or continuation of a Term Loan, if less, the entire principal thereof
then outstanding). Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base
Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof (or, in connection with any
conversion or continuation of a Term Loan, if less, the entire principal thereof then outstanding). Each Loan Notice and each telephonic
notice shall specify (I) the applicable Facility and whether the Borrower is requesting a Borrowing, a conversion of Loans from
one Type to the other, or a continuation of Loans, as the case may be, under such Facility, (II) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day), (III) the principal amount of Loans to be borrowed,
converted or continued, (IV) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (V) if applicable,
the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted
to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then
in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation
of Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest
Period of one (1) month. Notwithstanding anything to the contrary herein, a Swingline Loan may not be converted to a Eurodollar
Rate Loan.
(b) Advances.
Following receipt of a Loan Notice for a Facility, the Administrative Agent shall promptly notify each Appropriate Lender of the amount
of its Applicable Percentage under such Facility of the applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Appropriate Lender of the details of any automatic conversion to
Base Rate Loans described in Section 2.02(a). In the case of a Borrowing, each Appropriate Lender shall make the amount of
its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than
1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth
in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent
shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in
each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date a Loan Notice with respect to a Revolving Borrowing is given by the Borrower, there are L/C
Borrowings outstanding, then the proceeds of such Revolving Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and second, shall be made available to the Borrower as provided above.
(c) Eurodollar
Rate Loans. Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an
Interest Period for such Eurodollar Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued
as Eurodollar Rate Loans without the consent of the Required Lenders and unless repaid, each outstanding Eurodollar Rate Loan shall be
converted to a Base Rate Loan at the end of the Interest Period applicable thereto.
(d) Interest
Rates. Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive
and binding on the Borrower and the Lenders in the absence of manifest error.
(e) Interest
Periods. After giving effect to all Term Borrowings, all conversions of Term Loans from one Type to the other, and all continuations
of Term Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect in respect of the Term Facility.
After giving effect to all Revolving Borrowings, all conversions of Revolving Loans from one Type to the other, and all continuations
of Revolving Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect in respect of the Revolving
Facility.
(f) Cashless
Settlement Mechanism. Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all
or the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the
terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such Lender.
2.03 Letters
of Credit.
(a) The
Letter of Credit Commitment. Subject to the terms and conditions set forth herein, in addition to the Loans provided for in Section 2.01,
the Borrower may request that the L/C Issuer, in reliance on the agreements of the Revolving Lenders set forth in this Section 2.03,
issue, at any time and from time to time during the Availability Period, Letters of Credit denominated in Dollars for its own account
or the account of any of its Restricted Subsidiaries in such form as is acceptable to the Administrative Agent and the L/C Issuer in
its reasonable determination. Letters of Credit issued hereunder shall constitute utilization of the Revolving Commitments.
(b) Notice
of Issuance, Amendment, Extension, Reinstatement or Renewal.
(i) To
request the issuance of a Letter of Credit (or the amendment of the terms and conditions, extension of the terms and conditions, extension
of the expiration date, or reinstatement of amounts paid, or renewal of an outstanding Letter of Credit), the Borrower shall deliver
(or transmit by electronic communication, if arrangements for doing so have been approved by the L/C Issuer) to the L/C Issuer and to
the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the Administrative
Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended,
extended, reinstated or renewed, and specifying the date of issuance, amendment, extension, reinstatement or renewal (which shall be
a Business Day), the date on which such Letter of Credit is to expire (which shall comply with clause (d) of this Section 2.03),
the amount of such Letter of Credit, the name and address of the beneficiary thereof, the purpose and nature of the requested Letter
of Credit and such other information as shall be necessary to prepare, amend, extend, reinstate or renew such Letter of Credit. If requested
by the L/C Issuer, the Borrower also shall submit a letter of credit application and reimbursement agreement on the L/C Issuer’s
standard form in connection with any request for a Letter of Credit. In the event of any inconsistency between the terms and conditions
of this Agreement and the terms and conditions of any form of letter of credit application and reimbursement agreement or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the L/C Issuer relating to any Letter of Credit, the terms and conditions
of this Agreement shall control.
(ii) If
the Borrower so requests in any applicable Letter of Credit Application (or an application for the amendment of an outstanding Letter
of Credit), any L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each,
an “Auto-Extension Letter of Credit”); provided, however, that any
such Auto-Extension Letter of Credit shall permit such L/C Issuer to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day
(the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon by the Borrower
and such L/C Issuer at the time such Letter of Credit is issued. Unless otherwise directed by such L/C Issuer, the Borrower shall not
be required to make a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued,
the Revolving Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such
Letter of Credit at any time to an expiration date not later than the date permitted pursuant to Section 2.03(d); provided,
however, that the applicable L/C Issuer shall not (A) permit any such extension if such L/C Issuer has determined
that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its extended form under the
terms hereof (except that the expiration date may be extended to a date that is no more than one (1) year from the then-current
expiration date) or (B) be obligated to permit such extension if it has received notice (which may be in writing or by telephone
(if promptly confirmed in writing)) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from
the Administrative Agent, any Revolving Lender or the Borrower that one or more of the applicable conditions set forth in Section 4.02
is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(c) Limitations
on Amounts, Issuance and Amendment. A Letter of Credit shall be issued, amended, extended, reinstated or renewed only if (and
upon issuance, amendment, extension, reinstatement or renewal of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, extension, reinstatement or renewal (w) the aggregate amount of
the outstanding Letters of Credit issued by the L/C Issuer shall not exceed its L/C Commitment, (x) the aggregate L/C Obligations
shall not exceed the Letter of Credit Sublimit, (y) the Revolving Exposure of any Lender shall not exceed its Revolving Commitment
and (z) the Total Revolving Exposure shall not exceed the total Revolving Commitments.
(i) The
L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any
order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer
from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the L/C Issuer with respect
to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the L/C Issuer in good faith deems material to it;
(B) the
issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except
as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000;
(D) any
Revolving Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of
Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s
actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender
arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which
the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(ii) The
L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time
to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not
accept the proposed amendment to the Letter of Credit.
(d) Expiration
Date. Each Letter of Credit shall have a stated expiration date no later than the earlier of (i) the date twelve (12) months
after the date of the issuance of such Letter of Credit (or, in the case of any extension of the expiration date thereof, whether automatic
or by amendment, twelve months after the then-current expiration date of such Letter of Credit) and (ii) the date that is five (5) Business
Days prior to the Maturity Date.
(e) Participations.
(i) By
the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount or extending the expiration date thereof),
and without any further action on the part of the L/C Issuer or the Lenders, the L/C Issuer hereby grants to each Revolving Lender, and
each Revolving Lender hereby acquires from the L/C Issuer, a participation in such Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letter of Credit. Each Revolving Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this clause (e) in respect of Letters of Credit is absolute, unconditional
and irrevocable and shall not be affected by any circumstance whatsoever, including any amendment, extension, reinstatement or renewal
of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments.
(ii) In
consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely, unconditionally and irrevocably agrees to
pay to the Administrative Agent, for account of the L/C Issuer, such Lender’s Applicable Percentage of each L/C Disbursement made
by the L/C Issuer not later than 1:00 p.m. on the Business Day specified in the notice provided by the Administrative Agent to the
Revolving Lenders pursuant to Section 2.03(f) until such L/C Disbursement is reimbursed by the Borrower or at any time
after any reimbursement payment is required to be refunded to the Borrower for any reason, including after the Maturity Date. Such payment
shall be made without any offset, abatement, withholding or reduction whatsoever. Each such payment shall be made in the same manner
as provided in Section 2.02 with respect to Loans made by such Lender (and Section 2.02 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders pursuant to this Section 2.03), and the Administrative
Agent shall promptly pay to the L/C Issuer the amounts so received by it from the Lenders. Promptly following receipt by the Administrative
Agent of any payment from the Borrower pursuant to Section 2.03(f), the Administrative Agent shall distribute such payment
to the L/C Issuer or, to the extent that the Revolving Lenders have made payments pursuant to this clause (e) to reimburse
the L/C Issuer, then to such Lenders and the L/C Issuer as their interests may appear. Any payment made by a Lender pursuant to this
clause (e) to reimburse the L/C Issuer for any L/C Disbursement shall not constitute a Loan and shall not relieve the Borrower
of its obligation to reimburse such L/C Disbursement.
(iii) Each
Revolving Lender further acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect
such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit at each time such
Lender’s Commitment is amended pursuant to the operation of Sections 2.16, as a result of an assignment in accordance
with Section 11.06 or otherwise pursuant to this Agreement.
(iv) If
any Revolving Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section 2.03(e), then, without limiting the other provisions
of this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C
Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees
as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Revolving Borrowing or
L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Revolving
Lender (through the Administrative Agent) with respect to any amounts owing under this clause (e)(vi) shall be conclusive
absent manifest error.
(f) Reimbursement.
If the L/C Issuer shall make any L/C Disbursement in respect of a Letter of Credit, the Borrower shall reimburse the L/C Issuer in respect
of such L/C Disbursement by paying to the Administrative Agent an amount equal to such L/C Disbursement not later than 12:00 noon on
(i) the Business Day that the Borrower receives notice of such L/C Disbursement, if such notice is received prior to 10:00 a.m. or
(ii) the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior
to such time, provided, however, that, the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.02 or Section 2.04 that such payment be financed with a Borrowing
of Base Rate Loans or Swingline Loan in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make
such payment shall be discharged and replaced by the resulting Borrowing of Base Rate Loans or Swingline Loan. If the Borrower fails
to make such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable L/C Disbursement, the payment
then due from the Borrower in respect thereof (the “Unreimbursed Amount”) and such Lender’s Applicable
Percentage thereof. In such event, the Borrower shall be deemed to have requested a Borrowing of Revolving Loans constituting Base Rate
Loans to be disbursed on the date of payment by the L/C Issuer under such Letter of Credit in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans. Promptly
upon receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the Unreimbursed
Amount pursuant to Section 2.03(e)(ii), subject to the amount of the unutilized portion of the aggregate Revolving Commitments.
Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(f) may be given by telephone
if immediately confirmed in writing; provided, however, that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(g) Obligations
Absolute. The Borrower’s obligation to reimburse L/C Disbursements as provided in clause (f) of this Section 2.03
shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under
any and all circumstances whatsoever and irrespective of:
(i) any
lack of validity or enforceability of this Agreement, any other Loan Document or any Letter of Credit, or any term or provision herein
or therein;
(ii) the
existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any
draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement in such draft or other document being untrue or inaccurate in any respect;
(iv) waiver
by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of the Borrower or any
waiver by the L/C Issuer which does not in fact materially prejudice the Borrower;
(v) payment
by the L/C Issuer under a Letter of Credit against presentation of a draft or other document that does not comply strictly with the terms
of such Letter of Credit; or
(vi) any
other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.03,
constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder (other
than the defense of payment in full in cash).
(h) Examination.
The Borrower shall promptly, following receipt thereof, examine a copy of each Letter of Credit and each amendment thereto that is delivered
to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will
immediately notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and
its correspondents unless such notice is given as aforesaid.
(i) Liability.
None of the Administrative Agent, the Lenders, the L/C Issuer, or any of their Related Parties shall have any liability or responsibility
by reason of or in connection with the issuance or transfer of any Letter of Credit by the L/C Issuer or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including
any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in translation or any
consequence arising from causes beyond the control of the L/C Issuer; provided, however, that the foregoing
shall not be construed to excuse the L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by Applicable Law) suffered by the Borrower
that are caused by the L/C Issuer’s failure to exercise care when determining whether drafts and other documents presented under
a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of the L/C Issuer (as finally determined by a court of competent jurisdiction), the L/C Issuer shall be deemed
to have exercised care in each such determination, and that:
(i) the
L/C Issuer may replace a purportedly lost, stolen, or destroyed original Letter of Credit or missing amendment thereto with a certified
true copy marked as such or waive a requirement for its presentation;
(ii) the
L/C Issuer may accept documents that appear on their face to be in substantial compliance with the terms of a Letter of Credit without
responsibility for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation
of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit and without regard to
any non-documentary condition in such Letter of Credit;
(iii) the
L/C Issuer shall have the right, in its sole discretion, to decline to accept such documents and to make such payment if such documents
are not in strict compliance with the terms of such Letter of Credit; and
(iv) this
sentence shall establish the standard of care to be exercised by the L/C Issuer when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent permitted by Applicable Law,
any standard of care inconsistent with the foregoing).
Without limiting the foregoing, none
of the Administrative Agent, the Lenders, the L/C Issuer, or any of their Related Parties shall have any liability or responsibility
by reason of (A) any presentation that includes forged or fraudulent documents or that is otherwise affected by the fraudulent,
bad faith, or illegal conduct of the beneficiary or other Person, (B) the L/C Issuer declining to take-up documents and make payment,
(C) against documents that are fraudulent, forged, or for other reasons by which that it is entitled not to honor, (D) following
a Borrower’s waiver of discrepancies with respect to such documents or request for honor of such documents or (E) the L/C
Issuer retaining proceeds of a Letter of Credit based on an apparently applicable attachment order, blocking regulation, or third-party
claim notified to the L/C Issuer.
(j) Applicability
of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued by it (including
any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter
of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, the
L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights and remedies against the Borrower shall not
be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required or
permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer
or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements,
or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade – International Financial Services
Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses
such law or practice.
(k) Benefits.
The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith,
and the L/C Issuer shall have all of the benefits and immunities (i) provided to the Administrative Agent in Article IX
with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed
to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent”
as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the L/C Issuer.
(l) Letter
of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its
Applicable Revolving Percentage a Letter of Credit fee (the “Letter of Credit Fee”) times the maximum
stated amount of such Letter of Credit for each standby Letter of Credit equal to the Applicable Rate times the daily amount available
to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit,
the amount of such Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) payable
on the first Business Day following the end of each March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit and (ii) accrued through and including the last day of each calendar quarter in
arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate
was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(m) Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own account
a fronting fee with respect to each Letter of Credit, at the rate per annum equal to the percentage separately agreed upon between the
Borrower and the L/C Issuer, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears.
Such fronting fee shall be due and payable on the last Business Day of each March, June, September and December in respect
of the most recently- ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date
to occur after the issuance of such Letter of Credit, on the Maturity Date and thereafter on demand. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.
In addition, the Borrower shall pay directly to the L/C Issuer for its own account, in Dollars the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(n) Disbursement
Procedures. The L/C Issuer for any Letter of Credit shall, within the time allowed by Applicable Laws or the specific terms of the
Letter of Credit following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter
of Credit. The L/C Issuer shall promptly after such examination notify the Administrative Agent and the Borrower in writing of such demand
for payment if the L/C Issuer has made or will make an L/C Disbursement thereunder; provided, however, that
any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the L/C Issuer and the
Lenders with respect to any such L/C Disbursement.
(o) Interim
Interest. If the L/C Issuer for any standby Letter of Credit shall make any L/C Disbursement, then, unless the Borrower shall reimburse
such L/C Disbursement in full on the date such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day
from and including the date such L/C Disbursement is made to but excluding the date that the Borrower reimburses such L/C Disbursement,
at the rate per annum then applicable to Base Rate Loans; provided, however, that if the Borrower fails to
reimburse such L/C Disbursement when due pursuant to clause (f) of this Section 2.03, then Section 2.08(b) shall
apply. Interest accrued pursuant to this clause (p) shall be for account of the L/C Issuer, except that interest accrued
on and after the date of payment by any Lender pursuant to clause (f) of this Section 2.03 to reimburse
the L/C Issuer shall be for account of such Lender to the extent of such payment.
(p) Replacement
of the L/C Issuer. The L/C Issuer may be replaced at any time by written agreement between the Borrower, the Administrative Agent,
the replaced L/C Issuer and the successor L/C Issuer. The Administrative Agent shall notify the Lenders of any such replacement of the
L/C Issuer. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of
the replaced L/C Issuer pursuant to Section 2.03(m). From and after the effective date of any such replacement, (i) the
successor L/C Issuer shall have all the rights and obligations of an L/C Issuer under this Agreement with respect to Letters of Credit
to be issued by it thereafter and (ii) references herein to the term “L/C Issuer” shall be deemed to include such successor
or any previous L/C Issuer, or such successor and all previous L/C Issuer, as the context shall require. After the replacement of the
L/C Issuer hereunder, the replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights and obligations of
an L/C Issuer under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required
to issue additional Letters of Credit.
(q) Cash
Collateralization.
(i) If
any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent
or the Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with L/C Obligations representing at
least 66-2/3% of the total L/C Obligations) demanding the deposit of Cash Collateral pursuant to this clause (q), the Borrower
shall on the Business Day that the Borrower receives such notice in writing deposit into an account established and maintained on the
books and records of the Administrative Agent (the “Collateral Account”) an amount in cash equal to 103% of
the total L/C Obligations as of such date plus any accrued and unpaid interest thereon, provided, however,
that the obligation to deposit such Cash Collateral shall become effective immediately, and such deposit shall become immediately due
and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described
in clause (f) of Section 8.01. Such deposit shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the Borrower under this Agreement. In addition, and without limiting the foregoing
or clause (d) of this Section 2.03, if any L/C Obligations remain outstanding after the expiration date
specified in said clause (d), the Borrower shall immediately deposit into the Collateral Account an amount in cash equal
to 103% of such L/C Obligations as of such date plus any accrued and unpaid interest thereon.
(ii) The
Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over the Collateral Account.
Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion
of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits,
if any, on such investments shall accumulate in the Collateral Account. Moneys in the Collateral Account shall be applied by the Administrative
Agent to reimburse the L/C Issuer for L/C Disbursements for which it has not been reimbursed, together with related fees, costs, and
customary processing charges, and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations
of the Borrower for the L/C Obligations at such time or, if the maturity of the Loans has been accelerated (but subject to the consent
of Lenders with L/C Obligations representing 66-2/3% of the total L/C Obligations), be applied to satisfy other obligations of the Borrower
under this Agreement. If the Borrower is required to provide an amount of Cash Collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business
Days after all Events of Default have been cured or waived.
(r) Letters
of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations
of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse, indemnify and compensate the L/C Issuer hereunder
for any and all drawings under such Letter of Credit as if such Letter of Credit had been issues solely for the account of the Borrower.
The Borrower irrevocably waives any and all defenses that might otherwise be available to it as a guarantor or surety of any or all of
the obligations of such Subsidiary in respect of such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters
of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial
benefits from the businesses of such Subsidiaries.
(s) Conflict
with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
2.04 Swingline
Loans.
(a) The
Swingline. Subject to the terms and conditions set forth herein, the Swingline Lender, in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, may in its sole discretion make loans to the Borrower (each such loan, a “Swingline
Loan”). Each such Swingline Loan may be made, subject to the terms and conditions set forth herein, to the Borrower, in
Dollars, from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swingline Sublimit; provided, however, that (i) after giving effect to any Swingline Loan, (A) the
Total Revolving Outstandings shall not exceed the Revolving Facility at such time and (B) the Revolving Exposure of any Revolving
Lender at such time shall not exceed such Lender’s Revolving Commitment, (ii) the Borrower shall not use the proceeds of any
Swingline Loan to refinance any outstanding Swingline Loan, and (iii) the Swingline Lender shall not be under any obligation to
make any Swingline Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has,
or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof,
the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04.
Each Swingline Loan shall bear interest only at a rate based on the Base Rate plus the Applicable Rate. Immediately upon the making of
a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline
Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Revolving
Percentage times the amount of such Swingline Loan.
(b) Borrowing
Procedures. Each Swingline Borrowing shall be made upon the Borrower’s irrevocable notice to the Swingline Lender and the Administrative
Agent, which may be given by: (i) telephone or (ii) a Swingline Loan Notice; provided, however,
that any telephonic notice must be confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of a Swingline
Loan Notice. Each such Swingline Loan Notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00
p.m. on the requested borrowing date (or such later time as shall be acceptable to the Administrative Agent and the Swingline Lender),
and shall specify (A) the amount to be borrowed, which shall be a minimum of $100,000, and (B) the requested date of the Borrowing
(which shall be a Business Day). Promptly after receipt by the Swingline Lender of any Swingline Loan Notice, the Swingline Lender will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan
Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless
the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Revolving Lender) prior to 2:00 p.m. on the date of the proposed Swingline Borrowing (1) directing the Swingline Lender not
to make such Swingline Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a),
or (2) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to
the terms and conditions hereof, the Swingline Lender may, make the amount of its Swingline Loan available to the Borrower at its office
by crediting the account of the Borrower on the books of the Swingline Lender in immediately available funds.
(c) Refinancing
of Swingline Loans.
(i) The
Swingline Lender at any time in its sole discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline
Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable
Revolving Percentage of the amount of Swingline Loans then outstanding. Such request shall be made in writing (which written request
shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without
regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion
of the Revolving Facility and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the Borrower with
a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Lender shall make
an amount equal to its Applicable Revolving Percentage of the amount specified in such Loan Notice available to the Administrative Agent
in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swingline
Loan) for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified
in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds available shall
be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to
the Swingline Lender.
(ii) Notwithstanding
anything to the contrary in the foregoing, if for any reason any Swingline Loan cannot be refinanced by such a Revolving Borrowing in
accordance with Section 2.04(c)(i) (including, without limitation, the failure to satisfy the conditions set forth in
Section 4.02), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be
a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and each
Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall
be deemed payment in respect of such participation.
(iii) If
any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required
to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i),
the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount
with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available
to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swingline Lender
in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees
as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Revolving Borrowing or
funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this clause (c)(iii) shall be conclusive absent
manifest error.
(iv) Each
Revolving Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swingline Loans pursuant to
this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrower or any
other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Lender’s obligation
to make Revolving Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02
(other than delivery by the Borrower of a Loan Notice). No such funding of risk participations shall relieve or otherwise impair the
obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.
(d) Repayment
of Participations.
(i) At
any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives
any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Revolving Lender its Applicable Revolving
Percentage thereof in the same funds as those received by the Swingline Lender.
(ii) If
any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by
the Swingline Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered
into by the Swingline Lender in its discretion), each Revolving Lender shall pay to the Swingline Lender its Applicable Revolving Percentage
thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned,
at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swingline
Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of
this Agreement.
(e) Interest
for Account of Swingline Lender. The Swingline Lender shall be responsible for invoicing the Borrower for interest on the Swingline
Loans. Until each Revolving Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance
such Revolving Lender’s Applicable Revolving Percentage of any Swingline Loan, interest in respect of such Applicable Revolving
Percentage shall be solely for the account of the Swingline Lender.
(f) Payments
Directly to Swingline Lender. The Borrower shall make all payments of principal and interest in respect of the Swingline Loans directly
to the Swingline Lender.
2.05 Prepayments
(a) Optional.
(i) The
Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Term Loans and Revolving Loans
in whole or in part without premium or penalty subject to Section 3.05; provided, however, that,
unless otherwise agreed by the Administrative Agent, (A) such notice must be in substantially the form of a Notice of Loan Prepayment
and be received by the Administrative Agent not later than 1:00 p.m. (1) three (3) Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar
Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof; and (C) any prepayment
of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and
the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable
portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable
on the date specified therein; provided, however, that such notice delivered by the Borrower may state that such notice
is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any prepayment of a Eurodollar
Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant
to Section 3.05. Each prepayment of the outstanding Term Loans pursuant to this Section 2.05(a) shall be
applied to the principal repayment installments thereof as directed by the Borrower (and in the absence of such direction on a pro-rata
basis). Subject to Section 2.15, such prepayments shall be paid to the Lenders in accordance with their respective Applicable
Percentages in respect of each of the relevant Facilities.
(ii) The
Borrower may, upon notice to the Swingline Lender pursuant to delivery to the Swingline Lender of a Notice of Loan Prepayment (with a
copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swingline Loans in whole or in part without premium
or penalty; provided, however, that, unless otherwise agreed by the Swingline Lender, (A) such notice
must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and
(B) any such prepayment shall be in a minimum principal amount of $100,000 or a whole multiple of $100,000 in excess hereof (or,
if less, the entire principal thereof then outstanding). Each such notice shall specify the date and amount of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein; provided, however, that such notice delivered by the Borrower may state that
such notice is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(b) Mandatory.
(i) Dispositions
and Involuntary Dispositions. The Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereinafter provided
in an aggregate amount equal to 100% of the Net Cash Proceeds received by any Loan Party or any Restricted Subsidiary from all Dispositions
(other than Permitted Transfers) and Involuntary Dispositions in excess of $7,500,000 individually, and $15,000,000 in the aggregate
during the term of this Agreement; provided, however, that, that so long as no Default shall have occurred
and be continuing, if the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that
the Loan Parties intend to apply the Net Cash Proceeds from such event (or a portion thereof specified in such certificate), within 270 days
(or if the Borrower or its Subsidiary is contractually obligated to apply the Net Cash Proceeds within 270 days, within 365 days) after
receipt of such Net Cash Proceeds, to acquire (or replace or rebuild) assets (excluding inventory) to be used in or useful to the business
of the Loan Parties, then no prepayment shall be required pursuant to this paragraph in respect of the Net Cash Proceeds specified in
such certificate, provided further that to the extent of any such Net Cash Proceeds that have not been so applied by the
end of such time period for reinvestment, a prepayment shall be required at such time in an amount equal to such Net Cash Proceeds that
have not been so applied.
(ii) Debt
Issuance. Immediately upon the receipt by the any Loan Party or any Restricted Subsidiary of the Net Cash Proceeds of any Debt Issuance,
the Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereinafter provided in an aggregate amount equal
to 100% of such Net Cash Proceeds.
(iii) Application
of Payments. Each prepayment of Loans pursuant to the foregoing provisions of clauses (i) and (ii) of this
Section 2.05(b) shall be applied, first, on a pro-rata basis for all such principal repayment
installments of the Term Loan, but specifically excluding the final principal installment on the Maturity Date and, second,
to the Revolving Facility in the manner set forth in clause (iv) of this Section 2.05(b). Subject to Section 2.15,
such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the relevant Facilities.
(iv) Revolving
Outstandings. If for any reason the Total Revolving Outstandings at any time exceed the Revolving Facility at such time, the Borrower
shall immediately prepay Revolving Loans, Swingline Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.05(b) unless, after the prepayment of the Revolving Loans and Swingline Loans, the Total
Revolving Outstandings exceed the Revolving Facility at such time.
(v) Application
of Other Payments. Except as otherwise provided in Section 2.15, prepayments of the Revolving Facility made pursuant
to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swingline Loans, second,
shall be applied to the outstanding Revolving Loans, and, third, shall be used to Cash Collateralize the remaining L/C
Obligations; and, in the case of prepayments of the Revolving Facility required pursuant to clauses (i) or (ii) of
this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swingline Loans and
Revolving Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the
Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized,
the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan
Party or any Defaulting Lender that has provided Cash Collateral) to reimburse the L/C Issuer or the Revolving Lenders, as applicable.
Within the parameters of
the applications set forth above, prepayments pursuant to this Section 2.05(b) shall be applied first to Base Rate Loans
and then to Eurodollar Rate Loans in direct order of Interest Period maturities. All prepayments under this Section 2.05(b) shall
be subject to Section 3.05, but otherwise without premium or penalty, and shall be accompanied by interest on the principal
amount prepaid through the date of prepayment.
2.06 Termination
or Reduction of Commitments
(a) Optional.
The Borrower may, upon notice to the Administrative Agent, terminate the Revolving Facility, the Letter of Credit Sublimit or the Swingline
Sublimit, or from time to time permanently reduce the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit; provided,
however, that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. three
(3) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount
of $5,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce (A) the
Revolving Facility if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would
exceed the Revolving Facility, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C
Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or (C) the Swingline Sublimit if,
after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swingline Loans would exceed the Letter
of Credit Sublimit. A notice of termination of the Revolving Facility delivered by the Borrower may state that such notice is conditioned
upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified date) if such condition is not satisfied.
(b) Mandatory.
(i) The
aggregate Term Commitments shall be automatically and permanently reduced to zero on the date of the Term Borrowing.
(ii) If
after giving effect to any reduction or termination of Revolving Commitments under this Section 2.06, the Letter of Credit
Sublimit or the Swingline Sublimit exceeds the Revolving Facility at such time, the Letter of Credit Sublimit or the Swingline Sublimit,
as the case may be, shall be automatically reduced by the amount of such excess.
(c) Application
of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Lenders of any termination or reduction
of the Letter of Credit Sublimit, Swingline Sublimit or the Revolving Commitment under this Section 2.06. Upon any reduction
of the Revolving Commitments, the Revolving Commitment of each Revolving Lender shall be reduced by such Lender’s Applicable Revolving
Percentage of such reduction amount. All fees in respect of the Revolving Facility accrued until the effective date of any termination
of the Revolving Facility shall be paid on the effective date of such termination.
2.07 Repayment
of Loans
(a) Term
Loans. The Borrower shall repay to the Term Lenders the aggregate principal amount of all Term Loans outstanding on the following
dates in the respective amounts set forth opposite such dates (which amounts shall be reduced as a result of the application of prepayments
in accordance with the order of priority set forth in Section 2.05), unless accelerated sooner pursuant to Section 8.02;
| Payment
Dates |
Principal
Repayment
Installments |
| December 31,
2020 |
$1,875,000 |
| March 31,
2021 |
$1,875,000 |
| June 30,
2021 |
$1,875,000 |
| September 30,
2021 |
$1,875,000 |
| December 31,
2021 |
$1,875,000 |
| March 31,
2022 |
$1,875,000 |
| June 30,
2022 |
$1,875,000 |
| September 30,
2022 |
$1,875,000 |
| December 31,
2022 |
$2,812,500 |
| March 31,
2023 |
$2,812,500 |
| June 30,
2023 |
$2,812,500 |
| September 30,
2023 |
$2,812,500 |
| Maturity
Date |
Outstanding
Balance of Term
Loans |
provided,
however, that (i) the final principal repayment installment of the Term Loans shall be repaid on the Maturity Date for the
Term Facility and in any event shall be in an amount equal to the aggregate principal amount of all Term Loans outstanding on such date,
(ii) if any principal repayment installment to be made by the Borrower (other than principal repayment installments on Eurodollar
Rate Loans) shall come due on a day other than a Business Day, such principal repayment installment shall be due on the next succeeding
Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be and (iii) if any principal
repayment installment to be made by the Borrower on a Eurodollar Rate Loan shall come due on a day other than a Business Day, such principal
repayment installment shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such
principal repayment installment into another calendar month, in which event such principal repayment installment shall be due on the
immediately preceding Business Day.
(b) Revolving
Loans. The Borrower shall repay to the Revolving Lenders on the Maturity Date for the Revolving Facility the aggregate principal
amount of all Revolving Loans outstanding on such date.
(c) Swingline
Loans. The Borrower shall repay each Swingline Loan on the earlier to occur of (i) the date ten (10) Business Days after
such Loan is made and (ii) the Maturity Date for the Revolving Facility.
2.08 Interest
and Default Rate
(a) Interest.
Subject to the provisions of Section 2.08(b), at the election of the Borrower, (i) each Eurodollar Rate Loan under a
Facility shall bear interest on the outstanding principal amount thereof for each Interest Period from the applicable Borrowing date
at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate for such Facility; (ii) each
Base Rate Loan under a Facility shall bear interest on the outstanding principal amount thereof from the applicable Borrowing date at
a rate per annum equal to the Base Rate plus the Applicable Rate for such Facility; and (iii) each Swingline Loan shall bear interest
on the outstanding principal amount thereof from the applicable Borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate for the Revolving Facility. To the extent that any calculation of interest or any fee required to be paid under this Agreement shall
be based on (or result in) a calculation that is less than zero, such calculation shall be deemed zero for purposes of this Agreement.
(b) Default
Rate.
(i) If
any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity,
by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by Applicable Laws.
(ii) If
any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (after giving effect
to any applicable grace or cure periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required
Lenders such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by Applicable Laws.
(iii) Upon
the request of the Required Lenders, while any Event of Default exists (including a payment default), all outstanding Obligations (including
Letter of Credit Fees) may accrue at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by Applicable Laws.
(iv) Accrued
and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest
Payments. Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such
other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
2.09 Fees
In addition to certain fees
described in clauses (m), (n) and (p) of Section 2.03:
(a) Commitment
Fee. The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable
Revolving Percentage, a commitment fee equal to the Applicable Rate times the actual daily amount by which the Revolving Facility
exceeds the sum of (i) the Outstanding Amount of Revolving Loans plus (ii) the Outstanding Amount of L/C Obligations,
subject to adjustment as provided in Section 2.15. For the avoidance of doubt, the Outstanding Amount of Swingline Loans
shall not be counted towards or considered usage of the Revolving Facility for purposes of determining the commitment fee. The commitment
fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV
is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period for the Revolving
Facility. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.
(b) Other
Fees.
(i) The
Borrower shall pay to the Administrative Agent and BofA Securities for its own account fees in the amounts and at the times specified
in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(ii) The
Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.
Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.10 Computation
of Interest and Fees; Retroactive Adjustments of Applicable Rate
(a) Computation
of Interest and Fees. All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the
Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations
of fees and interest shall be made on the basis of a three hundred sixty (360) day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a 365 day year). Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion
is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(b) Financial
Statement Adjustments or Restatements. If, as a result of any restatement of or other adjustment to the financial statements of the
Borrower and its Subsidiaries or for any other reason, the Borrower, or the Lenders determine that (i) the Consolidated Leverage
Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage
Ratio would have resulted in higher pricing for such period, the Borrower shall promptly and retroactively be obligated to pay to the
Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative
Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy
Code of the United States, automatically and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount
equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees
actually paid for such period. This clause (b) shall not limit the rights of the Administrative Agent, any Lender or the
L/C Issuer, as the case may be, under any provision of this Agreement to payment of any Obligations hereunder at the Default Rate or
under Article VIII. The Borrower’s obligations under this clause (b) shall survive the termination of the
Aggregate Commitments and the repayment of all other Obligations hereunder.
2.11 Evidence
of Debt
(a) Maintenance
of Accounts. The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender
in the ordinary course of business. The Administrative Agent shall maintain the Register in accordance with Section 11.06(c).
The accounts or records maintained by each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made
by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event
of any conflict between the accounts and records maintained by any Lender and the Register, the Register shall control in the absence
of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such
Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records.
Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and
payments with respect thereto.
(b) Maintenance
of Records. In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative
Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations
in Letters of Credit and Swingline Loans. In the event of any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error.
2.12 Payments
Generally; Administrative Agent’s Clawback
(a) General.
All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars
and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Applicable Percentage in respect of the relevant Facility (or other applicable share as provided herein)
of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue
to accrue. Subject to Section 2.07(a) and as otherwise specifically provided for in this Agreement, if any payment to
be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b)
(i) Funding by Lenders; Presumption by Administrative
Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar
Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender
will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing
of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02)
and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not
in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with
interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus
any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and
(B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable
Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing.
Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to
make such payment to the Administrative Agent.
(ii) Payments
by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior
to the time at which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the L/C Issuer, as the case may be, the
amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or the L/C Issuer,
as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender
or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed
to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank compensation.
A notice of the
Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (b) shall be conclusive,
absent manifest error.
(c) Failure
to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such
Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower
by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied
or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such
Lender) to such Lender, without interest.
(d) Obligations
of Lenders Several. The obligations of the Lenders hereunder to make Term Loans and Revolving Loans, to fund participations in Letters
of Credit and Swingline Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure
of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any
date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall
be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c).
(e) Funding
Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner
or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.
(f)
Pro Rata Treatment. Except to the extent otherwise provided herein: (i) each Borrowing
(other than Swingline Borrowings) shall be made from the Appropriate Lenders, each payment of fees under Section 2.09
and clauses (m), (n) and (p) of Section 2.03 shall be made for account of the Appropriate
Lenders, and each termination or reduction of the amount of the Commitments shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (ii) each Borrowing shall be allocated pro
rata among the Lenders according to the amounts of their respective Commitments (in the case of the making of Revolving Loans) or
their respective Loans that are to be included in such Borrowing (in the case of conversions and continuations of Loans);
(iii) each payment or prepayment of principal of Loans by the Borrower shall be made for account of the Appropriate Lenders pro
rata in accordance with the respective unpaid principal amounts of the Loans held by them; and (iv) each payment of interest on
Loans by the Borrower shall be made for account of the Appropriate Lenders pro rata in accordance with the amounts of interest on
such Loans then due and payable to the respective Appropriate Lenders.
2.13 Sharing
of Payments by Lenders.
If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the Facilities
due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount
of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time)
of payments on account of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan
Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but
not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according
to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the
aggregate amount of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the
other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities owing (but not due and payable)
to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then, in each case
under clauses (a) and (b) above, the Lender receiving such greater proportion shall (A) notify the
Administrative Agent of such fact, and (B) purchase (for cash at face value) participations in the Loans and sub-participations
in L/C Obligations and Swingline Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the
Facilities then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided,
however, that:
(i)
if any such participations or sub-participations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations or sub-participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest; and
(ii) the
provisions of this Section 2.13 shall not be construed to apply to (A) any payment made by or on behalf of the Borrower
pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence
of a Defaulting Lender or Disqualified Institution), (B) the application of Cash Collateral provided for in Section 2.14,
or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or
sub-participations in L/C Obligations or Swingline Loans to any assignee or participant, other than an assignment to any Loan Party or
any Affiliate thereof (as to which the provisions of this Section 2.13 shall apply).
Each Loan Party consents
to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
2.14 Cash
Collateral.
(a) Obligation
to Cash Collateralize. At any time there shall exist a Defaulting Lender, within three (3) Business Days following the written
request of the Administrative Agent or the L/C Issuer (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize
the L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.15(a)(iv) and
any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(b) Grant
of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to
(and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders,
and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other
property so provided as Collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which
such Cash Collateral may be applied pursuant to Section 2.14(c). If at any time the Administrative Agent determines that
Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the L/C Issuer as herein provided,
or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand
by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate
such deficiency (determined in the case of Cash Collateral provided pursuant to Section 2.15(a)(v), after giving effect to
Section 2.15(a)(v) and any Cash Collateral provided by the Defaulting Lender). All Cash Collateral (other than credit
support not constituting funds subject to deposit) shall be maintained in one or more Controlled Accounts at Bank of America. The Borrower
shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection
with the maintenance and disbursement of Cash Collateral.
(c) Application.
Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.14
or Sections 2.03, 2.05, 2.15 or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction
of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Revolving
Lender that is a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was
so provided, prior to any other application of such property as may be provided for herein.
(d) Release.
Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released
promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by
the termination of Defaulting Lender status of the applicable Revolving Lender (or, as appropriate, its assignee following compliance
with Section 11.06(b)(vi))) or (ii) the determination by the Administrative Agent and the L/C Issuer that there exists
excess Cash Collateral; provided, however, (A) any such release shall be without prejudice to, and any disbursement
or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other
applicable provisions of the Loan Documents, and (B) the Person providing Cash Collateral and the L/C Issuer may agree that Cash
Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.15 Defaulting
Lenders.
(a) Adjustments.
Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time
as that Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
(i) Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 11.01.
(ii) Defaulting
Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account
of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received
by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08 shall be applied at such time or times as
may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting
Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting
Lender to the L/C Issuer or the Swingline Lender hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting
Exposure with respect to such Defaulting Lender in accordance with Section 2.14; fourth, as the Borrower may
request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its
portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the
Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such
Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) Cash Collateralize
the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued
under this Agreement, in accordance with Section 2.14; sixth, to the payment of any amounts owing to the Lenders,
the L/C Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer
or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under
this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to the Borrower as a result
of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise may
be required under the Loan Documents in connection with any Lien conferred thereunder or directed by a court of competent jurisdiction;
provided, however, that if (x) such payment is a payment of the principal amount of any Loans or L/C
Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or
the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived,
such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata
basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all
Loans and funded and unfunded participations in L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance
with the Commitments hereunder without giving effect to Section 2.15(a)(v). Any payments, prepayments or other amounts paid
or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant
to this Section 2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably
consents hereto.
(iii) Certain
Fees.
(A) Fees.
No Defaulting Lender shall be entitled to receive any fee payable under Section 2.09(a) for any period during which
that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required
to have been paid to that Defaulting Lender).
(B) Letter
of Credit Fees. Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender
is a Defaulting Lender only to the extent allocable to its Applicable Revolving Percentage of the stated amount of Letters of Credit
for which it has provided Cash Collateral pursuant to Section 2.14.
(C) Defaulting
Lender Fees. With respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (B) above,
the Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender
with respect to such Defaulting Lender’s participation in L/C Obligations or Swingline Loans that has been reallocated to such
Non-Defaulting Lender pursuant to clause (iv) below, (2) pay to the L/C Issuer and the Swingline Lender, as applicable,
the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s or the Swingline
Lender’s Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee.
(iv) Reallocation
of Applicable Revolving Percentages to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation
in L/C Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable
Revolving Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation
does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment.
Subject to Section 11.19, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder
against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender
as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v) Cash
Collateral, Repayment of Swingline Loans. If the reallocation described in clause (a)(v) above cannot, or can only partially,
be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under Applicable Law, (A) first,
prepay Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure and (B) second, Cash Collateralize
the L/C Issuer’s Fronting Exposure in accordance with the procedures set forth in Section 2.14.
(b) Defaulting
Lender Cure. If the Borrower, the Administrative Agent, the Swingline Lender and the L/C Issuer agree in writing that a Lender is
no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified
in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral),
that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other
actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters
of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with their Revolving Commitments (without giving effect
to Section 2.15(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided, however,
that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that
Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed
by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any
party hereunder arising from that Lender’s having been a Defaulting Lender.
(c) New
Swingline Loans/Letters of Credit. So long as any Revolving Lender is a Defaulting Lender, (i) the Swingline Lender shall not
be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline
Loan and (ii) the L/C Issuer shall not be required to issue, extend, increase, reinstate or renew any letter of Credit unless it
is satisfied that it will have no Fronting Exposure after giving effect thereto.
2.16 Increase
in Commitments; Borrower Request
The Borrower may by written
notice to the Administrative Agent elect to request (x) prior to the Maturity Date for the Revolving Facility, an increase to the
existing Revolving Commitments (each, an “Incremental Revolving Commitment”) and/or (y) the establishment
of one or more new term loan commitments (each, an “Incremental Term Commitment”), by an aggregate amount for
all such Incremental Revolving Commitments and Incremental Term Commitments not in excess of $75,000,000. Each such notice shall specify
(i) the date (each, an “Increase Effective Date”) on which the Borrower proposes that the Incremental
Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is
delivered to the Administrative Agent and (ii) the identity of each Eligible Assignee or other Person to whom the Borrower proposes
any portion of such Incremental Commitments be allocated and the amounts of such allocations; provided, however,
that (i) any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its
sole discretion, to provide such Incremental Commitment, (ii) the Borrower may make a maximum of three (3) such requests and
(iii) Affiliated Lenders shall be subject to Section 2.17. Each Incremental Commitment shall be in an aggregate amount
of $10,000,000 or any whole multiple of $5,000,000 in excess thereof (provided, however, that such amount
may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Incremental
Commitments set forth in above).
(a) Conditions.
The Incremental Commitments shall become effective as of the Increase Effective Date; provided that:
(i) each
of the conditions set forth in Section 4.02 shall be satisfied (except as qualified in clauses (a)(ii) and (a)(iii) below
with respect to an Incremental Term Commitment incurred to finance a Limited Condition Acquisition);
(ii) no
Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date; provided,
however, that in the case of Incremental Term Commitments incurred to finance a Limited Condition Acquisition, (x) no
Event of Default exists at the time of entry into the definitive agreement in respect of such acquisition immediately after giving effect
to such acquisition and (y) no Specified Event of Default exists at the time of consummation of such Limited Condition Acquisition;
(iii) the
representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects
on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier
date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes
of this Section 2.16(a), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall
be deemed to refer to the most recent financial statements furnished pursuant to clauses (a) and (b), respectively,
of Section 6.04; provided, however, that in the case of Incremental Term Commitments incurred
to finance a Limited Condition Acquisition, the requirement applicable to representation and warranties shall, if otherwise agreed by
the Lenders providing such Incremental Term Commitments, be limited to the making and accuracy of certain “specified acquisition
representations” conformed to apply to such Limited Condition Acquisition in the acquisition agreement governing such Limited Condition
Acquisition and customary “specified representations”;
(iv) on
a Pro Forma Basis (assuming, in the case of Incremental Revolving Commitments, that such Incremental Revolving Commitments are fully
drawn), the Borrower shall be in compliance with each of the covenants set forth in Section 7.11 as of the end of the latest
fiscal quarter for which internal financial statements are available (or, if applicable in accordance with Section 1.09,
on the LCA Test Date);
(v) the
Borrower shall make any breakage payments in connection with any adjustment of Revolving Loans pursuant to Section 3.05;
(vi) the
Borrower shall deliver or cause to be delivered officer’s certificates and legal opinions of the type delivered on the Closing
Date to the extent reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent; and
(vii) (A) upon
the reasonable request of any Lender made at least ten (10) days prior to the Increase Effective Date, the Borrower shall have provided
to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection
with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation,
the PATRIOT Act, in each case at least five (5) days prior to the Increase Effective Date and (B) at least five (5) days
prior to the Increase Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership
Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(b) Terms
of New Loans and Commitments. The terms and provisions of Loans made pursuant to Incremental Commitments shall be as follows:
(i)
terms and provisions of Incremental Term Loans shall be, except as otherwise set forth
herein or in the Increase Joinder, identical to the Term Loans (it being understood that Incremental Term Loans may be a part of the
Term Loans) and to the extent that the terms and provisions of Incremental Term Loans are not identical to the Term Loans (except to
the extent permitted by clause (iii), (iv) or (v) below) they shall be reasonably satisfactory to the
Administrative Agent; provided, however, that in any event the Incremental Term Loans must comply with clauses
(iii), (iv) and (v) below;
(ii) the
terms and provisions of Revolving Loans made pursuant to new Commitments shall be identical to the Revolving Loans; provided,
however, that the up-front fees and/or other arrangement, structuring, closing, underwriting and similar fees payable in
respect of any Incremental Revolving Commitment shall be determined by the Borrower and the Lenders of the Incremental Revolving Commitment;
(iii) the
weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity
of the then existing Term Loans;
(iv) the
maturity date of Incremental Term Loans (the “Incremental Term Loan Maturity Date”) shall not be earlier than the
then Latest Maturity Date;
(v) the
Applicable Rate for Incremental Term Loans shall be determined by the Borrower and the Lenders of the Incremental Term Loans; provided
that in the event that the Applicable Rate for any Incremental Term Loan is greater than the Applicable Rate for the Term Loans by more
than fifty (50) basis points, then the Applicable Rate for the Term Loans shall be increased to the extent necessary so that the Applicable
Rate for the Incremental Term Loans is fifty (50) basis points higher than the Applicable Rate for the Term Loans, and the Applicable
Rate for Revolving Loans (at each point in the table set forth in the definition of “Applicable Rate,” to the extent applicable)
shall be increased by the same number of basis points as the Applicable Rate for the Term Loan is increased; provided, further,
that in determining the Applicable Rate applicable to the Term Loans and the Incremental Term Loans, (x) original issue discount
(“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders
of the Term Loans or the Incremental Term Loans in the primary syndication thereof shall be included (with OID being equated to interest
based on an assumed four-year life to maturity); (y) customary arrangement or commitment fees payable to BofA Securities (or its
respective affiliates) in connection with the Term Loans or to one (1) or more arrangers (or their affiliates) of the Incremental
Term Loans shall be excluded; and (z) if the LIBOR or Base Rate “floor” for the Incremental Term Loans is greater than
the LIBOR or Base Rate “floor,” respectively, for the existing Term Loans, the difference between such floor for the Incremental
Term Loans and the existing Term Loans shall be equated to an increase in the Applicable Rate for purposes of this clause (v).
The Incremental Commitments shall be effected
by a joinder agreement (the “Increase Joinder”) executed by the Borrower, the Administrative Agent and each Lender
making such Incremental Commitment, in form and substance reasonably satisfactory to each of them. Notwithstanding the provisions of
Section 11.01, the Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement
and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the
provisions of this Section 2.16. In addition, unless otherwise specifically provided herein, all references in Loan Documents
to Revolving Loans or Term Loans shall be deemed, unless the context otherwise requires, to include references to Revolving Loans made
pursuant to Incremental Revolving Commitments and Incremental Term Loans that are Term Loans, respectively, made pursuant to this Agreement.
This Section 2.16 shall supersede any provisions in Section 2.13 or Section 11.01 to the contrary.
(c) Adjustment
of Revolving Credit Loans. To the extent the Commitments being increased on the relevant Increase Effective Date are Incremental
Revolving Commitments, then each Revolving Lender that is acquiring an Incremental Revolving Commitment on the Increase Effective Date
shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the other Revolving Lenders immediately
prior to such Increase Effective Date, so that, after giving effect thereto, the Revolving Loans outstanding are held by the Revolving
Lenders pro rata based on their Revolving Commitments after giving effect to such Increase Effective Date. If there is a new borrowing
of Revolving Loans on such Increase Effective Date, the Revolving Lenders after giving effect to such Increase Effective Date shall make
such Revolving Loans in accordance with Section 2.01(b).
(d) Making
of New Term Loans. On any Increase Effective Date on which new Commitments for Term Loans are effective, subject to the satisfaction
of the foregoing terms and conditions, each Lender of such new Commitment shall make a Term Loan to the Borrower in an amount equal to
its new Commitment.
(e) Equal
and Ratable Benefit. The Loans and Commitments established pursuant to this Section 2.16 shall constitute Loans and Commitments
under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting
the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents, except that
the new Loans may be subordinated in right of payment or the Liens securing the new Loans may be subordinated, in each case, to the extent
set forth in the Increase Joinder.
2.17 Affiliated
Lender Term Loan Purchases.
Notwithstanding anything
to the contrary in this Agreement (other than Section 11.06), any Affiliated Lender may be an assignee in respect of Term
Loans (but not Revolving Commitments or Revolving Loans) of a particular Class (and to such extent shall constitute an Eligible
Assignee), including through open market purchases; provided, however, that, (a) the aggregate principal
amount of Term Loans of a particular Class owned or held by any Affiliated Lenders at any time shall not exceed, in the aggregate,
twenty percent (20%) of the aggregate outstanding principal amount of all Term Loans of such Class; (b) notwithstanding anything
to the contrary in the definition of “Required Lenders” or in Section 11.01, the holder of any Term Loans acquired
pursuant to this Section 2.17 shall not be entitled to vote such Term Loans in any vote requiring the consent of the Required
Lenders pursuant to the terms of this Agreement or any other Loan Document (it being understood that the holder of such Term Loans shall
have the right to consent to votes requiring the consent of all Lenders or all Lenders directly affected thereby pursuant to Section 11.01
or otherwise, or any other amendment which treats such Lenders differently from other Lenders), and for purposes of any such vote such
Term Loans shall be deemed not to be outstanding; (c) no Default shall have occurred and be continuing on the date of such purchase
or would occur as a result of such assignment; (d) as a condition to purchasing such Term Loans, the Affiliated Lenders acquiring
Term Loans pursuant to this Section 2.17 shall make the representation provided in Section 5.14; (e) no
proceeds of any Revolving Borrowing shall be used to finance any such purchase pursuant to this Section 2.17; (f) by
acquiring a Term Loan hereunder, each of the Affiliated Lenders shall be deemed to have (i) waived its right to (1) receive
information prepared by the Administrative Agent or any Lender (or any advisor, agent or counsel thereof) under or in connection with
this Agreement or any other Loan Document (2) attend any meeting or conference call with the Administrative Agent or any Lender
and (3) to receive advice of counsel to the Administrative Agent and the Lenders, (ii) agreed that it is prohibited from making
or bringing any claim, in its capacity as a Lender, against the Administrative Agent or any Lender with respect to the duties and obligations
of such Persons under the Loan Documents, and (iii) agreed that it will have no right whatsoever to require the Administrative Agent
or any Lender to undertake any action (or refrain from taking any action) with respect to this Agreement or any other Loan Document;
(g) in connection with the purchase of Term Loans pursuant to this Section 2.17, each Affiliated Lender acquiring Term
Loans pursuant to this Section 2.17 shall execute and deliver an Affiliated Lender Assignment and Assumption pursuant to
which it identifies itself as an Affiliate of the Loan Parties and (h) Term Loans acquired by the Affiliated Lenders shall be subject
to the voting limitations set forth in Section 11.06(h).
Article IIi
TAXES,
YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Defined
Terms. For purposes of this Section 3.01, the term “Applicable Law” includes FATCA and the term “Lender”
includes any L/C Issuer.
(b) Payments
Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. Any and all payments by or on account of any obligation of any
Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Laws.
If any Applicable Laws (as determined in the good faith discretion of an applicable Withholding Agent) require the deduction or withholding
of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction
or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable
Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that
after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under
this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding
or deduction been made.
(c) Payment
of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable
Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Tax
Indemnifications.
(i) Each
of the Loan Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof
within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed
or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required
to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. Each of
the Loan Parties shall also, and does hereby, jointly and severally indemnify the Administrative Agent, and shall make payment in respect
thereof within ten (10) days after demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to the
Administrative Agent as required pursuant to Section 3.01(d)(ii) below.
(ii) Each
Lender shall, and does hereby, severally indemnify and shall make payment in respect thereof within ten (10) days after demand therefor,
(A) the Administrative Agent against any Indemnified Taxes attributable to such Lender, (B) the Administrative Agent and the
Loan Parties or a Loan Party against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) relating
to the maintenance of a Participant Register and (C) the Administrative Agent and the Loan Parties or a Loan Party against any Excluded
Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document,
and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender
by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set
off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative
Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (d)(ii).
(e) Evidence
of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority, as provided in this
Section 3.01, the Borrower shall deliver to the Administrative Agent the original or a copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of any return reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(f) Status
of Lenders; Tax Documentation.
(i) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, if reasonably requested by the Borrower
or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower
or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject
to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences,
the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(f)(ii)(A),
(ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion,
execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal
or commercial position of such Lender.
(ii) Without
limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,
(A) any
Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative
Agent), executed copies of IRS Form W–9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following
is applicable:
(1) in
the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, executed copies of IRS Form W–8BEN–E (or W–8BEN, as applicable)
establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such
tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W–8BEN–E
(or W–8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business
profits” or “other income” article of such tax treaty;
(2) executed
copies of IRS Form W–8ECI;
(3) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code,
(x) a certificate substantially in the form of Exhibit L–1 to the effect that such Foreign Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning
of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W–8BEN–E
(or W–8BEN, as applicable); or
(4) to
the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W–8IMY, accompanied by IRS Form W–8ECI, IRS
Form W–8BEN–E (or W–8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit L–2
or Exhibit L–3, IRS Form W–9, and/or other certification documents from each beneficial owner, as applicable;
provided, however, that if the Foreign Lender is a partnership and one or more direct or indirect partners
of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate
substantially in the form of Exhibit L–4 on behalf of each such direct and indirect partner;
(C) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies (or originals,
as required) of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding
Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or
the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law
and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable
Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested
by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations
under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount
to deduct and withhold from such payment. Solely for the purposes of this clause (f)(ii)(D), “FATCA” shall include
any amendments made to FATCA after the date of this Agreement.
(iii) Each
Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes
obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative
Agent in writing of its legal inability to do so.
(g) Treatment
of Certain Refunds. Unless required by Applicable Laws, at no time shall the Administrative Agent have any obligation to file for
or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from
funds paid for the account of such Lender. If any Recipient determines, in its sole discretion exercised in good faith, that it has received
a refund of any Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional
amounts pursuant to this Section 3.01, it shall pay to such Loan Party an amount equal to such refund (but only to the extent
of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 3.01 with respect to the Taxes
giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, as the case may be, and
without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that each
Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such
refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (g), in no event will the applicable
Recipient be required to pay any amount to such Loan Party pursuant to this clause (g) the payment of which would place the
Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and
giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts
with respect to such Tax had never been paid. This clause (g) shall not be construed to require any Recipient to make available
its tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person.
(h) Survival.
Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative
Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all other Obligations.
3.02 Illegality
If any Lender determines
in good faith that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender
or its Lending Office to make, maintain or fund or charge interest with respect to any Credit Extension, or to determine or charge interest
rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender
to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, upon notice thereof by such Lender to the
Borrower (through the Administrative Agent), (i) any obligation of such Lender to make or continue Eurodollar Rate Loans to convert
Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making
or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate,
the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative
Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) the
Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar
Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid
such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either
on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (B) if such notice asserts
the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during
the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof
until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge
interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on
the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.05.
3.03 Inability
to Determine Rates
(a) If
in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof, (i) the Administrative Agent
determines that (A) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, or (B) (1) adequate and reasonable means do not exist for determining
the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing
or proposed Base Rate Loan and (2) the circumstances described in Section 3.03(c)(i) do not apply (in each case
with respect to this clause (i), “Impacted Loans”), or (ii) the Administrative Agent or the Required
Lenders determine that for any reason Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan
does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify
the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended
(to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) in the event of a determination described in
the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component
in determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the
Required Lenders described in clause (ii) of this Section 3.03(a), until the Administrative Agent upon instruction
of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing
of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods)
or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified
therein.
(b) Notwithstanding
the foregoing, if the Administrative Agent has made the determination described in clause (a)(i) of this Section 3.03,
the Administrative Agent in consultation with the Borrower, may establish an alternative interest rate for the Impacted Loans, in which
case, such alternative rate of interest shall apply with respect to the Impacted Loans until (i) the Administrative Agent revokes
the notice delivered with respect to the Impacted Loans under clause (a)(i) of this Section 3.03, (ii) the
Administrative Agent or the Required Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does
not adequately and fairly reflect the cost to the Lenders of funding the Impacted Loans, or (iii) any Lender determines that any
Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending
Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine
or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such
Lender to do any of the foregoing and provided the Administrative Agent and the Borrower written notice thereof.
(c) Notwithstanding
anything to the contrary in this Agreement or any other Loan Documents, but without limiting Sections 3.03(a) and (b) above,
if the Administrative Agent determines (which determination shall be conclusive and binding upon all parties hereto absent manifest error),
or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower)
that the Borrower or Required Lenders (as applicable) have determined (which determination likewise shall be conclusive and binding upon
all parties hereto absent manifest error), that:
(i) adequate
and reasonable means do not exist for ascertaining LIBOR for any requested Interest Period, including, without limitation, because the
LIBOR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) the
administrator of the LIBOR Screen Rate or a Governmental Authority having or purporting to have jurisdiction over the Administrative
Agent has made a public statement identifying a specific date after which LIBOR or the LIBOR Screen Rate shall no longer be made available,
or used for determining the interest rate of loans, provided, however, that, at the time of such statement,
there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide LIBOR after such
specific date (such specific date, the “Scheduled Unavailability Date”); or
(iii) syndicated
loans currently being executed, or that include language similar to that contained in this Section 3.03, are being executed
or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,
then,
reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable,
the Administrative Agent and the Borrower may amend this Agreement solely for purpose of replacing LIBOR in accordance with this Section 3.03
with (x) one or more SOFR-Based Rates or (y) another alternate benchmark rate giving due consideration to any evolving or then
existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks and, in each case,
including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention
for similar U.S. dollar denominated syndicated credit facilities for such benchmarks which adjustment or method for calculating
such adjustment shall be published on an information service as selected by the Administrative Agent from time to time in its reasonable
discretion and may be periodically updated (the “Adjustment;” and any such proposed rate, a “LIBOR
Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative
Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required
Lenders have delivered to the Administrative Agent written notice that such Required Lenders (A) in the case of an amendment to
replace LIBOR with a rate described in clause (x), object to the Adjustment; or (B) in the case of an amendment to replace LIBOR
with a rate described in clause (y), object to such amendment; provided, however, that for the avoidance
of doubt, in the case of clause (A), the Required Lenders shall not be entitled to object to any SOFR-Based Rate contained in any such
amendment. Such LIBOR Successor Rate shall be applied in a manner consistent with market practice; provided, however,
that to the extent such market practice is not administratively feasible for the Administrative Agent, such LIBOR Successor Rate shall
be applied in a manner as otherwise reasonably determined by the Administrative Agent.
(d) If
no LIBOR Successor Rate has been determined and the circumstances under clause (c)(i) above exist or the Scheduled Unavailability
Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower
and each Lender. Thereafter, (i) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended, (to
the extent of the affected Eurodollar Rate Loans or Interest Periods), and (ii) the Eurodollar Rate component shall no longer be
utilized in determining the Base Rate. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion
to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that,
will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans (subject to the foregoing clause (ii))
in the amount specified therein.
(e) Notwithstanding
anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than
0.75% for purposes of this Agreement.
(f) In
connection with the implementation of a LIBOR Successor Rate, the Administrative Agent will have the right to make LIBOR Successor Rate
Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments
implementing such LIBOR Successor Rate Conforming Changes will become effective without any further action or consent of any other party
to this Agreement; provided, however, that, with respect to any such amendment effected, the Administrative
Agent shall post each such amendment implementing such LIBOR Successor Rate Conforming Changes to the Lenders reasonably promptly after
such amendment becomes effective.
(g) For
purposes hereof:
(i) “LIBOR
Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to
the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other
technical, administrative or operational matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the
adoption and implementation of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner
substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market
practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such
other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of
this Agreement);
(ii) “Relevant
Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially
endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York for the purpose of recommending a benchmark
rate to replace LIBOR in loan agreements similar to this Agreement;
(iii) “SOFR”
with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York,
as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website and that
has been selected or recommended by the Relevant Governmental Body;
(iv) “SOFR-Based
Rate” means SOFR or Term SOFR; and
(v) “Term
SOFR” means the forward-looking term rate for any period that is approximately (as determined by the Administrative
Agent) as long as any of the Interest Period options set forth in the definition of “Interest Period” and that is based on
SOFR and that has been selected or recommended by the Relevant Governmental Body ,in each case as published on an information service
as selected by the Administrative Agent from time to time in its reasonable discretion.
3.04 Increased
Costs; Reserves on Eurodollar Rate Loans.
(a) Increased
Costs Generally. If any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits
with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e))
or the L/C Issuer;
(ii) subject
any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of
the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,
or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose
on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar
Rate Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing
shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation
to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter
of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received
or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such
Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital
Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements
has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital
of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit
issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s
holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s
policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from
time to time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate
such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.
(c) Certificates
for Reimbursement. A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in clause (a) or (b) of this
Section 3.04 and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender
or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.
(d) Reserves
on Eurodollar Rate Loans. The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves
with respect to liabilities or assets consisting of or including eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive),
and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any central
banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans, such
additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to
the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination
shall be conclusive), which in each case shall be due and payable on each date on which interest is payable on such Loan, provided,
however, the Borrower shall have received at least ten (10) days’ prior notice (with a copy to the Administrative
Agent) of such additional interest or costs from such Lender. If a Lender fails to give notice ten (10) days prior to the relevant
Interest Payment Date, such additional interest shall be due and payable ten (10) days from receipt of such notice.
(e) Delay
in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions
of this Section 3.04 shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such
compensation, provided, however, that the Borrower shall not be required to compensate a Lender or the L/C
Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered
more than nine (9) months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Borrower of the
Change in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine
(9) month period referred to above shall be extended to include the period of retroactive effect thereof).
(f) General
Policy. Notwithstanding any other provision of this Section, no Lender or L/C Issuer shall demand compensation for any increased
cost or reduction pursuant to this Section if it shall not at the time be the general policy and practice of such Lender or L/C
Issuer to demand such compensation from similarly situated customers of such Lender or L/C Issuer in similar circumstances under comparable
provisions of other credit agreements.
3.05 Compensation
for Losses
Upon demand of any Lender
(with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:
(a) any
continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any
failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or
(c) any
assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 11.13;
including any loss of anticipated profits
and any actual loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees
payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing.
For purposes of calculating
amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar
market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.
3.06 Mitigation
Obligations; Replacement of Lenders.
(a) Designation
of a Different Lending Office. If any Lender requests compensation under Section 3.04, or requires the Borrower to pay
any Indemnified Taxes or additional amounts to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender
or the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at
the request of the Borrower, such Lender or the L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending
Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the
notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or the L/C Issuer,
as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer,
as the case may be. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in connection
with any such designation or assignment.
(b) Replacement
of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any Indemnified
Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01
and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a),
the Borrower may replace such Lender in accordance with Section 11.13.
3.07 Survival
All of the Borrower’s
obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations
hereunder, resignation of the Administrative Agent and the Facility Termination Date.
Article Iv
CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions
of Initial Credit Extension
The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Execution
of Credit Agreement; Loan Documents. The Administrative Agent shall have received (i) counterparts of this Agreement, executed
by a Responsible Officer of each Loan Party and a duly authorized officer of each Lender, (ii) for the account of each Lender requesting
a Note, a Note executed by a Responsible Officer of the Borrower, (iii) counterparts of the Security Agreement executed by a Responsible
Officer of the U.S. Loan Parties and each other Collateral Document duly executed by the applicable U.S. Loan Parties and each other
Person party thereto, as applicable and (iv) counterparts of any other Loan Document, executed by a Responsible Officer of the applicable
Loan Party and a duly authorized officer of each other Person party thereto.
(b) Officer’s
Certificate. The Administrative Agent shall have received a certificate of a Responsible Officer dated the Closing Date, certifying
as to the Organization Documents of each Loan Party (which, to the extent filed with a Governmental Authority, shall be certified as
of a recent date by such Governmental Authority), the resolutions of the governing body of each Loan Party, the good standing, existence
or its equivalent of each Loan Party and of the incumbency (including specimen signatures) of the Responsible Officers of each Loan Party
(c) Legal
Opinions of Counsel. The Administrative Agent shall have received an opinion or opinions (including, if requested by the Administrative
Agent, local counsel opinions) of counsel for the Loan Parties, dated the Closing Date and addressed to the Administrative Agent and
the Lenders, in form and substance reasonably acceptable to the Administrative Agent.
(d) Financial
Statements. The Administrative Agent and the Lenders shall have received copies of the financial statements referred to in Section 5.05.
(e) Personal
Property Collateral. The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative
Agent:
(i) the
Perfection Certificate with respect to the Loan Parties duly executed by a Responsible Officer of the Borrower;
(ii) (A) searches
of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral
is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral,
copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and (B) tax
lien, judgment and bankruptcy searches;
(iii) searches
of ownership of Intellectual Property in the appropriate governmental offices and such patent/trademark/copyright filings as requested
by the Administrative Agent in order to perfect the Administrative Agent’s security interest in the Intellectual Property;
(iv) completed
UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion,
to perfect the Administrative Agent’s security interest in the Collateral;
(v) stock
or membership certificates, if any, evidencing the Pledged Equity and undated stock or transfer powers duly executed in blank; in each
case to the extent such Pledged Equity is certificated; and
(vi) to
the extent required to be delivered, filed, registered or recorded pursuant to the terms and conditions of the Collateral Documents,
all instruments, documents and chattel paper in the possession of any of the Loan Parties, together with allonges or assignments as may
be necessary or appropriate to create and perfect the Administrative Agent’s and the Lenders’ security interest in the Collateral.
(f) Insurance.
The Administrative Agent shall have received certificates of insurance or insurance binders evidencing liability, casualty, property,
and business interruption insurance meeting the requirements set forth herein or in the Collateral Documents.
(g) Solvency
Certificate. The Administrative Agent shall have received a Solvency Certificate signed by a Responsible Officer of the Borrower
as to the financial condition, solvency and related matters of the Borrower and its Subsidiaries, after giving effect to the initial
Borrowings under the Loan Documents and the other transactions contemplated hereby.
(h) Closing
Certificate. The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Responsible Officer
of the Borrower, confirming compliance with the provisions of Sections 4.02(a) and (b).
(i) Loan
Notice. The Administrative Agent shall have received a Loan Notice with respect to the Loans to be made on the Closing Date.
(j) Existing
Indebtedness of the Loan Parties. All of the existing Indebtedness for borrowed money of the Borrower and its Restricted Subsidiaries
(other than Indebtedness permitted to exist pursuant to Section 7.01)(but including the Indebtedness under the Existing Term
Loan Credit Agreement and the Existing ABL Credit Agreement) shall be repaid in full and all security interests related thereto shall
be terminated on or prior to the Closing Date.
(k) Anti-Money-Laundering;
Beneficial Ownership. Upon the reasonable request of any Lender, the Borrower shall have provided to such Lender, and such Lender
shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your
customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, and any Loan Party
that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to each Lender
that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(l) Consents.
The Administrative Agent shall have received evidence that all members, boards of directors, governmental, shareholder and material third
party consents and approvals necessary in connection with the entering into of this Agreement have been obtained.
(m) Fees
and Expenses. The Administrative Agent and the Lenders shall have received all fees and expenses, if any, owing pursuant to the Fee
Letter and Section 2.09.
(n) Equity
Contribution. The Lenders shall have received evidence that the Borrower has received cash proceeds of at least $100,000,000 from
the issuance of common and/or preferred stock (and in the case of any preferred stock, such preferred stock shall be on terms reasonably
acceptable to the Administrative Agent).
(o) Loan
Purchase Agreement. The Administrative Agent shall have received a counterpart of the Loan Purchase Agreement duly executed by AEPC,
and acknowledged by the Borrower.
Without limiting the generality
of the provisions of Section 9.03(c), for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02 Conditions
to all Credit Extensions
The obligation of each Lender
and the L/C Issuer to honor any Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans to the other
Type, or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:
(a) Representations
and Warranties. The representations and warranties of the Borrower and each other Loan Party contained in Article V or
any other Loan Document, shall (i) with respect to representations and warranties that contain a materiality qualification, be true
and correct on and as of the date of such Credit Extension and (ii) with respect to representations and warranties that do not contain
a materiality qualification, be true and correct in all material respects on and as of the date of such Credit Extension, except to the
extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in
all material respects (except that such materiality qualifiers shall not be applicable to any representations and warranties that already
are qualified by materiality in the text thereof) as of such earlier date, and except that for purposes of this Section 4.02,
the representations and warranties contained in Sections 5.05(a) and (b) shall be deemed to refer to the most
recent statements furnished pursuant to Sections 6.04(a) and (b), respectively.
(b) Default.
No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(c) Request
for Credit Extension. The Administrative Agent and, if applicable, the L/C Issuer or the Swingline Lender shall have received a Request
for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension
(other than a Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted
by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have
been satisfied on and as of the date of the applicable Credit Extension.
Article v
REPRESENTATIONS
AND WARRANTIES
Each Loan Party represents
and warrants to the Administrative Agent and the Lenders, as of the date made or deemed made, that:
5.01 Organization;
Power
Each Loan Party and each
of the Restricted Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of
its incorporation or organization, (b) has all requisite power and authority to own its property and assets and to carry on its
business as now conducted, (c) is qualified to do business in, and is in good standing (where such concept is relevant) in, every
jurisdiction where such qualification is required, except where the failure so to qualify could not reasonably be expected to result
in a Material Adverse Effect, and (d) has the power and authority to execute, deliver and perform its obligations under each of
the Loan Documents and each other agreement or instrument contemplated thereby to which it is a party and, in the case of the Borrower,
to borrow hereunder, in the case of each U.S. Loan Party, to grant the Liens contemplated to be granted by it under the Collateral Documents,
and in the case of each Guarantor, to Guarantee the Obligations as contemplated by Article X hereof.
5.02 Authorization;
No Conflict
The Loan Documents (a) have
been duly authorized by all requisite corporate, limited liability company, partnership or other organizational and, if required, stockholder
action, and (b) will not (i) violate (A) any provision of law, statute, rule or regulation, except as would not reasonably
be expected to have a Material Adverse Effect, (B) the Organization Documents of any Loan Party or any Restricted Subsidiary (other
than any Immaterial Subsidiary), (C) any order of any applicable Governmental Authority except as would not reasonably be expected
to have a Material Adverse Effect, (D) any material provision of any material indenture, agreement or other instrument to which
any Loan Party or any Restricted Subsidiary (other than any Immaterial Subsidiary or Foreign Subsidiary) is a party or by which any of
them or any of their property is or may be bound, or (E) any provision of any indenture, agreement or other instrument to which
any Foreign Subsidiary (other than any Immaterial Subsidiary) is a party or by which any of them or any of their property is or may be
bound except as would not reasonably be expected to have a Material Adverse Effect, (ii) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to any right to accelerate or to require
the prepayment, repurchase or redemption of any material obligation under any such material indenture, agreement or other instrument
that (other than with respect to the Loan Documents) could reasonably be expected to result in a Material Adverse Effect, or (iii) result
in the creation or imposition of any Lien upon or with respect to any material property or material assets now owned or hereafter acquired
by any Loan Party or any Restricted Subsidiary (other than any Immaterial Subsidiary) (other than any Lien created hereunder or under
the Collateral Documents or as expressly permitted hereunder pursuant to Section 7.02), that (other than with respect to
the Loan Documents) could reasonably be expected to result in a Material Adverse Effect.
5.03 Enforceability
This Agreement has been duly
executed and delivered by the Loan Parties and constitutes, and each other Loan Document when executed and delivered by each Loan Party
thereto will constitute a legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with
its terms (subject, in each case, to bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors’
rights generally and general principles of equity).
5.04 Governmental
Approvals.
Except as set forth on Schedule 5.04,
no action, consent, ruling, order, license, authorization or approval of, registration or filing with, or any other action by any Governmental
Authority is or will be required to enter into the Loan Documents, borrow funds in connection therewith, Guarantee the Obligations and
grant Liens pursuant to the Collateral Documents except for such as have been made or obtained and are in full force and effect.
5.05 Financial
Statements
(a) Historical
Financial Statements. The Borrower has delivered to the Lenders the Audited Financial Statements accompanied by an opinion of Grant
Thornton LLP and the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries dated as of June 30, 2020 and the
related Consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter, and the two
fiscal quarter period, ended on that date.
Such financial statements
(A) present fairly and accurately in all material respects the financial condition and results of operations and cash flows of the
Borrower as of the dates and for the periods to which they relate, (B) disclose all material liabilities, direct or contingent,
of the Borrower and its Subsidiaries as of the dates thereof, and (C) were prepared in accordance with GAAP applied on a consistent
basis, subject, in the case of unaudited financial statements, to year-end audit adjustments and the absence of footnotes.
(b) Forecasts.
The forecasts of financial performance of the Borrower and its Subsidiaries furnished to the Lenders prior to the Closing Date, on an
annual basis for the projected period from on or about the Closing Date through December 31, 2023, were prepared in good faith by
the Borrower and based on assumptions believed by the Borrower at the time made to be reasonable.
5.06 No
Material Adverse Change
Since December 31, 2019,
no event, change or condition has occurred that has had (and continues to have), or could reasonably be expected to have, a Material
Adverse Effect.
5.07 Title
to Properties; Possession Under Leases
(a) Except
as set forth in Schedule 5.07, each of the Borrower and its Restricted Subsidiaries has good and marketable title to (including
in connection therewith, valid easements), or valid leasehold interests in, all its material properties and assets, except for (i) minor
defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties
and assets for their intended purposes, and (ii) as otherwise could not reasonably be expected to have a Material Adverse Effect.
All such material properties and assets are free and clear of Liens, other than Liens expressly permitted by Section 7.02.
(b) Except
as set forth in Schedule 5.07, each of the Borrower and each of its Restricted Subsidiaries (other than Immaterial Subsidiaries)
is in compliance with all material obligations under all material leases to which it is a party and all such leases are legal, valid,
binding and in full force and effect and are enforceable against the Borrower and its Restricted Subsidiaries (other than Immaterial
Subsidiaries) party thereto and, to the Borrower’s knowledge, against each other party thereto in accordance with their terms,
except, with respect to any of the foregoing, for any failures that could not reasonably be expected to have a Material Adverse Effect.
Except as set forth in Schedule 5.07, each of the Borrower and its Restricted Subsidiaries (other than Immaterial Subsidiaries)
enjoys peaceful and undisturbed possession under all such material leases, except for any subleases entered into in the ordinary course
of business.
5.08 Subsidiaries
Schedule 5.08
sets forth as of the Closing Date a list of all Subsidiaries, their jurisdiction of organization and the percentage ownership interest
of the Borrower therein and the ownership interests of the Guarantors. The shares of capital stock or other ownership interests so indicated
on Schedule 5.08 held in such Subsidiary are fully paid and non-assessable and are owned by the Borrower, directly or indirectly,
free and clear of all Liens (other than Liens created under the Collateral Documents, and Liens permitted under Section 7.02).
5.09 Litigation;
Compliance with Laws
(a) Except
as set forth on Schedule 5.09, there are no actions, suits or proceedings at law or in equity or by or before any Governmental
Authority now pending or, to the actual knowledge of the Borrower or the Guarantors, threatened against the Borrower, any Restricted
Subsidiary or any business, property or rights of any such Person (i) that involve any Loan Document, or (ii) as to which there
is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Effect.
(b) None
of the Borrower or any of its Domestic Subsidiaries or any of their respective material properties or assets is in violation of, nor
will the continued operation of their material properties and assets as currently conducted violate, any law, rule or regulation
(including any zoning, building, ordinance, code or approval or any building permits), or is in default with respect to any judgment,
writ, injunction, decree or order of any Governmental Authority, where such violation or default would reasonably be expected to result
in a Material Adverse Effect.
5.10 Agreements
None of the Borrower or any
of the Restricted Subsidiaries is in default in any manner under any provision of any indenture or other agreement or instrument evidencing
Material Indebtedness, or any other material agreement or instrument to which it is a party, where such default would reasonably be expected
to result in a Material Adverse Effect.
5.11 Federal
Reserve Regulations
None of the Borrower or any
of the Restricted Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for
the purpose of buying or carrying Margin Stock. No part of the proceeds of any Credit Extension will be used, whether directly or indirectly,
and whether immediately, incidentally or ultimately, for any purpose that entails a violation of, or that is inconsistent with, the provisions
of the Regulations of the Board, including Regulation T, Regulation U or Regulation X. No Indebtedness being reduced or retired out of
the proceeds of any Credit Extension was or will be incurred for the purpose of purchasing or carrying any Margin Stock in violation
of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation T, Regulation U or Regulation
X. After giving effect to each Credit Extension, Margin Stock will not constitute more than 25% of the value of the assets of the Loan
Parties.
5.12 Investment
Company Act.
None of the Borrower or any
Restricted Subsidiary is an “investment company” as defined in, or subject to regulation under, the Investment Company Act
of 1940.
5.13 Tax
Returns
Each of the Borrower and
its Restricted Subsidiaries has timely filed or caused to be timely filed all material Federal, state, local and (to the extent it has
foreign operations) foreign tax returns required to have been filed by it and has paid or caused to be paid all material taxes then due
and payable by it (whether or not shown as due on such returns but after taking into account any valid extensions), except taxes that
are being contested in good faith by appropriate proceedings and for which the Borrower or such Restricted Subsidiary, as applicable,
shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP and such contest operates to suspend
collection of the contested taxes. As of the Closing Date, the Borrower has not engaged in any “listed transaction” (within
the meaning of Treasury Regulation Section 1.6011-4 of the Code). There is no proposed tax assessment against the Borrower or its
Restricted Subsidiaries that could reasonably be expected to have a Material Adverse Effect.
5.14 No
Material Misstatements
No information, report, financial
statement, agreement, documentary condition precedent, Exhibit or Schedule furnished by or on behalf of the Borrower or its
Subsidiaries to the Administrative Agent or any Lender in connection with the Transactions, in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto, contained as of the date of such statement any material misstatement
of fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading when taken as a whole; provided, however, that to the extent any such
information, report, financial statement, Exhibit or Schedule was based upon or constitutes a forecast or projection, the Borrower
represents only that it acted in good faith and utilized reasonable assumptions (based upon accounting principles consistent with the
historical audited financial statements of the Borrower) and due care in the preparation of such information, report, financial statement,
Exhibit or Schedule (it being recognized that any such forecast or projection is subject to the assumptions and plans reflected
therein as of the date thereof, which could differ materially from the actual plans and results, and are necessarily subjective and based
on estimates, and that actual results are subject to uncertainties and contingencies which may be beyond the Borrower’s control).
5.15 Employee
Benefits Plans
(a) No
ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably
be expected to result in a Material Adverse Effect. Neither the Borrower nor any of its ERISA Affiliates contributes to, is obligated
to contribute to or has or could reasonably be expected to have any obligation or liability with respect to any Multiemployer Plan. Except
as disclosed in Schedule 5.15, as of the Closing Date, neither the Borrower nor any of its ERISA Affiliates maintains, sponsors,
contributes to, is obligated to contribute to, has or could reasonably be expected to have any obligation or liability with respect to
any Plan, nor, except as disclosed in Schedule 5.15, does the Borrower nor any Restricted Subsidiary have any present intention
to sponsor, maintain, contribute or incur any obligation or liability with respect to any Plan.
(b) The
Borrower represents and warrants as of the Closing Date that the Borrower’s assets do not constitute “plan assets”
(within the meaning of Section 3(42) of ERISA or otherwise) and the Borrower will not be using “plan assets” (within
the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to the Borrower’s entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement.
5.16 Environmental
Matters
(a) Except
as set forth in Schedule 5.16 and except with respect to any other matters that, individually or in the aggregate, would
not reasonably be expected to result in the Borrower or any of the Restricted Subsidiaries (other than any Immaterial Subsidiaries) incurring
Environmental Liabilities that could be reasonably expected to result in a Material Adverse Effect, each of the Borrower and its Restricted
Subsidiaries (other than Immaterial Subsidiaries) is and has been in compliance with any applicable Environmental Law, which compliance
includes obtaining, maintaining and complying with any permit, license, authorization or other approval required under any Environmental
Law for any of their operations.
(b) Except
as set forth in Schedule 5.16 and except with respect to any other matters that, individually or in the aggregate, would
not reasonably be expected to result in the Borrower or any of the Restricted Subsidiaries (other than Immaterial Subsidiaries) incurring
Environmental Liabilities that could be reasonably expected to result in a Material Adverse Effect: (i) none of the Borrower or
any Restricted Subsidiary (other than any Immaterial Subsidiary) has contractually assumed any Environmental Liability of any Person
or has received, or to the actual knowledge of the Borrower and the Guarantors, anticipates receiving, written notice of any claim, order,
agreement, or investigation with respect to any Environmental Liability.; (ii) none of the Borrower or any Restricted Subsidiary
(other than any Immaterial Subsidiary) is subject to any material, ongoing obligations under a consent decree, administrative order or
settlement agreement issued or entered into in connection with Environmental Law; and (iii) no facts or circumstances exist that
would reasonably be expected to result in the Borrower or any of the Restricted Subsidiaries (other than Immaterial Subsidiaries) incurring
Environmental Liabilities.
(c) No
Lien under Environmental Laws has attached to any real property in an amount or a manner that could be reasonably expected to result
in a Material Adverse Effect.
(d) As
of the Closing Date, except as disclosed on Schedule 5.16, to the knowledge of the Borrower and the Guarantors, the consummation
of the transaction contemplated under this Agreement does not require the consent of or filing by any Loan Party with any Governmental
Authority under any applicable Environmental Law.
(e) As
of the Closing Date, each of the Borrower and its Domestic Subsidiaries has made available to the Administrative Agent copies of all
requested existing material environmental reports (including any “Phase I environmental site assessments” relating to any
real property) and audits, and all documents pertaining to actual material Environmental Liability, in each case to the extent such reports,
audits and documents are in their possession, custody or control and are not more than five (5) years old.
5.17 Insurance
Schedule 5.17
sets forth a true, complete and correct description of all insurance maintained by the Borrower and the Domestic Restricted Subsidiaries
(other than Immaterial Subsidiaries), as of the Closing Date. As of such date, all premiums have been duly paid to the extent due. The
Borrower and its Restricted Subsidiaries have insurance in such amounts with financially sound and reputable insurance companies and
covering such risks and liabilities as are in accordance with normal industry practice and customary for companies of similar size engaged
in similar businesses in similar locations.
5.18 Sanctions
Concerns and Anti-Corruption Laws
(a) Sanctions
Concerns. No Loan Party, nor any Subsidiary, nor, to the knowledge of the Borrower, any director, officer, employee, agent, affiliate
or representative thereof, is an individual or entity that is, or is owned or controlled by one or more individuals or entities that
are (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated Nationals
or HMT’s Consolidated List of Financial Sanctions Targets, or any similar list enforced by any other relevant sanctions authority
or (iii) located, organized or resident in a Designated Jurisdiction. The Borrower and its Subsidiaries have conducted their businesses
in compliance in all material respects with all applicable Sanctions and have instituted and maintained policies and procedures designed
to promote and achieve compliance with such Sanctions.
(b) Anti-Corruption
Laws. The Loan Parties and their Subsidiaries have conducted their business in compliance in all material respects with the United
States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other applicable anti-corruption legislation in other jurisdictions,
and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
5.19 Collateral
Documents
(a) The
Security Agreement, upon execution and delivery thereof by the parties thereto, will be effective to create in favor of the Administrative
Agent, to the extent set forth therein, for the benefit of the Secured Parties, a legal, valid and enforceable Lien in the Collateral
(as defined in the Security Agreement) and, subject to any limitations herein and therein or in the certificates or notes, as applicable,
representing Pledged Equity, Instruments, Tangible Chattel Paper and Supporting Obligations (in each case, as defined in the Security
Agreement), the proceeds thereof, except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium (or similar
laws affecting the enforcement of creditors’ rights generally), by equitable principles (whether enforcement is sought by proceedings
in equity or at law) and implied covenants of good faith and fair dealing and (i) when such Pledged Equity, Instruments, Tangible
Chattel Paper and Supporting Obligations are delivered to the Administrative Agent, if and to the extent required by the Security Agreement,
the Lien created under the Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the U.S. Loan Parties in such Pledged Equity, Instruments, Tangible Chattel Paper and Supporting Obligations to
the extent that a Lien in such Pledged Equity, Instruments, Tangible Chattel Paper or Supporting Obligations can be perfected by
delivery, in each case having a first priority perfected security interest in such Pledged Equity, Instruments, Tangible Chattel
Paper and Supporting Obligations (except with respect to Liens expressly permitted under Section 7.02), and (ii) when
financing statements in appropriate form are filed in the offices specified on Schedule 5.19(a), the Lien created under the
Security Agreement will constitute a fully perfected Lien on, and security interest in, all right, title and interest of the U.S. Loan
Parties in such Collateral to the extent that a Lien in such Collateral can be perfected by filing of financing statements (other than
Intellectual Property, as defined in the Security Agreement, and other Collateral with respect to which possession or control is required
for perfection), in each case having a first priority perfected security interest in such Collateral, other than with respect to Liens
expressly permitted by Section 7.02.
(b) Intellectual
Property
| (i) | Except as set forth in Schedule 5.19(b),
upon the recordation of any Notice of Grant of Security Interest in Trademarks, Notice of
Grant of Security Interest in Patents and Notice of Grant of Security Interest in Copyrights,
as and if applicable, with the United States Patent and Trademark Office and the United States
Copyright Office, as applicable, together with the duly completed financing statements in
appropriate form filed in the offices specified in Schedule 5.19(a), the Lien
created under the Security Agreement and such Notice of Grant of Security Interest in Trademarks,
Notice of Grant of Security Interest in Patents and Notice of Grant of Security Interest
in Copyrights, as applicable, shall constitute a fully perfected Lien on, and security interest
in, all right, title and interest of the U.S. Loan Parties in the Intellectual Property (as
defined in the Security Agreement) in which a security interest may be perfected by such
filing in the United States and its territories and possessions, in each case having priority
superior in right to any other person other than with respect to Liens expressly permitted
by Section 7.02 and (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright Office may be necessary
to perfect a Lien on registered trademarks and patents, trademark and patent applications
and registered copyrights acquired by the U.S. Loan Parties after the date hereof). |
| (ii) | Set forth on Schedule 5.19(b), as
of the Closing Date and as of the last date such Schedule was required to be updated in accordance
with Sections 6.06 and 6.12, is a list of all registered or issued Intellectual Property
(including all applications for registration and issuance) owned by each of the U.S. Loan
Parties or that each of the U.S. Loan Parties has the right to (including the name/title,
current owner, registration or application number, and registration or application date and
such other information as reasonably requested by the Administrative Agent), but excluding
any immaterial Intellectual Property that is no longer used or useful in the business of
the Borrower and its Subsidiaries or where the Borrower deems it to be prudent business conduct
(to be determined by the Borrower in its reasonable discretion) to abandon such Intellectual
Property. |
(c) Deposit
Accounts and Securities Accounts.
| (i) | Upon execution and delivery thereof by the
parties thereto, the Qualifying Control Agreements, taken together with the Security Agreement,
will be effective to create and perfect in favor of the Administrative Agent a legal, valid
and enforceable security interest in the deposit accounts and securities accounts described
therein and the proceeds and products thereof. Upon the execution of the Qualifying Control
Agreements and the Security Agreement, such Collateral Documents shall constitute perfected
Liens on, and security interests in, all right, title and interest of the U.S. Loan Parties
in the such deposit accounts and securities accounts described therein and the proceeds and
products thereof, as security for the Obligations, in each case prior and superior in right
to any other person, other than with respect to Liens expressly permitted by Section 7.02. |
| (ii) | Set forth on Schedule 5.19(c), as of the
Closing Date, is a description of all deposit accounts and securities accounts of the U.S.
Loan Parties, including the name of (A) the applicable U.S. Loan Party, (B) in
the case of a deposit account, the depository institution and whether such account is an
Excluded Account, and (C) in the case of a securities account, the securities intermediary
or issuer. |
(d) Tangible
Chattel Paper. Set forth on Schedule 5.19(d), as of the Closing Date, is a description of all Tangible Chattel Paper (as defined
in the UCC) of the U.S. Loan Parties with a value in excess of $2,500,000.
(e) Electronic
Chattel Paper and Letter of Credit Rights. Set forth on Schedule 5.19(e), as of the Closing Date, is a description of all
Electronic Chattel Paper (as defined in the UCC) and Letter-of-Credit Rights (as defined in the UCC) of the U.S. Loan Parties, including
the name of (A) the applicable U.S. Loan Party, (B) in the case of Electronic Chattel Paper (as defined in the UCC), the account
debtor and (C) in the case of Letter-of-Credit Rights (as defined in the UCC), the issuer or nominated person, as applicable, in
each case, with a value in excess of $2,500,000.
(f) Commercial
Tort Claims. Set forth on Schedule 5.19(f), as of the Closing Date, is a description of all Commercial Tort Claims (as defined
in the UCC) of the U.S. Loan Parties (detailing such Commercial Tort Claim in such detail as reasonably requested by the Administrative
Agent) with a value in excess of $2,500,000.
(g) Pledged
Equity Interests. Set forth on Schedule 5.19(g), as of the Closing Date and as of the last date such Schedule 5.19(g) was
required to be updated in accordance with Sections 6.04 and 6.12, is a list of (i) all Pledged Equity and (ii) all other Equity
Interests (other than Excluded Property) required to be pledged to the Administrative Agent pursuant to the Collateral Documents (in
each case, detailing the Grantor (as defined in the Security Agreement)), the Person whose Equity Interests are pledged, the number of
shares of each class of Equity Interests, the certificate number and percentage ownership of outstanding shares of each class of Equity
Interests.
5.20 Location
of Real Property and Leased Premises
(a) Schedule 5.20(a) lists
completely and correctly as of the Closing Date all real property owned by the Borrower and its Domestic Restricted Subsidiaries (other
than Immaterial Subsidiaries) and the addresses thereof (to the extent available). The Borrower and its Domestic Restricted Subsidiaries
(other than Immaterial Subsidiaries) own in fee all the real property set forth on Schedule 5.20(a).
(b) Schedule 5.20(b) lists
completely and correctly as of the Closing Date all real property leased by the Borrower and its Domestic Restricted Subsidiaries (other
than Immaterial Subsidiaries) and the addresses thereof (to the extent available). The Borrower and its Domestic Restricted Subsidiaries
(other than Immaterial Subsidiaries) have valid leases in all the real property set forth on Schedule 5.20(b), except as
noted thereon.
5.21 Compliance
with FDA and USDA, Permits
(a) Except
as would not reasonably be expected to have a Material Adverse Effect, the business and operations of the Borrower are, and have been
during the past three (3) years, operated in compliance with all applicable laws and regulations of the U.S. Food and Drug Administration
(“FDA”) and the U.S. Department of Agriculture (“USDA”). There is no, and has not been during the
past three (3) years, any actual or, to the knowledge of the Borrower, potential material action or investigation in respect of
the business or operations of the Borrower by the FDA or USDA.
(b) The
Borrower holds, and is operating in compliance with, all material permits, licenses, approvals, certificates and other registrations,
authorizations and exemptions of and from the FDA and USDA, as required for the conduct of its business and operations as currently conducted
(each, a “Permit”), and each such Permit is in full force and effect.
(c) The
Borrower has not received, during the past three (3) years, any FDA Form 483 or other notice of inspectional observations,
“warning letters,” “untitled letters,” notice of adverse findings, or other similar notices from the FDA or the
USDA alleging or asserting material noncompliance with any applicable laws or regulations or any Permits.
5.22 Labor
Matters.
As of the Closing Date, (i) there
are no strikes or lockouts against the Borrower or any Guarantor pending or, to the actual knowledge of the Borrower or the Guarantors,
threatened, in each case or in the aggregate, that could be reasonably expected to result in a Material Adverse Effect, (ii) the
hours worked by and payments made to employees of the Borrower and its Domestic Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters that would reasonably be expected
to have a Material Adverse Effect, and (iii) all payments due from the Borrower or any of its Domestic Subsidiaries on account of
wages and employee health and welfare insurance and other benefits that would reasonably be expected to have a Material Adverse Effect
if not paid, have been paid or accrued as a liability on the books of the Borrower or such Domestic Subsidiary.
5.23 Use
of Proceeds.
The Borrower will use the
proceeds of the Loans for application by the Borrower (and, to the extent distributed to them by the Borrower, each other Loan Party)
solely (i) to repay certain existing Indebtedness, (ii) to pay fees, costs and expenses related to the Transactions, and (iii) for
other general corporate and working capital purposes of the Borrower and its Subsidiaries.
5.24 Solvency.
On the Closing Date and on
the date of each Credit Extension, both immediately before and after (i) with respect to the Closing Date, the consummation of the
Transactions, including the making of the Loans and the application of the proceeds thereof on the Closing Date, and (ii) with respect
to each other Credit Extension, the making of such Credit Extension and the application of the proceeds thereof on such date, the Loan
Parties, taken as a whole, are and will be Solvent.
5.25 No
Burdensome Restrictions.
Neither the Borrower nor
any of its Restricted Subsidiaries is a party to any agreement or instrument or subject to any corporate or other constitutional restriction
that has resulted or could reasonably be expected to result in a Material Adverse Effect. Neither the Borrower nor any of its Restricted
Subsidiaries is in default in any manner under any provision of any indenture or other agreement or instrument evidencing Indebtedness,
or any other agreement or instrument to which it is a party or by which it or any of its property is or may be bound, where such default
could reasonably be expected to result in a Material Adverse Effect, and no condition exists which, with the giving of notice or the
lapse of time or both, would constitute such a default. As of the Closing Date, the Borrower has delivered or otherwise made available
to the Administrative Agent complete and correct copies of all such material agreements, including any amendments, supplements or modifications
with respect thereto, and all such agreements are in full force and effect.
5.26 Intellectual
Property.
Except as set forth in Schedule 5.26,
the Borrower and its Restricted Subsidiaries own, or is licensed to use, all Intellectual Property (as defined in the Security Agreement)
reasonably necessary to conduct its business as currently conducted, without conflict with the rights of any other Person, except as
would not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrower and its Restricted Subsidiaries,
no Intellectual Property now employed, or now contemplated to be employed, by the Borrower or any Restricted Subsidiary in the operation
of their respective businesses as currently conducted infringes upon any rights held by any other Person, except as would not reasonably
be expected to have a Material Adverse Effect. No Person has contested any right, title or interest of the Borrower or any Restricted
Subsidiary in, or relating to, any Intellectual Property, which, either individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.
5.27 No
Default
No Default has occurred and
is continuing.
5.28 Senior
Indebtedness
The Obligations (including,
without limitation, the Guarantee of each Guarantor under the Loan Documents) constitute senior Indebtedness of each of the Loan Parties.
5.29 Representations
as to Foreign Obligors.
(a) Each
Foreign Obligor is subject to civil and commercial Laws with respect to its obligations under this Agreement and the other Loan Documents
to which it is a party (collectively as to such Foreign Obligor, the “Applicable Foreign Obligor Documents”),
and the execution, delivery and performance by such Foreign Obligor of the Applicable Foreign Obligor Documents constitute and will constitute
private and commercial acts and not public or governmental acts. Neither such Foreign Obligor nor any of its property has any immunity
from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment
in aid of execution, execution or otherwise) under the laws of the jurisdiction in which such Foreign Obligor is organized and existing
in respect of its obligations under the Applicable Foreign Obligor Documents.
(b) The
Applicable Foreign Obligor Documents are in proper legal form under the Laws of the jurisdiction in which such Foreign Obligor is organized
and existing for the enforcement thereof against such Foreign Obligor under the Laws of such jurisdiction, and to ensure the legality,
validity, enforceability, of the Applicable Foreign Obligor Documents.
5.30 EEA
Financial Institutions.
No Loan Party is an EEA Financial
Institution.
5.31 Covered
Entities
No Loan Party is a Covered
Entity.
5.32 Beneficial
Ownership Certification
The information included
in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.
Article vI
AFFIRMATIVE
COVENANTS
Each of the Loan Parties
hereby covenants and agrees that on the Closing Date and thereafter until the Facility Termination Date, such Loan Party shall, and shall
cause each of its Restricted Subsidiaries to:
6.01 Existence;
Compliance with Laws; Business and Properties.
(a) Do
or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence, except as otherwise
expressly permitted under Section 7.04.
(b) Except
where any such failure would not reasonably be expected to have a Material Adverse Effect, do or cause to be done all things necessary
to obtain, preserve, renew, extend and keep in full force and effect the licenses, permits, franchises, authorizations, Intellectual
Property and trade names material to the conduct of the business of the Borrower and the Restricted Subsidiaries, taken as a whole; comply
in all material respects with all applicable laws, rules, regulations and decrees and orders of any Governmental Authority, whether now
in effect or hereafter enacted and all contractual obligations under any indenture, instrument or agreement pursuant to which any Material
Indebtedness of the Borrower or any of the Restricted Subsidiaries is outstanding; and except as permitted under Section 7.04,
at all times maintain and preserve all property material to the conduct of such business and keep such property in good repair, working
order and condition (ordinary wear and tear excepted) and from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith may
be properly conducted at all times (provided, however, that, in the event of an Involuntary Disposition relating
to no more than two separate facilities at any one time, the Loan Parties shall have a reasonable time period to repair and/or replace
such facilities).
6.02 Insurance
(a) Keep
its insurable property and business adequately insured at all times by financially sound and reputable insurers; maintain such other
insurance, to such extent and against such risks, including fire and other risks insured against by extended coverage, as is customary
with companies in the same or similar businesses operating in the same or similar locations, of such types and in such amounts as are
customarily carried under similar circumstances by such other Persons.
(b) Promptly
following the Administrative Agent’s request, cause all such policies covering any Collateral and public liability (except third
party, product liability and business interruption) to be endorsed or otherwise amended to include a customary lender’s loss payable
endorsement and/or additional insured endorsement, as applicable, in form and substance reasonably satisfactory to the Administrative
Agent, which endorsement shall provide that, from and after the Closing Date, if the insurance carrier shall have received written notice
from the Administrative Agent or the Administrative Agent of the occurrence of an Event of Default, the insurance carrier shall pay all
proceeds otherwise payable to the Borrower or the Loan Parties under such policies directly to the Administrative Agent; cause all such
policies to provide that neither the Borrower, the Administrative Agent, the Administrative Agent nor any other party shall be a coinsurer
thereunder and, to the extent customarily available at a commercially reasonable cost, to contain a “Replacement Cost Endorsement”,
without any deduction for depreciation, and such other provisions as the Administrative Agent or the Administrative Agent may reasonably
require from time to time to protect their interests; deliver certificates of each such policies (and if reasonably requested, certified
copies of all such policies) to the Administrative Agent; cause each such policy, to the extent customarily available at a commercially
reasonable cost, to provide that it shall not be canceled, modified or not renewed (i) by reason of nonpayment of premium upon not
less than 10 days’ prior written notice thereof by the insurer to the Administrative Agent (giving the Administrative Agent the
right to cure defaults in the payment of premiums), or (ii) for any other reason upon not less than 30 days’ prior written
notice thereof by the insurer to the Administrative Agent; deliver to the Administrative Agent, prior to the cancellation, modification
or non-renewal of any such policy of insurance, a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously
delivered to the Administrative Agent) together with evidence reasonably satisfactory to the Administrative Agent of payment of the premium
therefor.
(c) Notify
the Administrative Agent promptly whenever any separate insurance concurrent in form or contributing in the event of loss with that required
to be maintained under this Section 6.02 is taken out by any Loan Party; and promptly deliver to the Administrative Agent
certificates evidencing such policy or policies.
6.03 Payment
of Obligations and Taxes
Pay its Indebtedness and
other obligations promptly and in accordance with their terms and pay and discharge promptly when due all material Taxes, assessments
and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor, materials and supplies or otherwise that, if unpaid, might give
rise to a Lien upon such properties or any part thereof; provided, however, that such payment and discharge shall not be required
with respect to any such Indebtedness, obligations, Tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be diligently contested in good faith by appropriate proceedings and the Borrower shall have set aside on its books adequate reserves
with respect thereto in accordance with GAAP and such contest operates to suspend collection of the contested obligation, tax, assessment
or charge and enforcement of a Lien.
6.04 Financial
Statements, Reports, etc
In the case of the Borrower,
furnish to the Administrative Agent, which shall promptly furnish the following information to each Lender in accordance with its customary
practice:
(a) within
90 days after the end of each fiscal year, commencing with the fiscal year in which the Closing Date occurs, its Consolidated and consolidating
balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower
and its Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during
such year, together with comparative figures for the immediately preceding fiscal year, all audited by independent public accountants
of recognized standing and accompanied by an opinion of such accountants to the effect that such Consolidated financial statements fairly
present the financial condition and results of operations of the Borrower and its Subsidiaries, on a Consolidated and consolidating basis,
in accordance with GAAP consistently applied (which opinion shall not be qualified as to scope or contain any going concern or other
qualification, explanation or similar provision (except for any such going concern qualification, explanation or similar provision pertaining
to one or more debt maturities hereunder occurring within 12 months of the date of the relevant audit opinion));
(b) within
45 days after the end of each of the first three fiscal quarters of each fiscal year, commencing with the fiscal quarter ended September 30,
2020, its Consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and cash flows showing
the financial condition of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the results of its operations
and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, together with comparative
figures for the same periods in the immediately preceding fiscal year, all certified by one of the Responsible Officers of the Borrower,
as fairly presenting the financial condition and results of operations of the Borrower and its Subsidiaries, on a Consolidated basis
in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently
with any delivery of financial statements under Section 6.04(a) or 6.04(b), a certificate of the accounting firm
(in the case of Section 6.04(a)) (to the extent that the accounting firm is willing to provide such certificate in accordance
with its customary business practice and may be limited to accounting matters and disclaim responsibility for legal interpretations),
certifying that no Event of Default or Default has occurred as of the last day of the period to which such financial statements relate,
if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed
to be taken with respect thereto;
(d) concurrently
with the delivery of the financial statements referred to in Sections 6.04(a) and (b) commencing with the delivery
of the financial statements for the fiscal quarter ended September 30, 2020, a duly completed Compliance Certificate signed by a
Responsible Officer of the Borrower, and in the event of any change in generally accepted accounting principles used in the preparation
of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 7.11,
a statement of reconciliation conforming such financial statements to GAAP, and the pro forma adjustments necessary to eliminate the
accounts of Unrestricted Subsidiaries (if any) from such financial statements. Unless the Administrative Agent or a Lender requests executed
originals, delivery of the Compliance Certificate may be by electronic communication including fax or email and shall be deemed to be
an original and authentic counterpart thereof for all purposes.
(e) to
the extent applicable, promptly after the same become publicly available, copies of all periodic and other reports, proxy statements
and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders,
as the case may be; provided, however, that the Borrower shall not be required to deliver separately such
material to the Administrative Agent or any Lender, so long as the Administrative Agent and Lenders have access to such publicly available
materials;
(f) promptly
after the receipt thereof by the Borrower, the Guarantors or any of their respective Subsidiaries, a copy of any final “management
letter” received by any such Person from its certified public accountants relating to any deficiency or weakness in accounting
practices or in reported results of the Borrower, any Subsidiary or any Guarantor and the management’s response thereto to the
extent such accountants are willing to provide such letters;
(g) within
60 days after the beginning of each fiscal year, a budget for the Borrower in reasonable detail on a quarterly basis for such fiscal
year as customarily prepared by management of the Borrower for its internal use similar in scope with the financial statements provided
pursuant to Section 6.04(a), prepared in summary form, in each case, with appropriate presentation and discussion of the
principal assumptions upon which such budgets are based, accompanied by the statement of a Responsible Officer of the Borrower to the
effect that the budget of the Borrower is a reasonable estimate for the periods covered thereby and, promptly when available, any significant
revisions of such budget, balance sheet and related statements of income, stockholders’ equity and cash flows;
(h) promptly
after the request by the Administrative Agent on its own behalf or on behalf of any Lender, all documentation and other information that
such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer”
and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(i) in
the event that the Borrower or any of its Restricted Subsidiaries intend to establish, sponsor, maintain, contribute to or incur any
obligation or liability with respect to any Plan (other than a Plan disclosed in Schedule 5.15), the Borrower shall promptly,
and in any event within 10 Business Days prior to it or any of its Restricted Subsidiaries establishing, maintaining, contributing to,
or incurring an obligation with respect to, as applicable, such Plan (other than a Plan disclosed in Schedule 5.15), inform
the Administrative Agent of such intention;
(j) promptly
following any request by the Administrative Agent on its own behalf or on behalf of a Lender, copies of (i) any documents described
in Section 101(k)(l) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer
Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any of its ERISA Affiliates may
request with respect to any Multiemployer Plan; provided, however, that if the Borrower or any of its ERISA
Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower
or its ERISA Affiliates shall promptly make a request for such documents or notices from the such administrator or sponsor and shall
provide copies of such documents and notices promptly after receipt thereof;
(k) if,
as a result of any change in accounting principles and policies from those used in the preparation of the Consolidated financial statements
of the Borrower for the fiscal year ended on December 31, 2019, the Consolidated financial statements of the Borrower delivered
pursuant to Section 6.04(a) or 6.04(b) will differ in any material respect from the Consolidated financial
statements that would have been delivered pursuant to such Sections had no such change in accounting principles and policies been made,
then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation with
respect to such financial statements that would have otherwise been delivered;
(l) the
Borrower hereby acknowledges that (i) the Administrative Agent and/or an Affiliate thereof may, but shall not be obligated to, make
available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively,
“Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar or a substantially
similar electronic transmission system (the “Platform”) and (ii) certain of the Lenders (each, a “Public
Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or
its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities
with respect to such Persons’ securities. The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding
debt or Equity Interests that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities
it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public
Lenders and that (A) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (B) by marking Borrower Materials
“PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, any Affiliate thereof, the Arrangers,
the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may
be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States federal and state securities
laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 11.07); (C) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Side Information;” and (D) the Administrative Agent and
any Affiliate thereof and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as
being suitable only for posting on a portion of the Platform not designated “Public Side Information”; and
(m) promptly,
from time to time, after reasonable notice is given, such other information regarding the operations, business affairs and financial
condition of the Borrower, any Subsidiary or any Guarantor, or compliance with the terms of any Loan Document, as the Administrative
Agent (or any Lender through the Administrative Agent) may reasonably request.
6.05 Litigation
and Other Notices
Furnish to the Administrative
Agent prompt written notice after obtaining knowledge thereof of the following:
(a) any
Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be taken
with respect thereto;
(b) the
filing or commencement of any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority, (i) against
the Borrower or any of its Restricted Subsidiaries that could reasonably be expected to result in a Material Adverse Effect, or (ii) challenging
the validity, enforceability or priority of any Loan Document;
(c) the
occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower or the Restricted Subsidiaries in an aggregate amount exceeding $5,000,000;
(d) the
occurrence of an Involuntary Disposition or a series of Involuntary Dispositions with a value of at least $5,000,000 or any other event
or series of events which could reasonably be expected to adversely affect the value of the Collateral by at least $5,000,000;
(e) to
the extent any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, an updated Beneficial
Ownership Certification promptly following any change in the information provided in the Beneficial Ownership Certification delivered
to any Lender in relation to such Loan Party that would result in a change to the list of beneficial owners identified in such certification;
and
(f) any
other development that has resulted in, or would reasonably be expected to result in, a Material Adverse Effect.
6.06 Information
Regarding Collateral
(a) Furnish
to the Administrative Agent prompt written notice of any change (i) in any Loan Party’s corporate name, (ii) in the jurisdiction
of organization or formation of any Loan Party, (iii) in any Loan Party’s identity or corporate structure, or (iv) in
any Loan Party’s Federal Taxpayer Identification Number. The Borrower agrees not to effect or permit any change referred to in
the preceding sentence unless, prior to or substantially concurrently therewith, all filings have been made under the Uniform Commercial
Code or otherwise that are required in order for the Administrative Agent to continue at all times following such change to have a valid,
legal and perfected security interest in all the Collateral secured by it under any Collateral Document.
(b) In
the case of the U.S. Loan Parties, each year, at the time of delivery of the annual financial statements with respect to the preceding
applicable period pursuant to Section 6.04(a), deliver to the Administrative Agent a Compliance Certificate setting forth
the information required pursuant to Schedules 5.08, 5.17, 5.19(a), 5.19(b), 5.19(c), 5.19(f) and
5.19(g) or confirming that there has been no change in such information since the date of the Perfection Certificate delivered
pursuant to Section 4.01(e)(i) or the date of the most recent certificate delivered pursuant to this Section 6.06.
6.07 Maintaining
Records; Access to Properties and Inspections; Annual Meetings; Keep proper books and records and accounts in which full, true and correct
entries in conformity with GAAP and Applicable Law are made of all dealings and transactions in relation to its business and activities.
The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any representatives designated by the Administrative
Agent on its own behalf or on behalf of any Lender to visit and inspect the financial records and the properties of such Person during
normal business hours and upon reasonable prior notice and as often as reasonably requested (but in no event more than once annually
unless a Default shall have occurred and be continuing) and to make extracts from and copies of such financial records, and permit any
such representatives designated by the Administrative Agent (on behalf of itself or any Lender) to discuss the affairs, finances and
condition of such Person with the officers thereof and independent accountants therefor; provided, however, that when a Default
exists the Administrative Agent on its own behalf or on behalf of any Lender (or any of their respective representatives) may do any
of the foregoing at the expense of the Borrower. Within 150 days after the end of each fiscal year of the Borrower, at the request of
the Administrative Agent or Required Lenders, hold a conference call (at a mutually agreeable time the costs of call to be paid by the
Borrower) with all Lenders who choose to attend such meeting, at which meeting shall be reviewed the financial results of the previous
fiscal year and the financial condition of the Borrower and its Subsidiaries and the budgets presented for the current fiscal year of
the Borrower and its Subsidiaries.
6.08 Use
of Proceeds
Use the proceeds of the Credit
Extensions only for the purposes set forth in Section 5.23.
6.09 Employee
Benefits. (a) Comply in all material respects with the applicable provisions of ERISA and the Code, solely as it relates to Plans
and Multiemployer Plans, (b) not, and cause any of their Restricted Subsidiaries to not, establish, sponsor, maintain, contribute
to or incur any obligation or liability with respect to any Plan (other than a Plan disclosed in Schedule 5.15) that would
result in any obligation or liability that would result in, or could reasonably be expected to result in, a Material Adverse Effect,
(c) not, and cause any of their Restricted Subsidiaries to not, contribute to or incur any obligation to contribute to any Multiemployer
Plan that would result in any obligation or liability that would result in, or could reasonably be expected to result in, a Material
Adverse Effect and (d) furnish to the Administrative Agent as soon as possible after, and in any event within ten days after any
Responsible Officer of the Borrower or of any Restricted Subsidiaries knows or has reason to know that, any ERISA Event has occurred
that, alone or together with any other ERISA Event could reasonably be expected to result in liability of the Borrower or any Restricted
Subsidiary in an aggregate amount exceeding $5,000,000, a statement of a Financial Officer of the Borrower setting forth details as to
such ERISA Event and the action, if any, that the Borrower or any Restricted Subsidiary proposes to take with respect thereto or that
the Borrower has actual knowledge, after due inquiry by a Responsible Officer of the Borrower, that any ERISA Affiliate proposes to take
with respect thereto.
6.10 Compliance
with Environmental Laws
Comply, and require all lessees
and other Persons occupying its properties to comply, in all material respects with all Environmental Laws applicable to its operations
and real property; obtain and renew all material permits, licenses, authorizations and other approvals required under any Environmental
Law for its operations and properties; and conduct any required remedial action to the extent required by and in material compliance
with Environmental Laws; provided, however, that none of the Borrower nor any Restricted Subsidiary (other than any Immaterial
Subsidiary) shall be required to undertake any such remedial action to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with
GAAP.
6.11 Environmental
Reporting
(a) The Borrower shall
give the Administrative Agent prompt notice (containing reasonable detail) upon obtaining knowledge of any matter that would reasonably
be expected to result in the Borrower or any Restricted Subsidiary (other than any Immaterial Subsidiary) incurring Environmental Liabilities
in excess of $1,000,000 in the aggregate, and (b) if (i) notice is provided to the Administrative Agent under Section 6.11(a),
or (ii) a breach of Section 6.10 shall have occurred and be continuing for more than 30 days without the Borrower or
any Domestic Subsidiary commencing activities reasonably likely to cure such breach, at the written request of the Required Lenders through
the Administrative Agent, provide to the Lenders within 60 days after such notice or request, at the expense of the Loan Parties, an
environmental report regarding the matters which are the subject of such notice or request, the steps being taken to address such matters
and their estimated cost, which environmental report shall be prepared by an environmental consulting firm reasonably acceptable to the
Administrative Agent.
6.12 Further
Assurances. Take the following actions, in each case subject to clause (d) of this Section 6.12:
(a) Except
with respect to Excluded Property, the U.S. Loan Parties shall execute any and all further documents, agreements and instruments, and
take all further action (including filing UCC and other financing statements) that may be required under applicable law, or that the
Required Lenders, the Administrative Agent or the Administrative Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the validity and priority of the security interests
created or intended to be created by the Collateral Documents. In addition, from time to time, the U.S. Loan Parties will, at their cost
and expense, promptly secure the Secured Obligations by pledging or creating, or causing to be pledged or created, perfected security
interests with respect to such of its assets and properties (other than Excluded Property) as the Administrative Agent or the Required
Lenders shall reasonably designate (it being understood that it is the intent of the parties that the Secured Obligations shall be secured
by substantially all the assets of the Borrower and the Guarantors (other than Excluded Property)), subject to such exceptions as are
contained or may hereafter be contained in the Collateral Documents from time to time. Such security interests and Liens will be created
under the Collateral Documents and other security agreements and other instruments and documents in form and substance reasonably satisfactory
to the Administrative Agent, and the Borrower shall deliver or cause to be delivered to the Lenders all such instruments and documents
(including, without limitation, legal opinions, lien searches and such other certificates and documents as are consistent with those
delivered in connection with the Collateral on the Closing Date) as the Administrative Agent shall reasonably request to evidence compliance
with this Section. The Borrower and the other U.S. Loan Parties agree to provide such evidence as the Administrative Agent shall reasonably
request as to the perfection and priority status of each such security interest and Lien. Notwithstanding anything herein or in any Loan
Agreement to the contrary, in no event shall any U.S. Loan Party be required to provide any kind of mortgage or leasehold mortgage with
respect to any real property or pledge more than 65% of the voting stock of any Foreign Subsidiary owned by such Loan Party organized
under the laws of Brazil (and, for the avoidance of doubt, no foreign Subsidiary shall be required to pledge any of its assets).
(b) Upon
the acquisition or formation by any of the Loan Parties of any Restricted Subsidiary, or the designation of an Unrestricted Subsidiary
as a Restricted Subsidiary, in each case, that is a wholly owned Restricted Subsidiary and a Material Subsidiary, the Borrower shall
cause the Person so acquired or formed (each, an “Additional Guarantor”), as the case may be, to become a Guarantor
of the Secured Obligations. Such Additional Guarantor shall become a Loan Party by executing a Joinder Agreement and, if such Additional
Guarantor is a Domestic Subsidiary, each other applicable Collateral Document in favor of the Administrative Agent. In addition, (i) such
Additional Guarantor which is a Domestic Subsidiary shall execute and deliver such agreements and documents as the Administrative Agent,
Administrative Agent or the Required Lenders may reasonably request to grant a perfected Lien in respect of substantially all of its
personal property (other than Excluded Property) in favor of the Administrative Agent and the Lenders, subject to such exceptions as
are contained or may hereafter be contained in the Collateral Documents from time to time, and (ii) the U.S. Loan Parties owning
Equity Interests in such Additional Guarantor shall pledge all such Equity Interests in such Additional Guarantor.
(c) Promptly
following the Administrative Agent’s reasonable request, the Borrower shall execute, or shall cause its relevant Restricted Subsidiaries
to execute any and all further related documents and take all further related action that may be required under applicable law, or that
the Required Lenders, the Administrative Agent or the Administrative Agent may request in their sole discretion, in order to effectuate
the transactions contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the validity and priority of
the security interests created or intended to be created by the Collateral Documents.
(d) In
connection with the foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the
extent applicable, substantially the same documentation required pursuant to Sections 4.01(b) – (f) and
such other documents or agreements as the Administrative Agent may reasonably request, including without limitation, updated Schedules
5.08, 5.17, 5.19(a), 5.19(b), 5.19(c), 5.19(d), 5.19(e), 5.19(f), 5.19(g),
5.20(a) and 5.20(b); provided, however, that with respect to each new Guarantor that is a Foreign Subsidiary,
such documents and agreements shall be substantially similar to those delivered on the Closing Date for the Foreign Subsidiaries that
are Loan Parties (including, to the extent the Administrative Agent reasonably requests, a legal opinion).
(e) Except
for Excluded Accounts, each of the U.S. Loan Parties shall not open, maintain or otherwise have any deposit or other accounts (including
securities accounts) at any bank or other financial institution, or any other account where money or securities are or may be deposited
or maintained with any Person, other than (i) deposit accounts that are maintained at all times with depositary institutions as
to which the Administrative Agent shall have received a Qualifying Control Agreement, (ii) securities accounts that are maintained
at all times with financial institutions as to which the Administrative Agent shall have received a Qualifying Control Agreement, (iii) deposit
accounts established solely as payroll and other zero balance accounts and (iv) other deposit accounts, so long as at any time the
balance in any such account does not exceed $250,000 and the aggregate balance in all such accounts does not exceed $500,000.
(f) The
Borrower shall, and shall cause the other U.S. Loan Parties to, take all actions and deliver all instruments and documents required under
this Section 6.12 (including the granting and perfecting of Liens and security interests as described above) to be undertaken
promptly following the acquisition of any assets described above, provided, however, that such actions and
deliveries shall occur within 5 Business Days after the date of the acquisition of such personal property acquisition.
6.13 Designation
of Subsidiaries.
The Borrower may at any time
after the Closing Date designate any Restricted Subsidiary of the Borrower as an Unrestricted Subsidiary or any Unrestricted Subsidiary
as a Restricted Subsidiary; provided, however that, (a) immediately before and after such designation, no Event
of Default shall have occurred and be continuing, (b) no Subsidiary may be designated as an Unrestricted Subsidiary if such Subsidiary
directly or indirectly owns any Equity Interests of, or holds a Lien on, any property of, the Borrower, any Loan Party or any Restricted
Subsidiary that is not a Subsidiary to be so designated as an Unrestricted Subsidiary, (c) at no time may any Unrestricted Subsidiary
own any asset or Intellectual Property that are material to the operation of the businesses of the Borrower and its Restricted Subsidiaries,
(d) after giving Pro Forma Effect to such designation, the Borrower is in compliance with the financial covenants set forth in Section 7.11
as of the last day of the applicable Measurement Period, (e) the Consolidated EBITDA of all Unrestricted Subsidiaries for the most
recent Measurement Period shall not exceed 3.0% of the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such Measurement
Period, (f) any Unrestricted Subsidiary that has been subsequently designated or re-designated as a Restricted Subsidiary may not
thereafter be re-designated an Unrestricted Subsidiary and (g) no such Unrestricted Subsidiary (or Subsidiary thereof) guarantees
any Indebtedness of, or has outstanding any Investment in, the Borrower or any Restricted Subsidiary. The designation of any Subsidiary
as an Unrestricted Subsidiary after the Closing Date shall constitute an Investment by the Borrower therein at the date of designation
in an amount equal to the fair market value as determined in good faith by the Borrower of the Borrower’s or its Subsidiary’s
(as applicable) Investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the
incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a
return on any Investment by the Borrower in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair
market value as determined in good faith by the Borrower at the date of such designation of the Borrower’s or its Subsidiary’s
(as applicable) Investment in such Subsidiary.
6.14 Anti-Corruption
Laws; Sanctions.
Conduct its business in compliance
in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar anti-corruption
legislation in other jurisdictions and with all applicable Sanctions, in each case, applicable to the Loan Parties, and maintain policies
and procedures designed to promote and achieve compliance with such laws and Sanctions.
6.15 Approvals
and Authorizations.
Maintain all authorizations,
consents, approvals and licenses from, exemptions of, and filings and registrations with, each Governmental Authority of the jurisdiction
in which each Foreign Obligor is organized and existing, and all approvals and consents of each other Person in such jurisdiction, in
each case that are required in connection with the Loan Documents, except, in each case of the foregoing, where the failure could not
reasonably be expected to have a Material Adverse Effect.
6.16 Cash
Management.
Maintain all primary domestic
cash management business with Bank of America.
6.17 Post-Closing
Requirements.
Execute and deliver the documents
and complete the tasks set forth on Schedule 6.17, in each case within the time limits specified on such schedule, or such
later date(s) as the Administrative Agent may agree in its discretion.
Article Vii
NEGATIVE
COVENANTS
From and after the Closing
Date, the Borrower covenants and agrees with each Lender that, so long as the Commitments shall remain in existence and until the Obligations
(other than any unasserted contingent reimbursement or indemnification obligations) have been paid in full in cash, unless the Required
Lenders shall otherwise consent in writing, it will not, and will not cause or permit any of its Restricted Subsidiaries:
7.01 Indebtedness.
Incur, create, assume or
permit to exist any Indebtedness, except:
(a) Indebtedness
of the Borrower and its Restricted Subsidiaries existing on the Closing Date and set forth in Schedule 7.01 and any Indebtedness
evidencing a refinancing, refunding, renewal or extension of such Indebtedness; provided, however that (A) any such refinancing
Indebtedness is in an aggregate principal amount not greater than the aggregate principal amount of the Indebtedness being renewed or
refinanced, plus the amount of any premiums required to be paid thereon and reasonable fees and expenses associated therewith,
(B) such refinancing Indebtedness either (i) has a later or equal final maturity and longer or equal Weighted Average Life
to Maturity than the Indebtedness being renewed or refinanced (without giving effect to any prepayments of originally scheduled amortization
of such Indebtedness being renewed or refinanced), or (ii) has a final maturity that is more than 91 days after the Latest Maturity
Date hereunder, and (C) the covenants, events of default, Liens, subordination and other provisions (other than interest rates)
thereof (including any guarantees thereof) shall be, in the aggregate, no less favorable to the Lenders in any material respect than
those contained in the Indebtedness being renewed or refinanced;
(b) Indebtedness
created hereunder and under the other Loan Documents;
(c) intercompany
Indebtedness of the Borrower and the Restricted Subsidiaries to the extent permitted by Sections 7.03(c) or (k);
(d) Indebtedness
under performance bonds or with respect to workers’ compensation claims, property casualty or liability insurance, take-or-pay
obligations in supply arrangements, self-insurance obligations, performance, bid and surety bonds and completion guaranties in each case
incurred in the ordinary course of business;
(e) Indebtedness
incurred by the Borrower or the Restricted Subsidiaries existing or arising under Swap Contracts in the ordinary course of business and
not for speculative purposes; provided, however, that if such Indebtedness relates to interest rates, (i) such
Indebtedness relates to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents, and (ii) the
notional principal amount of such Indebtedness at the time incurred does not exceed the principal amount of the Indebtedness to which
such Indebtedness relates;
(f) (i) Indebtedness
incurred by the Borrower or the Restricted Subsidiaries in respect of netting services, overdraft protections and otherwise in connection
with deposit accounts, in each case, other than Indebtedness for borrowed money, and (ii) Indebtedness arising from the honoring
of a check or draft drawn against insufficient funds;
(g) guarantees
and any other contingent obligations of the Borrower and the Restricted Subsidiaries in respect of Indebtedness and other obligations
otherwise permitted hereunder (both before or after any liability associated therewith becomes fixed), subject to any limitations set
forth in the other subsections of this Section 7.01 or in any defined terms contained herein;
(h) Indebtedness
incurred by the Borrower or any of its Restricted Subsidiaries arising from agreements providing for indemnification, holdbacks, working
capital or other purchase price adjustments, earn-outs, non-compete agreements, deferred compensation or similar obligations in connection
with transactions not prohibited hereunder;
(i) Indebtedness
with respect to Capital Lease Obligations, Synthetic Lease Obligations and purchase money obligations for assets and property in an aggregate
amount not to exceed at any one time outstanding the greater of (x) $15,000,000, or (y) 3.0% of the Total Assets of the Borrower
and its Restricted Subsidiaries, taken as a whole;
(j) Indebtedness
owed to any Person providing property, casualty, business interruption or liability insurance to the Borrower or any Restricted Subsidiary,
so long as such Indebtedness shall not be in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost
of, such insurance for the annual period in which such Indebtedness is incurred and such Indebtedness shall be outstanding only during
such year;
(k) Indebtedness
consisting of Permitted Unsecured Debt in an aggregate amount not to exceed $20,000,000; provided, however that to the extent
such Indebtedness incurred pursuant to this Section 7.01(k) is guaranteed by any guarantors that are not Guarantors
hereunder such guarantors shall become Guarantors pursuant to the procedures set forth in Section 6.12; provided further
that the foregoing proviso shall not apply only to the extent that the providing of such guarantees could reasonably be expected to result
in adverse tax consequences to the Borrower based on the foreign status of such guarantors or assets (and such adverse tax consequences
would not apply to any guarantees otherwise provided to support such Permitted Unsecured Debt);
(l) Indebtedness
of a Person that becomes a Restricted Subsidiary after the date hereof in connection with an Investment permitted hereby or a Permitted
Acquisition in an aggregate principal amount not to exceed the greater of (x) $20,000,000, or (y) 3.0% of the Total Assets
of the Borrower and its Restricted Subsidiaries, taken as a whole, and any refinancing, refunding, renewal or extension thereof to the
extent such refinancing, refunding, renewal or extension would have been permitted had such Indebtedness been permitted under Section 7.01(a) hereof;
provided, however, that such Indebtedness existed at the time such Person became a Restricted Subsidiary and was not created
in contemplation thereof; and
(m) other
Indebtedness of the Borrower and the Restricted Subsidiaries (whether or not of a type listed in the other provisions of this Section 7.01)
in an aggregate principal amount not exceeding the greater of (x) $15,000,000, or (y) 3.0% of the Total Assets of the Borrower
and its Restricted Subsidiaries, taken as a whole, at any time outstanding.
For purposes of determining
the outstanding principal amount of any particular Indebtedness incurred pursuant to this Section 7.01, Indebtedness
permitted by this Section 7.01 need not be permitted solely by reference to one provision permitting such Indebtedness but
may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness.
7.02 Liens.
Create, incur, assume or
permit to exist any Lien on any property or assets (including Equity Interests or other securities of any Person, including the Borrower
or any Restricted Subsidiary now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof (collectively
referred to in this Section 7.02 as the “Assets”)), except:
(a) Liens
existing on the Closing Date and set forth on Schedule 7.02 (including securing Indebtedness permitted pursuant to Section 7.01(a),
including refinancings thereof permitted hereunder, so long as any asset securing such refinanced Indebtedness also secured the related
existing Indebtedness), or that secures intercompany Indebtedness in which the lender is the Borrower or a Guarantor permitted under
Section 7.01(c);
(b) any
Lien created or otherwise permitted under the Loan Documents;
(c) Liens
for taxes not yet due or which are being contested in compliance with Section 6.03;
(d) landlord’s,
banks’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising
in the ordinary course of business (or imposed by law) and securing obligations that are not due and payable or which are being contested
in compliance with Section 6.03;
(e) pledges
and deposits made in the ordinary course of business in compliance with workmen’s compensation, unemployment insurance and other
social security laws or regulations;
(f) pledges
or deposits of cash and cash equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions or similar obligations
to providers of property, casualty or liability insurance in the ordinary course of business;
(g) Liens
on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto permitted under Section 7.01
and rights which may arise under state insurance guarantee funds relating to any such insurance policy;
(h) deposits
to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than capital leases), subleases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(i) zoning
restrictions, easements, covenants, conditions, environmental and other land use laws, rules and regulations, utility agreements,
reservations, encroachments, rights-of-way, restrictions on use of real property, minor imperfections of title, minor survey defects
and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and
do not materially detract from the value of the Assets subject thereto or interfere with the ordinary conduct of the business of the
Borrower or any of its Restricted Subsidiaries;
(j) Liens
securing Indebtedness permitted under Section 7.01(i); provided, however, that (i) such
Liens secure Indebtedness incurred to finance the acquisition, construction or improvement of any equipment, machinery, fixed or capital
assets or Capital Lease Obligations and Synthetic Lease Obligations, (ii) such Liens are incurred, and the Indebtedness secured
thereby is created, within 180 days after such acquisition (or construction or improvement), (iii) the Indebtedness secured thereby
does not exceed 100% of the cost of such real property, improvements, equipment or machinery at the time of such acquisition (or completion
of construction or improvement), and (iv) such security interests, unless granted as part of a group financing provided in connection
with related equipment, do not apply to any property or assets of the Borrower or any Restricted Subsidiary other than the equipment,
machinery, fixed or capital assets which are acquired, constructed or improved, or directly related assets, including, without limitation,
accessions thereto and proceeds thereof;
(k) any
interest or title of a lessor or sublessor under any lease of real estate entered into by the Borrower or any Restricted Subsidiary in
the ordinary course of business;
(l) ground
leases in respect of real property (and the rights of landlords thereunder) on which facilities owned or leased by the Borrower or its
Restricted Subsidiaries are located;
(m) Liens
in favor of customs and revenue authorities arising as a matter of law to secure the payment of customs duties in connection with the
importation of goods;
(n) receipt
of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on the related
inventory and proceeds thereof;
(o) Liens
solely on cash earnest money deposits made by the Borrower or any Restricted Subsidiary in connection with a letter of intent or purchase
agreement permitted hereunder;
(p)
purported Liens evidenced by precautionary Uniform Commercial Code financing statements filed in the ordinary course
of business;
(q) Liens
securing reimbursement obligations with respect to documentary letters of credit;
(r) non-exclusive
licenses of Intellectual Property granted to or by the Borrower or the Restricted Subsidiaries in the ordinary course of business not
interfering with the business of the Borrower or the Restricted Subsidiaries;
(s) Liens
arising out of consignment or similar arrangements for the sale by the Borrower or the Restricted Subsidiaries of goods through third
parties in the ordinary course of business;
(t) Liens
arising out of judgments or awards which do not result in a Default;
(u) Liens
securing Indebtedness permitted pursuant to Section 7.01(l); provided, however, that such Liens do not extend to assets
not subject to such Liens at the time of becoming a Restricted Subsidiary (other than improvements and attachments thereon, accessions
thereto and proceeds thereof) and are no more favorable to the lienholders than the then-existing Lien;
(v) Liens
to secure Indebtedness with respect to Swap Contracts permitted under Section 7.01(e);
(w) Liens
arising in connection with transactions relating to the selling or discounting of accounts receivable in the ordinary course of business;
(x) licenses,
leases, or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower and its Restricted
Subsidiaries taken as a whole;
(y) Liens
securing obligations of any Persons in respect of employee deferred compensation and benefit plans in connection with “rabbi trusts”
or other similar arrangements;
(z) Liens
upon specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect
of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such
inventory or other goods; and
(aa) other
Liens of the Borrower and the Restricted Subsidiaries (whether or not of a type listed in any other provision of this Section 7.02)
securing Indebtedness and other obligations in an aggregate principal amount not exceeding the greater of (x) $15,000,000, or (y) 3.0%
of the Total Assets of the Borrower and its Restricted Subsidiaries, taken as a whole, at any time outstanding.
7.03 Investments,
Loans and Advances.
Purchase, hold or acquire
any Equity Interests, evidences of indebtedness or other securities of, make or permit to exist any loans or advances to, or make or
permit to exist any other Investment in, any other Person, except:
(a) Investments
by the Borrower and the Restricted Subsidiaries in the Equity Interests of the Borrower or any of the Guarantors;
(b) Cash
Equivalents;
(c) Investments
made (i) among or between the Borrower and the Guarantors, (ii) by the Borrower or any Guarantor to any Restricted Subsidiary
that is not a Guarantor in an aggregate amount at one time outstanding not to exceed $20,000,000, and (iii) by any Restricted Subsidiary
that is not a Guarantor to the Borrower or any of the Restricted Subsidiaries; provided, however, that if
such Investment is an intercompany loan or advance, any such loan or advance to a Loan Party shall be subordinated to such Loan Party’s
Obligations hereunder and/or under the Security Agreement and evidenced by the Intercompany Note and, in the case of a loan or advance
by a Loan Party, pledged by such Loan Party as Collateral pursuant to the Collateral Documents;
(d) (i) Investments
consisting of extensions of credit in the nature of accounts receivable or notes receivables arising from the grant of trade credit in
the ordinary course of business, and (ii) investments received in satisfaction or partial satisfaction thereof from financially
troubled account debtors or the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and
suppliers, in the ordinary course of business;
(e) deposits,
prepayments and other credits to suppliers made in the ordinary course of business;
(f) each
Loan Party may make investments arising out of the receipt by such party of non-cash consideration for any Disposition permitted hereunder;
(g) guarantees
and any other contingent obligations permitted under Section 7.01(g);
(h) advances
to officers, directors and employees of the Borrower and its Restricted Subsidiaries for travel, entertainment, relocation and analogous
ordinary business purposes consistent with past practice;
(i) Permitted
Acquisitions or other transactions permitted by Section 7.04 hereof;
(j) Investments
of any Restricted Subsidiary on the date it becomes a Restricted Subsidiary, to the extent such Investments were not made in contemplation
or in connection with its becoming a Restricted Subsidiary;
(k) Investments
of the Borrower and its Restricted Subsidiaries in VE Netting, LLC (i) existing on the Closing Date and (ii) made pursuant
to commitments to make additional Investments in VE Netting, LLC as set forth in the Joint Venture and Operating Agreement of VE Netting,
LLC as in existence on the Closing Date and set forth in Schedule 7.03;
(l) Investments
resulting from, or deemed to exist on account of, the purchase and sale among the Borrower and its Restricted Subsidiaries of cellulosic
and plastic casing product and cellulosic and plastic extrusion, production and finishing equipment and parts, in each case, on fair
and reasonable terms to each party that is a Loan Party as reasonably determined by each such Loan Party’s board of directors;
and
(m) other
Investments (excluding, in each case, Investments of the type described in Section 7.03(c)(ii) and 7.03(k)) in an aggregate
amount at one time outstanding not to exceed $25,000,000.
7.04 Mergers,
Consolidations and Acquisitions; Sales of Assets.
(a) Merge
into or consolidate with any other Person, sell, transfer, lease or otherwise dispose of all or substantially all of its assets or liquidate
or dissolve, except that:
(i) any
Restricted Subsidiary may merge with (A) the Borrower; provided, however, that the Borrower shall be
the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided, however,
that when any Loan Party is merging with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Loan Party
(including a new Loan Party) or (2) if the continuing or surviving Person is not a Loan Party, the acquisition of such Loan Party
by such surviving Restricted Subsidiary is otherwise permitted under Section 7.03;
(ii) any
Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that
is not a Loan Party and any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good
faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and would not reasonably be expected
to result in a Material Adverse Effect;
(iii) any
Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (upon voluntary liquidation
or otherwise) to another Restricted Subsidiary; provided, however, that if the transferor in such a transaction
is a U.S. Loan Party, then (A) the transferee must be a U.S. Loan Party, (B) to the extent constituting an Investment, such
Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.03,
or (C) to the extent constituting a sale, transfer, lease or other disposition to a Restricted Subsidiary that is not a Loan Party,
such sale, transfer, lease or other disposition is for fair market value and any promissory note or other non-cash consideration received
in respect thereof is a permitted Investment in a Subsidiary that is not a Loan Party in accordance with Section 7.03;
(iv) so
long as no Default exists or would result therefrom, the Borrower may merge, amalgamate or consolidate with any other Person; provided,
however, that the Borrower shall be the continuing or surviving Person;
(v) any
Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant
to Section 7.03; provided, however, that if the continuing or surviving Person shall be a Restricted
Subsidiary, then such Person, together with any of its Subsidiaries that will be Restricted Subsidiaries, shall have complied with the
requirements of Section 6.12 and if the other party to such transaction is not a Loan Party, no Default exists after giving
effect to such transaction; and
(vi) a
Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation or sale, transfer, lease or other disposition
of all or substantially all of its assets to effect a transaction permitted pursuant to Section 7.04(b) and, to the
extent applicable, Section 2.05; provided, however, that if the other party to such transaction
is not a Loan Party, no Default exists after giving effect to such transaction.
(b) Make
any Disposition unless (i) such Disposition is for consideration at least 75% of which is cash (for which purpose, “cash”
shall include (A) up to an aggregate during the term of this Agreement of $10,000,000 of Indebtedness or other liabilities that
are assumed by the purchaser or retained by the obligor thereof (and for which the Borrower and its Restricted Subsidiaries shall thereafter
have no liability with respect thereto) or that are otherwise cancelled, forgiven or terminated in connection with the transaction with
such purchaser, (B) Indebtedness (other than the Secured Obligations), to the extent that such Indebtedness is then secured by a
Lien permitted under Section 7.02 that is then either senior to or pari passu with the Lien then securing the Secured Obligations
on the subject property, that are assumed by the purchaser or retained by the obligor thereof (and for which the Borrower and its Restricted
Subsidiaries shall thereafter have no liability with respect thereto) or that is otherwise cancelled, forgiven or terminated in connection
with the transaction with such purchaser; and (C) any securities received by the Borrower or such other Restricted Subsidiary from
such transferee that are converted by the Borrower or such other Restricted Subsidiary into cash or Cash Equivalents (to the extent of
the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition); and, (ii) no Default
shall have occurred and be continuing or would result from such Disposition, (iii) such consideration is at least equal to the fair
market value of the assets being sold, transferred, leased, swapped or disposed of and (iv) the aggregate fair market value of all
assets Disposed of in reliance upon this Section 7.04(b) shall not exceed (x) $10,000,000 individually (or together
with any series of related Dispositions) and (y) $20,000,000 in the aggregate during the term of this Agreement; provided,
however, that the foregoing restrictions of clauses (i), (ii), (iii) and (iv) of this Section 7.04(b) shall
not apply to: (w) Permitted Transfers, (x) transfers of condemned property as a result of the exercise of “eminent domain”
or other similar policies to the respective Governmental Authority that has condemned such property, transactions in lieu of eminent
domain, and other dedications of property that are required to be made to Governmental Authorities, (y) mergers effected pursuant
to Section 7.04(a), or (z) dispositions of property to the extent that (i) such property is exchanged for credit
against the purchase price of similar replacement property, or (ii) the proceeds of such disposition are reasonably promptly applied
to the purchase price of such replacement property.
7.05 Restricted
Payments; Restrictive Agreements.
(a) Declare
or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise)
to do so; provided, however, that (i) any Restricted Subsidiary may declare and pay dividends or make other distributions
ratably to its equity holders, (ii) the Borrower and the Restricted Subsidiaries may make Restricted Payments in the form of distributions
payable solely in the common stock or other common Equity Interests of such Person, (iii) the Borrower may make Permitted Tax Distributions,
(iv) the Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to exceed $25,000,000
in any fiscal year, so long as (a) immediately after giving effect to such Restricted Payment on a Pro Forma Basis, the Consolidated
Leverage Ratio shall be less than 3.00 to 1.00 and (b) at the time of, and after giving effect to, such Restricted Payment no Default
shall have occurred or be continuing, (v) the Borrower or any Restricted Subsidiary may make any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any Equity Interests in any Restricted Subsidiary, to the extent permitted to be made as an Investment under Section 7.03,
(vi) any Restricted Subsidiary may issue directors’ qualifying shares, and the Borrower and any Restricted Subsidiary may,
if no Default has occurred and is continuing or would exist after giving effect thereto, purchase or otherwise acquire shares of Equity
Interests of the Borrower and any Restricted Subsidiary from employees, former employees, directors or former directors of the Borrower
and such Restricted Subsidiary (or permitted transferees of such employees, former employees, directors or former directors), pursuant
to the terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors
of the Borrower under which such individuals purchase or sell or are granted the option to purchase or sell, shares of such Equity Interests;
provided, however, that the aggregate amount of such repurchases and other acquisitions in any calendar year shall not exceed
the sum of (x) $2,000,000 and (y) the aggregate amount of Restricted Payments permitted (but not made) pursuant to this clause
(vi) in the immediately preceding calendar year (without giving effect to this clause (y)), (vii) repurchases of Equity Interests
deemed to occur upon exercise of stock options, warrants or other similar rights if such Equity Interests represents a portion of the
exercise price of such options, warrants or other similar rights, (viii) if no Event of Default shall have occurred and be continuing
or would exist after giving effect thereto, the acquisition of any shares of Qualified Equity Interests of the Borrower either (i) solely
in exchange for other shares of Qualified Equity Interests of the Borrower, or (ii) through the application of net proceeds of a
sale for cash (other than to a Subsidiary of the Borrower) of shares of Qualified Equity Interests of the Borrower within 60 days after
such sale, and (ix) payments or distributions to dissenting stockholders of Equity Interests of the Borrower pursuant to applicable
law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of this Agreement
applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Borrower or any of
its Restricted Subsidiaries.
(b) Enter
into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the
ability of the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets
as security for the Secured Obligations, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions
with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Loan Party or to Guarantee
Indebtedness of the Borrower or any other Loan Party; provided, however, that the foregoing shall not apply
to (A) restrictions and conditions imposed by law or by any Loan Document or an Indebtedness permitted under Section 7.01(a),
(b) or (n), (B) customary restrictions and conditions contained in agreements relating to the sale of a subsidiary
pending such sale; provided, however, that such restrictions and conditions apply only to the subsidiary
that is to be sold and such sale is permitted (or expected to be permitted) hereunder, (C) to restrictions or conditions imposed
by any agreement relating to secured Indebtedness or effecting a refinancing of such Indebtedness permitted hereunder if such restrictions
or conditions apply only to the property or assets securing such Indebtedness, (D) restrictions or conditions imposed by any agreement
relating to unsecured Indebtedness in favor of the Borrower or any Guarantor or effecting a refinancing of such Indebtedness permitted
hereunder, (E) customary provisions in leases and other contracts restricting the assignment thereof, (F) software and other
Intellectual Property licenses pursuant to which the Borrower or any Restricted Subsidiary is the licensee of the relevant software or
Intellectual Property, as the case may be (in which case, any prohibition or limitation shall relate only to the assets subject of the
applicable license), (G) prohibitions and limitations in effect on the date hereof and listed on Schedule 7.05, (H) customary
provisions contained in joint venture agreements and other similar agreements applicable to joint ventures permitted hereby, (I) customary
provisions restricting the subletting or assignment of any lease governing a leasehold interest, (J) customary restrictions and
conditions contained in any agreement relating to an asset sale permitted by Section 6.04, (K) any agreement in effect
at the time any Person becomes a subsidiary of the Borrower or an Guarantor, so long as such agreement was not entered into in contemplation
of such Person becoming a subsidiary of the Borrower or an Guarantor and such agreement relates to such subsidiary and/or its assets
only, (L) to any contractual obligations incurred in the ordinary course of business and on customary terms which limit Liens on
the assets subject to the applicable contractual obligation, (M) restrictions on the transfer of assets subject to any Lien permitted
under this Agreement, (N) restrictions contained in the terms of the Capital Lease Obligations, Synthetic Lease Obligations and
purchase money obligations not incurred in violation of this Agreement; provided, however, that such restrictions
relate only to the assets financed with such Indebtedness, (O) restrictions in other Indebtedness incurred in compliance with Section 7.01,
provided, however, that such restrictions, taken as a whole, are, in the good faith judgment of the Borrower’s
Board of Directors, no more materially restrictive with respect to such encumbrances and restrictions than those contained in the existing
agreements referenced in clauses (A) and (N) above, (P) restrictions imposed on any Foreign Subsidiary resulting from
the operation of covenants contained in documentation governing Indebtedness of such Foreign Subsidiary permitted under this Agreement,
(Q) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to
in the ordinary course of business, or (R) an agreement governing Indebtedness incurred to refinance the Indebtedness issued, assumed
or incurred pursuant to an agreement referred to in clauses (A) and (N) above and otherwise permitted; provided,
however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less
favorable to or more restrictive on the Borrower in any material respect as determined by the Board of Directors of the Borrower in their
reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to
in such clauses (A) and (N) above.
7.06 Transactions
with Affiliates.
Except for transactions between
or among Loan Parties, sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage
in any other transactions with, any of its Affiliates (other than Affiliated Lenders in connection with the Loan Documents), except that
(i) the Borrower or any Restricted Subsidiary may engage in any of the foregoing transactions in the ordinary course of business
on terms and conditions not less favorable to the Borrower or such Restricted Subsidiary than could be obtained on an arm’s-length
basis from unrelated third parties, (ii) the Borrower or any Restricted Subsidiaries may engage in any of the foregoing transactions,
whether or not in the ordinary course of business, if such transactions are on terms and conditions not less favorable to the Borrower
or such Restricted Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, and: (1) such
transaction, together with any related transactions, involves consideration of less than $5,000,000; or (2) such transaction, together
with any related transactions, involves consideration of at least $5,000,000 (inclusive), and has been approved by a majority of the
disinterested members of the Borrower’s board of directors, (iii) the Borrower and the Restricted Subsidiaries may engage
in transactions permitted by Sections 7.03(h), 7.04 (other than 7.04(a)(v)) and/or 7.05, (iv) the Borrower
and any Restricted Subsidiary may provide indemnification rights and directors’ and officers’ liability insurance coverage
to any of its or its subsidiaries’ directors and officers similar to those currently in effect or containing reasonable additional
indemnification rights, (v) Affiliates may make contemporaneous purchase and/or sales of Equity Interests of the Borrower, (vi) any
agreement as in effect as of the Closing Date and any amendment, consent, waiver or other modification with respect thereto or replacement
agreement thereto so long as any such amendment, consent, waiver or other modification with respect thereto or replacement agreement
thereto is not more disadvantageous to the Lenders when taken as a whole as compared to the original agreement as in effect on the Closing
Date, (vii) the Borrower and the Restricted Subsidiaries may engage in intercompany transactions among each other permitted by Sections
7.01(c) and (g), Section 7.02(r), Section 7.03 and Section 7.04(a)(v) and (viii) the
Borrower and its Subsidiaries may enter into a tax sharing agreement with any Affiliates of the Borrower.
7.07 Business
of the Borrower and the Restricted Subsidiaries.
Neither the Borrower nor
any Restricted Subsidiary shall engage at any time in any business or business activity other than a Permitted Business.
7.08 Other
Indebtedness and Agreements.
(a) Permit
(i) any waiver, supplement, modification, amendment, termination or release of any indenture, instrument or agreement pursuant to
which any Material Indebtedness of the Borrower or any of the Restricted Subsidiaries is outstanding if the effect of such waiver, supplement,
modification, amendment, termination or release would be materially adverse to the Lenders or would result in such Material Indebtedness
not to be permitted hereunder on the terms resulting from such modification, or (ii) any material waiver, supplement, modification
or amendment of (x) Organization Document, (y) an agreement set forth on Schedule 7.08(a), or (z) any lease
between the Borrower or a Guarantor and an Affiliate of the Borrower or such Guarantor that has the effect of increasing the rental amounts
payable thereunder, in the case of clause (y) or (z), to the extent any such waiver, supplement, modification or amendment would
be adverse to the Lenders (in their capacities as Lenders) in any material respect, and in the case of clause (x), to the extent any
such waiver, supplement, modification or amendment would materially adverse to the Secured Parties.
(b) Make
(or give any notice in respect thereof) any payment or prepayment of principal on or redemption, repurchase, defeasance or acquisition
for value of, or any prepayment or redemption as a result of any asset sale, change of control or similar event of, any Indebtedness
outstanding under any Subordinated Indebtedness, junior lien or unsecured Indebtedness, except (i) any payment of principal at scheduled
maturity, (ii) a refinancing permitted by Section 7.01(a), (iii) any payment to the extent made with Qualified
Equity Interests of the Borrower or with the proceeds from the substantially concurrent sale of any Qualified Equity Interests of the
Borrower, (iv) any refinancing of Permitted Unsecured Debt with other Permitted Unsecured Debt, Subordinated Indebtedness or Equity
Issuances (in the case of any Permitted Unsecured Debt or Subordinated Indebtedness, only to the extent the same is permitted to be incurred
in accordance with Section 7.01), or (v) any payment required in connection with customary offers to repurchase upon
an Disposition or a “change of control” or similar provision.
7.09 Fiscal
Year.
With respect to the Borrower,
change its fiscal year-end to a date other than December 31.
7.10 Sale
and Leaseback Transaction.
Enter into any arrangement,
directly or indirectly, in any Sale and Leaseback Transaction unless (a) the sale or transfer of such property is permitted by Section 7.04
and such arrangement is consummated for fair value as determined at the time of consummation in good faith by the Borrower (which determination
may take into account any retained interest or other investment of the Borrower or its Restricted Subsidiaries in connection with, and
any other material economic terms of, such arrangement), and (b) any Capital Lease Obligations or Synthetic Lease Obligations or
Liens arising in connection therewith are permitted by Sections 7.01 and 7.02, as the case may be.
7.11 Financial
Covenants.
(a) Consolidated
Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any Measurement Period ending as of the end of any fiscal
quarter of the Borrower set forth below to be greater than the ratio set forth below opposite such period:
| Measurement
Period Ending |
Maximum
Consolidated
Leverage Ratio |
| Closing
Date through March 31, 2021 |
4.00
to 1.00 |
| June 30,
2021 through March 31, 2022 |
3.75
to 1.00 |
June 30,
2022 and each fiscal quarter
thereafter |
3.50
to 1.00 |
(b) Consolidated
Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any Measurement Period ending as
of the end of any fiscal quarter of the Borrower ending after the Closing Date to be less than 1.20 to 1.00.
7.12 Sanctions.
Directly or indirectly, use
any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make available such Credit Extension or
the proceeds of any Credit Extension to any Person, to fund any activities of or business with any Person, that, at the time of such
funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person of Sanctions.
7.13 Anti-Corruption
Laws.
Directly or indirectly, use
any Credit Extension or the proceeds of any Credit Extension for any purpose which would breach the United States Foreign Corrupt Practices
Act of 1977, the UK Bribery Act 2010 and other similar anti-corruption legislation in other jurisdictions.
7.14 Negative
Pledge on Owned Real Property.
Except for Liens permitted
by Section 7.02 and transactions permitted by Section 7.04, Borrower shall not permit any party to sell, transfer,
assign, mortgage, pledge, lease, grant a security interest in or otherwise encumber any real property owned by any U.S. Loan Party to
an unaffiliated third party without the prior written consent of the Administrative Agent.
Article VIII
EVENTS
OF DEFAULT AND REMEDIES
8.01 Events
of Default.
In case of the happening of any of the following
events first occurring on or after the Closing Date (each, an “Event of Default”):
(a) any
representation or warranty made or deemed made by any Loan Party to any Lender, the Administrative Agent or the Administrative Agent
in or in connection with any Loan Document, or any representation, warranty made or deemed to be made in any report, certificate, financial
statement or other instrument required to be delivered by any Loan Document, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;
(b) default
shall be made in the payment of any principal of any Loan or any L/C Obligation or deposit any funds as Cash Collateral in respect of
L/C Obligations when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise;
(c) default
shall be made in the payment of any interest on any Loan or on any L/C Obligation or any fee or any other amount (other than an amount
referred to in (b) above) due and payable under any Loan Document, when and as the same shall become due and payable, and such default
shall continue unremedied for a period of five Business Days;
(d) default
shall be made in the due observance or performance by the Borrower or any Restricted Subsidiary of any covenant, condition or agreement
contained in (i) Section 6.01(a), 6.02, 6.04(g), 6.05(a), 6.08, 6.14, 6.16,
6.17 or in Article VII, or (ii) Sections 6.04(a), (b) or (d) and such default
shall continue unremedied for a period of five (5) days;
(e) default
shall be made in the due observance or performance by the Borrower or any Restricted Subsidiary of any covenant, condition or agreement
contained in any Loan Document (other than those specified in (b), (c) or (d) above) and such default shall continue unremedied
for a period of thirty (30) days after notice thereof from the Administrative Agent or any Lender to the Borrower;
(f) the
Borrower or any Restricted Subsidiary (i) shall fail to pay any principal or interest due in respect of any Material Indebtedness,
when and as the same shall become due and payable or (ii) default in the observance or performance of any other agreement or condition
relating to any Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or
beneficiary of such Material Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of
notice if required, such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided, however, that (x) clause (ii) of this clause (f) shall
not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such
Indebtedness, and (y) this clause (f) shall not apply to Material Indebtedness in respect of purchase money or vendor financing
if such failure is a result of a good faith dispute with the holders of such Indebtedness and such failure is remedied or waived by the
holders of such Indebtedness;
(g) one
or more unstayed judgments shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof for a liability
(not partially or fully covered by insurance or effective indemnity) and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of the Borrower or any Restricted Subsidiary to enforce any such judgment and such judgment either (i) is for
the payment of money in an aggregate amount in excess of $7,500,000 (to the extent not adequately covered by insurance (less any deductible)
in respect of which a solvent, unaffiliated and reputable insurance company has not denied coverage in writing), or (ii) is for
injunctive relief and would reasonably be expected to result in a Material Adverse Effect;
(h) any
Guarantee for any reason shall cease to be in full force and effect (other than in accordance with its terms), or any Guarantor shall
deny in writing that it has any further liability under the Guaranty (other than as a result of the discharge of such Guarantor in accordance
with the terms of the Loan Documents);
(i) at
any time (i) the Security Agreement with respect to any Guarantor for any reason, other than the satisfaction in full of all Obligations,
shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void or any
Guarantor shall repudiate its obligations thereunder, (ii) this Agreement, any Collateral Document or any other Loan Document ceases
to be in full force and effect (other than by reason of the satisfaction in full of the Obligations in accordance with the terms hereof)
or shall be declared null and void, or the Administrative Agent shall not have or shall cease to have a valid and perfected Lien in any
Collateral purported to be covered by the Collateral Documents, or (iii) any Loan Party shall contest the validity or enforceability
of any Loan Document, or the Liens and claim priorities provided for in the Loan Documents, in writing or deny in writing that it has
any further liability, including with respect to future advances by Lenders, under any Loan Document;
(j) an
involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of the Borrower, any Material Subsidiary that is a Restricted Subsidiary, or of a substantial part of the property or assets
of the Borrower, any Material Subsidiary that is a Restricted Subsidiary, under the Bankruptcy Code, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower, any Material Subsidiary that is a Restricted Subsidiary or for a substantial part of the property
or assets of the Borrower, any Material Subsidiary that is a Restricted Subsidiary, or (iii) the winding-up or liquidation of the
Borrower, any Material Subsidiary that is a Restricted Subsidiary; and in each case such proceeding or petition shall continue uncontroverted
within 30 days after commencement of the case or undismissed, unbonded or undischarged for 60 days after commencement of the case or
an order or decree approving or ordering any of the foregoing shall be entered;
(k) the
Borrower, any Material Subsidiary that is a Restricted Subsidiary shall (i) voluntarily commence any proceeding or file any petition
seeking relief under the Bankruptcy Code, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a reasonably timely and appropriate manner, any proceeding or the filing
of any petition described Section 8.01(j), (iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower, any Material Subsidiary that is a Restricted Subsidiary, (iv) file
an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors, (vi) generally become unable, admit in writing its inability or fail generally to pay its debts as
they become due, or (vii) take any action for the purpose of effecting any of the foregoing;
(l) a
Change of Control shall occur;
(m) the
Loan Purchase Agreement for any reason shall cease to be in full force and effect (other than in accordance with its terms), or AEPC
shall deny in writing that it has any further liability under the Loan Purchase Agreement (other than as a result of the discharge of
AEPC in accordance with the terms of the Loan Purchase Agreement), or default shall be made in the due observance or performance by AEPC
of any covenant or agreement contained in the Loan Purchase Agreement; or
(n) there
shall occur one or more ERISA Events, which individually or in the aggregate results in or would reasonably be expected to result in
a Material Adverse Effect.
Without limiting the provisions
of Article VIII, if a Default shall have occurred under the Loan Documents, then such Default will continue to exist until
it either is cured (to the extent specifically permitted) in accordance with the Loan Documents or is otherwise expressly waived by Administrative
Agent (with the approval of requisite Appropriate Lenders (in their sole discretion)) as determined in accordance with Section 11.01;
and once an Event of Default occurs under the Loan Documents, then such Event of Default will continue to exist until it is expressly
waived by the Required Lenders or by the Administrative Agent with the approval of the Required Lenders, as required hereunder in Section 11.01.
8.02 Remedies
upon Event of Default
If any Event of Default occurs
and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or
all of the following actions:
(a) declare
the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon
such commitments and obligation shall be terminated;
(b) declare
the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived by the Borrower;
(c) require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto);
and
(d) exercise
on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the
Loan Documents or Applicable Law or equity;
provided,
however, that upon the occurrence of an event described in Section 8.01(j) or Section 8.01(k) with
respect to the Borrower, the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions
shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any Lender.
8.03 Application
of Funds.
(a) After
the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable
and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02),
any amounts received on account of the Secured Obligations shall, subject to the provisions of Sections 2.14 and 2.15,
be applied by the Administrative Agent in the following order:
First,
to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges
and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;
Second,
to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts (other than principal, interest
and Letter of Credit Fees) payable to the Lenders, the Foreign Obligation Providers and the L/C Issuer (including fees, charges and disbursements
of counsel to the respective Lenders, the Foreign Obligation Providers and the L/C Issuer (including fees and time charges for attorneys
who may be employees of any Lender or the L/C Issuer)) arising under the Loan Documents and the Foreign Obligation Loan Documents and
amounts payable under Article III, ratably among them in proportion to the respective amounts described in this Second
clause payable to them;
Third,
to payment of that portion of the Secured Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans,
L/C Borrowings and other Secured Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuer in proportion
to the respective amounts described in this Third clause payable to them;
Fourth,
to payment of that portion of the Secured Obligations constituting unpaid principal of the Loans, L/C Borrowings and Secured Obligations
then owing under Secured Hedge Agreements and Secured Cash Management Agreements and to the to the Administrative Agent for the account
of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit
to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.14 and to the Foreign Obligation
Providers, to cash collateralize undrawn contingent liability obligations owing to such Foreign Obligation Provider under the Foreign
Obligation Loan Documents to the extent not otherwise cash collateralized by the applicable Foreign Subsidiary, in each case ratably
among the Administrative Agent, the Lenders, the Foreign Obligation Providers, the L/C Issuer, the Hedge Banks and the Cash Management
Banks in proportion to the respective amounts described in this Fourth clause held by them; and
Last,
the balance, if any, after all of the Secured Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required
by Law.
(b) Subject
to Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit
pursuant to the Fourth clause above shall be applied to satisfy drawings under such Letters of Credit as they occur. If
any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Secured Obligations, if any, in the order set forth above. Excluded Swap Obligations with respect
to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made
with respect to payments from other Loan Parties to preserve the allocation to Secured Obligations otherwise set forth above in this
Section 8.03.
(c) Notwithstanding
the foregoing, Secured Obligations arising under Secured Cash Management Agreements, Foreign Obligation Loan Documents and Secured Hedge
Agreements shall be excluded from the application described above if the Administrative Agent has not received a Secured Party Designation
Notice, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank,
Foreign Obligation Provider or Hedge Bank, as the case may be. Each Cash Management Bank, Foreign Obligation Provider or Hedge Bank not
a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged
and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX for itself and its Affiliates
as if a “Lender” party hereto.
Article IX
ADMINISTRATIVE
AGENT
9.01 Appointment
and Authority.
(a) Appointment.
Each of the Lenders and the L/C Issuer hereby irrevocably appoints, designates and authorizes Bank of America to act on its behalf as
the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article IX are solely for the benefit of
the Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third
party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any
other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead such term is used as a matter
of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. In addition,
to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders and Secured Parties
hereby grants to the Administrative Agent any required powers of attorney to execute any Collateral Document or other Loan Document governed
by the laws of such jurisdiction on such Lender’s or Secured Party’s behalf.
(b) Administrative
Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders
(including in its capacities as a Lender, a potential Hedge Bank, a potential Foreign Obligation Provider, Swingline Lender, and a potential
Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such
Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan
Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this
connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed
by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or
any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of
the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article XI
(including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent”
under the Loan Documents) as if set forth in full herein with respect thereto.
9.02 Rights
as a Lender.
The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind of banking, trust, financial, advisory, underwriting or
other business with any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders or to provide notice to or consent of the Lenders with respect thereto.
9.03 Exculpatory
Provisions.
(a) The
Administrative Agent or the Arrangers, as applicable, shall not have any duties or obligations except those expressly set forth herein
and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing,
the Administrative Agent or the Arrangers, as applicable, and its Related Parties:
(i) shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(ii) shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided, however, that the Administrative Agent shall not be required to take any action that, in its opinion
or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable
Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that
may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(iii) shall
not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender or the L/C Issuer
any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness
of any of the Loan Parties or any of their Affiliates that is communicated to, or in the possession of, the Administrative Agent, Arrangers
or any of their Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent herein.
(b) Neither
the Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by the Administrative Agent
under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby or thereby (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary), or as
the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01
and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent
jurisdiction by final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless
and until notice describing such Default is given in writing to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.
(c) Neither
the Administrative Agent nor any of its Related Parties have any duty or obligation to any Lender or participant or any other Person
to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien
purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
(d) Neither
the Administrative Agent nor any of its Related Parties shall be responsible or have any liability for, or have any duty to ascertain,
inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting
the generality of the foregoing, the Administrative Agent shall not (i) be obligated to ascertain, monitor or inquire
as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (ii) have
any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information,
to any Disqualified Institution.
9.04 Reliance
by Administrative Agent.
The Administrative Agent
shall be entitled to rely upon, and shall be fully protected in relying and shall not incur any liability for relying upon, any notice,
request, certificate, communication, consent, statement, instrument, document or other writing (including any electronic message, Internet
or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it
to have been made by the proper Person, and shall be fully protected in relying and shall not incur any liability for relying thereon.
In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a
Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may
presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice
to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative
Agent may consult with legal counsel (who may be counsel for the Loan Parties), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts. For purposes of determining compliance with the conditions specified in Section 4.01, each Lender that has signed
this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objections.
9.05 Delegation
of Duties.
The Administrative Agent
may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any
one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all
of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article IX
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the Facilities as well as activities as Administrative Agent. The Administrative
Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction
determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in
the selection of such sub-agents.
9.06 Resignation
of Administrative Agent.
(a) Notice.
The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt
of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no
such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days
after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders)
(the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated
to) on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above;
provided, however, that in no event shall any successor Administrative Agent be a Defaulting Lender or a
Disqualified Institution. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such
notice on the Resignation Effective Date.
(b) Defaulting
Lender. If the Person serving as the Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof,
the Required Lenders may, to the extent permitted by applicable Law, by notice in writing to the Borrower and such Person remove such
Person as the Administrative Agent and, with the consent of the Borrower, which consent shall not be unreasonably withheld, conditioned
or delayed(which Borrowers consent shall not be required if an Event of Default has occurred and is continuing), appoint a successor.
If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30)
days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then
such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c) Effect
of Resignation or Removal. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the
retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents
(except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under
any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time
as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments or other amounts then owed to the retiring
or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative
Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time, if any, as the Required Lenders appoint
a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent
hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or
removed Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to indemnity payments
or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date), and the retiring or removed
Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section 9.06). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the
retiring or removed Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article XI
and Section 11.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (A) while the retiring
or removed Administrative Agent was acting as Administrative Agent and (B) after such resignation or removal for as long as any
of them continues to act in any capacity hereunder or under the other Loan Documents, including, without limitation, (1) acting
as collateral agent or otherwise holding any collateral security on behalf of any of the Secured Parties and (2) in respect of any
actions taken in connection with transferring the agency to any successor Administrative Agent.
(d) L/C
Issuer and Swingline Lender. Any resignation by Bank of America as Administrative Agent pursuant to this Section 9.06
shall also constitute its resignation as L/C Issuer and Swingline Lender. If Bank of America resigns as the L/C Issuer, it shall retain
all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as the L/C Issuer and all L/C Obligations with respect thereto, including the right to require the
Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c). If Bank
of America resigns as the Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect
to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the
appointment by the Borrower of a successor L/C Issuer or Swingline Lender hereunder (which successor shall in all cases be a Lender other
than a Defaulting Lender), (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring L/C Issuer or Swingline Lender, as applicable, (ii) the retiring L/C Issuer and Swingline Lender shall be
discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor
L/C Issuer shall issue Letters of Credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession
or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such
Letters of Credit.
9.07 Non-Reliance
on Administrative Agent, the Arrangers and the Other Lenders.
Each Lender and the L/C Issuer
expressly acknowledges that none of the Administrative Agent nor any Arranger has made any representation or warranty to it, and that
no act by the Administrative Agent or such Arranger hereafter taken, including any consent to, and acceptance of any assignment or review
of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative
Agent or such Arranger to any Lender or the L/C Issuer as to any matter, including whether the Administrative Agent or such Arranger
have disclosed material information in their (or their Related Parties’) possession. Each Lender and the L/C Issuer represents
to the Administrative Agent and each Arranger that it has, independently and without reliance upon the Administrative Agent, such Arranger,
any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own
credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition
and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender
and the L/C Issuer also acknowledge that it will, independently and without reliance upon the Administrative Agent, any Arranger, any
other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate,
continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness
of the Loan Parties. Each Lender and the L/C Issuer represents and warrants that (i) the Loan Documents set forth the terms of a
commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is
entering into this Agreement as a Lender or L/C Issuer for the purpose of making, acquiring or holding commercial loans and providing
other facilities set forth herein as may be applicable to such Lender or L/C Issuer, and not for the purpose of purchasing, acquiring
or holding any other type of financial instrument, and each Lender and the L/C Issuer agree not to assert a claim in contravention of
the foregoing. Each Lender and the L/C Issuer represents and warrants that it is sophisticated with respect to decisions to make, acquire
and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such L/C Issuer,
and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide
such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities.
9.08 No
Other Duties, Etc.
Anything herein to the contrary
notwithstanding, none of the titles listed on the cover page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, an Arranger, a Lender
or the L/C Issuer hereunder.
9.09 Administrative
Agent May File Proofs of Claim; Credit Bidding.
(a) In
case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative
Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered,
by intervention in such proceeding or otherwise:
(i) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(h) and (i), 2.09,
2.10(b) and 11.04) allowed in such judicial proceeding; and
(ii) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the
L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making
of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative
Agent under Sections 2.09, 2.10(b) and 11.04.
(b) Nothing
contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the
rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C
Issuer or in any such proceeding.
(c) The
Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or
any portion of the Secured Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Secured
Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more
acquisition vehicles) all or any portion of the Collateral (i) at any sale thereof conducted under the provisions of the Bankruptcy
Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws
in any other jurisdictions to which a Loan Party is subject, (ii) at any other sale or foreclosure or acceptance of collateral in
lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise)
in accordance with any Applicable Law. In connection with any such credit bid and purchase, the Secured Obligations owed to the Secured
Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Secured Obligations with respect to contingent or
unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of
such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests)
in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used
to consummate such purchase). In connection with any such bid (A) the Administrative Agent shall be authorized to form one or more
acquisition vehicles to make a bid, (B) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided,
however, that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any
disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders,
irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained
in clauses (a) through (d) of Section 11.01 of this Agreement), and (C) to the extent that Secured
Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid
being higher or better, because the amount of Secured Obligations assigned to the acquisition vehicle exceeds the amount of debt credit
bid by the acquisition vehicle or otherwise), such Secured Obligations shall automatically be reassigned to the Lenders pro rata
and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Secured Obligations that had been
assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle
to take any further action.
9.10 Collateral
and Guaranty Matters.
(a) Each
of the Lenders (including in its capacities as a potential Cash Management Bank, potential Foreign Obligation Provider and a potential
Hedge Bank) and the L/C Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion,
(i) to
release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the Facility Termination
Date, (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale
or other disposition or other transaction permitted hereunder or under any other Loan Document, (iii) that constitutes Excluded
Property, or (iv) if approved, authorized or ratified in writing by the Required Lenders in accordance with Section 11.01;
(ii) to
subordinate or release any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder
of any Lien on such property that is permitted by Sections 7.02(e), (h), (j) and (u);
(iii) to
release any Guarantor from its obligations under the Guaranty and any other Loan Document if such Person ceases to be a Restricted Subsidiary
as a result of a transaction permitted under the Loan Documents;
(iv) to
release any Lien granted to or held by the Administrative Agent under the Loan Documents on the Equity Interests of any Unrestricted
Subsidiary; and
(v) to
enter into and perform each intercreditor or subordination agreement contemplated herein.
(b) Upon
request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority
to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under
the Guaranty pursuant to this Section 9.10. In each case as specified in this Section 9.10, the Administrative
Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably
request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents
or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance
with the terms of the Loan Documents and this Section 9.10.
(c) The
Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding
the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien
thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or
liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
9.11 Secured
Cash Management Agreements and Secured Hedge Agreements
Except as otherwise expressly
set forth herein in the Guaranty or any Collateral Document, no Cash Management Bank, Foreign Obligation Provider or Hedge Bank that
obtains the benefit of the provisions of Section 8.03, the Guaranty or any Collateral by virtue of the provisions hereof
or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or
under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to
notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document)
other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding
any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment
of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management
Agreements, Foreign Obligation Loans Documents and Secured Hedge Agreements except to the extent expressly provided herein and unless
the Administrative Agent has received a Secured Party Designation Notice of such Secured Obligations, together with such supporting documentation
as the Administrative Agent may request, from the applicable Cash Management Bank, Foreign Obligation Provider or Hedge Bank, as the
case may be. The Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been
made with respect to, Secured Obligations arising under Secured Cash Management Agreements, Foreign Obligation Loans Documents and Secured
Hedge Agreements in the case of a Facility Termination Date.
9.12 Certain
ERISA Matters.
(a) Each
Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the
date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative
Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following
is and will be true:
(i) such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit
Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters
of Credit, the Commitments, or this Agreement,
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84–14 (a class exemption for certain transactions determined by
independent qualified professional asset managers), PTE 95–60 (a class exemption for certain transactions involving insurance company
general accounts), PTE 90–1 (a class exemption for certain transactions involving insurance company pooled separate accounts),
PTE 91–38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96–23 (a class exemption
for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation
in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii) (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE
84–14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into,
participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies
the requirements of sub-sections (b) through (g) of Part I of PTE 84–14 and (D) to the best knowledge of such
Lender, the requirements of subsection (a) of Part I of PTE 84–14 are satisfied with respect to such Lender’s
entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and
such Lender.
(b) In
addition, unless either (1) clause (i) in the immediately preceding clause (a) is true with respect to a
Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with clause (iv) in
the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became
a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases
being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit
of the Borrower or any other Loan Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved
in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments
and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement,
any Loan Document or any documents related hereto or thereto).
Article X
CONTINUING
GUARANTY
10.01 Guaranty.
Each Guarantor hereby absolutely
and unconditionally, jointly and severally guarantees, as primary obligor and as a guaranty of payment and performance and not merely
as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or
otherwise, and at all times thereafter, of any and all Secured Obligations (for each Guarantor, subject to the proviso in this sentence,
its “Guaranteed Obligations”); provided, however, that (a) the Guaranteed Obligations of a Guarantor
shall exclude any Excluded Swap Obligations with respect to such Guarantor and (b) the liability of each Guarantor individually
with respect to this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations
hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any
applicable state law or other Applicable Law. Without limiting the generality of the foregoing, the Guaranteed Obligations shall include
any such indebtedness, obligations, and liabilities, or portion thereof, which may be or hereafter become unenforceable or compromised
or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any debtor under any Debtor Relief Laws.
The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action
or proceeding, and shall be binding upon each Guarantor, and conclusive for the purpose of establishing the amount of the Secured Obligations.
This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Secured Obligations or any instrument
or agreement evidencing any Secured Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent
of any collateral therefor, or by any fact or circumstance relating to the Secured Obligations which might otherwise constitute a defense
to the obligations of the Guarantors, or any of them, under this Guaranty, and each Guarantor hereby irrevocably waives any defenses
it may now have or hereafter acquire in any way relating to any or all of the foregoing.
10.02 Rights
of Lenders
Each Guarantor consents and
agrees that the Secured Parties may, at any time and from time to time, without notice or demand, and without affecting the enforceability
or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for
payment or the terms of the Secured Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to
perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Secured Obligations; (c) apply such
security and direct the order or manner of sale thereof as the Administrative Agent, the L/C Issuer and the Lenders in their sole discretion
may determine; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Secured Obligations.
Without limiting the generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any action which might
in any manner or to any extent vary the risks of such Guarantor under this Guaranty or which, but for this provision, might operate as
a discharge of such Guarantor.
10.03 Certain
Waivers
Each Guarantor waives (a) any
defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause
whatsoever (including any act or omission of any Secured Party) of the liability of the Borrower or any other Loan Party; (b) any
defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower or any other
Loan Party; (c) the benefit of any statute of limitations affecting any Guarantor’s liability hereunder; (d) any right
to proceed against the Borrower or any other Loan Party, proceed against or exhaust any security for the Secured Obligations, or pursue
any other remedy in the power of any Secured Party whatsoever; (e) any benefit of and any right to participate in any security now
or hereafter held by any Secured Party; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that
may be derived from or afforded by Applicable Law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly
waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance,
protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the
Secured Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional
Secured Obligations.
10.04 Obligations
Independent
The obligations of each Guarantor
hereunder are those of primary obligor, and not merely as surety, and are independent of the Secured Obligations and the obligations
of any other guarantor, and a separate action may be brought against each Guarantor to enforce this Guaranty whether or not the Borrower
or any other person or entity is joined as a party.
10.05 Subrogation
No Guarantor shall exercise
any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty
until all of the Secured Obligations and any amounts payable under this Guaranty have been indefeasibly paid and performed in full and
the Commitments and the Facilities are terminated. If any amounts are paid to a Guarantor in violation of the foregoing limitation, then
such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties to reduce
the amount of the Secured Obligations, whether matured or unmatured.
10.06 Termination;
Reinstatement
This Guaranty is a continuing
and irrevocable guaranty of all Secured Obligations now or hereafter existing and shall remain in full force and effect until the Facility
Termination Date. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may
be, if any payment by or on behalf of the Borrower or a Guarantor is made, or any of the Secured Parties exercises its right of setoff,
in respect of the Secured Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of the Secured
Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor
Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Secured Parties
are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The
obligations of each Guarantor under this Section 10.06 shall survive termination of this Guaranty.
10.07 Stay
of Acceleration
If acceleration of the time
for payment of any of the Secured Obligations is stayed, in connection with any case commenced by or against a Guarantor or the Borrower
under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by each Guarantor, jointly and severally, immediately
upon demand by the Secured Parties.
10.08 Condition
of Borrower
Each Guarantor acknowledges
and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrower and any other guarantor such
information concerning the financial condition, business and operations of the Borrower and any such other guarantor as such Guarantor
requires, and that none of the Secured Parties has any duty, and such Guarantor is not relying on the Secured Parties at any time, to
disclose to it any information relating to the business, operations or financial condition of the Borrower or any other guarantor (each
Guarantor waiving any duty on the part of the Secured Parties to disclose such information and any defense relating to the failure to
provide the same).
10.09 Appointment
of Borrower
Each of the Loan Parties
hereby appoints the Borrower to act as its agent for all purposes of this Agreement, the other Loan Documents and all other documents
and electronic platforms entered into in connection herewith and agrees that (a) the Borrower may execute such documents and provide
such authorizations on behalf of such Loan Parties as the Borrower deems appropriate in its sole discretion and each Loan Party shall
be obligated by all of the terms of any such document and/or authorization executed on its behalf, (b) any notice or communication
delivered by the Administrative Agent, L/C Issuer or a Lender to the Borrower shall be deemed delivered to each Loan Party and (c) the
Administrative Agent, L/C Issuer or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument or agreement
executed by the Borrower on behalf of each of the Loan Parties.
10.10 Right
of Contribution
The Guarantors agree among
themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against the other Guarantors
as permitted under Applicable Law.
10.11 Keepwell.
Each Loan Party that is a
Qualified ECP Guarantor at the time the Guaranty or the grant of a Lien under the Loan Documents, in each case, by any Specified Loan
Party becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably
undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed
by such Specified Loan Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation
(but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP
Guarantor’s obligations and undertakings under this Article X voidable under Applicable Law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor
under this Section 10.11 shall remain in full force and effect until the Secured Obligations have been indefeasibly paid
and performed in full. Each Loan Party intends this Section 10.11 to constitute, and this Section 10.11 shall
be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit
of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
Article XI
MISCELLANEOUS
11.01 Amendments,
Etc.
(a) Subject
to Section 3.03(c) and the last paragraph of this Section 11.01(a), no amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall
be effective unless in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders)
and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver
or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however,
that no such amendment, waiver or consent shall:
(i) extend
or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written
consent of such Lender (it being understood and agreed that a waiver of any condition precedent in Section 4.02 or of any
Default or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender);
(ii) postpone
any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest,
fees or other amounts due to the Lenders (or any of them) hereunder or under such other Loan Document without the written consent of
each Lender entitled to such payment;
(iii) reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (D) of the
second proviso to this Section 11.01) any fees or other amounts payable hereunder or under any other Loan Document without
the written consent of each Lender entitled to such amount; provided, however, that only the consent of the
Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the
Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend or waive any financial covenant hereunder
(or any defined term or component defined term used therein) even if the effect of such amendment or waiver would be to reduce the rate
of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(iv) change
(i) Section 8.03 or Section 2.13 in a manner that would alter the pro rata sharing of payments, the pro
rata application of proceeds, the pro rata reduction of commitments or the order of any waterfall required thereby, in each case, without
the written consent of each Lender, (ii) Section 2.12(f) in a manner that would alter the pro rata application
required thereby without the written consent of each Lender directly affected thereby or (iii) except as permitted under Section 9.10(a)(ii),
subordinate the Liens granted to the Administrative Agent for the benefit of the Lenders as of the Closing Date or subordinate the Secured
Obligations hereunder to any other Indebtedness, in each case without the written consent of each Lender;
(v) change
any provision of this Section 11.01 or the definition of “Required Lenders” or “Required Class Lenders”
or any other provision of any Loan Document specifying the number or percentage of Lenders required to amend, waive or otherwise modify
any rights hereunder or thereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;
(vi) release
all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each
Lender;
(vii) release
all or substantially all of the value of the Guaranty, without the written consent of each Lender, except to the extent the release of
any Subsidiary from the Guaranty is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative
Agent acting alone);
(viii) release
the Borrower or permit the Borrower to assign or transfer any of its rights or obligations under this Agreement or the other Loan Documents
without the consent of each Lender; or
(ix)
directly and materially adversely affect the rights of Lenders holding Commitments or Loans of one
Class differently from the rights of Lenders holding Commitments or Loans of any other Class without the written consent
of the applicable Required Class Lenders;
and provided, further,
that (A) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required
above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued
or to be issued by it; (B) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition
to the Lenders required above, affect the rights or duties of the Swingline Lender under this Agreement; (C) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan Document; and (D) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed only by the parties thereto.
(b) Notwithstanding
anything to the contrary herein, (i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender,
or all Lenders or each affected Lender under a Facility, may be effected with the consent of the applicable Lenders other than Defaulting
Lenders), except that (A) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Defaulting
Lender and (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender, or all Lenders
or each affected Lender under a Facility, that by its terms affects any Defaulting Lender disproportionately adversely relative to other
affected Lenders shall require the consent of such Defaulting Lender; (ii) each Lender is entitled to vote as such Lender sees fit
on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein and (iii) the Required Lenders
shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and
such determination shall be binding on all of the Lenders.
(c) Notwithstanding
anything to the contrary herein, this Agreement may be amended and restated without the consent of any Lender (but with the consent of
the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a
party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated, such Lender shall have no
other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it
or accrued for its account under this Agreement.
(d) Notwithstanding
any provision herein to the contrary, if the Administrative Agent and the Borrower acting together identify any ambiguity, omission,
mistake, typographical error or other defect in any provision of this Agreement or any other Loan Document (including the schedules and
exhibits thereto), then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement such provision to
cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further
action or consent of any other party to this Agreement.
11.02 Notices;
Effectiveness; Electronic Communications.
(a) Notices
Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided
in clause (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or sent by fax transmission or e-mail transmission as follows,
and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:
(i) if
to the Borrower or any other Loan Party, the Administrative Agent, the L/C Issuer or the Swingline Lender, to the address, fax number,
e-mail address or telephone number specified for such Person on Schedule 1.01(a); and
(ii) if
to any other Lender, to the address, fax number, e-mail address or telephone number specified in its Administrative Questionnaire (including,
as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for
the delivery of notices that may contain material non-public information relating to the Borrower).
Notices and other
communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given
when received; notices and other communications sent by fax transmission shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business
Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in clause
(b) below shall be effective as provided in such clause (b).
(b) Electronic
Communications.
(i) Notices
and other communications to the Administrative Agent, the Lenders, the Swingline Lender and the L/C Issuer hereunder may be delivered
or furnished by electronic communication (including e-mail, FPML messaging, and Internet or intranet websites) pursuant to an electronic
communications agreement (or such other procedures approved by the Administrative Agent in its sole discretion); provided, however,
that the foregoing shall not apply to notices to any Lender, the Swingline Lender or the L/C Issuer pursuant to Article II
if such Lender, the Swingline Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article II by electronic communication. The Administrative Agent, the Swingline Lender, the
L/C Issuer or the Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided, however,that approval of such procedures may be limited to particular
notices or communications.
(ii) Unless
the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address shall be deemed received
upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement) and (B) notices and other communications posted to an Internet
or intranet website shall be deemed received by the intended recipient upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function, as available, return e-mail address or other written
acknowledgement) indicating that such notice or communication is available and identifying the website address therefor; provided,
however, that for both clauses (A) and (B), if such notice or other communication is not sent during the normal
business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on
the next Business Day for the recipient.
(c) The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY
FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER
CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative
Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower,
any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of Borrower
Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet.
(d) Change
of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C Issuer and the Swingline Lender may change its address,
fax number or telephone number or e-mail address for notices and other communications hereunder by notice to the other parties hereto.
Each other Lender may change its address, fax number or telephone number or e-mail address for notices and other communications hereunder
by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swingline Lender. In addition, each Lender agrees to notify
the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact
name, telephone number, fax number and e-mail address to which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one (1) individual at or on behalf of such
Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration
screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance
procedures and Applicable Law, including United States federal and state securities Laws, to make reference to Borrower Materials that
are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public
information with respect to the Borrower or its securities for purposes of United States federal or state securities laws.
(e) Reliance
by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including, without limitation, telephonic or electronic notices, Loan Notices, Letter of Credit Applications,
Notice of Loan Prepayment and Swingline Loan Notices) purportedly given by or on behalf of any Loan Party even if (i) such notices
were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein,
or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties shall indemnify
the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by or on behalf of a Loan Party. All telephonic notices to
and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording.
11.03 No
Waiver; Cumulative Remedies; Enforcement.
(a) No
failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided
under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
(b) Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under
the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02
for the benefit of all the Lenders and the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative
Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swingline Lender from exercising the rights and remedies
that inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender, as the case may be) hereunder and under the other
Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms
of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf
during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further,
that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the
Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to
Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and
as authorized by the Required Lenders.
11.04 Expenses;
Indemnity; Damage Waiver.
(a) Costs
and Expenses. The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates (including, but not limited to, (A) the reasonable fees, charges and disbursements of counsel for the Administrative
Agent and its Affiliates and (B) due diligence expenses), in connection with the syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance,
amendment, extension, reinstatement or renewal of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable
and documented out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges
and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), in connection with the enforcement or protection
of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section 11.04,
or (B) in connection with Loans made or Letters of Credit issued hereunder, including all such reasonable and documented out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification
by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer,
and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against,
and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including, without limitation,
the reasonable and documented out-of-pocket fees and disbursements of (x) a single firm as primary counsel for the Administrative
Agent, along with, if reasonably necessary, such local counsel as may be required by the Administrative Agent, and of a single firm of
local counsel in each relevant jurisdiction and (y) a single firm as primary counsel for all the Lenders, along with, if reasonably
necessary, such local counsel as may be required by the Lenders, and of a single firm of local counsel in each relevant jurisdiction,
and in the event of any actual or potential conflict of interest (as reasonably determined by the applicable Persons), one additional
firm of counsel to each group of similarly affected Persons) arising out of, in connection with, or as a result of (i) the execution
or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby
or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration
of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned,
leased or operated by a Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to a Loan Party or any
of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto; provided, however, that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are found in a final,
non-appealable judgment by a court of competent jurisdiction (i) to have resulted from such Indemnitee’s (or any of its Related
Parties’) gross negligence or willful misconduct or any material breach of such Indemnitee’s (or its Related Parties) obligations
hereunder or under any other Loan Document or (ii) to be a dispute solely between and among Indemnitees (other than any claims against
an Indemnitee in its capacity or in fulfilling its role as Administrative Agent or an Arranger) to the extent such claims do not arise
from any act or omission on the part of the Borrower or any of its Subsidiaries. Without limiting the provisions of Section 3.01(c),
this Section 11.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc.
arising from any non-Tax claim.
(c) Reimbursement
by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under clauses (a) or (b) of
this Section 11.04 to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swingline
Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent),
the L/C Issuer, the Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit
Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment
to be made severally among them based on such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought), provided, however, that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or
any such sub-agent), the L/C Issuer or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender in connection with such capacity.
The obligations of the Lenders under this clause (c) are subject to the provisions of Section 2.12(d).
(d) Waiver
of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, each party hereto hereby waives, and acknowledges
that no other Person shall have, any claim against the Administrative Agent (and any sub-agent thereof), each Lender, the Swingline Lender
and the L/C Issuer, and each Related Party of any of the forgoing Persons, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages), except to the extent the same are subject to the indemnity contained in
Section 11.04(b), arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement
or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof. No Indemnitee referred to in clause (b) above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed to such unintended recipients by such Indemnitee or other party hereto through
telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents
or the transactions contemplated hereby or thereby other than for direct or actual damages from the gross negligence or willful misconduct
of such Indemnitee or any of its Related Parties as determined by a final and non-appealable judgement of a court of competent jurisdiction;
provided that nothing in this Section 11.04(d) shall limit the Borrower’s indemnification obligations set
forth in this Agreement.
(e) Payments.
All amounts due under this Section 11.04 shall be payable not later than ten (10) Business Days after demand therefor.
(f) Survival.
The agreements in this Section 11.04 and the indemnity provisions of Section 11.02(e) shall survive the
resignation of the Administrative Agent, the L/C Issuer and the Swingline Lender, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
11.05 Payments
Set Aside.
To the extent that any payment
by or on behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C
Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its reasonable discretion) to be repaid to a trustee, receiver or any other party,
in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not
been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from
time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this Agreement.
11.06 Successors
and Assigns.
(a) Successors
and Assigns Generally. The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit
of the parties hereto and thereto and their respective successors and assigns permitted hereby, except neither the Borrower nor any other
Loan Party may assign or otherwise transfer any of its rights or obligations hereunder (other than in the case of any Loan Party to the
extent expressly permitted under Section 7.04) without the prior written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance
with the provisions of Section 11.06(b), (ii) by way of participation in accordance with the provisions of Section 11.06(d),
or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.06(e) (and
any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in Section 11.06(d) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Assignments
by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including all or a portion of its Commitment(s) and the Loans (including for purposes of
this clause (b), participations in L/C Obligations and in Swingline Loans) at the time owing to it); provided,
however, that (in each case with respect to any Facility) any such assignment shall be subject to the following conditions:
(i) Minimum
Amounts.
(A) in
the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Facility and/or the Loans
at the time owing to it (in each case with respect to any Facility) or contemporaneous assignments to related Approved Funds (determined
after giving effect to such assignments) that equal at least the amount specified in clause (b)(i)(B) of this Section 11.06
in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be
assigned; and
(B) in
any case not described in clause (b)(i)(A) of this Section 11.06, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption,
as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Facility, or $1,000,000,
in the case of any assignment in respect of the Term Facility, unless each of the Administrative Agent and, so long as no Event of Default
has occurred and is continuing, the Borrower otherwise consents in writing (each such consent not to be unreasonably withheld or delayed).
(ii) Proportionate
Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement and the other Loan Documents with respect to the Loans and/or the Commitment assigned, except that
this clause (b)(ii) shall not (A) apply to the Swingline Lender’s rights and obligations in respect of Swingline
Loans or (B) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro
rata basis.
(iii) Required
Consents. No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) of this Section 11.06
and, in addition:
(A) the
consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default
has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or
an Approved Fund; provided, however, that the Borrower shall be deemed to have consented to any such assignment
unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received
notice thereof; and provided, further, that the Borrower’s consent shall not be required during the
primary syndication of the Facilities;
(B) the
consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect
of (1) any unfunded Term Commitment or any Revolving Commitment if such assignment is to a Person that is not a Lender with a Commitment
in respect of the applicable Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (2) any Term
Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and
(C) the
consent of the L/C Issuer and the Swingline Lender shall be required for any assignment in respect of the Revolving Facility.
(iv) Assignment
and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative
Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if
it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No
Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates
(other than Affiliated Lenders) or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, any Disqualified Institution,
or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B) or
(C) to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit
of one or more natural Persons).
(vi) Certain
Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment
shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall
make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate
(which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but
not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (A) pay
and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any Lender
hereunder (and interest accrued thereon) and (B) acquire (and fund as appropriate) its full pro rata share of all Loans and participations
in Letters of Credit and Swingline Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that
any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance
with the provisions of this clause (b)(vi), then the assignee of such interest shall be deemed to be a Defaulting Lender for all
purposes of this Agreement until such compliance occurs.
(vii) Subject
to acceptance and recording thereof by the Administrative Agent pursuant to Section 11.06(c), from and after the effective
date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under
this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01,
3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment);
provided, however, that except to the extent otherwise expressly agreed by the affected parties, no assignment
by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having
been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment
or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (b) shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with
Section 11.06(d).
Notwithstanding the foregoing, any sale
or assignment pursuant to this Section 11.06(b) to any Affiliated Lender shall be made pursuant to an Affiliated Lender
Assignment and Assumption, and otherwise in accordance with the provisions of Section 2.17 and this Section 11.06(b).
(c) Register.
The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for Tax
purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the
equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amounts (and interest amounts) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error,
and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower
and any Lender (with respect to such Lender’s interest only), at any reasonable time and from time to time upon reasonable prior
notice.
(d) Participations.
(i) Any
Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person
(other than a Disqualified Institution, a natural Person, or a holding company, investment vehicle or trust for, or owned and operated
for the primary benefit of one or more natural Persons, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates
or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in
L/C Obligations and/or Swingline Loans) owing to it); provided, however, that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For
the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to
the existence of any participations.
(ii) Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided,
however, that such agreement or instrument may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant.
The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject
to the requirements and limitations therein, including the requirements under Section 3.01(f) (it being understood that
the documentation required under Section 3.01(f) shall be delivered to the Lender who sells the participation)) to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section 11.06;
provided, however, that such Participant (A) shall be subject to the provisions of Sections 3.06
and 11.13 as if it were an assignee under clause (b) of this Section 11.06 and (B) shall not be entitled
to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom
it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater
payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells
a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate
the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 11.08 as though it were a Lender; provided, however, that
such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation
shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address
of each Participant and the principal amounts (and interest amounts) of each Participant’s interest in the Loans or other obligations
under the Loan Documents (the “Participant Register”); provided, however, that
no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant
or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under
any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter
of credit or other obligation is in registered form under Section 5f.103–1(c) of the United States Treasury Regulations.
The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name
is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice
to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility
for maintaining a Participant Register.
(e) Certain
Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
(including under its Note or Notes, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations
to a Federal Reserve Bank; provided, however, that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) Resignation
as L/C Issuer or Swingline Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Revolving Commitment and Revolving Loans pursuant to clause (b) above, Bank of America
may, (i) upon thirty (30) days’ notice to the Administrative Agent, the Borrower and the Lenders, resign as L/C Issuer and/or
(ii) upon thirty (30) days’ notice to the Borrower, resign as Swingline Lender. In the event of any such resignation as L/C
Issuer or Swingline Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swingline Lender
hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect
the resignation of Bank of America as L/C Issuer or Swingline Lender, as the case may be. If Bank of America resigns as L/C Issuer, it
shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding
as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require
the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If
Bank of America resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect
to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the
appointment of a successor L/C Issuer and/or Swingline Lender, (A) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as the case may be, and (B) the successor
L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession
or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such
Letters of Credit.
(g) Disqualified
Institutions.
(i) Notwithstanding
anything to the contrary set forth in this Section 11.06, no assignment or, to the extent the DQ List has been posted on
the Platform for all Lenders, participation shall be made to any Person that was a Disqualified Institution as of the date (the “Trade
Date”) on which the applicable Lender entered into a binding agreement to sell and assign or participate all or a portion
of its rights and obligations under this Agreement to such Person (unless the Borrower has consented to such assignment as otherwise
contemplated by this Section 11.06, in which case such Person will not be considered a Disqualified Institution for the purpose
of such assignment). For the avoidance of doubt, with respect to any assignee or participant that becomes a Disqualified Institution
after the applicable Trade Date (including as a result of the delivery of a notice pursuant to, and/or the expiration of the notice period
referred to in, the definition of “Disqualified Institution”), such assignee shall not retroactively be considered a Disqualified
Institution. Any assignment in violation of this clause (g)(i) shall not be void, but the other provisions of this clause
(g) shall apply.
(ii) If
any assignment is made to any Disqualified Institution without the Borrower’s prior consent in violation of clause (i) above,
the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Institution and the Administrative Agent,
(A) terminate any Revolving Commitment of such Disqualified Institution and repay all obligations of the Borrower owing to such
Disqualified Institution in connection with such Revolving Commitment, (B) in the case of outstanding Term Loans held by Disqualified
Institutions, prepay such Term Loan by paying the lesser of (1) the principal amount thereof and (2) the amount that
such Disqualified Institution paid to acquire such Term Loans, in each case plus accrued interest, accrued fees and all other
amounts (other than principal amounts) payable to it hereunder and under the other Loan Documents and/or (C) require such Disqualified
Institution to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in this Section 11.06),
all of its interest, rights and obligations under this Agreement and related Loan Documents to an Eligible Assignee that shall assume
such obligations at the lesser of (1) the principal amount thereof and (2) the amount that such Disqualified Institution
paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts
(other than principal amounts) payable to it hereunder and other the other Loan Documents; provided, however,
that, (x) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.06(b),
(y) such assignment does not conflict with Applicable Laws and (z) in the case of clause (B), the Borrower shall not
use the proceeds from any Loans to prepay Term Loans held by Disqualified Institutions.
(iii) Notwithstanding
anything to the contrary contained in this Agreement, Disqualified Institutions (A) will not (1) have the right to receive
information, reports or other materials provided to Lenders by the Borrower, the Administrative Agent or any other Lender, (2) attend
or participate in meetings attended by the Lenders and the Administrative Agent, or (3) access any electronic site established for
the Lenders or confidential communications from counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (1) for
purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the
Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Loan
Document, each Disqualified Institution will be deemed to have consented in the same proportion as the Lenders that are not Disqualified
Institutions consented to such matter, and (2) for purposes of voting on any plan of reorganization or plan of liquidation pursuant
to any Debtor Relief Laws (“Plan of Reorganization”), each Disqualified Institution party hereto hereby agrees
(I) not to vote on such Plan of Reorganization, (II) if such Disqualified Institution does vote on such Plan of Reorganization
notwithstanding the restriction in the foregoing clause (I), such vote will be deemed not to be in good faith and shall be “designated”
pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such vote
shall not be counted in determining whether the applicable class has accepted or rejected such Plan of Reorganization in accordance with
Section 1126(c) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (III) not to contest
any request by any party for a determination by the bankruptcy court (or other applicable court of competent jurisdiction) effectuating
the foregoing clause (II).
(iv) The
Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent, to (A) post the
list of Disqualified Institutions provided by the Borrower and any updates thereto from time to time (collectively, the “DQ
List”) on the Platform, including that portion of the Platform that is designated for “public side” Lenders
or (B) provide the DQ List to each Lender requesting the same.
(h) Assignments
to Affiliated Lenders. So long as no Default has occurred and is continuing or would result therefrom, each Term Lender shall have
the right at any time to sell, assign or transfer all or a portion of its Term Commitment or Term Loans (but not Revolving Commitments
or Revolving Loans) owing to it to any Affiliated Lender on a non pro rata basis through open market purchases, in each case subject
to the limitations in Section 2.17 and the following additional limitations:
(i)
each Affiliated Lender, solely in its capacity as a Lender, hereby further agrees, and
each Affiliate Assignment Agreement shall provide a confirmation, that if any Loan Party shall be subject to any voluntary or
involuntary proceeding commenced under any Debtor Relief Law:
(A) each Affiliated Lender shall
not take any step or action (whether directly or indirectly) in such proceeding to object to, impede, or delay the exercise of any right
or the taking of any action by the Administrative Agent (or the taking of any action by a third party that to which the Administrative
Agent has consented with respect to any disposition of assets by Borrower or any equity or debt financing to be made to Borrower), including,
without limitation, the filing of any pleading by the Administrative Agent in (or with respect to any matters related to) the proceeding
so long as the Administrative Agent is not taking any action to treat such Affiliated Lender’s Loans in a manner that is less favorable
to such Affiliated Lender in any material respect than the proposed treatment of similar Obligations held by other Lenders (including,
without limitation, objecting to any debtor-in-possession financing, use of Cash Collateral, grant of adequate protection, sale or disposition,
compromise or plan of reorganization);
(B) the provisions set forth in
this Section 11.06(h), and the related provisions set forth in each Affiliate Assignment Agreement, constitute (x) a “subordination
agreement” as such term is contemplated by, and utilized in, Section 510(a) of the Bankruptcy Code, and, as such, would
be enforceable for all purposes in any case where a Loan Party has filed for protection under any Debtor Relief Laws and affecting the
rights of creditors generally applicable to such Loan Party and (y) an irrevocable voting proxy coupled with a pledge in favor of
the Administrative Agent with respect to voting obligations set forth in this Section 11.06(h), and the related provisions set forth
in each Affiliate Assignment Agreement;
(C) each Affiliated Lender shall
support and shall not object to (x) any use of Cash Collateral (including, without limitation, any and all terms of any cash collateral
order) and/or any debtor-in-possession financing (including, without limitation, any and all terms of any financing agreement, related
documents and financing order) that is supported by or consented to by Administrative Agent and (y) any sale of any assets of the
Loan Parties, whether under Section 363 of the Bankruptcy Code or otherwise, that is supported by or consented to by the Administrative
Agent (including, without limitation, the terms and conditions of any bidding procedures orders, sale orders and any and all purchase
and sale agreements and related documents);
(D) each Affiliated Lender shall
be deemed to have voted in such proceedings in the same proportion as the allocation of voting with respect to such matter by those Term
Lenders who are not Affiliated Lenders, except to the extent that any plan under the Bankruptcy Code proposes to treat the Obligations
held by such Affiliated Lender in a manner that is less favorable to such Affiliated Lender in any material respect than the proposed
treatment of similar Obligations held by other Term Lenders. For the avoidance of doubt, except to the extent that any plan under the
Bankruptcy Code proposes to treat the Obligations held by an Affiliated Lender in a manner that is less favorable to such Affiliated
Lender in any material respect than the proposed treatment of similar Obligations held by other Lenders, the Administrative Agent is
hereby irrevocably authorized and empowered (in the name of such Affiliated Lender) to vote on behalf of such Affiliated Lender or consent
on behalf of such Affiliated Lender in any such proceedings with respect to any and all claims of such Affiliated Lender relating to
the Obligations. Each Affiliated Lender agrees and acknowledges that the foregoing constitutes an irrevocable proxy in favor of the Administrative
Agent to vote or consent on behalf of such Affiliated Lender in any proceeding in the manner set forth above and that such Affiliated
Lender shall be irrevocably bound to any such votes made or consents given and further shall not challenge or otherwise object to such
votes or consents and shall not itself vote or provide consents in the proceeding; and (E) each Affiliated Lender hereby expressly
and irrevocably waives, for the benefit of the Administrative Agent and the Lenders any principles or provisions of law (including as
set forth in any Debtor Relief Law, statutory or otherwise) which are or might be in conflict with the terms of this Agreement and any
legal or equitable discharge of such Affiliated Lender’s obligations hereunder; and
(ii) the
Borrower shall, from time to time upon the request of the Administrative Agent, promptly deliver to the Administrative Agent a complete
list of all Affiliated Lenders holding Term Loans at such time.
11.07 Treatment
of Certain Information; Confidentiality.
(a) Treatment
of Certain Information. Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (i) to its Affiliates, its auditors and its Related
Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information
and instructed to keep such Information confidential), (ii) to the extent required or requested by any regulatory authority purporting
to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association
of Insurance Commissioners), (iii) to the extent required by Applicable Laws or regulations or by any subpoena or similar legal
process, (iv) to any other party hereto, (v) in connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section 11.07,
to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under
this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.16 or Section 11.01 or (B) any
actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made
by reference to the Borrower and its obligations, this Agreement or payments hereunder (it being understood that the DQ List may be disclosed
to any assignee or Participant, or prospective assignee or Participant, in reliance on this clause (vi)), (vii) on a confidential
basis to (A) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided hereunder
or (B) the provider of any Platform or other electronic delivery service used by the Administrative Agent, the L/C Issuer and/or
the Swingline Lender to deliver Borrower Materials or notices to the Lenders or (viii) the CUSIP Service Bureau or any similar agency
in connection with the application, issuance, publishing and monitoring of CUSIP numbers or other market identifiers with respect to
the credit facilities provided hereunder, or (ix) with the consent of the Borrower or to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section 11.07, (xi) becomes available to the Administrative
Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower
or (xii) is independently discovered or developed by a party hereto without utilizing any Information received from the Borrower
or violating the terms of this Section 11.07. For purposes of this Section 11.07, “Information”
means all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential
basis prior to disclosure by the Borrower or any Subsidiary. Any Person required to maintain the confidentiality of Information as provided
in this Section 11.07 shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement
to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent and the
Lenders in connection with the administration of this Agreement, the other Loan Documents and the Commitments.
(b) Non-Public
Information. Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (i) the Information may include
material non-public information concerning a Loan Party or a Subsidiary, as the case may be, (ii) it has developed compliance procedures
regarding the use of material non-public information and (iii) it will handle such material non-public information in accordance
with Applicable Law, including United States federal and state securities Laws.
(c) Customary
Advertising Material. The Loan Parties consent to the publication by the Administrative Agent or any Lender of customary advertising
material relating to the transactions contemplated hereby using the name, product photographs, logo or trademark of the Loan Parties.
11.08 Right
of Setoff.
If an Event of Default shall
have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time
and from time to time, after obtaining the prior written consent of the Required Lenders, to the fullest extent permitted by Applicable
Law to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for
the credit or the account of the Borrower or any other Loan Party against any and all of the obligations of the Borrower or such Loan
Party now or hereafter existing under this Agreement or any other Loan Document to such Lender, the L/C Issuer or such Affiliates, irrespective
of whether or not such Lender, the L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document
and although such obligations of the Borrower or such Loan Party may be contingent or unmatured, secured or unsecured, or are owed to
a branch, office or Affiliate of such Lender or the L/C Issuer different from the branch, office or Affiliate holding such deposit or
obligated on such indebtedness; provided, however, that in the event that any Defaulting Lender shall exercise
any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application
in accordance with the provisions of Section 2.15 and, pending such payment, shall be segregated by such Defaulting Lender
from its other funds and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and (b) the
Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Secured Obligations
owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section 11.08 are in addition to other rights and remedies (including other rights of setoff) that
such Lender, the L/C Issuer or their respective Affiliates may have under Applicable Law. Each Lender and the L/C Issuer agrees to notify
the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice
shall not affect the validity of such setoff and application.
11.09 Interest
Rate Limitation.
Notwithstanding anything
to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by Applicable Law (the “Maximum Rate”). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged,
or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by Applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount
of interest throughout the contemplated term of the Obligations hereunder.
11.10 Counterparts;
Integration; Effectiveness.
This Agreement and each of
the other Loan Documents may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents,
and any separate letter agreements with respect to fees payable to the Administrative Agent or the L/C Issuer, constitute the entire
contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement or any other Loan Document, or any certificate delivered thereunder, by fax transmission or e-mail transmission
(e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this
Agreement or such other Loan Document or certificate. Without limiting the foregoing, to the extent a manually executed counterpart is
not specifically required to be delivered under the terms of any Loan Document, upon the request of any party, such fax transmission
or e-mail transmission shall be promptly followed by such manually executed counterpart.
11.11 Survival
of Representations and Warranties.
All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of
any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain
unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.12 Severability
If any provision of this
Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability
of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without
limiting the foregoing provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in
this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative
Agent, the L/C Issuer or the Swingline Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent
not so limited.
11.13 Replacement
of Lenders.
(a) If
the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting
Lender or a Non-Consenting Lender or if any other circumstance exists hereunder that gives the Borrower the right to replace a Lender
as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required
by, Section 11.06), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01
and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided, however, that:
(i) the
Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.06(b);
(ii) such
Lender shall have received payment of an amount equal to 100% of the outstanding principal of its Loans and L/C Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other
amounts);
(iii) in
the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made
pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(iv)
such assignment does not conflict with Applicable Laws; and
(v) in
the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the
applicable amendment, waiver or consent, provided, however, that the failure by such Non-Consenting Lender
to execute and deliver an Assignment and Assumption shall not impair the validity of the removal of such Non-Consenting Lender and the
mandatory assignment of such Non-Consenting Lender’s Commitments and outstanding Loans and participations in L/C Obligations and
Swingline Loans pursuant to this Section 11.13 shall nevertheless be effective without the execution by such Non-Consenting
Lender of an Assignment and Assumption.
(b) A
Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
(c) Each
party hereto agrees that (i) an assignment required pursuant to this Section 11.13 may be effected pursuant to an Assignment
and Assumption executed by the Borrower, the Administrative Agent and the assignee and (ii) the Lender required to make such assignment
need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to an be bound by the
terms thereof; provided, however, that, following the effectiveness of any such assignment, the other parties
to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable
Lender, provided further that any such documents shall be without recourse to or warranty by the parties thereto.
(d) Notwithstanding
anything in this Section 11.13 to the contrary, (A) the Lender that acts as the L/C Issuer may not be replaced hereunder
at any time it has any Letter of Credit outstanding hereunder unless arrangements satisfactory to such Lender (including the furnishing
of a backstop standby letter of credit in form and substance, and issued by an issuer, reasonably satisfactory to the L/C Issuer or the
depositing of Cash Collateral into a Cash Collateral account in amounts and pursuant to arrangements reasonably satisfactory to the L/C
Issuer) have been made with respect to such outstanding Letter of Credit and (B) the Lender that acts as the Administrative Agent
may not be replaced hereunder except in accordance with the terms of Section 9.06.
11.14 Governing
Law; Jurisdiction; Etc.
(a) GOVERNING
LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND ANY
CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION
TO JURISDICTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION
OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST ANY OTHER PARTY
HERETO IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM
OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT
OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN
DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION
OR PROCEEDING RELATING TO ENFORCEMENT OF LIENS OR COLLATERAL UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR
ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL IS LOCATED.
(c) WAIVER
OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (b) OF THIS SECTION 11.14. EACH PARTY HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE
OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
11.15 Waiver
of Jury Trial.
EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.15.
11.16 No
Advisory or Fiduciary Responsibility.
In connection with all aspects
of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other
Loan Document), the Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding,
that: (a) (i) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Arrangers
and the Lenders and their respective Affiliates are arm’s-length commercial transactions between the Borrower, each other Loan
Party and their respective Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders and their respective
Affiliates, on the other hand, (ii) each of the Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory
and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower and each other Loan Party is capable of evaluating,
and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents;
(b) (i) the Administrative Agent, each Arranger and each Lender and each of their respective Affiliates each is and has been
acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be
acting as an advisor, agent or fiduciary, for the Borrower, any other Loan Party or any of their respective Affiliates, or any other
Person and (ii) neither the Administrative Agent, any Arranger, nor any Lender nor any of their respective Affiliates has any obligation
to the Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except
those obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent, the Arrangers and
the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those
of the Borrower, the other Loan Parties and their respective Affiliates, and neither the Administrative Agent, any Arranger, nor any
Lender nor any of their respective Affiliates has any obligation to disclose any of such interests to the Borrower, any other Loan Party
or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and each other Loan Party hereby
waives and releases any claims that it may have against the Administrative Agent, the Arrangers, the Lenders and their respective Affiliates
with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transactions contemplated
hereby.
11.17 Electronic
Execution; Electronic Records.
(a) The
words “delivery,” “execute,” “execution,” “signed,” “signature,” and words
of like import in any Loan Document or any other document executed in connection herewith shall be deemed to include electronic signatures,
the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or
the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually
executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and
as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York
State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided
that notwithstanding anything contained herein to the contrary, the Administrative Agent is under no obligation to
agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to
procedures approved by it; provided, further, without limiting the foregoing,
upon the request of the Administrative Agent, any electronic signature shall be promptly followed by such manually
executed counterpart. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use
or acceptance by the Administrative Agent and each of the Secured Parties of a manually signed paper document, amendment, approval, consent,
information, notice, certificate, request, statement, disclosure or authorization related to this Agreement (each a “Communication”)
which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted
into another format, for transmission, delivery and/or retention.
(b) The
Borrower hereby acknowledges the receipt of a copy of this Agreement and all other Loan Documents. The Administrative Agent and each
Lender may, on behalf of the Borrower, create a microfilm or optical disk or other electronic image of this Agreement and any or all
of the other Loan Documents. The Administrative Agent and each Lender may store the electronic image of this Agreement and the other
Loan Documents in its electronic form and then destroy the paper original as part of the Administrative Agent’s and each Lender’s
normal business practices, with the electronic image deemed to be an original and of the same legal effect, validity and enforceability
as the paper originals.
11.18 USA
Patriot Act Notice.
Each Lender that is subject
to the Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower and the other
Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107–56 (signed into law October 26,
2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Borrower
and each other Loan Party, which information includes the name and address of the Borrower and each other Loan Party and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower and each other Loan Party in accordance
with the Patriot Act. The Borrower and each other Loan Party shall, promptly following a request by the Administrative Agent or any Lender,
provide all such other documentation and information that the Administrative Agent or such Lender requests in order to comply with its
ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including
the Patriot Act.
11.19 Acknowledgement
and Consent to Bail-In of Affected Financial Institutions.
Solely to the extent any
Lender or L/C Issuer that is an Affected Financial Institution is a party to this Agreement and notwithstanding anything to the contrary
in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that
any liability of any Lender or L/C Issuer that is an Affected Financial Institution arising under any Loan Document, to the extent such
liability is unsecured, may be subject to the Write-Down and Conversion Powers of a Resolution Authority and agrees and consents to,
and acknowledges and agrees to be bound by:
(i) the
application of any Write-Down and Conversion Powers by an Resolution Authority to any such liabilities arising hereunder which may be
payable to it by any party hereto that is an Affected Financial Institution; and
(ii) the
effects of any Bail-In Action on any such liability, including, if applicable:
(iii) a
reduction in full or in part or cancellation of any such liability;
(iv) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any
other Loan Document; or
(v) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any Resolution Authority.
11.20 Acknowledgement
Regarding Any Supported QFCs.
To the extent that the Loan
Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC
(such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties
acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal
Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated
thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support
(with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed
by the laws of the State of New York and/or of the United States or any other state of the United States): In the event a Covered Entity
that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special
Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in
or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support)
from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime
if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws
of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes
subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to
such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents
were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood
and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered
Party with respect to a Supported QFC or any QFC Credit Support.
[signature pages follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| BORROWER: |
VISKASE COMPANIES, INC. |
| |
|
| |
By: |
/s/
Michael Blecic |
| |
Name: |
Michael Blecic |
| |
Title: |
Vice President,
Chief Financial Officer, Chief Accounting Officer & Treasurer |
| GUARANTOR: |
VISKASE FILMS, INC. |
| |
|
| |
By: |
/s/
Michael Blecic |
| |
Name: |
Michael Blecic |
| |
Title: |
Vice President,
Chief Financial Officer, Chief Accounting Officer & Treasurer |
| |
|
| |
WSC CORP. |
| |
|
| |
By: |
/s/ Michael
Blecic |
| |
Name: |
Michael Blecic |
| |
Title: |
Vice President,
Chief Financial Officer, Chief Accounting Officer & Treasurer |
| |
|
| |
VISKASE DEL NORTE, S.A. DE C.V. |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President &
Chief Executive Officer |
| |
|
| |
SERVICIOS VISKASE DEL NORTE, S.A. DE |
| |
C.V. |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President &
Chief Executive Officer |
| |
|
| |
VISKASE SAS |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President &
Chief Executive Officer |
| |
|
| |
VISKASE GMBH |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President &
Chief Executive Officer |
| |
|
| |
CT CASINGS BETEILIGUNGS GMBH |
| |
|
| |
By: |
/s/ Claudius
Borgmann |
| |
Name: |
Claudius Borgmann |
| |
Title: |
Managing Director |
| |
WALSRODER CASINGS GMBH |
| |
|
| |
By: |
/s/
Claudius Borgmann |
| |
Name: |
Claudius Borgmann |
| |
Title: |
Managing Director |
| |
|
| |
VISKASE SPA |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President &
Chief Executive Officer |
| |
|
| |
VISKASE POLSKA SP. Z O.O. |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President &
Chief Executive Officer |
| |
|
| |
VISKASE SPAIN SLU |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President &
Chief Executive Officer |
| |
|
| |
VISKASE SALES PHILIPPINES INC. |
| |
|
| |
By: |
/s/ Ali Boussabata |
| |
Name: |
Ali Boussabata |
| |
Title: |
Managing Director |
| |
|
| |
VISKASE ASIA-PACIFIC CORP. |
| |
|
| |
By: |
/s/ Ali Boussabata |
| |
Name: |
Ali Boussabata |
| |
Title: |
Managing Director |
| |
BANK OF AMERICA, N.A., |
| |
as Administrative Agent |
| |
|
| |
By: |
/s/
Taelitha Bonds-Harris |
| |
Name: |
Taelitha Bonds-Harris |
| |
Title: |
Assistant Vice
President |
| |
|
| |
|
| |
BANK OF AMERICA, N.A., |
| |
as a Lender, L/C Issuer and Swingline Lender |
| |
|
| |
By: |
/s/ Brian Adams |
| |
Name: |
Brian Adams |
| |
Title: |
Vice President |
| |
BMO HARRIS BANK N.A., |
| |
as a Lender |
| |
|
| |
By: |
/s/
Andrew Gagle |
| |
Name: |
Andrew Gagle |
| |
Title: |
Director |
| |
TRUIST BANK, |
| |
as a Lender |
| |
|
| |
By: |
/s/
David M. Felty |
| |
Name: |
David M. Felty |
| |
Title: |
Managing Director |
| |
CITIZENS BANK, |
| |
as a Lender |
| |
|
| |
By: |
/s/
John Sidarous |
| |
Name: |
John Sidarous |
| |
Title: |
Managing Director |
Exhibit 10.8
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of August 13, 2021, is by and among
VISKASE COMPANIES, INC., a Delaware corporation (the “Borrower”), the other Subsidiary Guarantors party
hereto, the Lenders party hereto and BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative
Agent”).Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit
Agreement.
W I T N E S S E T H
WHEREAS,
the Borrower, the other Guarantors party thereto, certain financial institutions from time to time party thereto (the “Lenders”)
and the Administrative Agent are parties to that certain Credit Agreement dated as of October 9, 2020 (as amended, modified, extended,
restated, replaced, or supplemented from time to time, the “Credit Agreement”);
WHEREAS,
the Borrower has requested that the Lenders amend certain provisions of the Credit Agreement; and
WHEREAS,
the Lenders are willing to make such amendments to the Credit Agreement, in accordance with and subject to the terms and conditions set
forth herein.
NOW,
THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Article I
AMENDMENTS TO CREDIT AGREEMENT
Effective as of the Amendment Effective Date but
subject to the satisfaction of the conditions precedent set forth in Article II below, the Credit Agreement (including Schedule
1.01(b), but excluding all other Schedules and Exhibits, which shall remain in the original form delivered or most recently amended, as
applicable) is hereby amended as set forth in the marked terms on Exhibit A-1 attached hereto. In Exhibit A-1 hereto, deletions
of text in the Credit Agreement as amended hereby are indicated by struck-through text, and insertions of text are indicated by bold,
double-underlined text. Exhibit A-2 attached hereto sets forth a clean copy of the Credit Agreement as amended hereby, after giving
effect to such amendments. This Amendment shall constitute a Loan Document.
Article II
CONDITIONS TO EFFECTIVENESS
| 2.01 | Closing Conditions.
This Amendment shall become effective as of the day and year set forth above (the “Amendment Effective Date”) upon
satisfaction of the following conditions (in each case, in form and substance reasonably acceptable to the Administrative Agent): |
(a) Executed
Amendment. The Administrative Agent shall have received a copy of this Amendment duly executed by each of the Loan Parties, the Lenders
and the Administrative Agent.
(b) Officer’s
Certificate. The Administrative Agent shall have received (A) copies of resolutions of the board of directors or an equivalent
governing body of each U.S. Loan Party and Viskase SAS approving and authorizing the execution, delivery and performance of this Amendment,
certified as of the Amendment Effective Date by a Responsible Officer of such U.S. Loan Party and Viskase SAS, as applicable, as being
in full force and effect without modification or amendment, (B) good standing certificates for each U.S. Loan Party and Viskase SAS,
in each case, from the jurisdiction in which they are organized (to the extent such concept exists in such jurisdiction) and (C) a
certificate of a Responsible Officer of each U.S. Loan Party and Viskase SAS, (x) either (I) attaching and certifying as to
the true and complete copies of the Organization Documents of such Loan Party or (II) certifying that the Organization Documents
of such U.S. Loan Party and Viskase SAS, as applicable, delivered to the Administrative Agent on the Closing Date pursuant to Section 4.01(b) of
the Credit Agreement remain in full force and effect without modification or amendment and (y) evidencing the identity, authority
and capacity of each Responsible Officer of such U.S. Loan Party and Viskase SAS, as applicable, authorized to act as a Responsible Officer
in connection with this Amendment and the other Loan Documents to which such U.S. Loan Party and Viskase SAS, as applicable, is a party.
(c) Legal
Opinions of Counsel. The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent
and the Lenders and dated the Amendment Effective Date) of Jenner & Block LLP, special counsel for the Loan Parties, in each
case covering such matters relating to the Loan Parties, the Loan Documents, this Amendment and the transactions contemplated hereby as
the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(d) Default.
After giving effect to this Amendment, no Default or Event of Default shall exist.
(e) Fees
and Expenses.(i) The Lenders shall have received from the Borrower all fees and expenses, if any, due and owing pursuant to (x) the
First Amendment Fee Letter, dated the date hereof, between the Borrower, the Administrative Agent and BofA Securities and (y) the
Credit Agreement, and (ii) legal counsel for the Administrative Agent shall have received from the Borrower payment of all reasonable
and documented out-of-pocket fees and expenses incurred in connection with this Amendment.
(f) Anti-Money-Laundering;
Beneficial Ownership. Upon the reasonable request of any Lender, the Borrower shall have provided to such Lender, and such
Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable
“know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot
Act, and any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have
delivered to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
Article III
DEPARTING LENDERS
| 3.01 | Departing Lenders.
Certain Lenders have agreed that they shall no longer constitute Lenders under the Credit Agreement as of the Amendment Effective Date
(each, a “Departing Lender”).Each Lender that executes and delivers a signature page hereto that identifies it
as a Departing Lender shall constitute a Departing Lender as of the Amendment Effective Date.No Departing Lender shall have a Revolving
Commitment or hold any portion of the Term Loan on and after the Amendment Effective Date. Each Departing Lender shall cease to be a party
to the Credit Agreement as of the Amendment Effective Date, with no rights, duties or obligations thereunder. All amounts owing to a Departing
Lender shall be paid by the Borrower to such Departing Lender as of the Amendment Effective Date. The consent of a Departing Lender is
not required to give effect to the changes contemplated by this Amendment. The Administrative Agent is hereby authorized to take such
steps under the Credit Agreement as reasonably required to give effect to the departure of the Departing Lenders, including, without limitation,
reallocating outstanding obligations among the remaining Lenders. The Borrower and each Lender agrees with and consents to the foregoing. |
Article IV
MISCELLANEOUS
| 4.01 | Amended Terms.On
and after the Amendment Effective Date, all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the
Credit Agreement as amended by this Amendment. Except as specifically amended hereby or otherwise agreed, the Credit Agreement is hereby
ratified and confirmed and shall remain in full force and effect according to its terms. |
| 4.02 | Representations and Warranties
of Loan Parties. Each of the Loan Parties represents and warrants as follows: |
(a) It
has taken all necessary action to authorize the execution, delivery and performance of this Amendment.
(b) This
Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding
obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights
generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law
or in equity).
(c) No
consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third
party is required in connection with the execution, delivery or performance by such Person of this Amendment, except for such as have
been made or obtained and are in full force and effect.
(d) The
representations and warranties set forth in Article V of the Credit Agreement are true and correct in all material respects as of
the date hereof (except for those which expressly relate to an earlier date or those which are qualified by materiality, which shall be
true and correct in all respects); provided, however, that no representation or warranty is being made with respect to whether the matters
set forth in Section 5.05(b) of the Credit Agreement are true and correct on the date hereof.
(e) No
event has occurred and is continuing which constitutes a Default or an Event of Default.
(f) Except
as specifically provided in this Amendment, the Obligations are not reduced or modified by this Amendment and are not subject to any offsets,
defenses or counterclaims.
| 4.03 | Reaffirmation of Obligations.
Without in any way establishing a course of dealing by the Administrative Agent or any Lender, and after giving effect to this Amendment,
the Borrower and each Guarantor (i) acknowledges and consents to all of the terms and conditions of this Amendment, (ii) affirms
all of its obligations under the Loan Documents (iii) agrees that this Amendment and all documents executed in connection herewith
do not operate to reduce or discharge its obligations under the Loan Documents, (iv) agrees that the Collateral Documents continue
to be in full force and effect and are not impaired or adversely affected in any manner whatsoever, (v) confirms its grant of security
interests pursuant to the Collateral Documents to which it is a party as Collateral for the Obligations, and (vi) acknowledges that
all Liens granted (or purported to be granted) pursuant to the Collateral Documents remain and continue in full force and effect in respect
of, and to secure, the Obligations.Each Guarantor hereby reaffirms its obligations under the Guaranty and agrees that its obligation to
guarantee the Obligations is in full force and effect as of the date hereof. |
| 4.04 | Loan Document.
This Amendment shall constitute a Loan Document under the terms of the Credit Agreement. |
| 4.05 | Entirety.
This Amendment and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and
understandings, oral or written, if any, relating to the subject matter hereof. |
| 4.06 | Counterparts; Telecopy.
This Amendment may be executed in one or more counterparts, each of which shall constitute an original, but all of which taken
together shall be one and the same instrument.Delivery of an executed counterpart of a signature page of this Amendment or any other
document required to be delivered hereunder, by fax transmission or e-mail transmission (e.g. “pdf” or “tif”)
shall be effective as delivery of a manually executed counterpart of this Amendment. The words “delivery,” “execute,”
“execution,” “signed,” “signature,” and words of like import in any Loan Document or any other document
executed in connection herewith shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract
formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall
be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures
in Global and National Commerce Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Without limiting
the foregoing, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually
executed counterpart. |
| 4.07 | No Actions, Claims, Etc.As
of the date hereof, each of the Loan Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of action,
claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders,
or the Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors
arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof. |
| 4.08 | GOVERNING LAW.THIS
AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. |
| 4.09 | Successors and Assigns.
This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. |
| 4.10 | Jurisdiction; Consent
to Services of Process; Waiver of Jury Trial. The jurisdiction, service of process and waiver of jury trial provisions
set forth in Sections 11.14(b), 11.14(c), 11.14(d) and 11.15 of the Credit Agreement are hereby incorporated into this Amendment
by reference, mutatis mutandis. |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
| |
|
|
| BORROWER: |
VISKASE COMPANIES, INC. |
| |
|
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
|
Kees Bras |
| |
Title: |
|
President & Chief Financial Officer |
| |
|
|
| GUARANTOR: |
VISKASE FILMS, INC. |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
|
Kees Bras |
| |
Title: |
|
President |
| |
|
| |
WSC CORP. |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
|
Kees Bras |
| |
Title: |
|
President |
| |
|
| |
VISKASE DEL NORTE, S.A. DE C.V. |
| |
|
| |
By: |
/s/ Jefferson Eldred King |
| |
Name: |
|
Jefferson Eldred King |
| |
Title: |
|
President |
| |
|
| |
SERVICIOS VISKASE DEL NORTE, S.A. DE C.V. |
| |
|
| |
By: |
/s/ Jefferson Eldred King |
| |
Name: |
|
Jefferson Eldred King |
| |
Title: |
|
President |
| |
|
| |
VISKASE SAS |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
|
Kees Bras |
| |
Title: |
|
President |
| |
|
| |
VISKASE GMBH |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
|
Kees Bras |
| |
Title: |
|
Managing Director |
| |
|
| |
CT CASINGS BETEILIGUNGS GMBH |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
|
Kees Bras |
| |
Title: |
|
Managing Director |
| |
|
|
| |
WALSRODER CASINGS GMBH |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
Managing Director |
| |
|
| |
VISKASE SPA |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President |
| |
|
| |
VISKASE POLSKA SP. Z O.O. |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President & Chief Financial Officer |
| |
|
| |
VISKASE SPAIN SLU |
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President & Chief Financial Officer |
| |
|
| |
VISKASE SALES PHILIPPINES INC. |
| |
|
| |
By: |
/s/ Ali Boussabata |
| |
Name: |
Ali Boussabata |
| |
Title: |
Chairman of the Board and President |
| |
|
| |
VISKASE ASIA-PACIFIC CORP. |
| |
|
| |
By: |
/s/ Ali Boussabata |
| |
Name: |
Ali Boussabata |
| |
Title: |
Chairman of the Board and President |
| |
|
|
|
| |
BANK OF AMERICA, N.A., |
| |
as Administrative Agent |
| |
|
| |
By: |
/s/ Taelitha Bonds-Harris |
| |
Name: |
Taelitha Bonds-Harris |
| |
Title: |
Assistant Vice President |
| |
|
| |
|
| |
BANK OF AMERICA, N.A., |
| |
as a Lender, L/C Issuer and Swingline Lender |
| |
|
| |
By: |
/s/ Brian Adams |
| |
Name: |
Brian Adams |
| |
Title: |
Vice President |
| |
|
|
|
| |
BMO HARRIS BANK N.A., |
| |
as a Lender |
| |
|
| |
By: |
/s/ Manuel Diaz |
| |
Name: |
Manuel Diaz |
| |
Title: |
Managing Director |
| |
|
|
|
| |
ASSOCIATED BANK, N.A. |
| |
as a Lender |
| |
|
| |
By: |
/s/ Deann Malcore |
| |
Name: |
Deann Malcore |
| |
Title: |
Assistant Vice President |
| |
|
|
|
| |
CITIZENS BANK, |
| |
as a Lender |
| |
|
| |
By: |
/s/ Angela Reilly |
| |
Name: |
Angela Reilly |
| |
Title: |
Senior Vice President |
| |
|
|
|
[Signature
Page to First Amendment to Credit Agreement]
| |
The undersigned Departing Lender hereby acknowledges and agrees that, from and after the Amendment Effective Date, it is no longer a party to the Credit Agreement or any of the Loan Documents executed in connection therewith and will not be a party to this Amendment except for purposes of acknowledging it is a Departing Bank |
| |
|
| |
TRUIST BANK, |
| |
as a Departing Lender |
| |
|
| |
By: |
/s/ Steve Curran |
| |
Name: |
Steve Curran |
| |
Title: |
Authorized Signatory |
| |
|
|
|
[Signature
Page to First Amendment to Credit Agreement]
Exhibit 10.9
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS
SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of August 10, 2022, is by and among
VISKASE COMPANIES, INC., a Delaware corporation (the “Borrower”), the other Subsidiary Guarantors party
hereto, the Lenders party hereto and BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative
Agent”). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit
Agreement.
W I T N E S S E T H
WHEREAS,
the Borrower, the other Guarantors party thereto, certain financial institutions from time to time party thereto (the “Lenders”)
and the Administrative Agent are parties to that certain Credit Agreement dated as of October 9, 2020 (as amended, modified, extended,
restated, replaced, or supplemented from time to time, the “Credit Agreement”);
WHEREAS,
the Borrower has requested to increase the Revolving Commitments in an aggregate principal amount equal to $7,000,000 and amend certain
other provisions of the Credit Agreement; and
WHEREAS,
certain of the Lenders have agreed to increase their Revolving Commitments and the Lenders are willing to make such other amendments to
the Credit Agreement, in accordance with and subject to the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Article I
AMENDMENTS TO CREDIT AGREEMENT
Effective as of the Amendment Effective Date but
subject to the satisfaction of the conditions precedent set forth in Article II below, the Credit Agreement (including Schedule
1.01(b), Exhibit C, Exhibit E and Exhibit O but excluding all other Schedules and Exhibits, which shall remain in the original
form delivered or most recently amended, as applicable) is hereby amended as set forth in the marked terms on Exhibit A-1 attached
hereto. In Exhibit A-1 hereto, deletions of text in the Credit Agreement as amended hereby are indicated by struck-through text,
and insertions of text are indicated by bold, double-underlined text. Exhibit A-2 attached hereto sets forth a clean copy of the
Credit Agreement as amended hereby, after giving effect to such amendments. This Amendment shall constitute a Loan Document.
Article II
CONDITIONS TO EFFECTIVENESS
| 2.01 | Closing Conditions.
This Amendment shall become effective as of the day and year set forth above (the “Amendment Effective Date”) upon
satisfaction of the following conditions (in each case, in form and substance reasonably acceptable to the Administrative Agent): |
(a) Executed
Amendment. The Administrative Agent shall have received a copy of this Amendment duly executed by each of the Loan Parties, the Lenders
and the Administrative Agent.
(b) Officer’s
Certificate. The Administrative Agent shall have received (A) copies of resolutions of the board of directors or an equivalent
governing body of each U.S. Loan Party and Viskase SAS approving and authorizing the execution, delivery and performance of this Amendment,
certified as of the Amendment Effective Date by a Responsible Officer of such U.S. Loan Party and Viskase SAS, as applicable, as being
in full force and effect without modification or amendment, (B) good standing certificates for each U.S. Loan Party and Viskase SAS,
in each case, from the jurisdiction in which they are organized (to the extent such concept exists in such jurisdiction) and (C) a
certificate of a Responsible Officer of each U.S. Loan Party and Viskase SAS, (x) either (I) attaching and certifying as to
the true and complete copies of the Organization Documents of such Loan Party or (II) certifying that the Organization Documents
of such U.S. Loan Party and Viskase SAS, as applicable, delivered to the Administrative Agent on the Closing Date pursuant to Section 4.01(b) of
the Credit Agreement remain in full force and effect without modification or amendment and (y) evidencing the identity, authority
and capacity of each Responsible Officer of such U.S. Loan Party and Viskase SAS, as applicable, authorized to act as a Responsible Officer
in connection with this Amendment and the other Loan Documents to which such U.S. Loan Party and Viskase SAS, as applicable, is a party.
(c) Legal
Opinion of Counsel. The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent
and the Lenders and dated the Amendment Effective Date) of Jenner & Block LLP, special counsel for the Loan Parties, in each
case covering such matters relating to the Loan Parties, the Loan Documents, this Amendment and the transactions contemplated hereby as
the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(d) Default.
After giving effect to this Amendment, no Default or Event of Default shall exist.
(e) Fees
and Expenses. (i) The Lenders shall have received from the Borrower all fees and expenses, if any, due and owing pursuant to
(x) the Second Amendment Fee Letter, dated the date hereof, between the Borrower, the Administrative Agent and BofA Securities and
(y) the Credit Agreement, and (ii) legal counsel for the Administrative Agent shall have received from the Borrower payment
of all reasonable and documented out-of-pocket fees and expenses incurred in connection with this Amendment.
(f) Anti-Money-Laundering;
Beneficial Ownership. Upon the reasonable request of any Lender, the Borrower shall have provided to such Lender, and such
Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable
“know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot
Act, and any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have
delivered to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
Article III
MISCELLANEOUS
| 3.01 | Amended Terms.
On the Amendment Effective Date, the Loans made to the Borrower under the Credit Agreement prior to and outstanding on the Amendment Effective
Date (the “Existing Borrowings”) shall remain outstanding under the amended Credit Agreement and shall be automatically
converted from Eurodollar Rate Loans to Term SOFR Loans in an aggregate principal amount equal to the aggregate principal amount of the
Borrower’s Existing Borrowings and shall have an initial Interest Period commencing on the Amendment Effective Date and ending (x) in
the case of Term Loans, on September 30, 2022, and (y) in the case of Revolving Loans, on August 31, 2022. The Borrower
shall pay to the Lenders that funded the Existing Borrowings the accrued and unpaid interest on the principal amount of all Existing Borrowings
payable under the Credit Agreement on the Amendment Effective Date. Each Lender hereby waives any and all breakage payments that may be
otherwise payable under Section 3.05 of the Credit Agreement in connection the conversion of Existing Borrowings into Term SOFR Loans
on the Amendment Effective Date. Except as expressly set forth herein or in the Amended Credit Agreement, this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders or the Administrative
Agent under the Existing Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document, all of
which are ratified and affirmed in all respects and shall continue in full force and effect. On and after the Amendment Effective Date,
all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement as amended by this Amendment.
Except as specifically amended hereby or otherwise agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full
force and effect according to its terms. |
| 3.02 | Representations and Warranties
of Loan Parties. Each of the Loan Parties represents and warrants as follows: |
(a) It
has taken all necessary action to authorize the execution, delivery and performance of this Amendment.
(b) This
Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding
obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights
generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law
or in equity).
(c) No
consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third
party is required in connection with the execution, delivery or performance by such Person of this Amendment, except for such as have
been made or obtained and are in full force and effect.
(d) The
representations and warranties set forth in Article V of the Credit Agreement are true and correct in all material respects as of
the date hereof (except for those which expressly relate to an earlier date or those which are qualified by materiality, which shall be
true and correct in all respects); provided, however, that no representation or warranty is being made with respect to whether the matters
set forth in Section 5.05(b) of the Credit Agreement are true and correct on the date hereof.
(e) No
event has occurred and is continuing which constitutes a Default or an Event of Default.
(f) Except
as specifically provided in this Amendment, the Obligations are not reduced or modified by this Amendment and are not subject to any offsets,
defenses or counterclaims.
| 3.03 | Reaffirmation of Obligations.
Without in any way establishing a course of dealing by the Administrative Agent or any Lender, and after giving effect to this Amendment,
the Borrower and each Guarantor (i) acknowledges and consents to all of the terms and conditions of this Amendment, (ii) affirms
all of its obligations under the Loan Documents (iii) agrees that this Amendment and all documents executed in connection herewith
do not operate to reduce or discharge its obligations under the Loan Documents, (iv) agrees that the Collateral Documents continue
to be in full force and effect and are not impaired or adversely affected in any manner whatsoever, (v) confirms its grant of security
interests pursuant to the Collateral Documents to which it is a party as Collateral for the Obligations, and (vi) acknowledges that
all Liens granted (or purported to be granted) pursuant to the Collateral Documents remain and continue in full force and effect in respect
of, and to secure, the Obligations. Each Guarantor hereby reaffirms its obligations under the Guaranty and agrees that its obligation
to guarantee the Obligations is in full force and effect as of the date hereof. |
| 3.04 | Loan Document.
This Amendment shall constitute a Loan Document under the terms of the Credit Agreement. |
| 3.05 | Entirety.
This Amendment and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and
understandings, oral or written, if any, relating to the subject matter hereof. |
| 3.06 | Counterparts; Telecopy.
This Amendment may be executed in one or more counterparts, each of which shall constitute an original, but all of which taken
together shall be one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment or any other
document required to be delivered hereunder, by fax transmission or e-mail transmission (e.g. “pdf” or “tif”)
shall be effective as delivery of a manually executed counterpart of this Amendment. The words “delivery,” “execute,”
“execution,” “signed,” “signature,” and words of like import in any Loan Document or any other document
executed in connection herewith shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract
formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall
be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures
in Global and National Commerce Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Without limiting
the foregoing, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually
executed counterpart. |
| 3.07 | No Actions, Claims, Etc.
As of the date hereof, each of the Loan Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of action,
claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders,
or the Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors
arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof. |
| 3.08 | GOVERNING LAW.
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. |
| 3.09 | Successors and Assigns.
This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. |
| 3.10 | Jurisdiction; Consent
to Services of Process; Waiver of Jury Trial. The jurisdiction, service of process and waiver of jury trial provisions
set forth in Sections 11.14(b), 11.14(c), 11.14(d) and 11.15 of the Credit Agreement are hereby incorporated into this Amendment
by reference, mutatis mutandis. |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| BORROWER: |
VISKASE COMPANIES, INC. |
| |
|
| |
|
| |
By: |
/s/ Michael Blecic |
| |
Name: |
Michael Blecic |
| |
Title: |
Vice President, Chief Financial Officer, Chief Accounting Officer and Treasurer |
| GUARANTOR: |
VISKASE FILMS, INC. |
| |
|
| |
|
| |
By: |
/s/ Michael Blecic |
| |
Name: |
Michael Blecic |
| |
Title: |
Chief Financial Officer and Treasurer |
| |
WSC CORP. |
| |
|
| |
|
| |
By: |
/s/ Michael Blecic |
| |
Name: |
Michael Blecic |
| |
Title: |
Chief Financial Officer and Treasurer |
| |
|
|
| |
VISKASE DEL NORTE, S.A. DE C.V. |
| |
|
| |
|
| |
By: |
/s/ Michael Blecic |
| |
Name: |
Michael Blecic |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
SERVICIOS VISKASE DEL NORTE, S.A. DE C.V. |
| |
|
| |
|
| |
By: |
/s/ Michael Blecic |
| |
Name: |
Michael Blecic |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
VISKASE SAS |
| |
|
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President |
| |
|
|
| |
VISKASE GMBH |
| |
|
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
Managing Director |
| |
|
|
| |
CT CASINGS BETEILIGUNGS GMBH |
| |
|
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
Managing Director |
| |
WALSRODER CASINGS GMBH |
| |
|
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
Managing Director |
| |
VISKASE SPA |
| |
|
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President |
| |
|
|
| |
VISKASE POLSKA SP. Z O.O. |
| |
|
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
President of the Management Board |
| |
|
|
| |
VISKASE SPAIN SLU |
| |
|
| |
|
| |
By: |
/s/ Kees Bras |
| |
Name: |
Kees Bras |
| |
Title: |
Sole Director |
| |
|
|
| |
VISKASE SALES PHILIPPINES INC. |
| |
|
| |
|
| |
By: |
/s/ Roberto Riccio Manansala Jr. |
| |
Name: |
Roberto Riccio Manansala Jr. |
| |
Title: |
Chairman of the Board and President |
| |
|
|
| |
VISKASE ASIA-PACIFIC CORP. |
| |
|
| |
|
| |
By: |
/s/ Roberto Riccio Manansala Jr. |
| |
Name: |
Roberto Riccio Manansala Jr. |
| |
Title: |
Chairman of the Board and President |
| |
BANK OF AMERICA, N.A., |
| |
as Administrative Agent |
| |
|
| |
|
| |
By: |
/s/ Christine Trotter |
| |
Name: |
Christine Trotter |
| |
Title: |
Vice President |
| |
|
|
| |
BANK OF AMERICA, N.A., |
| |
as a Lender, L/C Issuer and Swingline Lender |
| |
|
| |
|
| |
By: |
/s/ Brian Adams |
| |
Name: |
Brian Adams |
| |
Title: |
Vice President |
| |
BMO HARRIS BANK N.A., |
| |
as a Lender |
| |
|
| |
|
| |
By: |
/s/ Manuel Diaz |
| |
Name: |
Manuel Diaz |
| |
Title: |
Managing Director |
| |
ASSOCIATED BANK, N.A. |
| |
as a Lender |
| |
|
| |
|
| |
By: |
/s/ J. Eric Bergren |
| |
Name: |
J. Eric Bergren |
| |
Title: |
Senior Vice President |
| |
CITIZENS BANK, |
| |
as a Lender |
| |
|
| |
|
| |
By: |
/s/ Angela Reilly |
| |
Name: |
Angela Reilly |
| |
Title: |
Senior Vice President |
Exhibit 10.10
EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT, dated as of August 4, 2022 (the “Employment Agreement”), is entered by and between
Viskase Companies, Inc., a Delaware corporation (the “Company”), and Timothy P. Feast (the “Executive”)
and (except as provided in Section 2.1) is effective September 6, 2022 (the “Effective Date”).
In consideration of the mutual
covenants contained herein and other valid consideration, the sufficiency of which is acknowledged, the parties hereto agree as follows:
Section 1. Employment.
1.1. Term.
The Company agrees to employ the Executive, and the Executive agrees to be employed by the Company, in each case pursuant to this Employment
Agreement, for a period commencing on the Effective Date and ending on September 5, 2027; provided however, that the Term shall be
automatically extended on a month-to-month basis. The above notwithstanding, the Term may be terminated at any time after the Effective
Date upon the termination or resignation of the Executive’s employment in accordance with Section 3 hereof (the “Term”.
1.2. Duties.
During the Term, the Executive shall serve as Chief Executive Officer and President of the Company and such other or additional positions
as an officer or director of the Company, and of such direct or indirect affiliates of the Company (“Affiliates” t.
as the Executive and the board of directors of the Company (the “Board” mutually agree from time to time. In such positions,
the Executive shall perform such duties, functions and responsibilities during the Term commensurate with the Executive’s positions
as reasonably directed by the Board. The Executive shall be employed in the State of Illinois during the Tenn.
1.3. Exclusivity.
During the Term, the Executive shall (i) devote substantially all of his professional time and attention to the business and affairs
of the Company and its Affiliates, (ii) to the best of his abilities, faithfully serve the Company and its Affiliates, (iii) in
all material respects conform to and comply with the lawful and reasonable directions and instructions given to Executive by the Board,
consistent with Section 1.2 hereof, (iv) use Executive’s best efforts to advance, promote and serve the interests of the
Company and its Affiliates, (v) comply with all of the policies of the Company and its Affiliates (including, without limitation,
such policies with respect to legal compliance, conflicts of interest, confidentiality and business ethics, as are from time to time in
effect), and (vi) except as otherwise permitted herein, not engage in any other business activity, whether or not such activity shall
be engaged in for pecuniary profit. The provisions of this Section 1.3 shall not be construed to prevent Executive from (a) investing
Executive’s personal, private assets as a passive investor in such form or manner as will not require any active services on the
part of Executive in the management or operation of the affairs of the companies, partnerships, or other business entities in which any
such passive investments are made, or (b) serving on the board of directors of one or more companies, family-related businesses or
charitable or non-profit organizations, provided such service does not materially conflict with the Executive’s duties and obligations
to the Company and such service is approved by the chairman of the Board of Directors of the Company.
Section 2. Compensation.
2.1. Salary.
As compensation for the performance of the Executive’s services hereunder, during the Term, the Company shall pay to the Executive
a salary at an annual rate of $540,000.00 which annual salary shall be prorated for any partial year at the beginning or end of the Term
and shall accrue and be payable in accordance with the Company’s standard payroll policies, as such salary may be adjusted upward
(but not downward) by the Compensation Committee (or such other duly authorized committee thereof) of the Board (the “Compensation
Committee”1 in its sole and absolute discretion (as adjusted, the “Base Salary”). Subject to the forgoing,
the Board will review the Executive’s Base Salary for a potential increase no later than the first anniversary of the Effective
Date. In the event the Company requests that the Executive commence employment prior to the Effective Date, the Executive shall receive
a salary at the same annual rate stated above which shall be prorated for the actual number of days worked through (but not including)
the Effective Date and shall not be eligible for any other bonus or other compensation with respect to services provided during such period.
2.2. Annual
Bonus. For each completed fiscal year occurring during the Term, the Executive shall be eligible to receive an annual cash bonus (the
“Annual Bonus”) with a target award equal to 100% of the Executive’s Base Salary. The Annual Bonus will be subject
to all of the terms and conditions of the applicable bonus plan, and consistent with this Employment Agreement. The actual Annual Bonus
payouts will be based on achievement of the individual and/or Company performance criteria established for the applicable fiscal year
by the Compensation Committee in its sole and absolute discretion. For the 2022 fiscal year, Executive shall be guaranteed a gross bonus
payment of no less than the pro rata amount of the Annual Bonus paid at the target payout level (prorated based on the number of calendar
days that Executive is employed by the Company during the 2022 fiscal year). The Annual Bonus (or any pro-rated portion thereof), if any,
payable to Executive for a fiscal year will be paid by the Company to the Executive in the immediately succeeding fiscal year only after
the completion of the audit of the Company’s consolidated financial statements with respect to such fiscal year and, only after
the Compensation Committee, in its sole and absolute discretion, has approved the final achievement level and payout; provided, however,
that if the Annual Bonus is payable pursuant to a plan that is intended to provide for the payment of bonuses that constitute “performance-based
compensation” within the meaning of Section 162(m) of the Code, the Annual Bonus shall be paid at such time as is provided
in the applicable plan. Except with respect to any Pro-Rata Bonus the Executive becomes entitled to herein, the Executive must be actively
employed through the last day of the fiscal year during the Term in which the Annual Bonus was earned to be eligible for an Annual Bonus
payment.
2.3. Employee
Benefits, During the Term, the Executive shall be eligible to participate in such employee benefit plans and programs of the Company
as in effect from time to time on the same basis as other senior executives of the Company and subject to the terms and conditions of
any such plans and programs.
2.4. Paid
Time Off. During the Term, the Executive shall be entitled to 28 days of paid time off of “PTO” each year.
2.5. Business
E parses. The Company shall pay or reimburse the Executive for all commercially reasonable business out-of-pocket expenses that
the Executive incurs during the Term in performing Executive’s duties under this Employment Agreement upon presentation of
documentation and in accordance with the expense reimbursement policy of the Company as approved by the Board and in effect from
time to time. Notwithstanding anything herein to the contrary or otherwise, except to the extent any expense or reimbursement
described in this Employment Agreement does not constitute a “deferral of compensation” within the meaning of
Section 409A of the Code and the Treasury regulations and other guidance issued thereunder, any expense or reimbursement
described in this Employment Agreement shall meet the following requirements: (i) the amount of expenses eligible for
reimbursement provided to the Executive during any calendar year will not affect the amount of expenses eligible for reimbursement
to the Executive in any other calendar year; (ii) the reimbursements for expenses for which the Executive is entitled to be
reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense
is incurred; (iii) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for
any other benefit; and (iv) the reimbursements shall be made pursuant to objectively determinable and nondiscretionary Company
policies and procedures regarding such reimbursement of expenses.
2.6. Signing
Bonus. The Executive shall be paid a $250,000 signing Bonus (the “Signing Bonus”) within 30 days from the Effective Date.
2.7. Loris).
— Term Incentive Plan. The Executive will be eligible to participate in the Viskase Companies, Inc. 2022 Long-Term Incentive
Plan (the “LTI Plan”). Any award under the LTI Plan shall be payable in accordance with and subject to the terms and conditions
of the LTI Plan and the Long-Term Incentive Award Agreement in substantially the form attached hereto as Appendices “A” and
“B”.
Section 3. Employment
Termination.
3.1. Termination
of Employment. The Company may terminate the Executive’s employment for any reason during the Term, and the Executive may voluntarily
resign Executive’s employment for any reason during the Term, in each case (other than a termination by the Company for Cause) at
any time upon not less than 120 days’ notice to the other party. Upon the termination or resignation of the Executive’s employment
with the Company for any reason (whether during the Term or thereafter), the Executive shall be entitled to any Base Salary earned but
unpaid through the date of termination or resignation, any earned but unpaid Annual Bonus for completed fiscal years, any unused accrued
PTO, any unreimbursed expenses in accordance with Section 2.5 hereof and any accrued and vested rights or benefits under any Company
sponsored employee benefits plans payable in accordance with the terms and conditions of such plans (collectively, the “Accrued
Amounts” ).
3.2. Certain
Terminations.
(a) Termination
by the Company Other Than For Cause or Disability: Resignation by the Executive for Good Reason. If during the Term (i) the
Executive’s employment is terminated by the Company other than (x) for Cause or (y) due to the Executive’s
death or Disability or (ii) the Executive resigns for Good Reason, then in addition to the Accrued Amounts, the Executive shall
be entitled to (collectively, the “Severance Payments”) (a) the continuation of Executive’s Base Salary in
accordance with the Company’s standard payroll policies at the rate in effect immediately prior to the date of termination or
resignation (or, in the case of a resignation for Good Reason, at the rate in effect immediately prior to the occurrence of the
event constituting Good Reason, if greater) for six (6) months (as applicable, the “Severance Period”), and
(b) a pro-rata Annual Bonus (“Pro-Rata Bonus”) for the fiscal year of termination based on achievement of
the individual and/or corporate performance criteria established for such fiscal year by the Compensation Committee (in its sole and
absolute discretion) and determined by multiplying the amount of the Annual Bonus which would be due for the full fiscal year by a
fraction, the numerator of which is the number of completed months during the fiscal year of termination that Executive is employed
by the Company and the denominator of which is 12, which amount, if any, shall be payable by the Company to the Executive in the
immediately succeeding fiscal year only after the completion of the audit of the Company’s consolidated financial statements
with respect to such fiscal year of termination and, only after the Compensation Committee, in its sole and absolute discretion, has
approved the final achievement level and payout. The Company’s obligations to make the Severance Payments shall be conditioned
upon: (i) the Executive’s continued compliance with Executive’s obligations under Section 4 of this Employment
Agreement and (ii) the Executive’s execution, delivery and non-revocation of a valid and enforceable release of claims
arising in connection with the Executive’s employment and termination or resignation of employment with the Company (the “Release”)
in a form reasonably acceptable to the Company and the Executive that becomes effective not later than 45 days after the date of
such termination or resignation of employment. The Company shall provide the form of the Release to the Executive within five days
following the date of the Executive’s termination or resignation of employment. In the event that the Executive breaches any
of the covenants set forth in Section 4 of this Employment Agreement, the Executive will immediately return to the Company any
portion of the Severance Payments (to the extent applicable) that has been paid to the Executive pursuant to this
Section 3.2(a). Subject to the foregoing and Section 3.2(b), the Severance Payments will commence to be paid to the
Executive on the 45th day following the Executive’s termination of employment, and such first payment shall include payment of
any amounts that would otherwise be due prior thereto.
(b) Termination
by the Company For Disability. If the Executive’s employment
is terminated during the Term by the Company by reason of the Executive’s Disability, Executive shall be entitled to the Accrued
Amounts and any payments to be made to the Executive under the Company’s disability plan(s), if any.
(c) Termination
by Reason of Death. If the Executive’s employment is terminated during the Term by reason of his death, Executive shall be entitled
to the Accrued Amounts and any employee benefits to which the Executive’s estate, spouse or other beneficiaries, as applicable,
may be entitled.
(d) Resignation
without Good Reason. If Executive resigns without Good Reason during the Term, Executive shall be entitled to the Accrued Amounts
and any employee benefits to which Executive may be entitled.
(e) Section 409A.
To the extent applicable, this Employment Agreement shall be interpreted, construed and operated in accordance with
Section 409A of the Code and the Treasury regulations and other guidance issued thereunder. If on the date of the
Executive’s separation from service (as defined in Treasury Regulation § 1.409A-1(h)) with the Company the Executive is a
specified employee (as defined in Code Section 409A and Treasury Regulation §1.409A-1(i)), no payment constituting the
“deferral of compensation” within the meaning
of Treasury Regulation §1.409A- 1(b) and after application of the exemptions provided in Treasury Regulation
§§1.409A-1(b)(4) and 1.409A-1(b)(9)(iii) shall be made to the Executive at any time prior to the earlier of
(a) the expiration of the six (6) month period following the Executive’s separation from service, and (b) the
Executive’s death, and any such amounts deferred during such period shall instead be paid in a lump sum to the Executive (or,
if applicable, the Executive’s estate) on the first payroll payment date following expiration of such six (6) month
period or, if applicable, the Executive’s death. For purposes of conforming this Employment Agreement to Section 409A of
the Code, the parties agree that any reference to termination of employment, severance from employment, resignation from employment
or similar terms shall mean and be interpreted as a “separation from service” as defined in Treasury Regulation § I
.409A-1(h). For purposes of applying Section 409A of the Code to this Employment Agreement (including, without limitation, for
purposes of Treasury Regulation Section 1 .409A-2(b)(2)(iii)), each payment that the Executive may be entitled to receive under
this Employment Agreement shall be treated as a separate and distinct payment and shall not collectively be treated as a single
payment. Neither the Company, nor any of its Affiliates shall be obligated to pay or otherwise gross-up the Executive
for any federal, state, local or foreign taxes relating to or arising with respect to any benefits, compensation or payment made
under this Employment Agreement.
3.3. Exclusive
Remedy. The foregoing payments upon termination or resignation of the Executive’s employment shall constitute the exclusive
severance payments due the Executive upon a termination or resignation of Executive’s employment under this Employment Agreement.
3.4. Resignation
from All Positions. Upon the termination or resignation of the Executive’s employment with the Company for any reason, the Executive
shall be deemed to have resigned, as of the date of such termination or resignation, from and with respect to all positions the Executive
then holds as an officer, director, employee and member of the Board of Directors (and any committee thereof) of the Company and any of
its subsidiaries.
3.5. Cooperation.
Following the termination or resignation of the Executive’s employment with the Company for any reason and during any period
in which the Executive is receiving Severance Payments, or for six months following termination or resignation of the
Executive’s employment with the Company if no Severance Payments are payable, the Executive agrees to reasonably cooperate
with the Company upon reasonable request of the Board and to be reasonably available to the Company with respect to matters arising
out of the Executive’s services to the Company and its Affiliates provided. however, such period of cooperation shall
be for three years, following any such termination or resignation of Executive’s employment for any reason, with respect to
tax matters involving the Company or any of its Affiliates. Upon and following any such request of the Board, and only for so long
as the Executive is receiving Severance Payments, the Executive shall receive access to email and information technology services
from the Company. Notwithstanding the foregoing, (i) the Company shall have the right to revoke or terminate such access at any
time for any or no reason and with or without notice, and (ii) Executive’s access to such information shall be
conditioned upon, and subject to, the Executive not representing himself to be, or holding himself out as, an employee, officer,
director, trustee, agent or representative of the Company for any purpose, or otherwise representing himself as a person having any
authority to act on behalf of the Company. The Company shall reimburse the Executive for expenses reasonably incurred in connection
with such matters as agreed by the Executive and the Board and the Company shall compensate the Executive for such cooperation at an
hourly rate based on the Executive’s most recent Base Salary rate assuming 2,000 working hours per year; provided, that
if the Executive is required to spend more than 40 hours in any month on Company matters pursuant to this Section 3.5, the
Executive and the Board shall mutually agree to an appropriate rate of compensation for the Executive’s time over such 40-hour
threshold.
Section 4. Unauthorized
Disclosure: Non-Competition: Non-Solicitation: Proprietary Rights’
4.1. Unauthorized
Disclosure.
(a) During
the Term and at all times thereafter, the Executive shall hold in a fiduciary capacity for the benefit of the Company and each of its
Affiliates, all secret or confidential information, knowledge or data, including, without limitation, technical information, intellectual
property, business and marketing plans, strategies, customer information and lists, software, trade secrets, sources of supplies and materials,
designs, production and design techniques and methods, identity of investments, identity of contemplated investments, business opportunities,
valuation models and methodologies, processes, technologies, and any other intellectual property relating to the business, or other information
concerning the products, promotions, development, financing, expansion plans, business policies and practices, of the Company and each
of its Affiliates, and their respective businesses, and other forms of information considered by the Company and its Affiliates to be
confidential and in the nature of trade secrets (i) obtained by the Executive during the Executive’s employment by the Company
or any of its Affiliates and/or during any period of time in which the Executive has access to email and/or information technology services
from the Company, and (ii) not otherwise in the public domain (collectively, “Confidential Information”).
(b) The
Executive also agrees to keep confidential and not to publish, post on his own or to disclose any personal information regarding any
controlling Person of the Company (or any of its Affiliates), including, without limitation, Carl C. Icahn, or any of his Affiliates
and their respective employees, and any member of the immediate family of any such Person (and all such personal information shall
be deemed “Confidential Information” for the purposes of this Employment Agreement). The Executive shall not, without
the prior written consent of the Company (acting at the direction of the Board): (i) except to the extent compelled pursuant to
the order of a court or other body having jurisdiction over such matter or based upon the advice of counsel that such disclosure is
legally required, communicate or divulge any Confidential Information to anyone other than the Company and those designated by the
Company; or (ii) use any Confidential Information for any purpose other than the performance of his duties pursuant to this
Employment Agreement. The Executive will assist the Company or its designee, at the Company’s expense, in obtaining a
protective order, other appropriate remedy or other reliable assurance that confidential treatment will be accorded any Confidential
Information disclosed pursuant to the terms of this Employment Agreement. The Executive agrees not to disparage the Company, its
officers and directors, Mr. Icahn, any Related Parties, or any Affiliate of any of the foregoing, in each case during and/or
after the Executive’s employment hereunder. Without limiting anything contained above, the Executive agrees and acknowledges
that all personal and not otherwise public information about the Company and its Affiliates (including, without limitation, all
information regarding Icahn Enterprises L.P. MEM, Carl C. Icahn, Mr. Icahn’s family, and employees of the
Company, IEP and their respective Affiliates) shall constitute Confidential Information for purposes of this Employment
Agreement.
(c) Upon
termination or resignation of the Executive’s employment with the Company (excepting any permitted use contemplated by Section 3.2(a)),
the Executive shall promptly return to the Company all property, keys, notes, memoranda, writings, lists, files, reports, customer lists,
correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data and any other tangible product or document which has
been produced by, received by or otherwise submitted to the Executive during the Executive’s employment with the Company and related
to such employment with the Company, and any copies thereof in Executive’s (or capable of being reduced to Executive’s) possession.
(d) The
Executive further agrees not to write, contribute to, or assist any other person in writing or creating, a book, film, broadcast, article,
blog or any other publication (whether in print, electronic or any other form) about or concerning, in whole or in part, the Company, IEP,
Mr. Icahn and his family members or any of the respective Affiliates and subsidiaries of any of the foregoing (as applicable), in
any media, and not to publish or cause to be published in any media. any Confidential Information, and further agrees to keep confidential
and not to disclose to any third party, including, but not limited to, newspapers, authors, publicists, journalists, bloggers, gossip
columnists, producers, directors, script writers, media personalities, and the like, in any and all media or communication methods, any
Confidential Information. In furtherance of the foregoing, the Executive agrees that during the Term and following the termination of
his employment with the Company, the sole and only disclosure or statement he will make about or concerning any or all of the Company, IEP,
Mr. Icahn and his family members or any of the respective Affiliates and subsidiaries of any of the foregoing (as applicable) is
to acknowledge that the Executive is or was employed by the Company (unless otherwise required by applicable law).
4.2. Non-Competition.
By and in consideration of the Company’s entering into this Employment Agreement and the payments to be made and benefits to be
provided by the Company hereunder, and in further consideration of the Executive’s exposure to the Confidential Information of the
Company and its Affiliates, the Executive agrees that the Executive shall not, except as otherwise provided herein, during the Term and
thereafter for the period during which the Severance Payments are payable or six months following the end of the Term if no Severance
Payments are payable (the “Restriction Period”) directly or indirectly, own, manage, operate, join, control, be employed
by, or participate in the ownership, management, operation or control of or be connected in any manner with, including, without limitation,
holding any position as a principal, agent. owner, stockholder, director, officer, consultant, advisor, independent contractor, employee,
partner, or investor in, any Restricted Enterprise (as defined below); provided. that in no event shall ownership of one percent
(1%) or less of the outstanding securities of any class of any issuer whose securities are registered under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), standing alone, be prohibited by this Section 4.2, so long as the Executive
does not have, or exercise, any rights to manage or operate the business of such issuer other than rights as a stockholder thereof. For
purposes of this paragraph, “Restricted Enterprise” shall mean any Person that is actively engaged in any business
which is either (i) in competition with the business of the Company or any of its Affiliates conducted during the preceding six months
(or following the Tern, the six months preceding the last day of the Term), or (ii) proposed to be conducted by the Company or any
of its Affiliates in the Company’s or Affiliate’s business plan as in effect at that time (or following the Term, the business
plan as in effect as of the last day of the Term). During the Restriction Period, upon request of the Company, the Executive shall notify
the Company of the Executive’s then-current employment status.
4.3. Non-Solicitation
of Employees. During the Restriction Period, the Executive shall not directly or indirectly solicit (or assist any Person to solicit)
for employment any person who is, or within six months prior to the date of such solicitation was, an employee of the Company or any of
its Affiliates, provided. however, that this Section 4.3 shall not prohibit the hiring of any individual as a result of the
individual’s response to an advertisement in a publication of general circulation.
4.4. Non-Solicitation
of Customers/Suppliers. During the Restriction Period, the Executive shall not, directly or indirectly, (i) solicit, interfere
with or entice away from the Company or any of its Affiliates, any current supplier, customer or client, (ii) direct or solicit any
current supplier, customer or client away from the Company or any of its Affiliates, or (iii) advise any Person not to do business
with or be employed by the Company or any of its Affiliates.
4.5. Extension
of Restriction Period. The Restriction Period shall be extended for a period of time equal to any period during which the Executive
is in breach of any of Section 4.2, 4.3 or 4.4 hereof.
4.6. Proprietary
Rights. Any and all inventions, processes, know-how, technologies, trade-secrets information, intellectual property,
discoveries, and improvements (whether or not patentable or registrable under copyright or similar statutes}, and all patentable or
copyrightable works, initiated, conceived, discovered, reduced to practice, or made by Executive, either alone or in conjunction
with others, during the Executive’s employment with the Company and related to the business or activities of the Company or
its Affiliates (whether or not on the Company’s or any of its Affiliates’ time or with the use of the Company’s or
any of its Affiliates’ facilities or materials) (the “Developments” ) shall be the property of the Company
or any of its Affiliates, as the case may be, and shall be promptly and fully disclosed by the Executive to the Company. Except to
the extent any rights in any Developments constitute a work made for hire under the U.S. Copyright Act, 17 U.S.C. § 101 et seq.
that are owned ab initio by the Company and/or its Affiliates, the Executive assigns all of Executive’s right, title
and interest in all Developments (including all intellectual property rights therein) to the Company or its nominee without further
compensation, including all rights or benefits therefor, including without limitation the right to sue and recover for past and
future infringement. The Executive acknowledges that any rights in any developments constituting a work made for hire under the U.S.
Copyright Act, 17 U.S.C § 101 et seq. are owned upon creation by the Company and/or its Affiliates as the Executive’s
employer. Whenever requested to do so by the Company, and without further compensation therefor, the Executive shall execute any and
all applications, assignments or other instruments which the Company shall deem necessary to apply for and obtain trademarks,
patents or copyrights of the United States or any foreign country or otherwise protect the interests of the Company and its
Affiliates therein. These obligations shall continue beyond the end of the Executive’s employment with the Company with
respect to the Developments, and shall be binding upon the Executive’s employers, assigns, executors, administrators and other
legal representatives. In connection with Executive’s execution of this Employment Agreement, the Executive has informed the
Company in writing of any interest in any inventions or intellectual property rights that Executive holds as of the date hereof. If
the Company is unable for any reason to obtain the Executive’s signature on any document needed in connection with the actions
described in this Section 4.6, the Executive hereby irrevocably designates and appoints the Company, its Affiliates, and their
respective duly authorized officers and agents as the Executive’s agent and attorney in fact to act for and in the
Executive’s behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the
purposes of this Section with the same legal force and effect as if executed by the Executive.
4.7. Confidentiality
of Agreement. Other than with respect to information required to be disclosed by applicable law, the parties hereto agree not to disclose
the terms of this Employment Agreement to any Person; provided the Executive may disclose this Employment Agreement and/or any of its
terms to the Executive’s immediate family, financial advisors and attorneys. Notwithstanding anything in this Section 4.7 to
the contrary, the parties hereto (and each of their respective employees, representatives, or other agents) may disclose to any and all
Persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Employment Agreement,
and all materials of any kind (including opinions or other tax analyses) related to such tax treatment and tax structure; provided that
this sentence shall not permit any Person to disclose the name of, or other information that would identify, any party to such transactions
or to disclose confidential commercial information regarding such transactions.
4.8. Remedies.
The Executive agrees that any breach of the terms of this Section 4 would result in irreparable injury and damage to the Company
and its Affiliates for which the Company and its Affiliates would have no adequate remedy at law; the Executive therefore also agrees
that in the event of said breach or any threat of breach, the Company and its Affiliates shall be entitled to an immediate injunction
and restraining order to prevent such breach and/or threatened breach and/or continued breach by the Executive and/or any and all Persons
acting for and/or with the Executive, without having to prove damages, in addition to any other remedies to which the Company and its
Affiliates may be entitled at law or in equity, including, without limitation, the obligation of the Executive to return any Severance
Payments paid by the Company back to the Company. The terms of this paragraph shall not prevent the Company or its Affiliates from pursuing
any other available remedies for any breach or threatened breach hereof, including, without limitation, the recovery of damages from the
Executive. The Executive and the Company further agree that the provisions of the covenants contained in this Section 4 are reasonable
and necessary to protect the businesses of the Company and its Affiliates because of the Executive’s access to Confidential Information
and Executive’s material participation in the operation of such businesses.
Section 5. Representation.
The Executive acknowledges, covenants,
agrees, warrants and represents that: (i) he is not a party to any contract, nor is he subject to, or bound by any commitment,
restrictive covenant or agreement, order, judgment, decree, law, statute, ordinance, rule, regulation or other restriction of any
kind or character, which either would or purports to, prevent or restrict him from entering into and performing his obligations
under this Employment Agreement free of any limitations; (ii) he is free to enter into the arrangements contemplated herein;
(iii) he is not subject to any agreement or obligation that would limit his ability to act on behalf of the Company or any of
its Affiliates; (iv) the termination of his existing employment, his entry into the employment contemplated herein and the
performance of his duties in respect thereof, will not violate or conflict with any agreement or obligation to which he is subject;
and (v) he has had an opportunity to consult with independent legal counsel regarding his rights and obligations under this
Employment Agreement and that he fully understands the terms and conditions contained herein.
Section 6. Withholding
All amounts paid to the Executive
under this Employment Agreement during or following the Term shall be subject to the withholding of income taxes, employment taxes, and
all other applicable taxes imposed by applicable law.
Section 7. Effect
of Section 280G of the Code.
7.1. Payment
Reduction. Notwithstanding anything contained in this Employment Agreement to the contrary, (i) to the extent that any
payment or distribution of any type to or for the benefit of the Executive by the Company, any Affiliate of the Company, any Person
who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company’s assets
(within the meaning of Section 280G of the Code and the regulations thereunder), or any Affiliate of such Person, whether paid
or payable or distributed or distributable pursuant to the terms of this Employment Agreement or otherwise (the “Payments”)
constitutes “parachute payments” (within the meaning of Section 280G of the Code), and if (ii) such aggregate
Payments would, if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed under
Section 4999 of the Code (the “Excise Tax”), be less than the amount the Executive would receive, after all
taxes, if the Executive received aggregate Payments equal (as valued under Section 280G of the Code) to only three times the
Executive’s “base amount” (within the meaning of Section 280G of the Code), less $1.00, then (iii) such
Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payments to be made or benefit to be
provided to the Executive shall be subject to the Excise Tax; provide0, however, that, solely to the extent applicable, the
Company shall use its reasonable best efforts to obtain shareholder approval of the Payments provided for in this Employment
Agreement in a manner intended to satisfy requirements of the “shareholder approval” exception to Section 280G of
the Code and the regulations promulgated thereunder, such that payment may be made to the Executive of such Payments without the
application of an Excise Tax. If the Payments are so reduced, the Company shall reduce or eliminate the Payments (x) by first
reducing or eliminating the portion of the Payments which are not payable in cash (other than that portion of the Payments subject
to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Payments subject
to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not
payable in cash) to which Treasury Regulation§ 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse
order beginning with payments or benefits which are to be paid the farthest in time.
7.2. Determination
of Amount of Reduction (if any 1. The determination of whether the Payments shall be reduced as provided in Section 7.I hereof
and the amount of such reduction shall be made at the Company’s expense by an accounting firm selected by the Company from among
the four (4) largest accounting firms in the United States (the “Accounting Firm” The Accounting Firm shall provide
its determination (the “Determination”), together with detailed supporting calculations and documentation, to the Company
and the Executive within 10 days after the Executive’s final day of employment. If the Accounting Firm determines that no Excise
Tax is payable by the Executive with respect to the Payments, it shall furnish the Executive with an opinion reasonably acceptable to
the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall
be binding, final and conclusive upon the Company and the Executive.
Section 8. Miscellaneous.
8.1. Amendments
and Waivers. This Employment Agreement and any of the provisions hereof may be amended, waived (either generally or in a particular
instance and either retroactively or prospectively), modified or supplemented, in whole or in part, only by written agreement signed by
the parties hereto; provided, that, the observance of any provision of this Employment Agreement may be waived in writing by the
party that will lose the benefit of such provision as a result of such waiver. The waiver by any party hereto of a breach of any provision
of this Employment Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any
other or subsequent breach, except as otherwise explicitly provided for in such waiver. Except as otherwise expressly provided herein,
no failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder, or otherwise available
in respect hereof at law or in equity, shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power
or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
8.2. Fees
and Expenses. In the event of any dispute between the Company and the Executive arising under this Employment Agreement, each party
shall be responsible for its own legal fees and related expenses (including the costs of experts, evidence and counsel).
8.3. Indemnification.
To the extent provided in the Company’s Certificate of Incorporation or Bylaws, as in effect from time to time, and subject to any
separate agreement (if any) between the Company and the Executive regarding indemnification, the Company shall indemnify the Executive
for losses or damages incurred by the Executive as a result of causes of action arising from the Executive’s performance of duties
for the benefit of the Company, whether or not the claim is asserted during the Term. In addition, Executive shall participate in directors
and officers insurance, if any, maintained by the Company from time to time on the same terms and conditions as other senior executives
or directors of the Company.
8.4. Assignment.
This Employment Agreement, and the Executive’s rights and obligations hereunder, may not be assigned by the Executive, and any
purported assignment by the Executive in violation hereof shall be null and void.
8.5. Payments
Following Executive’s Death. Any amounts payable to the Executive pursuant to this Employment Agreement that remain unpaid at
the Executive’s death shall be paid to the Executive’s estate.
8.6. Notices.
Unless otherwise provided herein, all notices, requests demands, claims and other communications provided for under the terms of this
Employment Agreement shall be in writing. Any notice, request, demand, claim or other communication hereunder shall be sent by (i) personal
delivery (including receipted courier service) or overnight delivery service, (ii) facsimile during normal business hours, with confirmation
of receipt, to the number indicated, (iii) reputable commercial overnight delivery service courier or (iv) registered or certified
mail, return receipt requested, postage prepaid and addressed to the intended recipient as set forth below:
If to the Company:
Viskase Companies, Inc.
333 East Butterfield Road
Suite 400
Lombard, IL 60148-5679
Attention: General Counsel
Facsimile: 630 874-0176
with a copy to:
Icahn Enterprises, L.P.
16690 Collins Avenue - Penthouse Suite Sunny Isles Beach,
Florida 33160
Attention: General Counsel
Facsimile: 917.5913310
If to the Executive:
Timothy P. Feast
[*****]
At the last known principal
residence address reflected in the payroll records of the Company, or to such other address as either party shall have furnished to the
other in writing in accordance herewith.
All such notices, requests,
consents and other communications shall be deemed to have been given when received. Any party may change its facsimile number or its address
to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other party hereto notice
in the manner then set forth.
8.7. Governing
Law. This Employment Agreement shall be governed and interpreted and the rights of the parties determined in accordance with the laws
of the United States applicable thereto and the internal laws of the State of Delaware without giving effect to the conflict of laws principles
thereof. Any unresolved dispute arising out of this Employment Agreement shall be litigated solely in any court of competent jurisdiction
in (a) state courts of the State of Florida located in Miami-Dade County and (b) the United States District Court for the Southern
District of the State of Florida for the purposes of any action or proceeding arising out of or relating to this Agreement; provided that
the Company may elect to pursue a court action to seek injunctive relief in any court of competent jurisdiction to terminate the violation
of its proprietary rights, including but not limited to trade secrets, copyrights or trademarks.
8.8. Waiver
of Jury Trial. THE PARTIES HERETO AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY
MADE BY EXECUTIVE, AND EXECUTIVE ACKNOWLEDGES THAT, EXCEPT FOR THE COMPANY’S AGREEMENT TO LIKEWISE WAIVE ITS RIGHTS TO A TRIAL BY
JURY (WHICH THE COMPANY HEREBY MAKES), THE COMPANY HAS NOT MADE ANY REPRESENTATIONS OF FACTS TO INDUCE THIS WAIVER OF TRIAL BY JURY OR
IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS
OF THIS WAIVER AND AS EVIDENCE OF THIS FACT SIGNS THIS EMPLOYMENT AGREEMENT BELOW.
8.9. Severability.
If any paragraph or part or subpart of any paragraph in this Employment Agreement or the application thereof is construed to be overbroad
and/or unenforceable, then the court making such determination shall have the authority to narrow the paragraph or part or subpart of
the paragraph as necessary to make it enforceable and the paragraph or part or subpart of the paragraph shall then be enforceable in its/their
narrowed form. Moreover, each paragraph or part or subpart of each paragraph in this Employment Agreement is independent of and severable
(separate) from each other. In the event that any paragraph or part or subpart of any paragraph in this Employment Agreement is determined
to be legally invalid or unenforceable by a court and is not modified by a court to be enforceable, the affected paragraph or part or
subpart of such paragraph shall be stricken from this Employment Agreement, and the remaining paragraphs or parts or subparts of such
paragraphs of this Employment Agreement shall remain in full force and effect.
8.10. Entire
Agreement. From and after the Commencement Date, this Employment Agreement constitutes the entire agreement between the parties hereto,
and supersedes all prior representations, agreements and understandings, both written and oral, relating to any employment of the Executive
by the Company or any of its Affiliates.
8.11. Counterparts.
This Employment Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts
shall together constitute one and the same instrument.
8.12. Binding
Effect. The terms of this Employment Agreement shall be binding upon the Executive, the Executive’s heirs, executors, assigns,
administrators and legal representatives, and shall inure to the benefit of the Company and its successors and assigns, including, without
limitation, any successor to all or substantially all of the business and/or assets of the Company.
8.13. General
Interpretive Principles. The name assigned this Employment Agreement and headings of the sections, paragraphs, subparagraphs, clauses
and subclauses of this Employment Agreement are for convenience of reference only and shall not in any way affect the meaning or interpretation
of any of the provisions hereof. Words of inclusion shall not be construed as terms of limitation herein, so that references to “include”,
“includes” and “including” shall not be limiting and shall be regarded as references to non-exclusive and non-characterizing
illustrations.
8.14. Mitigation.
Notwithstanding any other provision of this Employment Agreement, (a) the Executive will have no obligation to mitigate damages for
any breach or termination of this Employment Agreement by the Company, whether by seeking employment or otherwise and (b) the amount
of any payment or benefit due the Executive after the date of such breach or termination will not be reduced or offset by any payment
or benefit that the Executive may receive from any other source.
8.15. Company
Actions, Any actions, approvals, decisions, or determinations to be made by the Company under this Employment Agreement shall be made
by the Board, except as otherwise expressly provided herein. For purposes of any references herein to the Board’s designee, any
such reference shall be deemed to include such officers of the Company, or committees of the Board, as the Board may expressly designate
from time to time for such purpose.
8.16. Survival.
All provisions of this Employment Agreement which by their terms, contain continuing obligations by Executive shall survive termination
of this Employment Agreement, including without limitation, the covenants, duties and obligations under Sections 3.4, 3.5 and 4 hereof.
8.17. Assumption
of Agreement By Successor. In the event of a Change in Control, the Company will request that any successor expressly assume and agree,
pursuant to an appropriate written assumption agreement, to perform the Company’s obligations under this Employment Agreement in
substantially the same manner and to substantially the same extent that the Company would be required to perform if no such Change in
Control had taken place.
8.18. Definitions.
In addition to the defined terms set forth throughout this Employment Agreement, the capitnli7ed terms set forth on Appendix C
shall have the respective meanings set forth thereon and are incorporated by reference into this Employment Agreement.
[signature page follows]
IN
WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the date first written
above.
| |
|
|
| /s/ Timothy P. Feast |
|
Viskase Companies, Inc. |
| Timothy P. Feast |
|
/s/ Joseph King |
| |
|
General Counsel |
[Signature
Page to Employment Agreement]
Exhibit 10.11
VISKASE COMPANIES, INC.
2022 LONG-TERM INCENTIVE PLAN
For the Performance Period
September 6, 2022 – September 5,
2027
The Company’s (as defined below)
2022 Long-Term Incentive Plan (the “Plan”) is designed to drive a culture focused on long-term company performance.
The Plan is intended to deliver “pay-for-performance” through a potential long-term incentive payment, which is based on an
overall increase in the Net Asset Value of the Company during the Performance Period, to encourage and stimulate superior performance
by eligible Participants, and to assist in retaining key employees. The Plan contemplates the payment of a Bonus Award after a Sale of
the Company or at the end of the fifth year of the Plan. This Plan is intended to be in effect through September 5, 2027, subject
to the right of the Compensation Committee to amend, modify, or terminate this Plan as provided below. All capitalized terms used in the
Plan have the meaning assigned to such terms in Section II below unless such terms are otherwise defined in the Plan or the Award
Agreement.
Definitions for specific terms used
within this Plan are identified below.
| A. | “Affiliate” means each of the following: (i) any Subsidiary; (ii) any Parent;
(iii) any corporation, trade or business (including, without limitation, a partnership or limited liability company) which directly
or indirectly, controls fifty percent (50%) or more (whether by ownership of stock, assets or an equivalent ownership interest or voting
interest) of the Company or one of its Affiliates, or is under common control with the Company; (iv) any trade or business (including,
without limitation, a partnership or limited liability company) which directly or indirectly controls fifty percent (50%) or more (whether
by ownership of stock, assets or an equivalent ownership interest or voting interest) of the Company; and (v) any other entity in
which the Company or any of its Affiliates has a material equity interest and which is designated as an “Affiliate” by resolution
of the Compensation Committee. |
| B. | “Award Agreement” refers to the Long-Term Performance Agreement presented to Participants
in this Plan. |
| C. | “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the Securities Exchange Act of 1934, as amended, except that in calculating the beneficial ownership of any particular “person”
(as that term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended), such “person” will
be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise
of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. |
| D. | “Board” means the Board of Directors of the Company. |
| E. | “Bonus Award” is the cash payment that may be earned by Participants, subject to the
eligibility requirements set forth in Section III, achievement by the Company of Performance Metrics set forth in Section V with respect to the
Performance Period, and subject to adjustments as provided in this Plan and the Award Agreement. |
| F. | “Breach of Conduct” means (i) (A) if a Participant has executed an employment
agreement, Award Agreement or other agreement with the Company or any of its Affiliates, then (1) the commission by the Participant
of any act contained within the definition of “cause” contained therein or (2) any breach by the Participant of such
agreement, (B) a Participant’s conviction of, or entering a guilty plea, no contest plea or nolo contendere plea to any crime
(other than traffic violations), (C) failure by a Participant to work on a full-time basis in the Company’s offices or other
approved work location, other than on holidays, vacation days, sick days, or other days off under the Company’s business policies;
(D) illegal use by a Participant of drugs or alcohol in violation of the Company’s business policies; or (E) a material
breach by a Participant of the Participant’s employment terms; or (ii) conduct, as determined by the Compensation Committee
in its sole and absolute discretion, involving any one of the following: (A) a material violation by a Participant of any business
policy or standard of the Company or any Subsidiary that has been distributed or made available to the Participant, (B) material
misconduct or inadequate performance by a Participant; (C) a Participant’s commission of an act of embezzlement, fraud or theft;
(D) a Participant’s unauthorized disclosure of any trade secret or confidential information of the Company (or any client,
customer, supplier or other third party who has a business relationship with the Company) or a Participant’s willful failure to
protect any trade secret or confidential information of the Company; (E) a Participant’s violation of any noncompetition or
nonsolicitation covenant or similar agreement with the Company or any of its Subsidiaries or soliciting, inducing, or attempting to induce
employees of the Company or its Subsidiaries to terminate their employment with the Company or a Subsidiary; (F) a Participant’s
violation of any assignment of inventions obligation with the Company or any of its Subsidiaries; (G) a Participant’s commission
of an act which constitutes unfair competition with the Company or which induces or attempts to induce any customer or prospective customer
of the Company to breach a contract with the Company or to decline to do business with the Company; (H) a Participant’s commission
of an act of fraud or breach of fiduciary duty; (I) the failure of a Participant to perform in a material respect his or her employment
obligations without proper cause; (J) any violation by a Participant of the terms or conditions of this Plan or any Award Agreement;
or (K) a Participant’s disparagement, or inducement of others to do so, of the Company or its Affiliates, or their past or
present officers, directors, employees or products, or their controlling persons. |
| G. | “Cause” means with respect to a Participant: (i) dishonesty detrimental to the
best interests of the Company or any of its Affiliates; (ii) conduct of a Participant involving any immoral acts which is reasonably
likely to impair the reputation of the Company or any of its Affiliates; (iii) willful disloyalty to the Company or the Board; (iv) refusal
or failure of a Participant to obey the lawful directions of the Board or immediate superiors; (v) neglect of duties and responsibilities
assigned to a Participant; (vi) commission of, or indictment for a felony or any crime involving fraud or embezzlement or dishonesty
or conviction of, or plea of nolo contendere to a misdemeanor (other than a traffic violation) punishable by imprisonment under foreign,
federal, state or local law; (vii) the violation, as determined by the Board or Compensation Committee based on opinion of counsel,
by a Participant of any securities or employment laws or regulations; (viii) the use by a Participant of a controlled substance without
a prescription or the use of alcohol, which impairs the Participant’s ability to carry out his or her duties and responsibilities;
(ix) material violation by a Participant of the Company’s policies and procedures or any breach of any agreement between the
Company and a Participant (including, without limitation, the Company’s applicable confidentiality policy and any non-compete and/or non-solicitation
provisions to which the Participant is subject); (x) willful misconduct or negligence resulting in a material economic harm to the
Company; (xi) unauthorized contact with a prospective buyer or investor; (xii) refusal to execute the signature page of
any Company policy requiring a signature indicating his or her agreement thereto; (xiii) embezzlement and/or misappropriation of
property of the Company or any of its Affiliates, or any act involving fraud with respect to the Company or any of its Affiliates; or
(xiv) failure by the Participant in his or her responsibility to manage or monitor risk which resulted in a subordinate engaging
in misconduct or gross dereliction of duty resulting in either a violation of law or Company policy or procedures, that in either case,
causes significant financial or reputational harm to the Company. |
| H. | “Clawback” is a compensation recovery method, provided under the Plan to recover all
(or a portion) of a prior Bonus Award based on a correction or restatement of the Company’s financial statements or other factors
affecting Performance Metrics as expressly described herein. |
| I. | “Code” means the U.S. Internal Revenue Code of 1986, as amended. Any reference to any
section of the Code will also be a reference to any successor provision and any Treasury Regulation promulgated thereunder. |
| J. | “Company” means Viskase Companies, Inc. and its Subsidiaries and their successors
and assigns. |
| K. | “Compensation Committee” means the Compensation Committee of the Board. |
| L. | “Fiscal Year” means the Company’s Fiscal Year beginning January 1 and ending
December 31. |
| M. | “Good Reason” means (i) a material reduction in a Participant’s base salary;
(ii) a material reduction by the Company in the duties or responsibilities of the Participant; or (iii) Participant being required
to perform illegal acts by the Company. Good Reason shall not exist unless both (x) the Participant provides written notice to the
Company of the condition claimed to constitute grounds for a Good Reason termination within thirty (30) days of the initial existence
of such condition(s), (y) the Company fails to remedy such condition(s) within thirty (30) days of receiving such written notice
thereof; and (z) the Participant terminates employment within sixty-five (65) days following the expiration of the Company’s
cure period. |
| N. | “Parent” means any parent corporation of the Company within the meaning of Section 424(e) of
the Code. |
| O. | “Participant(s)” refer(s) to the employees listed selected and approved by the
Compensation Committee, as long as any such person is eligible to participate in the Plan pursuant to Section III and any other person
approved by the Compensation Committee in its sole and absolute discretion. |
| P. | “Performance Metrics” refers to the positive change in the Net Asset Value of the Company
during the Performance Period as described herein and in the Award Agreements. |
| Q. | “Performance Period” means the period commencing September 6, 2022 and ending
September 5, 2027, or such other performance period in the case of a Sale of the Company, all as described in the Award Agreement. |
| R. | “Person” means any natural person, corporation, limited liability company, or other
legal entity. |
| S. | “Related Parties” shall mean (i) Carl Icahn, any spouse and any child, stepchild,
sibling or descendant of Carl Icahn; (ii) any estate of Carl Icahn or of any Person referred to in clause (i); (iii) any Person
who receives a bequest from or beneficial interest in any estate under clause (ii) to the extent of such interest; (iv) any
executor, personal administrator or trustee who holds such beneficial interest in the Company for the benefit of, or as fiduciary for,
any Person under clauses (i), (ii) or (iii) to the extent of such interest; (v) any Person directly or indirectly owned
or controlled by Carl Icahn or any other Person or Persons identified in clauses (i), (ii) (iii) or (iv); and (vi) any
not-for-profit entity not subject to taxation pursuant to Section 501(c)(3) of the Internal Revenue Code or any successor provision
to which Carl Icahn or any Person identified in clauses (i), (ii) or (iii) above contributes his beneficial interest in the
Company or to which such beneficial interest passes pursuant to such Person’s will. |
| T. | “Sale of the Company” or “Change in Control” means a (i) the
consummation of any transaction (including, without limitation, any sale of stock, merger, consolidation or spinoff), the result of which
is that any Person, other than Carl Icahn or the Related Parties, becomes that Beneficial Owner, directly or indirectly, of more than
50% of the voting power of the voting securities of the Company (or, if applicable, its parent corporation or entity) or (ii) the
acquisition by any Person, other than Carl Icahn or the Related Parties, of all or substantially all of the assets of Company; provided,
however, that in either scenario (i) or (ii) above the sale must be to a buyer that is not an Affiliate of Icahn Enterprises
L.P. (“IEP”), or to two or more Persons unaffiliated with IEP acting as a group, in a single transaction or series of related
transactions occurring within a 12-month period; and provided, further, that to the extent the definition of Change in Control is applicable
to a Bonus Award that constitutes deferred compensation for purposes of Code Section 409A, the transaction or acquisition shall only
constitute a Change in Control for purposes of such Bonus Award to the extent the transaction or acquisition would constitute a change
in control under either (i) or (ii) and would also constitute a change in control event as defined in 26 C.F.R. 1.409A3(i)(5)(i).
Notwithstanding the foregoing, a Sale of the Company shall not occur solely by reason of a public offering of the Company’s securities. |
| U. | “Subsidiary” means any subsidiary corporation of the Company within the meaning of
Section 424(f) of the Code. |
A Participant will become eligible to
earn a Bonus Award under the following conditions: (i) the Participant is expressly selected for participation in the Plan and returns
to the Company an executed copy of an Award Agreement on a form approved by the Compensation Committee; (ii) the Participant must
have returned to the Company executed copies of any confidentiality, non- competition, non-disparagement and other restrictive covenants
in any offer letter or employment agreement under which they were employed, and/or in any other agreement they had or were required to
have with the Company, and acknowledged his or her understanding and acceptance of the Company’s policies consistent with the Company’s
practices and procedures; (iii) the
Participant must be employed by the
Company on the last day of the Performance Period except as set forth in Sections 8 and 10 of the Award Agreement; and (iv) the Participant
is subject to all other terms, conditions, restrictions and/or requirements set forth in this Section III.
| · | Termination of Employment. Each Award Agreement shall set forth the vesting provisions and the
impact of an intervening termination of employment upon payment of the Bonus Award, as established by the Compensation Committee in its
sole discretion. |
| · | Forfeiture of Bonus Award. If a Participant’s termination of employment for Cause occurs
prior to the date a Bonus Award that has been awarded to such Participant is actually paid out, then the Participant will not be entitled
to any bonus payment with respect to such Bonus Award. Bonus Awards are not considered earned until they are approved by the Compensation
Committee. As a condition of the receipt of any Bonus Award, a Participant may be required to certify in writing (or will be deemed to
have certified) at the time of receipt in a manner acceptable to the Company that the Participant (i) is in compliance with the terms
and conditions of the Plan, (ii) has not violated any terms of any applicable Company confidentiality policy or any non-compete and/or
non-solicitation provisions to which the Participant is subject, and (iii) has not engaged in, and does not intend to engage in,
any behavior that would result in a termination for Cause. |
| · | Clawback of Bonus Award. In addition to any other remedies available to the Company or a Subsidiary,
and to the fullest extent permitted under applicable law, the Compensation Committee in its sole and absolute discretion, will be entitled
to cancel, declare forfeited, rescind, or require the return of any outstanding Bonus Award (or a portion thereof), or recover from the
Participant at any time, and the Participant will pay over to the Company upon request, an amount up to the amount of any Bonus Award
that has been paid out to the Participant in the event: |
(a) Restatement
of Company’s Financial Statements. There is a restatement of the Company’s consolidated financial statements (or the Board
otherwise determines that the Company’s financial statements were incorrect) and the amount of the payment that would have been
received by the Participant had the financial results been properly reported would have been lower than the amount actually received;
provided however, there shall be no clawback to the extent that a restatement of the financial statements results from the acts or conditions
existing prior to the Participant’s date of hire.
(b) Breach
of Conduct. The Compensation Committee determines that: (i) the Participant has, at any time (whether before or after the grant
date of the Bonus Award), committed a Breach of Conduct; or (ii) engaged in imprudent conduct with respect to inventory management,
capital expenditures, investments and/or engaged in operating behavior which is detrimental to the long-term value of the company, for
the purpose of increases the amount of a Bonus Award, or
(c) Indemnity
Claims. Either the Company or any of its Affiliates is required to make an indemnification payment with respect to a Sale of the Company
and the indemnification payment was included in the calculation of the Bonus Award.
(d) The
Compensation Committee’s Clawback rights described in this section shall expire and be of no force or effect one (1) year after
the date of payment of the Bonus Award.
To the extent that amounts are not immediately
repaid to the Company as provided above, the Company may, to the extent permitted by applicable law, seek other remedies, including a
set off of the amounts so payable to it against any amounts that may be owing from time to time by the Company or a Subsidiary to the
Participant for any reason, including, without limitation, wages, severance or vacation pay or other benefits; provided, however, that,
except to the extent permitted by Treasury Regulation Section 1.409A-3(j)(4), such offset shall not apply to amounts that are “deferred
compensation” within the meaning of Section 409A of the Internal Revenue Code. The Compensation Committee shall have full and
final authority to make all determinations with respect to the Clawback rights set forth herein, including, without limitation, the application
of this section and the amount of compensation to be repaid or forfeited by the Participant.
Participants covered by this Plan will
be notified of eligibility in writing by the Company and will receive an Award Agreement which will provide additional terms and conditions
applicable to Bonus Awards, including the Participant’s individual “Award Percentage”.
The Board or the Compensation Committee
may, in its sole and absolute discretion, at any time prior to the final determination of Bonus Awards, increase, decrease or otherwise
adjust Performance Metrics, targets, and payout ranges used hereunder as a result of extraordinary or non-recurring events, changes in
applicable accounting rules or principles, changes in the Company’s methods of accounting, changes in applicable law, changes
due to any consolidation, acquisition or reorganization affecting the Company and its Subsidiaries or such other material change in the
Company’s business. The Board or the Compensation Committee, as applicable, will implement such change(s) in its sole and absolute
discretion and without the consent of any Participant.
| VI. | COMPUTATION AND DISBURSEMENT OF FUNDS |
The calculation of the Company’s
financial and operational targets will be based upon the Company’s audited financials, subject to review and approval by the Compensation
Committee in its sole and absolute discretion and determination by the Compensation Committee in its sole and absolute discretion as to
whether or not the Performance Metrics were achieved.
Notwithstanding anything to the contrary
in this Plan, if the Compensation Committee determines, in its sole and absolute discretion, that calculations underlying the Performance
Metrics, including but not limited to, mistakes in the Company’s audited financial statements for any Fiscal Year were incorrect,
then the Compensation Committee may (i) adjust Bonus Awards (upward or downward); and/or (ii) initiate a Clawback.
As soon as practicable after the close
of the Performance Period, the Company’s Chief Financial Officer will calculate the financial performance and the proposed payout
of the applicable Bonus Award in accordance with the terms and conditions of this Plan and the applicable Award Agreement.
Income, employment, and any other applicable
taxes and withholdings will be withheld from any Bonus Award payments required under the Plan to the extent determined by the Company
in accordance with applicable law. In addition, in the sole and absolute discretion of the Company, any applicable employment taxes that
are a liability of a Participant may be deducted from Bonus Awards and transmitted to the appropriate tax authority. A Participant who
receives payment hereunder also will be issued a Form W-2, Form 1099, or other report as is required by law, and such report
also will be filed with taxing authorities as is required by law.
This Plan and each Award Agreement will
be administered by the Compensation Committee.
In the event of a claim or dispute brought
forth by a Participant, the decision of the Compensation Committee as to the facts in the case and the meaning and intent of any provision
of the Plan, or its application, will be final, binding, and conclusive. Notwithstanding anything herein to the contrary, the Compensation
Committee shall retain sole and absolute discretion over all matters relating to this Plan and each Award Agreement.
| VIII. | NO EMPLOYMENT CONTRACT; FUTURE PLANS |
Participation in this Plan will not
confer upon any Participant any right to continue in the employ of the Company nor interfere in any way with the right of the Company
to terminate any Participant’s employment at any time. The Company is under no obligation to continue the Plan after any Bonus Awards
associated with a Sale of the Company or the Performance Period, as the case may be, has been determined and paid if applicable.
A Participant’s rights under the
Plan will not be assignable, either voluntarily or involuntarily by way of encumbrance, pledge, attachment, level, or charge of any nature
(except as may be required by state or federal law).
Nothing in the Plan will require the
Company to segregate or set aside any funds or other property for the purpose of paying any portion of a Bonus Award. No Participant,
beneficiary or other person will have any right, title or interest in any amount awarded under the Plan prior to the payment of such Bonus
Award to him or her or the close of any Performance Period, or in any property of the Company or its Subsidiaries. A Participant’s
rights to a Bonus Award under this Plan are no greater than those of unsecured general creditors of the Company.
Notwithstanding anything herein to the
contrary, whether or not any Bonus Award is authorized, earned or paid under the Plan shall be determined by the Compensation Committee
in its sole and absolute discretion, and no such Bonus Award shall be earned, nor shall any right to any such Bonus Award exist or accrue,
unless, among other factors, such Bonus Award has been authorized by the Compensation Committee in its sole and absolute discretion, and
actually paid to Participants. In addition, whether or not any Bonus Award is authorized, earned or paid pursuant to the Plan is without
regard to whether any of the individual performance metrics, Company financial performance targets and/or goals, or any other benchmarks,
targets, personal goals or Company criteria set forth in the Plan are met, not met, exceeded or not exceeded.
The Bonus Awards payable hereunder
are provided solely as a payment pursuant to the circumstances described herein and shall not constitute part of a
Participant’s employment compensation package. The Bonus Awards hereunder are not part of normal or expected compensation for
purposes of calculating any severance, resignation, termination pay, redundancy, end of service payments, long-service awards,
bonus, incentive pay, pension, or retirement benefits or similar payments and do not create any acquired rights.
This Plan is governed by the laws of
the State of Delaware and as such will be construed under and in accordance with the laws of the State of Delaware without regard to conflicts
of law.
The Board may amend, suspend, modify
or terminate the Plan at any time and for any reason. No Bonus Awards shall be granted under the Plan after the termination of the Plan.
No termination, amendment, suspension, or modification of the Plan shall adversely affect in any material way any Bonus Award previously
granted under the Plan, without the written consent of the Participant of such Award.
| X. | COMPLIANCE WITH CODE SECTION 409(A) |
This Plan and Bonus Awards paid hereunder
are intended to be exempt from Code Section 409A and shall be construed, interpreted, and administered accordingly. In no event whatsoever
shall the Company or its Affiliates be liable for any additional tax, interest or penalty that may be imposed on any Participant pursuant
to Code Section 409A or any damages for failing to comply with Code Section 409A. This section shall not apply to any Participant
who is not a U.S. taxpayer (by reason of being a U.S. citizen, U.S. resident or otherwise).
By participating in this Plan, each
of the Participants hereunder shall consent to the holding and processing of personal information provided by such Participant to the
Company, any Affiliate of the Company, trustee, or third-party service provider, for all purposes relating to the operation of this Plan
and to the extent necessary for such operation. These include, but are not limited to: (i) administering and maintaining Participant
records; (ii) providing information to the Company, its Affiliates, trustees of any employee benefit trust, registrars, brokers or
third-party administrators of this Plan; (iii) providing information to future purchasers or merger partners of the Company or any
of its Affiliates, or the business in which a Participant works; and (iv) to the extent not prohibited by applicable law, transferring
information about a Participant to any country or territory that may not provide the same protection for the information as the Participant’s
home country.
Exhibit 10.12
VISKASE COMPANIES, INC.
Management Incentive Plan for Fiscal Year 2024
The Viskase Companies, Inc. Management
Incentive Plan (the “Plan”) has been established for Fiscal Year 2024 for those Participants defined under Section III
below.
The purpose of this Plan is to provide
additional compensation to Participants for their contribution to the achievement of the objectives of the Company, encouraging and stimulating
superior performance by such individuals, and assisting in attracting and retaining highly qualified key employees.
A. Base
Salary equals the base annual salary effective January 1st t of the Plan year.
Base Salary shall be the monthly base salary, multiplied by twelve, and shall exclude any “13th Month”, “14th
Month”, or any other bonus or other remuneration. If a Participant’s Bonus level or Base Salary changes during the year, the
Base Salary used to calculate the Bonus under this Plan will be prorated for the portion of the year each Bonus level or Base Salary was
in effect based on the 12month year described above. For the avoidance of doubt, if applicable, Base Salary shall be determined before
reductions for contributions (if any) under Code Section 401(k), and shall not include, without limitation and to the extent applicable,
(i) any Financial Award under the Plan; (ii) variable compensation such as incentive awards, commissions or spot bonuses, if
any; (iii) imputed income from such programs as life insurance, auto allowance, or non-recurring earnings such as moving or relocation
expenses, allowances or perquisites, or reimbursed business expenses; (iv) long-term incentive compensation (including stock or stock-equivalent
awards, if any); (v) overtime, unless required to be included in Base Salary for purposes of the Plan in accordance with applicable
law; or (vi) sign-on or relocation bonuses.
B. Company
means Viskase Companies, Inc. and its subsidiaries and its successors and assigns.
C. Fiscal
Year means the Company’s Fiscal Year beginning January 1, 2024 and ending December 31, 2024.
D. Plan
means the Viskase Companies, Inc. Management Incentive Plan (MIP), as from time to time amended.
E. President &
CEO means the President & CEO of Viskase Companies, Inc.
F. Senior
Vice President and General Counsel means the Senior Vice President and General Counsel of Viskase Companies, Inc.
G. Director,
Global Compensation and HRIS means the Director, Global Compensation and HRIS of Viskase Companies, Inc.
H. Performance
Management Committee means the Performance Management Committee of Viskase Companies, Inc., consisting of the President &
CEO, the Senior Vice President and General Counsel, and the Director, Global Compensation and HRIS.
I. Financial
Awards are the awards that Participants may earn pursuant to the Plan.
J. SMART
Goals refer to the personal goals set with respect to each Participant under Section V below at the beginning of each Fiscal Year
against which performance is measured.
| III. | EMPLOYEES COVERED BY THIS PLAN |
Those employees in eligible positions
as described on Exhibit B who are specifically approved by the President & CEO for participation in the Plan (each a “Participant”)
shall be eligible to participate in this Plan in accordance with the terms and conditions herein and in any Plan document approved by
the President & CEO and provided to the Participant. During the Fiscal Year, the President & CEO may add additional
eligible positions and approve new hires or promoted employees for participation in the Plan. Notwithstanding the foregoing, no Participant
shall be eligible to participate in the Plan unless he or she, if required to do so under applicable Company policies and practices, has
returned to the Company an executed confidentiality commitment and acknowledged their understanding and acceptance of such confidentiality
commitment consistent with the Company practices and procedures.
In order to be eligible to receive a
payout under the Plan, on the actual bonus payout date, a Participant must be actively employed, in good standing, and not on a performance
improvement plan or in corrective action status as a result of poor performance during the Fiscal Year.
A Participant in the Plan shall be entitled
to a Financial Award computed as the product of:
A. “Participant’s
Base Salary” shall be the salary as defined in Section II.
B. “Target
Bonus as a % of Salary” shall be the % Target as described in the participation letter and as set forth in any Plan document approved
by the President & CEO and provided to the Participant.
C. “Performance
as a % of Target” shall be determined in the manner set forth in Exhibit A based on the attainment of the specified
financial and operating goals for the Fiscal Year and the attainment of a Participant’s SMART Goals. Exhibit A also
contains examples showing application of some of the components of the formula set forth above.
It is intended that increases and decreases
in Financial Awards which result from the application of Individual Performance Factors over 100% shall not result in an increase in the
aggregate Plan payout that would otherwise apply based on the Performance as a % of Target (as set forth on the attached Exhibit A
) (such aggregate Plan payout being referred to as the “Maximum Bonus Pool”), and in the event that the Financial Awards otherwise
calculated in accordance with this Section IV would exceed the Maximum Bonus Pool, each of the Financial Awards calculated on that
basis shall be reduced pro rata in order that the aggregate Financial Awards shall not exceed the Maximum Bonus Pool.
If a Participant was in more than one
Bonus-eligible position during a Fiscal Year, a separate computation shall be made for each Bonus-eligible position applicable to the
Participant during such Fiscal Year; the sum of the separate computations shall be the Participant’s Financial Award.
| V. | SMART GOAL AND PERFORMANCE RATING |
SMART Goals for each Participant for
the Fiscal Year are to be aligned with the Company’s strategic goals and reviewed and approved by the Participant’s supervisor,
functional area head, Regional General Manager, and local Human Resources Manager. The Participant Individual Performance Factor rating,
which will consider attainment of the SMART Goals will be used as a component of Performance as a % of Target and shall represent a percentage
of the total obtainable Financial Award, as more fully described in Exhibit A. Employees who are rated as Unsatisfactory shall not
be eligible for an award. This evaluation process will be administered by the Director, Global Compensation and HRIS, reviewed and approved
by the Senior Vice President and General Counsel and the President & CEO.
| VI. | PERFORMANCE MEASURES, TARGETS AND PAYOUT RANGES |
The financial and operating performance
measures, targets and payout ranges used for incentive purposes shall be established by the Compensation Committee of the Board of Directors
(the “Compensation Committee”) based on the annual business plan. Those measures, targets and payout ranges, as appropriate,
shall be approved by the President & CEO and the Compensation Committee. The performance measures and targets are set forth in
Exhibit A.
At any time prior to the final determination
of awards, the Compensation Committee may, in its sole and absolute discretion, increase, decrease, or otherwise adjust performance measures,
targets, and payout ranges used hereunder, as a result of extraordinary or non-recurring events, changes in applicable accounting rules or
principles, changes in the Company’s methods of accounting, changes in applicable law, changes due to consolidations, acquisitions,
or reorganizations affecting the Company and its subsidiaries and affiliates, or other similar changes in the Company’s business.
| VII. | COMPUTATION AND DISBURSEMENT OF FUNDS |
As soon as practicable after the
close of the Fiscal Year and approval of the Company’s annual financial statements, the Chief Financial Officer shall
calculate the applicable financial and operating performance measures under the Plan. The Director, Global Compensation and HRIS
shall then calculate the proposed payout under the Plan based upon the proposed achievement of the financial and operating
performance measures and the determinations of Performance as a % of Target. The proposed payout shall be verified by the
President & CEO and presented to the Compensation Committee for review and final approval. Once approved, payment of the
Financial Awards shall be made within 30 days after completion of the annual audit, but not later than September 30th of
the calendar year following the fiscal year for which the award is earned. Any determination by the Compensation Committee made
under this paragraph shall be final and binding on all parties.
Each Participant shall be liable for
any and all federal, state, provincial, local or foreign taxes, pension plan contributions, employment insurance premiums, social insurance
contributions, amounts payable to a governmental and/or regulatory body in the Participant’s country and other levies of any kind
required by applicable laws to be deducted or withheld with respect to the awards granted pursuant to the Plan (collectively, the “Withholding
Taxes”). The Company and its subsidiaries shall have the right to deduct and withhold all required Withholding Taxes from any payment
or other consideration deliverable to the Participant.
| VIII. | PRORATION OF FINANCIAL AWARDS |
Any Participant who is not employed
with the Company in a Bonus-eligible position on or prior to October 1 of the Fiscal Year, or who is not employed in a Bonus-eligible
position for a minimum of three months during the Fiscal Year, shall not be eligible to receive a Financial Award for the Fiscal Year,
except as otherwise provided by the Compensation Committee. Any Participant who is eligible for a Financial Award but who did not serve
in a Bonus-eligible position during the entire Fiscal Year will be eligible for a pro-rated Bonus payment based on the amount of time
such eligible Participant was actively and continuously employed in an eligible position during the Fiscal Year.
| · | New Hires and Rehires – The Financial Award will be prorated based upon the number of full
months the Participant was employed during the Fiscal Year. For example, a Participant initially hired on July 1st would
be eligible for 50% of the annual Financial Award. In the case of rehires, there is no credit for prior service and the rehire date must
occur prior to October 1st in order for the Participant to be Bonus-eligible under the Plan for the Fiscal Year. |
| · | Leaves of Absence - Time taken during a leave of absence (including disability leave) is not credited
toward eligibility for a Financial Award; therefore, awards will be prorated for the length of time on leave of absence. Furthermore,
payments of Financial Awards are not considered earned and payable unless and until the Participant returns to work, with the exception
of military leave. If the leave of absence lasts nine months or more during the Fiscal Year, the Participant will not have met the three-month
eligibility required to earn a Bonus for that Fiscal Year. |
| · | Promotions and Demotions – If the action results in a movement from one Bonus-eligible position
to another Bonus-eligible position (with either a higher or lower Bonus target) a prorated Financial Award will be calculated. The Financial
Award will be calculated separately by factoring the time in each Bonus-eligible position by the corresponding Bonus target and Base Salary
during the Participant’s tenure in each position. However, if a Participant is both promoted and later demoted during the Fiscal
Year, the Participant’s entire Bonus eligibility and Bonus target percent will be determined by the lower grade. |
| o | Change in employment status – The Financial Award is not payable unless the Participant
has occupied a Bonus-eligible position for at least three months during the Fiscal Year and meets all eligibility criteria during
the last full quarter of the Fiscal Year, i.e., from October 1st through December 31st. The
Financial Award will be based upon the Base Salary and
the annual Bonus target while in the Bonus eligible position. |
| o | Bonus-eligible position to a non-Bonus eligible position – The Financial Award will be prorated
based upon the time in a Bonus-eligible position as long as the Participant was in the position for a minimum of three months during the
Fiscal Year. A Participant must occupy a Bonus-eligible position prior to October 1st in order to be eligible to receive
a Bonus payment for the Fiscal Year. The Financial Award will be based upon the Base Salary and the annual Bonus target while in the Bonus-eligible
position. |
| o | Non-Bonus-eligible position to a Bonus-eligible position – The Financial Award will be prorated
based on the time worked, the corresponding Bonus target, and the Base Salary in effect while in the Bonus-eligible position as long as
the Participant was in the eligible position for a minimum of three months during the Fiscal Year. A Participant must move into the Bonus-eligible
position prior to October 1st in order to be eligible to receive a Bonus payment for the Fiscal Year. |
| IX. | FORFEITURE / RECOUPMENT OF FINANCIAL AWARDS |
Financial Awards are not considered
earned until they are approved by the Compensation Committee and are actually paid by the Company. Consequently, a Participant whose employment
with the Company is voluntarily or involuntarily terminated prior to the actual Financial Award payment date will be ineligible for payment
of the Financial Award, except as otherwise provided by the Compensation Committee in its sole and absolute discretion, in which case
any such Financial Award to the terminated employee shall be paid at the time Financial Awards are paid to active employees pursuant to
Section VII above.
If the Compensation Committee, in its
sole and absolute discretion, determines that (i) there has been misconduct or a gross dereliction of duty resulting in either a
violation of law or Company policy or procedures, that in either case, causes significant financial or reputational harm to the Company
(or any of its affiliates), and that a Participant committed the misconduct/gross dereliction of duty, or materially failed in his or
her responsibility to manage or monitor the applicable conduct or risk; (ii) a conduct of a Participant involves an immoral act which
is reasonably likely to impair the reputation of the Company (or any of its affiliates); (iii) a Participant was convicted for a
felony or any crime involving fraud or embezzlement or dishonesty or was convicted of, or entered a plea of nolo contendere to
a misdemeanor (other than a traffic violation) punishable by imprisonment under federal, state or local law; (iv) a Participant violated
any securities or employment laws or regulations; (v) a Participant materially breached any confidentiality, non-compete and/or non-solicitation
clauses in a Participant’s employment letter, employment contract, or other written agreement with the Company (or any of its affiliates);
or (vi) a Participant embezzled and/or misappropriated any property of the Company (or any of its affiliates) or committed any act
involving fraud with respect to the Company (or any of its affiliates), then, to the extent not prohibited by applicable law, the Compensation
Committee, in its sole and absolute discretion, may seek reimbursement from such Participant of (and such Participant shall be obligated
to repay) all or any portion of any payments made to such Participant in respect of the Financial Award; provided, however, that the Compensation
Committee may only seek such reimbursement in respect of payments of the Financial Award made to a Participant within the three-year period
preceding the date that the Compensation Committee makes a determination that there has been misconduct or a gross dereliction of duty.
If the Compensation Committee determines,
in its sole and absolute discretion, that calculations underlying the performance measures and targets, including but not limited to mistakes
in the Company’s financial statements with respect to the Fiscal Year, were incorrect, then the Compensation Committee may, in its
sole and absolute discretion, seek to recover the amount of any payment made to Participants that exceeded the amount that would have
been paid based on the corrected calculations; provided, however, that the Compensation Committee may only seek to recover such amounts
within the three-year period preceding the date that the Compensation Committee makes a determination that the calculations were incorrect.
To the extent not prohibited by applicable
law, if a Participant is an executive officer of the Company, or, if applicable, has otherwise been designated by the Board of Directors
as an “officer” for purposes of Section 16 of the Securities Exchange Act of 1934, as amended, the Compensation Committee,
may seek reimbursement of any payment made to such Participant in respect of the Financial Award in the event of a restatement of the
Company’s (or any of its subsidiaries’) financial results (occurring due to material noncompliance with any financial reporting
requirements under applicable securities laws) that reduced a previously granted payment made to such Participant in respect of the Financial
Award. In that event, the Compensation Committee may, in its sole and absolute discretion, seek to recover the amount of any such payment
made to the Participant that exceeded the amount that would have been paid based on the restated financial results. The foregoing shall
only apply with respect to payments made to a Participant within the three-year period prior to any such restatement.
If the Company subsequently determines
that it is required by law to apply a “clawback” or alternate recoupment provision to the Financial Award, under the Dodd-Frank
Wall Street Reform and Consumer Protection Act or otherwise, then such clawback or recoupment provision also shall apply to such Financial
Award in accordance with the applicable legal requirements.
To the extent not prohibited under applicable
law, the Company, in its sole and absolute discretion, will have the right to set off (or cause to be set off) any amounts otherwise due
to a Participant from the Company in satisfaction of any repayment obligation of such Participant hereunder, provided that any such amounts
are exempt from, or set off in a manner intended to comply with the requirements of Section 409A of the Code.
For the avoidance of doubt, the Company’s
rights under this Section IX shall apply to Participants, without regard to whether any such Participant is currently providing,
or previously provided, services to the Company as an employee.
This Plan shall be administered by the
Director, Global Compensation and HRIS, subject to the control and supervision of the President & CEO, Senior Vice President
and General Counsel and the Compensation Committee. In the event of a claim or dispute brought forth by a Participant, the decision of
the President & CEO as to the facts in the case and the meaning and intent of any provision of the Plan, or its application,
shall be final, binding, and conclusive.
| XI. | NO EMPLOYMENT CONTRACT; FUTURE PLANS |
Participation in this Plan shall not
confer upon any Participant any right to continue in the employ of the Company nor interfere in any way with the right of the Company
to terminate any Participant’s employment at any time. The Company is under no obligation to continue the Plan in future years.
Participation in this Plan shall also supersede and eliminate any annual incentive bonus plan and/or other statutory or contractual annual
bonus arrangement that the Participant has or may have had by contract or otherwise (“Other
Bonus Arrangement”), except as may be expressly provided in the acceptance document that such Participant executes or in any employment
or other agreement that specifically references eligibility to participate in the Management Incentive Plan or its predecessor Management
Incentive Plan or SMART Goal Incentive Plan. In the event that, under applicable law, the foregoing sentence is to any extent not enforceable
to supersede and eliminate entitlement under such Other Bonus Arrangement, then any amounts which would otherwise be payable under this
Plan shall be automatically reduced by any amounts paid or payable to a Participant under any such Other Bonus Arrangement with respect
to the same Fiscal Year period.
FOR EMEA BONUS PLANS PARTICIPANTS:
Each Participant, as a condition of
participation in the Plan, shall sign an acknowledgement substantially as follows:
“By signing below, the Participant
acknowledges and accepts unreservedly that this Plan supersedes by right any prior variable remuneration scheme that he had been previously
granted, including but not limited to any sales incentive plan; consequently, membership to the Plan shall terminate any variable remuneration
schemes that may have existed before, without any possible accumulation.”
“En apposant sa signature ci-après,
le Participant reconnaît et accepte sans réserve que ce programme se substitue de plein droit au(x) dispositif(s) antérieur(s) dont
il bénéficiait à titre de rémunération variable, y compris, mais sans s'y limiter, tout plan d'incitation
à la vente ("Sales incentive plan") ; en conséquence l’adhésion au Plan met un terme au(x)dispositifs(s) de
rémunération variable ayant préexisté, aucun cumul n’étant possible."]
| XII. | AMENDMENT OR TERMINATION |
The Compensation Committee may at any
time, or from time to time, in its sole and absolute discretion, (a) amend, alter or modify the provisions of this Plan, (b) terminate
this Plan, or (c) terminate the participation of an employee or group of employees in this Plan; provided, however, that in the event
of the termination of this Plan or a termination of participation, the Compensation Committee, in its sole and absolute discretion, may
determine that a prorated award is payable to employees who were Participants in this Plan. If such determination is made and prorated
awards are granted, the awards shall be paid within 30 days after completion of the annual audit but not later than September 30
of the calendar year following the Fiscal Year for which the award is earned.
A. No
rights of the Participants under this Plan shall be transferable or assignable by a Participant, either voluntarily or involuntarily by
way of encumbrance, pledge, attachment, levy, or charge of any nature (except as may be required by state or federal law).
B. Unless
not permitted by law, notwithstanding anything herein to the contrary, whether or not any Financial Award is authorized, earned or
paid under this Plan shall be determined by the Compensation Committee in its sole and absolute discretion, and no such Financial
Award shall be earned, nor shall any right to any such Financial Award exist or accrue, unless, among other factors, such Financial
Award has been authorized by the Compensation Committee in its sole and absolute discretion, and actually paid to the Participants.
In addition, whether or not any Financial Award is authorized, earned or paid pursuant to this Plan is without regard to whether any
of the individual performance metrics, Company financial performance targets and/or goals, or any other benchmarks, targets,
personal goals, or Company criteria set forth in the Plan are met, not met, exceeded or not exceeded.
C. Nothing
in the Plan shall require the Company to segregate or set aside any funds or other property for the purpose of paying any portion of an
award. No Participant, beneficiary or other person shall have any right, title or interest in any amount awarded under the Plan prior
to the payment of such award to him or her. A Participant’s rights to a Financial Award under this Plan are no greater than those
of unsecured general creditors of the Company.
D. By
participating in the Plan, each Participant hereunder shall consent to the holding and processing of personal information provided by
such Participant to the Company, any affiliate of the Company, trustee or third-party service provider, for all purposes relating to the
operation of the Plan and to the extent necessary for such operation. These include, but are not limited to: (i) administering and
maintaining Participant records; (ii) providing information to the Company, its affiliates, trustees of any employee benefit trust,
registrars, brokers or third party administrators of the Plan; (iii) providing information to future purchasers or merger partners
of the Company or any of its affiliates, or the business in which the Participant works; and (iv) to the extent not prohibited by
applicable law, transferring information about the Participant to any country or territory that may not provide the same protection for
the information as the Participant’s home country.
E. The
Financial Award payable hereunder is provided solely as an incentive and shall not constitute part of a Participant’s employment
compensation package. The Financial Award under the Plan is not part of normal or expected compensation for purposes of calculating any
severance, resignation, redundancy, end of service payments, long-service awards, pension, or retirement benefits or similar payments.
F. This
Plan is governed by the laws of the State of New York and as such will be construed under and in accordance with the laws of the State
of New York without regard to conflicts of law.
VISKASE COMPANIES, INC.
2024 Management Incentive Plan Participation Acknowledgement
I acknowledge receipt of a copy of the 2024 Management Incentive Plan
and agree with its provisions.
Signed and Agreed, effective for the Fiscal Year commencing January 1,
2024.
| PARTICIPANT |
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| Signature : |
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Date : |
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| VISKASE COMPANIES, INC. |
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| By : |
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Date : |
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Tim Feast |
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President & CEO |
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Exhibit 10.13
LIMITED WAIVER AND THIRD AMENDMENT TO CREDIT
AGREEMENT
THIS
LIMITED WAIVER AND THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of February 14,
2025, is by and among VISKASE COMPANIES, INC., a Delaware corporation (the “Borrower”), the other Subsidiary
Guarantors party hereto, the Lenders party hereto and BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative
Agent”). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit
Agreement.
W I T N E S S E T H
WHEREAS,
the Borrower, the other Guarantors party thereto, certain financial institutions from time to time party thereto (the “Lenders”)
and the Administrative Agent are parties to that certain Credit Agreement dated as of October 9, 2020 (as amended, modified, extended,
restated, replaced, or supplemented from time to time, the “Credit Agreement”);
WHEREAS,
certain Events of Default may have occurred pursuant to (i) Section 8.01(d) of the Credit Agreement as a result of Borrower’s
failure to comply with the covenant set forth in Section 7.11(a) of the Credit Agreement for the Measurement Period ending December 31,
2024, (ii) Section 8.01(d) of the Credit Agreement as a result of Borrower’s failure to comply with the covenant
set forth in Section 7.11(b) of the Credit Agreement for the Measurement Period ending December 31, 2024, and (iii) Section 8.01(d) of
the Credit Agreement as a result of Borrower’s failure to comply with the notice requirements of Section 6.05(a) of the
Credit Agreement with respect to the defaults described in clauses (i) and (ii) above (the Events of Default described by and
listed in this recital, the “Specified Defaults”);
WHEREAS,
the Borrower has requested that the Lenders waive the Specified Defaults and amend certain provisions of the Credit Agreement; and
WHEREAS,
the Lenders are willing to waive such Specified Defaults and amend the Credit Agreement, in each case, in accordance with and subject
to the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Article I
| 1.01 | Limited Waiver of Specified
Defaults. Notwithstanding the provisions of the Credit Agreement to the contrary, the Lenders hereby waive, on a one-time
basis, the Specified Defaults. |
| 1.02 | Effectiveness of Limited
Waiver. These waivers shall be effective only to the extent specifically set forth herein and shall not (a) be construed
as a waiver of any breach, Default or Event of Default other than as specifically waived herein nor as a waiver of any breach, Default
or Event of Default of which the Lenders have not been informed by the Loan Parties, (b) affect the right of the Lenders to demand
compliance by the Loan Parties with all terms and conditions of the Loan Documents, except as specifically modified or waived by this
Amendment, (c) be deemed a waiver of any transaction or future action on the part of the Loan Parties requiring the Lenders’
or the Required Lenders’ consent or approval under the Loan Documents, or (d) except as waived hereby, be deemed or construed
to be a waiver or release of, or a limitation upon, the Administrative Agent’s or the Lenders’ exercise of any rights or remedies
under the Credit Agreement or any other Loan Document, whether arising as a consequence of any Default or Event of Default (other than
a Specified Default) which may now exist or otherwise, all such rights and remedies hereby being expressly reserved. |
Article II
AMENDMENTS TO CREDIT AGREEMENT
Effective as of the Amendment Effective Date but
subject to the satisfaction of the conditions precedent set forth in Article III below, the Credit Agreement (including Exhibit C
thereto, but excluding all other Schedules and Exhibits, which shall remain in the original form delivered or most recently amended, as
applicable) is hereby amended as set forth in the marked terms on Exhibit A-1 attached hereto. In Exhibit A-1 hereto, deletions
of text in the Credit Agreement as amended hereby are indicated by struck-through text, and insertions of text are indicated by bold,
double-underlined text. Exhibit A-2 attached hereto sets forth a clean copy of the Credit Agreement as amended hereby, after giving
effect to such amendments.
Article III
CONDITIONS TO EFFECTIVENESS
| 3.01 | Closing Conditions.
This Amendment shall become effective as of the day and year set forth above (the “Amendment Effective Date”) upon
satisfaction of the following conditions (in each case, in form and substance reasonably acceptable to the Administrative Agent): |
(a) Executed
Amendment. The Administrative Agent shall have received a copy of this Amendment duly executed by each of the Loan Parties,
Lenders constituting the “Required Lenders” and the Administrative Agent.
(b) Default. After
giving effect to this Amendment, no Default or Event of Default shall exist.
(c) Fees
and Expenses. (i) The Lenders shall have received from the Borrower all fees and expenses, if any, due and owing
pursuant to (x) the Third Amendment Fee Letter, dated the date hereof, among the Borrower, the Administrative Agent and BofA
Securities and (y) the Credit Agreement, and (ii) legal counsel for the Administrative Agent shall have received from the
Borrower payment of all reasonable and documented out-of-pocket fees and expenses incurred in connection with this Amendment.
(d) Anti-Money-Laundering;
Beneficial Ownership. Upon the reasonable request of any Lender, the Borrower shall have provided to such Lender, and such Lender
shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your
customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, and any Loan Party
that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to each Lender
that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
Article IV
MISCELLANEOUS
| 4.01 | Amended Terms.
Except as expressly set forth herein or in the Credit Agreement, this Amendment shall not by implication or otherwise limit, impair, constitute
a waiver of, or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Credit Agreement or any
other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue
in full force and effect. On and after the Amendment Effective Date, all references to the Credit Agreement in each of the Loan Documents
shall hereafter mean the Credit Agreement as amended by this Amendment. Except as specifically amended hereby or otherwise agreed, the
Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms. |
| 4.02 | Representations and Warranties
of Loan Parties. Each of the Loan Parties represents and warrants as follows: |
(a) It
has taken all necessary action to authorize the execution, delivery and performance of this Amendment.
(b) This
Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c) No
consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or
third party is required in connection with the execution, delivery or performance by such Person of this Amendment, except for such
as have been made or obtained and are in full force and effect.
(d) The
representations and warranties set forth in Article V of the Credit Agreement are true and correct in all material respects as of
the date hereof (except for those which expressly relate to an earlier date or those which are qualified by materiality, which shall be
true and correct in all respects); provided, however, that no representation or warranty is being made with respect to whether the matters
set forth in Section 5.05(b) of the Credit Agreement are true and correct on the date hereof.
(e) After
giving effect to this Amendment, no event has occurred and is continuing which constitutes a Default or an Event of Default.
(f) The
Obligations are not reduced or modified by this Amendment and are not subject to any offsets, defenses or counterclaims.
| 4.03 | Reaffirmation of Obligations.
Without in any way establishing a course of dealing by the Administrative Agent or any Lender, and after giving effect to this Amendment,
the Borrower and each Guarantor (i) acknowledges and consents to all of the terms and conditions of this Amendment, (ii) affirms
all of its obligations under the Loan Documents (iii) agrees that this Amendment and all documents executed in connection herewith
do not operate to reduce or discharge its obligations under the Loan Documents, (iv) agrees that the Collateral Documents continue
to be in full force and effect and are not impaired or adversely affected in any manner whatsoever, (v) confirms its grant of security
interests pursuant to the Collateral Documents to which it is a party as Collateral for the Obligations, and (vi) acknowledges that
all Liens granted (or purported to be granted) pursuant to the Collateral Documents remain and continue in full force and effect in respect
of, and to secure, the Obligations. Each Guarantor hereby reaffirms its obligations under the Guaranty and agrees that its obligation
to guarantee the Obligations is in full force and effect as of the date hereof. |
| 4.04 | Loan Document.
This Amendment shall constitute a Loan Document under the terms of the Credit Agreement. |
| 4.05 | Entirety.
This Amendment and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and
understandings, oral or written, if any, relating to the subject matter hereof. |
| 4.06 | Counterparts;
Telecopy. This Amendment may be executed in one or more counterparts, each of which shall constitute an original, but
all of which taken together shall be one and the same instrument. Delivery of an executed counterpart of a signature page of
this Amendment or any other document required to be delivered hereunder, by fax transmission or e-mail transmission (e.g.
“pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. The
words “delivery,” “execute,” “execution,” “signed,” “signature,” and
words of like import in any Loan Document or any other document executed in connection
herewith shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic
platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global
and National Commerce Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Without limiting the foregoing,
upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart. |
| 4.07 | No Actions, Claims, Etc.
As of the date hereof, each of the Loan Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of action,
claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders,
or the Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors
arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof. |
| 4.08 | GOVERNING LAW.
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. |
| 4.09 | Successors and Assigns.
This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. |
| 4.10 | Jurisdiction; Consent
to Services of Process; Waiver of Jury Trial. The jurisdiction, service of process and waiver of jury trial provisions
set forth in Sections 11.14(b), 11.14(c), 11.14(d) and 11.15 of the Credit Agreement are hereby incorporated into this Amendment
by reference, mutatis mutandis. |
| 4.11 | General Release.
In consideration of the Administrative Agent’s willingness to enter into this Amendment, on behalf of the Lenders, each Loan Party
hereby releases and forever discharges the Administrative Agent, the L/C Issuer, the Swingline Lender, the Lenders and the Administrative
Agent’s, the L/C Issuer’s, the Swingline Lender’s, and the Lender’s respective predecessors, successors, assigns,
officers, managers, directors, employees, agents, attorneys, representatives, and affiliates (hereinafter all of the above collectively
referred to as the “Bank Group”), from any and all claims, counterclaims, demands, damages, debts, suits, liabilities, actions
and causes of action of any nature whatsoever, including, without limitation, all claims, demands, and causes of action for contribution
and indemnity, whether arising at law or in equity, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, whether
absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted, which any Loan Party may have or claim to have
against any of the Bank Group in any way related to or connected with the
Loan Documents and the transactions contemplated thereby. |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| BORROWER: |
VISKASE COMPANIES, INC. |
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|
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By: |
/s/ Thomas Holz |
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Name: |
Thomas Holz |
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Title: |
Vice President and Chief Financial Officer |
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| GUARANTOR: |
VISKASE FILMS, INC. |
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By: |
/s/ Michael Blecic |
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Name: |
Michael Blecic |
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Title: |
Vice President, Chief Accounting Officer, and Treasurer |
| |
|
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WSC CORP. |
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|
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By: |
/s/ Michael Blecic |
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Name: |
Michael Blecic |
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Title: |
Vice President, Chief Accounting Officer, and Treasurer |
| |
|
| |
VISKASE DEL NORTE, S.A. DE C.V. |
| |
|
| |
By: |
/s/ Michael Blecic |
| |
Name: |
Michael Blecic |
| |
Title: |
Vice President, Chief Accounting Officer, and Treasurer |
| |
|
| |
SERVICIOS VISKASE DEL NORTE, S.A. DE C.V. |
| |
|
| |
By: |
/s/ Michael Blecic |
| |
Name: |
Michael Blecic |
| |
Title: |
Vice President, Chief Accounting Officer, and Treasurer |
| |
|
| |
VISKASE SAS |
| |
|
| |
By: |
/s/ Timothy Feast |
| |
Name: |
Timothy Feast |
| |
Title: |
President |
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|
| |
VISKASE GMBH |
| |
|
| |
By: |
/s/ Timothy Feast |
| |
Name: |
Timothy Feast |
| |
Title: |
President |
| |
|
| |
CT CASINGS BETEILIGUNGS GMBH |
| |
|
| |
By: |
/s/ Timothy Feast |
| |
Name: |
Timothy Feast |
| |
Title: |
Managing Director |
| |
|
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|
| |
WALSRODER CASINGS GMBH |
| |
|
| |
By: |
/s/ Timothy Feast |
| |
Name: |
Timothy Feast |
| |
Title: |
Managing Director |
| |
|
| |
VISKASE SPA |
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|
| |
By: |
/s/ Timothy Feast |
| |
Name: |
Timothy Feast |
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Title: |
President |
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|
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VISKASE POLSKA SP. Z O.O. |
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By: |
/s/ Timothy Feast |
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Name: |
Timothy Feast |
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Title: |
President |
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VISKASE SPAIN SLU |
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By: |
/s/ Timothy Feast |
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Name: |
Timothy Feast |
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Title: |
Director |
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VISKASE SALES PHILIPPINES INC. |
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|
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By: |
/s/ Mark Arroyo |
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Name: |
Mark Arroyo |
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Title: |
Chairman and President |
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VISKASE ASIA-PACIFIC CORP. |
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By: |
/s/ Mark Arroyo |
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Name: |
Mark Arroyo |
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Title: |
Chairman and President |
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|
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BANK OF AMERICA, N.A., |
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as Administrative Agent |
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|
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By: |
/s/ Rose Thomas |
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Name: |
Rose Thomas |
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Title: |
Assistant Vice President |
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BANK OF AMERICA, N.A., |
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as a Lender, L/C Issuer and Swingline Lender |
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By: |
/s/ Jeremy Weiss |
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Name: |
Jeremy Weiss |
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Title: |
Senior Vice President |
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BMO HARRIS BANK N.A., |
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as a Lender |
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By: |
/s/ Frank Aiello |
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Name: |
Frank Aielllo |
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Title: |
Vice President |
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ASSOCIATED BANK, N.A. |
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as a Lender |
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|
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By: |
/s/ J. Eric Bergren |
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Name: |
J. Eric Bergren |
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Title: |
Senior Vice President |
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CITIZENS BANK, |
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as a Lender |
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By: |
/s/ Angela Reilly |
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Name: |
Angela Reilly |
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Title: |
Senior Vice President |
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Exhibit 10.15
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS
FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of July 25, 2025, is by and among
VISKASE COMPANIES, INC., a Delaware corporation (the “Borrower”), the other Subsidiary Guarantors party
hereto, the Lenders party hereto and BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative
Agent”). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit
Agreement.
W I T N E S S E T H
WHEREAS,
the Borrower, the other Guarantors party thereto, certain financial institutions from time to time party thereto (the “Lenders”)
and the Administrative Agent are parties to that certain Credit Agreement dated as of October 9, 2020 (as amended, modified, extended,
restated, replaced, or supplemented from time to time, the “Credit Agreement”);
WHEREAS,
certain Defaults and/or Events of Default may have occurred pursuant to (i) Section 8.01(d) of the Credit Agreement as
a result of Borrower’s failure to comply with the covenant set forth in Section 7.11(a) of the Credit Agreement for the
Measurement Period ending June 30, 2025, (ii) Section 8.01(d) of the Credit Agreement as a result of Borrower’s
failure to comply with the covenant set forth in Section 7.11(b) of the Credit Agreement for the Measurement Period ending June 30,
2025, and (iii) Section 8.01(d) of the Credit Agreement as a result of Borrower’s failure to comply with the notice
requirements of Section 6.05(a) of the Credit Agreement with respect to the defaults described in clauses (i) and (ii) above
(the Defaults and Events of Default described by and listed in this recital, the “Specified Defaults”);
WHEREAS,
pursuant to that certain Agreement and Plan of Merger, dated as of June 20, 2025 (as amended, restated, supplemented or otherwise
modified from time to time, the “Enzon Merger Agreement”), by and among the Borrower, Enzon Pharmaceuticals, Inc.,
a Delaware corporation (“Enzon”), and EPSC Acquisition Corp., a Delaware corporation (“Merger Sub”),
(i) Merger Sub will be merged with and into the Borrower, with the Borrower as the surviving entity in the Merger and a wholly-owned
subsidiary of Enzon (the “Enzon Merger”), and (ii) promptly following the Enzon Merger, the Borrower will convert
into a limited liability company under Section 266 of the General Corporation Law of the State of Delaware and Section 18-214
of the Delaware Limited Liability Company Act (the “Surviving Company Conversion”);
WHEREAS,
the Borrower has requested that the Lenders (i) waive the Specified Defaults, (ii) consent to the consummation of
the Enzon Merger and the other transactions (including, without limitation, the Surviving Company Conversion) contemplated by the Enzon
Merger Agreement, pursuant to and in accordance with the terms of the Enzon Merger Agreement and (iii) amend certain provisions of
the Credit Agreement; and
WHEREAS,
the Lenders are willing to (i) waive the Specified Defaults, (ii) consent to the consummation of the Enzon Merger and the
other transactions (including, without limitation, the Surviving Company Conversion) contemplated by the Enzon Merger Agreement and
(iii) amend the Credit Agreement, in each case, in accordance with and subject to the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
LIMITED WAIVER
| 1.01 | Limited Waiver of Specified Defaults.
Notwithstanding the provisions of the Credit Agreement to the contrary, the Lenders hereby waive, on a one-time basis, the Specified Defaults. |
| 1.02 | Effectiveness of Limited Waiver. These
waivers shall be effective only to the extent specifically set forth herein and shall not (a) be construed as a waiver of any breach,
Default or Event of Default other than as specifically waived herein nor as a waiver of any breach, Default or Event of Default of which
the Lenders have not been informed by the Loan Parties, (b) affect the right of the Lenders to demand compliance by the Loan Parties
with all terms and conditions of the Loan Documents, except as specifically modified or waived by this Amendment, (c) be deemed a
waiver of any transaction or future action on the part of the Loan Parties requiring the Lenders’ or the Required Lenders’
consent or approval under the Loan Documents, or (d) except as waived hereby, be deemed or construed to be a waiver or release of,
or a limitation upon, the Administrative Agent’s or the Lenders’ exercise of any rights or remedies under the Credit Agreement
or any other Loan Document, whether arising as a consequence of any Default or Event of Default (other than a Specified Default) which
may now exist or otherwise, all such rights and remedies hereby being expressly reserved. |
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
Effective as of the Amendment Effective Date but subject to the satisfaction
of the conditions precedent set forth in Article III below, the Credit Agreement (including Exhibit C thereto, but excluding
all other Schedules and Exhibits, which shall remain in the original form delivered or most recently amended, as applicable) is hereby
amended as set forth in the marked terms on Exhibit A-1 attached hereto. In Exhibit A-1 hereto, deletions of text in the Credit
Agreement as amended hereby are indicated by struck-through text, and insertions of text are indicated by bold, double-underlined text.
Exhibit A-2 attached hereto sets forth a clean copy of the Credit Agreement as amended hereby, after giving effect to such amendments.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
| 3.01 | Closing Conditions. This Amendment
shall become effective as of the day and year set forth above (the “Amendment Effective Date”) upon satisfaction of
the following conditions (in each case, in form and substance reasonably acceptable to the Administrative Agent): |
(a) Executed
Amendment. The Administrative Agent shall have received a copy of this Amendment duly executed by each of the Loan Parties, Lenders
constituting the “Required Lenders” and the Administrative Agent.
(b) Default.
After giving effect to this Amendment, no Default or Event of Default shall exist.
(c) Fees
and Expenses. (i) The Lenders shall have received from the Borrower all fees and expenses, if any, due and owing pursuant to
(x) the Fourth Amendment Fee Letter, dated the date hereof, among the Borrower, the Administrative Agent and BofA Securities and
(y) the Credit Agreement, and (ii) legal counsel for the Administrative Agent shall have received from the Borrower payment
of all reasonable and documented out-of-pocket fees and expenses incurred in connection with this Amendment.
(d) Anti-Money-Laundering;
Beneficial Ownership. Upon the reasonable request of any Lender, the Borrower shall have provided to such Lender, and such Lender
shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your
customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, and any Loan Party
that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to each Lender
that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
ARTICLE IV
MISCELLANEOUS
| 4.01 | Amended Terms. Except as
expressly set forth herein or in the Credit Agreement, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Credit
Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. On and after the Amendment Effective Date, all references to
the Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement as amended by this Amendment. Except as
specifically amended hereby or otherwise agreed, the Credit Agreement is hereby ratified and confirmed and shall remain
in full force and effect according to its terms. |
| 4.02 | Representations and Warranties of Loan Parties.
Each of the Loan Parties represents and warrants as follows: |
(a) It
has taken all necessary action to authorize the execution, delivery and performance of this Amendment.
(b) This
Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c) No
consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third
party is required in connection with the execution, delivery or performance by such Person of this Amendment, except for such as have
been made or obtained and are in full force and effect.
(d) The
representations and warranties set forth in Article V of the Credit Agreement are true and correct in all material respects as of
the date hereof (except for those which expressly relate to an earlier date or those which are qualified by materiality, which shall be
true and correct in all respects); provided, however, that no representation or warranty is being made with respect to whether the matters
set forth in Section 5.05(b) of the Credit Agreement are true and correct on the date hereof.
(e) After
giving effect to this Amendment, no event has occurred and is continuing which constitutes a Default or an Event of Default.
(f) The
Obligations are not reduced or modified by this Amendment and are not subject to any offsets, defenses or counterclaims.
| 4.03 | Reaffirmation of Obligations. Without
in any way establishing a course of dealing by the Administrative Agent or any Lender, and after giving effect to this Amendment, the
Borrower and each Guarantor (i) acknowledges and consents to all of the terms and conditions of this Amendment, (ii) affirms
all of its obligations under the Loan Documents (iii) agrees that this Amendment and all documents executed in connection herewith
do not operate to reduce or discharge its obligations under the Loan Documents, (iv) agrees that the Collateral Documents continue
to be in full force and effect and are not impaired or adversely affected in any manner whatsoever, (v) confirms its grant of security
interests pursuant to the Collateral Documents to which it is a party as Collateral for the Obligations, and (vi) acknowledges that
all Liens granted (or purported to be granted) pursuant to the Collateral Documents remain and
continue in full force and effect in respect of, and to secure, the Obligations. Each Guarantor hereby reaffirms its obligations under
the Guaranty and agrees that its obligation to guarantee the Obligations is in full force and effect as of the date hereof. |
| 4.04 | Loan Document. This Amendment shall
constitute a Loan Document under the terms of the Credit Agreement. |
| 4.05 | Entirety. This Amendment and the other
Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written,
if any, relating to the subject matter hereof. |
| 4.06 | Counterparts; Telecopy. This Amendment
may be executed in one or more counterparts, each of which shall constitute an original, but all of which taken together shall be one
and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment or any other document required
to be delivered hereunder, by fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective
as delivery of a manually executed counterpart of this Amendment. The words “delivery,” “execute,” “execution,”
“signed,” “signature,” and words of like import in any Loan Document or any other document executed in connection
herewith shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic
platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global
and National Commerce Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Without limiting the foregoing,
upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart. |
| 4.07 | No Actions, Claims, Etc. As of the
date hereof, each of the Loan Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims,
demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders, or the
Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors arising
from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof. |
| 4.08 | GOVERNING LAW. THIS AMENDMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. |
| 4.09 | Successors and Assigns. This Amendment
shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. |
| 4.10 | Jurisdiction; Consent to Services of Process; Waiver
of Jury Trial. The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 11.14(b),
11.14(c), 11.14(d) and 11.15 of the Credit Agreement are hereby incorporated into this Amendment by reference, mutatis mutandis. |
| 4.11 | General Release. In consideration of
the Administrative Agent’s willingness to enter into this Amendment, on behalf of the Lenders, each Loan Party hereby releases and
forever discharges the Administrative Agent, the L/C Issuer, the Swingline Lender, the Lenders and the Administrative Agent’s, the
L/C Issuer’s, the Swingline Lender’s, and the Lender’s respective predecessors, successors, assigns, officers, managers,
directors, employees, agents, attorneys, representatives, and affiliates (hereinafter all of the above collectively referred
to as the “Bank Group”), from any and all claims, counterclaims, demands, damages, debts, suits, liabilities, actions
and causes of action of any nature whatsoever, including, without limitation, all claims, demands, and causes of action for contribution
and indemnity, whether arising at law or in equity, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, whether
absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted, which any Loan Party may have or claim to have
against any of the Bank Group in any way related to or connected with the Loan Documents and the transactions contemplated thereby. |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF the parties hereto have caused
this Amendment to be duly executed on the date first above written.
| BORROWER: |
|
VISKASE COMPANIES, INC. |
| |
|
|
| |
|
By: |
/s/ Carolyn Zhang |
| |
|
Name: |
Carolyn Zhang |
| |
|
Title: |
Vice President and Chief Financial Officer |
| GUARANTORS: |
|
VISKASE FILMS, INC. |
| |
|
|
| |
|
By: |
/s/ Michael Blecic |
| |
|
Name: |
Michael Blecic |
| |
|
Title: |
Vice President, Chief Accounting Officer, and Treasurer |
| |
|
WSC CORP. |
| |
|
|
| |
|
By: |
/s/ Michael Blecic |
| |
|
Name: |
Michael Blecic |
| |
|
Title: |
Vice President, Chief Accounting Officer, and Treasurer |
| |
|
VISKASE DEL NORTE, S.A. DE C.V. |
| |
|
|
| |
|
By: |
/s/ Michael Blecic |
| |
|
Name: |
Michael Blecic |
| |
|
Title: |
Vice President, Chief Accounting Officer, and Treasurer |
| |
|
SERVICIOS VISKASE DEL NORTE, S.A. DE C.V. |
| |
|
|
| |
|
By: |
/s/ Michael Blecic |
| |
|
Name: |
Michael Blecic |
| |
|
Title: |
Vice President, Chief Accounting Officer, and Treasurer |
[Signature Page to Fourth Amendment to Credit
Agreement]
| |
|
VISKASE SAS |
| |
|
|
| |
|
By: |
/s/ Timothy Feast |
| |
|
Name: |
Timothy Feast |
| |
|
Title: |
President |
| |
|
VISKASE GMBH |
| |
|
|
| |
|
By: |
/s/ Timothy Feast |
| |
|
Name: |
Timothy Feast |
| |
|
Title: |
Managing Director |
| |
|
CT CASINGS BETEILIGUNGS GMBH |
| |
|
|
| |
|
By: |
/s/ Timothy Feast |
| |
|
Name: |
Timothy Feast |
| |
|
Title: |
Managing Director |
| |
|
WALSRODER CASINGS GMBH |
| |
|
|
| |
|
By: |
/s/ Timothy Feast |
| |
|
Name: |
Timothy Feast |
| |
|
Title: |
Managing Director |
| |
|
VISKASE SPA |
| |
|
|
| |
|
By: |
/s/ Timothy Feast |
| |
|
Name: |
Timothy Feast |
| |
|
Title: |
President |
[Signature Page to Fourth Amendment to Credit
Agreement]
| |
|
VISKASE POLSKA SP. Z O.O. |
| |
|
|
| |
|
By: |
/s/ Timothy Feast |
| |
|
Name: |
Timothy Feast |
| |
|
Title: |
President of the Management Board |
| |
|
VISKASE SPAIN SLU |
| |
|
|
| |
|
By: |
/s/ Timothy Feast |
| |
|
Name: |
Timothy Feast |
| |
|
Title: |
Director |
| |
|
VISKASE SALES PHILIPPINES INC. |
| |
|
|
| |
|
By: |
/s/ Mark Arroyo |
| |
|
Name: |
Mark Arroyo |
| |
|
Title: |
Chairman and President |
| |
|
VISKASE ASIA-PACIFIC CORP. |
| |
|
|
| |
|
By: |
/s/ Mark Arroyo |
| |
|
Name: |
Mark Arroyo |
| |
|
Title: |
Chairman and President |
[Signature Page to Fourth Amendment to Credit
Agreement]
| |
|
BANK OF AMERICA, N.A., |
| |
|
as Administrative Agent |
| |
|
|
| |
|
By: |
/s/ Rose Thomas |
| |
|
Name: |
Rose Thomas |
| |
|
Title: |
Assistant Vice President |
| |
|
BANK OF AMERICA, N.A., |
| |
|
individually as a Lender, L/C Issuer and Swingline Lender |
| |
|
|
| |
|
By: |
/s/ John H. Kim |
| |
|
Name: |
John H. Kim |
| |
|
Title: |
Senior Vice President |
[Signature Page to Fourth Amendment to Credit
Agreement]
| |
|
BMO BANK N.A., |
| |
|
as a Lender |
| |
|
|
| |
|
By: |
/s/ Frank Aiello |
| |
|
Name: |
Frank Aiello |
| |
|
Title: |
Vice President |
[Signature Page to Fourth Amendment to Credit
Agreement]
| |
|
ASSOCIATED BANK, N.A., |
| |
|
as a Lender |
| |
|
|
| |
|
By: |
/s/ Steven Jones |
| |
|
Name: |
Steven Jones |
| |
|
Title: |
Senior Vice President |
[Signature Page to Fourth Amendment to Credit
Agreement]
| |
|
CITIZENS BANK, N.A., |
| |
|
as a Lender |
| |
|
|
| |
|
By: |
/s/ Angela Reilly |
| |
|
Name: |
Angela Reilly |
| |
|
Title: |
Senior Vice President |
[Signature Page to Fourth Amendment to Credit
Agreement]
[Signature Page to Fourth Amendment to Credit
Agreement]
Exhibit 10.16
Execution Version
Confidential
July 25, 2025
Viskase Companies, Inc.
333 East Butterfield Road
Suite 400
Lombard, Illinois 60148-5679
Attn: Michael Blecic
Fourth Amendment Fee Letter
Viskase Companies, Inc.
Ladies and Gentlemen:
Reference is made that certain Fourth Amendment
to Credit Agreement, dated as of July 25, 2025 (the “Fourth Amendment”) which amends that certain Credit
Agreement dated as of October 9, 2020 (as amended, modified, extended, restated, replaced, or supplemented from time to time, the
“Credit Agreement”), by and among Viskase Companies, Inc., a Delaware corporation (the “Borrower”),
the Guarantors party thereto, the Lenders party thereto and Bank of America, N.A., as administrative agent (in such capacity, including
any successor thereto, the “Administrative Agent”). Terms used but not defined in this fee letter agreement
(the “Fee Letter”) shall have the meanings assigned thereto in the Fourth Amendment or the Credit Agreement,
as applicable. In connection with, and in consideration of the agreements contained in, the Fourth Amendment, you agree with Bank of America
and BofA Securities Inc. (“BofA Securities”) as follows:
1. Consent
Fee. You will pay to the Administrative Agent, for the account of each Lender (including Bank of America) that delivers its executed
signature page to the Fourth Amendment on or prior to the Amendment Effective Date, a one-time consent fee in an amount equal to
0.10% of the aggregate principal amount of such Lender’s Existing Amount (as defined below).
“Existing Amount” means
with respect to each Lender the sum of such Lender’s (i) “Revolving Commitment” and (ii) outstanding Term
Loans, in each case, that are in effect and outstanding immediately prior to the Amendment Effective Date.
2. Amendment
Fee. You will pay to BofA Securities, for its own account, a one-time amendment fee in an amount equal $50,000. No Lender shall receive
greater fees (excluding any consent fee paid pursuant to paragraph 1 above) for its agreements in respect of the Fourth Amendment than
are paid to BofA Securities.
3. Fees
Generally. All fees will be payable in U.S. dollars in immediately available funds to the applicable parties for their
respective accounts, or as otherwise directed by the applicable party, free and clear of, and without deduction for, any and all
present or future applicable taxes, levies, imposts, deductions, charges or withholdings and all liabilities with respect thereto
(with appropriate gross-up for withholding taxes). Once paid, no fee will be refundable under any circumstances and will not be
subject to counterclaim, set off or otherwise affected. All of the fees described in this Fee Letter shall be fully earned upon
becoming due and payable in accordance with the terms hereof, shall be non-refundable for any reason whatsoever, and shall be in
addition to any other fees, costs and expenses payable pursuant to the Amended Credit Agreement or the Loan Documents. Bank of
America reserves the right to allocate, in whole or in part, to BofA Securities certain fees payable to Bank of America hereunder in
such manner as Bank of America and BofA Securities shall agree in their sole discretion. Your obligation to pay the foregoing fees
will not be subject to counterclaim or setoff for, or be otherwise affected by, any claim or dispute you may have.
4. Confidentiality.
You hereby acknowledge and agree that this Fee Letter and the contents hereof are confidential, and, except for disclosure hereof on a
confidential basis to your accountants, attorneys and other professional advisors, Related Parties, or as otherwise required by Applicable
Laws or regulations or by any subpoena or similar legal process, may not be disclosed by you, in whole or in part, to any person or entity
without the prior written consent of the Administrative Agent.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
If the foregoing is in accordance
with your understanding, please sign and return this Fee Letter to us.
| |
Very truly yours, |
| |
|
|
| |
BANK OF AMERICA, N.A. |
| |
|
|
| |
By: |
/s/ John H. Kim |
| |
Name: |
John H. Kim |
| |
Title: |
Senior Vice President |
| |
BOFA SECURITIES, INC. |
| |
|
|
| |
By: |
/s/ Katherine J. Ochs |
| |
Name: |
Katherine J. Ochs |
| |
Title: |
Senior Vice President |
Signature
Page to Fourth Amendment Fee Letter (Viskase Companies, Inc.)
Accepted
and agreed to
as
of the date first above written:
VISKASE COMPANIES, INC.
| By: |
/s/ Carolyn Zhang |
|
| Name: |
Carolyn Zhang |
|
| Title: |
Vice President and Chief Financial Officer |
|
Signature
Page to Fourth Amendment Fee Letter (Viskase Companies, Inc.)
Exhibit 10.17
May 4, 2022
Joseph D King
[*****]
Dear Joe:
On behalf of Viskase Companies, Inc. (“Company” or
“Viskase”), I am pleased to present you with the following job offer, subject to review and approval of Viskase Board
of Directors’ Compensation Committee:
| Title: |
|
Senior Vice President, General Counsel and Secretary |
| |
|
|
| Reporting to: |
|
Kees Bras, President and CEO |
| |
|
|
| Location: |
|
Lombard, IL - Corporate Headquarters |
| |
|
|
| Start Date: |
|
June 1, 2022 |
| |
|
|
| Compensation: |
|
Your compensation per semi-monthly pay period will be $15,625.00 (annualized at $375,000), payable on the 15th and the last business day of each month. All of your compensation is subject to deductions as required by the law. |
| |
|
|
| Bonus Plan: |
|
You will be eligible to participate in the Executive Incentive Plan (or its successor plan) for the fiscal year ending December 31, 2022. Your target annual discretionary bonus under this Plan will be 75% of your earned base salary for the Plan year. Bonuses are prorated for actual time worked in the position. To be eligible for a bonus payment, you must be an active employee on the date the bonus is paid. The bonus compensation will be subject to all terms and conditions of the Executive Incentive Plan (or its successor plan) document, which is subject to change at any time. |
| |
|
|
| Interim Living & Future Travel Reimbursements: |
|
Your work arrangement will be hybrid in nature, between your home in Cleveland and our Lombard office. You will be reimbursed 100% under interim living for 2022. |
| |
|
|
| |
|
In addition, for future years, reimbursement associated with travels to our Lombard office (from your residence in Cleveland) will be capped at $35,000 per calendar year, subject to applicable payroll taxes. |
| |
|
|
| Long-Term Incentive Plan: |
|
You will also be
eligible to participate in the Viskase Long-Term Incentive Plan (or its successor plan) for the three-year Performance Period
beginning in 2023. Your target for LTI will be 75% of your base salary. The Plan details will be provided at a later date.
Participation in the Long-Term Incentive Plan (or its successor plan) is subject to approval of the Compensation Committee of the Board of Directors of Viskase. |
| Paid Time Off: |
|
Viskase has a Paid Time Off Policy to cover your vacation, sick, and personal needs. You begin to accrue your PTO from Date of Hire but cannot use PTO during your first 90 days of employment. Your annual 28 days of earned PTO will be prorated for 2022, and subject to the terms of the Viskase PTO policy. Viskase reserves the right to add, change, or modify the policy at any time. |
| |
|
|
| Benefits: |
|
You will be eligible (subject to applicable waiting periods specified
in the respective plans, including a 30-day waiting period on health, dental, vision, life, etc.) to participate in Viskase benefit
plans including health; dental; vision; life; dependent life; health savings account (HSA); contributory 401(k) with Company match
and no vesting requirement, and short term and long term disability insurance (eligible after a 90 day waiting period). Viskase reserves
the right to add, change, or terminate benefits at any time, including but not limited to, those set forth above. |
| |
|
|
| Severance Benefits: |
|
In the event of an involuntary termination of your employment by the company, except for Cause, you will receive an amount equal to 50% of your target EIP bonus for the calendar year in which the termination occurs, to be paid in a lump sum subject to applicable payroll taxes. In addition to this amount, you would be eligible for 26 weeks of severance, per the Viskase Severance Plan, and, also subject to applicable payroll taxes. For both the EIP bonus and the 26 weeks of severance, you would be eligible after 90 days of employment. |
This offer, and your employment, are conditioned upon successful completion
of a drug screen (hair follicle) and background and reference check.
Further, this offer, and your initial and continued employment, are
conditioned upon your agreement, as attested by your signature on a Viskase Noncompetition and Nonsolicitation Agreement, that you will
not either directly or indirectly during your employment by the Company and for twenty-four (24) months after your employment with the
Company ceases engage in competition with the Company or its affiliates. In addition to other covenants which will be contained in the
Viskase Noncompetition and Nonsolicitation Agreement and the Memorandum of Employee Agreement — Confidentiality/Work Product/Non-Disparagement,
and other Company employment documentation, you agree that during and after your employment you shall not disclose to any third party
any confidential or proprietary information of the Company, any of its affiliates or subsidiaries, or any of their respective owners,
members, directors, officers, managers, and employees. You further agree that during and after your employment you will not disparage,
verbally or in writing, anyone in the Company, any of its affiliates or subsidiaries, or any of their respective owners, members, directors,
officers, managers, or employees, and their family members. The details of the Viskase Noncompetition and Nonsolicitation Agreement and
the Memorandum of Employee Agreement — Confidentiality/Work Product/Non-Disparagement, and other Company employment documentation
will be presented to you and signed by you prior to your employment. Nothing in this offer of employment prohibits you from reporting
any possible violations of federal law or regulation to any government agency or entity, including but not limited to the Department of
Justice and the Securities and Exchange Commission, or making any other disclosures that are protected under the whistleblower provisions
of federal law or regulation. You are not required to notify the Company that you will make or have made such reports or disclosures.
Non-compliance with the disclosure provisions of this letter and other Company employment documentation shall not subject you to criminal
or civil liability under any Federal or State trade secret law for the disclosure of a Company trade secret if the disclosure is made:
(i) in confidence to a Federal, State or local government official, either directly or indirectly, or to an attorney in confidence
solely for the purpose of reporting or investigating a suspected violation of law; (ii) in a complaint or other document filed in
a lawsuit or other proceeding, provided that any complaint or document containing the trade secret is filed under seal; or (iii) to
an attorney representing you in a lawsuit for retaliation by the Company for reporting a suspected violation of law or to use the trade
secret information in that court proceeding, provided that any document containing the trade secret is filed under seal and you do not
disclose the trade secret, except pursuant to court order.
This offer, and your employment, are also conditioned upon your covenant
and representation that (i) you are not a party to any contract, commitment, restrictive covenant or agreement, nor are you subject
to, or bound by, any order, judgment, decree, law, statute, ordinance, rule, regulation or other restriction of any kind or character,
which would prevent or restrict you from accepting this position and performing your duties, (ii) you have not shared with the Company
or any of its affiliates, or any of its or their directors, officers, employees or agents, and will not share or use, any confidential
or proprietary information of any prior employer or contractor or any third party from whom you may have received confidential or proprietary
information, (iii) you are not subject to any agreement or obligation that would limit your ability to act on behalf of the Company
or any of its subsidiaries, (iv) your acceptance of this offer and your performance of your duties in respect thereof will not violate
or conflict with any agreement or obligation to which you are subject, and (v) you have delivered to the Company true and complete
copies of any currently effective employment agreement, non-competitive agreement or similar agreement to which you are subject.
This letter does not constitute a contract or employment agreement.
You understand that your employment is “at will” and can be terminated, with or without cause and with or without notice,
at any time. Nothing contained in this letter shall limit or otherwise alter the foregoing. Your employment will be subject to other policies,
terms and conditions that may be established or modified by the Company from time to time.
On your first day of work we require that you bring proof of your legal
right to work in the United States for 1-9 purposes.
We look forward to you joining our Viskase team. Please do not hesitate
to contact me at [*****] or Jeff Bowen at [*****] if you have any questions.
| Sincerely, |
|
| |
|
| /s/ Kees Bras |
|
| Kees Bras |
|
| President and CEO |
|
| Cc: |
Jeff Bowen, Vice President and Chief People Officer |
|
| |
Employee File |
|
| ACCEPTED: |
|
|
|
|
| |
|
|
|
|
| Name – Print |
|
Signature |
|
Date |
| |
|
|
|
|
| Joseph King |
|
/s/ Joseph King |
|
5/5/22 |
Viskase
Companies, Inc.
333 East Butterfield Road, Suite 400, Lombard, Illinois, 60561 USA
Phone: (630) 874-0700 Fax: (630) 874-0176
Exhibit 10.18
December 19, 2022
Thomas Holz
[*****]
Dear Tom:
On
behalf of Viskase Companies, Inc. (“Viskase”
or the “Company”), I
am pleased to present you with the following job offer, subject
to review and approval of the Compensation Committee of Viskase’s Board of Directors:
| Title: |
Vice President and Chief Financial Offer |
| |
|
| Reporting to: |
Tim Feast, President and CEO |
| |
|
| Location: |
Lombard, IL – Corporate Headquarters |
| |
|
| Start Date: |
January 3, 2023 |
| |
|
| Compensation: |
Your compensation per semi-monthly pay period will be $16,250.00 (annualized at $390,000), payable on the 15th and the last business day of each month. All of your compensation is subject to deductions as required by the law. |
| |
|
| Bonus Plan: |
You will be eligible to participate in the Executive Incentive Plan (or its successor plan) for the fiscal year ending December 31, 2023. Your target annual discretionary bonus under this Plan will be 60% of your earned base salary for the Plan year. Bonuses are prorated for actual time worked in the position. To be eligible for a bonus payment, you must be an active employee on the date the bonus is paid. The bonus compensation will be subject to all terms and conditions of the Executive Incentive Plan (or its successor plan) document, which is subject to change at any time. |
| |
|
| Long-Term Incentive Plan: |
You also will be eligible to participate in the Viskase Companies, Inc. Long-Term Incentive Plan (the “LTI Plan”). Any award under the LTI Plan will be based on a percentage increase of the net asset value of the Company over an established baseline. The LTI Plan details will be provided at a later date. Any award under the LTI Plan shall be payable in accordance with and subject to the terms and conditions of the LTI Plan as approved by the Compensation Committee of the Board of Directors of Viskase. |
| |
|
| Paid Time Off: |
Viskase has a Paid Time Off Policy to cover your vacation, sick, and personal needs. You begin to accrue your PTO from Date of Hire but cannot use PTO during your first 90 days of employment. Your annual 28 days of earned PTO will be subject to the terms of the Viskase PTO policy. Viskase reserves the right to add, change, or modify the policy at any time. |
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400, Lombard, Illinois,
60561 USA
Phone:
(630) 874-0700 Fax: (630) 874-0176
Tom Holz
December 19, 2022
Page 2 of 3
| Benefits: |
You will be eligible to participate in Viskase benefit plans including health; dental; vision; life; dependent life; health savings account (HSA); contributory 401(k) with Company match and no vesting requirement, and short-term and long-term disability insurance. All benefit plans except STD and LTD are effective the first of the month following employment. STD and LTD are effective after 90 days of employment. Viskase Companies Inc. reserves the right to add, change, or terminate benefits at any time, including but not limited to, those set forth above. |
| |
|
| Severance Benefits: |
In the event of an involuntary termination of your employment by the Company, except for Cause, you would be eligible for 26 weeks of severance, per the Viskase Severance Plan, and, also subject to applicable payroll taxes. Your eligibility for severance benefits begins after 90 days of employment. |
This
offer, and your employment, are conditioned upon successful completion
of a drug screen (hair follicle) and background and reference check.
Further,
this offer, and your initial and continued employment, are
conditioned upon your agreement, as attested by your signature on a Viskase Noncompetition and Nonsolicitation Agreement, that you will
not either directly or indirectly during your employment by the Company and for twenty-four (24) months after your employment with the
Company ceases engage in competition with the Company or its affiliates. In addition to other covenants which will be contained in the
Viskase Noncompetition and Nonsolicitation Agreement and the Memorandum of Employee Agreement – Confidentiality/Work Product/Non-Disparagement,
and other Company employment documentation, you agree that during and after your employment you shall
not disclose to any third party any confidential or proprietary information of the Company, any of its affiliates or subsidiaries, or
any of their respective owners, members, directors, officers,
managers, and employees. You further agree that during and after
your employment you will not disparage, verbally or in writing,
anyone in the Company, any of its affiliates or subsidiaries, or
any of their respective owners, members,
directors, officers,
managers, or employees,
and their family members. The details of the Viskase Noncompetition and Nonsolicitation Agreement
and the Memorandum of Employee Agreement – Confidentiality/Work Product/Non-Disparagement, and other Company employment documentation
will be presented to you and signed by you prior to your employment. Nothing in this offer of employment prohibits you from reporting
any possible violations of federal law or regulation to any government agency or entity, including
but not limited to the Department of Justice and the Securities and Exchange Commission, or making any other disclosures that are protected
under the whistleblower provisions of federal law or regulation. You are not required to notify the Company that you will make or have
made such reports or disclosures. Non-compliance with the disclosure provisions of this letter and other Company employment documentation
shall not subject you to criminal or civil liability under any Federal or State trade secret law for the disclosure of a Company trade
secret if the disclosure is made: (i) in confidence to a Federal, State or local government official,
either directly or indirectly, or to an attorney in confidence solely for the purpose of reporting
or investigating a suspected violation of law; (ii) in a complaint or other document filed in a lawsuit or other proceeding,
provided that any complaint or document containing the trade secret is filed under seal;
or (iii) to an attorney representing you in a lawsuit for retaliation by the Company for reporting
a suspected violation of law or to use the trade secret information in that court proceeding, provided
that any document containing the trade secret is filed under seal and you do not disclose the trade secret, except pursuant to court order.
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400, Lombard, Illinois,
60561 USA
Phone:
(630) 874-0700 Fax: (630) 874-0176
Tom Holz
December 19, 2022
Page 3 of 3
This
offer, and your employment, are also conditioned upon your covenant and representation that (i) you are not a party to any contract,
commitment, restrictive covenant or agreement, nor are you subject to, or
bound by, any order, judgment, decree, law, statute, ordinance,
rule, regulation or other restriction of any kind or character, which
would prevent or restrict you from accepting this position and performing your duties, (ii) you have not shared with the Company
or any of its affiliates, or any of its or their directors, officers, employees or agents, and will not share or use,
any confidential or proprietary information of any prior employer or contractor or any third party
from whom you may have received confidential or proprietary information, (iii) you are not subject to any agreement or obligation
that would limit your ability to act on behalf of the Company or any of its subsidiaries, (iv) your
acceptance of this offer and your performance of your duties in respect thereof will not violate or conflict with any agreement or obligation
to which you are subject, and (v) you have delivered to the Company true and complete copies of any currently effective employment
agreement, non-competitive agreement or similar agreement to which you are subject.
This
letter does not constitute a contract or employment agreement. You understand that your employment is “at
will” and can be terminated,
with or without cause and with or without notice, at any time.
Nothing contained in this letter shall limit or otherwise alter the foregoing. Your employment will be subject to other policies, terms
and conditions that may be established or modified by the Company from time to time.
On your first day of work, we require that you bring
proof of your legal right to work in the United States for I-9 purposes.
We look forward to you joining our Viskase team. Please
do not hesitate to contact me at [*****] or Jeff Bowen at [*****] if you have any questions.
Sincerely,
Tim Feast
President and CEO
| Cc: | Jeff
Bowen, Vice President and Chief People Officer |
| | Employee File |
| ACCEPTED: |
|
|
|
|
| |
|
|
|
|
| Name – Print |
|
Signature |
|
Date |
| |
|
|
|
|
| THOMAS F. HOLZ |
|
/s/ THOMAS F. HOLZ |
|
12/19/2022 |
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400, Lombard, Illinois,
60561 USA
Phone:
(630) 874-0700 Fax: (630) 874-0176
Exhibit 10.19
March 15, 2024
Via Electronic Delivery
Armando Herrera
[*****]
Dear Armando:
On behalf of Viskase Companies, Inc. (“Company”
or “Viskase”), I am pleased to present you with the following job offer:
| Title: |
Vice President, Global Human Resources |
| |
|
| Reporting to: |
You will report directly to Joe King, Senior Vice President, General Counsel and Secretary |
| |
|
| Location |
Corporate HQs, Lombard, IL |
| |
|
| Start Date: |
April 16th (to be confirmed) |
| |
|
| Compensation: |
Your compensation per semi-monthly pay period will be $12,291.67 (annualized at $295,000), payable on the 15th and the last business day of each month. All of your compensation is subject to deductions as required by the law. |
| |
|
| Bonus Plan: |
You will be eligible to participate in the Management Incentive Plan (or its successor plan) for the fiscal year ending December 31, 2024. Your target annual discretionary bonus under this Plan will be 40% of your earned base salary for the Plan year. Bonuses are prorated for actual time worked in the position. To be eligible for a bonus payment, you must be an active employee on the date the bonus is paid. The bonus compensation will be subject to all terms and conditions of the Management Incentive Plan document, which is subject to change at any time. |
| |
|
| PTO: |
You will be eligible for 28 days of
PTO per year subject to the terms of the Viskase PTO policy. You begin to accrue your PTO from Date of Hire but cannot use PTO
during your first 90 days of employment. Viskase reserves the right to add, change, or modify the policy at any time. |
Viskase
Companies, Inc.
333
East Butterfield Road, Suite 400, Lombard, Illinois, 60561 USA
Phone:
(630) 874-0700 Fax: (630) 874-0176
Armando Herrera
March 15, 2024
Page 2 of 4
| Severance Benefits: |
In the event of an involuntary termination of your employment (except for cause) by the Company at any time after the first ninety (90) days of employment, you would be eligible for 26 weeks of severance, per the Viskase Severance Plan. All payments are subject to applicable payroll taxes. |
| |
|
| Benefits: |
You will be eligible to participate in Viskase benefit
plans including health; dental; vision; life; dependent life; health savings account (HSA); contributory 401(k) with Company match
and no vesting requirement, and short term and long-term disability insurance. All benefit plans except STD and LTD are effective the first
of the month following employment. STD and LTD are effective after 90 days of employment.
Viskase reserves the right to add, change, or terminate
benefits at any time, including but not limited to, those set forth above. |
This offer, and your
employment, are conditioned upon successful completion of a drug screen (hair follicle) and background and reference check.
Further, this offer, and your initial and
continued employment, are conditioned upon your agreement, as attested by your signature on a Viskase Confidentiality and Non-Compete
Agreement, that you will not either directly or indirectly during your employment by the Company and for twelve months (12) after
your employment with the Company ceases engage in competition with the Company or its affiliates. In addition to other covenants
which will be contained in the Confidentiality and Non-Compete Agreement and other Company employment documentation, you agree that
during and after your employment you shall not disclose to any third party any confidential or proprietary information of the
Company, any of its affiliates or subsidiaries, or any of their respective owners, members, directors, officers, managers, and
employees. You further agree that during and after your employment you will not disparage, verbally or in writing, anyone in the
Company, any of its affiliates or subsidiaries, or any of their respective owners, members, directors, officers, managers, or
employees, and their family members. The details of the Confidentiality and Non-Compete Agreement and other Company employment
documentation will be presented to you and signed by you prior to your employment. Nothing in this offer of employment prohibits you
from reporting any possible violations of federal law or regulation to any government agency or entity, including but not limited to
the Department of Justice and the Securities and Exchange Commission, or making any other disclosures that are protected under the
whistleblower provisions of federal law or regulation. You are not required to notify the Company that you will make or have made
such reports or disclosures. Non-Compliance with the disclosure provisions of this letter and other Company employment documentation
shall not subject you to criminal or civil liability under any Federal or State trade secret law for the disclosure of a Company
trade secret if the disclosure is made: (i) in confidence to a Federal, State or local government official, either directly or
indirectly, or to an attorney in confidence solely for the purpose of reporting or investigating a suspected violation of law;
(ii) in a complaint or other document filed in a lawsuit or other proceeding, provided that any complaint or document
containing the trade secret is filed under seal; or (iii) to an attorney representing you in a lawsuit for retaliation by the
Company for reporting a suspected violation of law or to use the trade secret information in that court proceeding, provided that
any document containing the trade secret is filed under seal and you do not disclose the trade secret, except pursuant to court
order.
Viskase
Companies, Inc.
333
East Butterfield Road, Suite 400, Lombard, Illinois, 60561 USA
Phone:
(630) 874-0700 Fax: (630) 874-0176
Armando Herrera
March 15, 2024
Page 3 of 4
This offer, and your employment, are also conditioned
upon your covenant and representation that (i) you are not a party to any contract, commitment, restrictive covenant, or agreement,
nor are you subject to, or bound by, any order, judgment, decree, law, statute, ordinance, rule, regulation or other restriction of any
kind or character, which would prevent or restrict you from accepting this position and performing your duties, (ii) you have not
shared with the Company or any of its affiliates, or any of its or their directors, officers, employees or agents, and will not share
or use, any confidential or proprietary information of any prior employer or contractor or any third party from whom you may have received
confidential or proprietary information, (iii) you are not subject to any agreement or obligation that would limit your ability to
act on behalf of the Company or any of its subsidiaries, (iv) your acceptance of this offer and your performance of your duties in
respect thereof will not violate or conflict with any agreement or obligation to which you are subject, and (v) you have delivered
to the Company true and complete copies of any currently effective employment agreement, non-competitive agreement or similar agreement
to which you are subject.
This letter does not
constitute a contract or employment agreement. You understand that your employment is “at will” and can be terminated, with
or without cause and with or without notice, at any time. Nothing contained in this letter shall limit or otherwise alter the foregoing.
Your employment will be subject to other policies, terms and conditions that may be established or modified by the Company from time to
time.
On your first day
of work, we require that you bring proof of your legal right to work in the United States for 1-9 purposes.
We look forward to you joining our Viskase Companies, Inc.
team. Please do not hesitate to contact me at [*****]
or Lisa Littleton at [*****] if you have any questions.
Viskase
Companies, Inc.
333
East Butterfield Road, Suite 400, Lombard, Illinois, 60561 USA
Phone:
(630) 874-0700 Fax: (630) 874-0176
Armando Herrera
March 15, 2024
Page 4 of 4
This offer letter expires March 20,
2024, at 4:00 PM central time.
Sincerely,
| /s/ Joseph D. King |
|
| |
|
| Joseph D. King |
|
| Senior Vice President, General Counsel and Secretary |
|
Cc: Employee File
| ACCEPTED: |
|
|
|
|
| |
|
|
|
|
| Name – Print |
|
Signature |
|
Date |
| |
|
|
|
|
| Armando Herrera |
|
/s/ Armando Herrera |
|
3/22/24 |
Viskase
Companies, Inc.
333
East Butterfield Road, Suite 400, Lombard, Illinois, 60561 USA
Phone:
(630) 874-0700 Fax: (630) 874-0176
Exhibit 10.20
June 7, 2024
Delivered via Email
Jan Stevens
[*****]
Dear Jan:
On behalf of Viskase Companies, Inc. (“Company”
or “Viskase”), I am pleased to present you with the following job offer:
| Title: |
Vice President of Quality and Technology |
| |
|
| Reporting to: |
You will report directly to Tim Feast, President and CEO |
| |
|
| Location |
This role is a remote position, with occasional visits to the corporate office in Lombard, IL. |
| |
|
| Start Date: |
July 15, 2024 (to be confirmed) |
| |
|
| Compensation: |
Your compensation per semi-monthly pay period will be $11,875.00 (annualized at $285,000), payable on the 15th and the last business day of each month. All of your compensation is subject to deductions as required by the law. |
| |
|
| Bonus Plan: |
You will be eligible to participate in the Management Incentive Plan (or its successor plan) for the fiscal year ending December 31, 2024. Your target annual discretionary bonus under this Plan will be 40% of your earned base salary for the Plan year. Bonuses are prorated for actual time worked in the position. To be eligible for a bonus payment, you must be an active employee on the date the bonus is paid. The bonus compensation will be subject to all terms and conditions of the Management Incentive Plan document, which is subject to change at any time. |
| |
|
| Introductory Period: |
Your employment will be subject to a three (3) month introductory period, during which the Company will assess your ability to perform the essential functions of the position. |
| |
|
| PTO: |
You will be eligible for 28 days of
PTO per year subject to the terms of the Viskase PTO policy. You begin to accrue your PTO from Date of Hire but cannot use PTO during your first 90 days of employment. Viskase reserves the right to add, change, or modify the policy at any time. |
Viskase Companies, Inc.
333
East Butterfield Road, Suite 400,
Lombard, Illinois, 60561 USA
Phone:
(630) 874-0700 Fax: (630) 874-0176
Stevens, Jan
June 7, 2024
Page 2
of 4
| Benefits: |
You will be eligible to participate in Viskase benefit plans including health; dental; vision; life; dependent life; health savings account (HSA); contributory 401(k) with Company match and no vesting requirement, and short term and long-term disability insurance. All benefit plans except STD and LTD are effective the first of the month following employment. STD and LTD are effective after 90 days of employment. Viskase reserves the right to add, change, or terminate benefits at any time, including but not limited to, those set forth above. |
| |
|
| Signing Bonus: |
You will receive a one-time cash signing bonus in the amount of $25,000 (the “Signing Bonus”), which will be paid to you no later than 30 days following the Start Date. You must be employed by the Company at the time of payment of the Signing Bonus to receive the Signing Bonus. The Signing Bonus shall be subject to deductions and withholdings as required by law. If prior to the 24-month anniversary of the Start Date, you voluntarily resign for any reason or are terminated for cause, you agree to repay to the Company the full amount of the signing bonus. You must execute the Company’s Agreement To Repay Signing Bonus in order to be eligible for the Signing Bonus. |
This offer, and your employment, are conditioned upon
successful completion of a drug screen (hair follicle) and background and reference check.
Further, this offer, and your initial and
continued employment, are conditioned upon your agreement, as attested by your signature on a Viskase Confidentiality and Non-Compete
Agreement, that you will not either directly or indirectly during your employment by the Company and for twelve months (12) after
your employment with the Company ceases engage in competition with the Company or its affiliates. In addition to other covenants
which will be contained in the Confidentiality and Non-Compete Agreement and other Company employment documentation, you agree that
during and after your employment you shall not disclose to any third party any confidential or proprietary information of the
Company, any of its affiliates or subsidiaries, or any of their respective owners, members, directors, officers, managers, and
employees. You further agree that during and after your employment you will not disparage, verbally or in writing, anyone in the
Company, any of its affiliates or subsidiaries, or any of their respective owners, members, directors, officers, managers, or
employees, and their family members. The details of the Confidentiality and Non-Compete Agreement and other Company employment
documentation will be presented to you and signed by you prior to your employment. Nothing in this offer of employment prohibits you
from reporting any possible violations of federal law or regulation to any government agency or entity, including but not limited to
the Department of Justice and the Securities and Exchange Commission, or making any other disclosures that are protected under the
whistleblower provisions of federal law or regulation. You are not required to notify the Company that you will make or have made
such reports or disclosures. Non-Compliance with the disclosure provisions of this letter and other Company employment documentation
shall not subject you to criminal or civil liability under any Federal or State trade secret law for the disclosure of a Company
trade secret if the disclosure is made: (i) in confidence to a Federal, State or local government official, either directly or
indirectly, or to an attorney in confidence solely for the purpose of reporting or investigating a suspected violation of law;
(ii) in a complaint or other document filed in a lawsuit or other proceeding, provided that any complaint or document
containing the trade secret is filed under seal; or (iii) to an attorney representing you in a lawsuit for retaliation by the
Company for reporting a suspected violation of law or to use the trade secret information in that court proceeding, provided that
any document containing the trade secret is filed under seal and you do not disclose the trade secret, except pursuant to court
order.
Viskase Companies, Inc.
333
East Butterfield Road, Suite 400,
Lombard, Illinois, 60561 USA
Phone:
(630) 874-0700 Fax: (630) 874-0176
Stevens, Jan
June 7, 2024
Page 3
of 4
This offer, and your employment, are also conditioned
upon your covenant and representation that (i) you are not a party to any contract, commitment, restrictive covenant, or agreement,
nor are you subject to, or bound by, any order, judgment, decree, law, statute, ordinance, rule, regulation or other restriction of any
kind or character, which would prevent or restrict you from accepting this position and performing your duties, (ii) you have not
shared with the Company or any of its affiliates, or any of its or their directors, officers, employees or agents, and will not share
or use, any confidential or proprietary information of any prior employer or contractor or any third party from whom you may have received
confidential or proprietary information, (iii) you are not subject to any agreement or obligation that would limit your ability to
act on behalf of the Company or any of its subsidiaries, (iv) your acceptance of this offer and your performance of your duties in
respect thereof will not violate or conflict with any agreement or obligation to which you are subject, and (v) you have delivered
to the Company true and complete copies of any currently effective employment agreement, non-competitive agreement or similar agreement
to which you are subject.
This letter does not constitute a contract or
employment agreement. You understand that your employment is “at will” and can be terminated, with or without cause and
with or without notice, at any time. Nothing contained in this letter shall limit or otherwise alter the foregoing. Your employment
will be subject to other policies, terms and conditions that may be established or modified by the Company from time to time.
Viskase Companies, Inc.
333
East Butterfield Road, Suite 400,
Lombard, Illinois, 60561 USA
Phone:
(630) 874-0700 Fax: (630) 874-0176
Stevens, Jan
June 7, 2024
Page 4
of 4
On your first day of work, we require that you bring
proof of your legal right to work in the United States for 1-9 purposes.
We
look forward to you joining our Viskase Companies, Inc. team. Please do not hesitate to contact me at [*****] or Lisa
Littleton at [*****] if you have any questions.
This offer letter expires June 10, 2024, at 4:00
PM central time.
Sincerely,
Armando Herrera
Vice President, Global Human Resources
Cc: Employee File
| ACCEPTED: |
|
|
|
|
| |
|
|
|
|
| Name – Print |
|
Signature |
|
Date |
| |
|
|
|
|
| JAN STEVENS |
|
/s/ Jan Stevens |
|
06/07/2024 |
Viskase Companies, Inc.
333
East Butterfield Road, Suite 400,
Lombard, Illinois, 60561 USA
Phone:
(630) 874-0700 Fax: (630) 874-0176
AGREEMENT TO REPAY SIGNING
BONUS
Viskase
Companies, Inc., (“the Company”), may provide me with a signing bonus of $25,000 (the “Signing
Bonus”) less any applicable taxes subject to the terms of my June 7, 2024, offer letter
(the “Offer Letter”) and the terms described below.
| 1. | I understand and agree that in the event that I voluntarily resign or terminate my employment with the Company for any reason or am
involuntarily terminated for “Cause” within twenty-four (24) months of my transfer or start date, I will repay 100% of
the Signing Bonus to the Company. For the purposes of this Agreement, “Cause” shall include but not be limited to a violation
of company policy, misconduct, or failure to perform my job duties, and responsibilities. This reimbursement obligation shall not apply
in the event the Company eliminates my position or I am involuntarily terminated due to a reduction in force. |
| 2. | To the extent legally permissible, the Company may withhold any amount due from me under this Agreement from any amount(s) otherwise
payable to me as of the last day of employment with the Company. Otherwise, I will repay any amount due from me under this Agreement
within 30 days after my departure from the Company. If I fail to do so, the Company may bring an action in court to recover the amount
due. The acceptance by the Company of partial or delinquent payments, or the failure of the Company to exercise any rights under this
Agreement, shall not waive any of my obligations, or the rights of the Company, modify this Agreement or waive any other similar breach
of this Agreement by me. |
| 3. | I will not be required to repay any portion of the Signing Bonus if I remain employed with the Company for 24 months after my start
date. |
| 4. | This Agreement does not constitute, and may not be construed as, a commitment by the Company to employ me for any specific duration.
My employment with the Company will be at will, which means I may leave the Company, or the Company may require that I leave its employment,
for any reason, at any time. |
| 5. | The determination of whether I shall be eligible for a Signing Bonus, and if so, to what extent, is described in my Offer Letter and
as determined by the Company in its sole discretion. |
| 6. | This Agreement, together with my Offer Letter, represents my entire understanding with the Company, and supersedes all prior oral
or written agreements or understandings, with respect to the repayment of the Signing Bonus. |
| 7. | This Agreement shall be binding upon and inure to the benefit of the Company’s successors and assigns. The terms of this Agreement
may be waived only by the Company by a written instrument signed by an authorized officer of the Company wherein specific reference is
made to this Signing Bonus. |
| 8. | This Agreement is governed by the laws of the State of Illinois, without giving effect to principles of conflict of laws. I agree
to submit to the jurisdiction and venue of the Illinois state and federal courts located in the counties of Cook and DuPage. |
Stevens, Jan
June 7, 2024
Page 2
of 2
| 9. | I understand that the terms of this Agreement and the fact that the Company is providing me with a signing bonus constitutes confidential
information and shall not be shared with others, with the exception of my legal, tax, or financial advisors as may be necessary. |
| 10. | I acknowledge that I have had a reasonable
amount of time in which to read and consider the terms of this
Agreement and seek the advice of counsel prior to signing it. |
Agreed and approved by me on this 7th,day of June,
2024.
| /s/ Jan Stevens |
|
| Signature |
|
| |
|
| JAN STEVENS |
|
| Printed Name |
|
VISKASE COMPANIES, INC.
CONFIDENTIALITY, NON-COMPETITION
AND NON-SOLICITATION AGREEMENT
This
Agreement is made and is effective
as of this 7th day of June, 2024, by and between Viskase Companies, Inc. (the “Company”),
333 E. Butterfield Road, Suite 400, Lombard, IL 60148 and current or prospective employee,
Jan Stevens (“Employee”), whose principal mailing address is [*****]. Any offer of employment,
or continuation of employment, as the case may be, is expressly subject to and conditioned upon Employee’s
execution of this Agreement.
In
consideration of Employee’s employment at will by the Company
and/or one or more of its subsidiaries (hereinafter collectively and individually referred to as “Viskase”), and of the salary
and benefits paid to Employee with respect to such employment and future increases therein, Employee
and Viskase hereby agree as follows:
| 1. | Definitions. For
purposes of this Agreement the terms: |
| (i) | “Affiliate” shall mean with respect to any specified Person, another Person which, directly or indirectly, controls, is
controlled by, or is under common control with such specified Person; |
| (ii) | “Company” shall mean Viskase Companies, Inc. and/or any of its subsidiaries, parent, or related corporations; |
| (iii) | “Confidential Information” shall
mean all information disclosed or otherwise made available to the Employee by
the Company or its Affiliates, employees or representatives, about or relating to the Company’s, or any of its Affiliates’
plans, business or activities, or employees, including, but not limited to the information set forth in the business plan of the Company
and information concerning advertising, marketing plans and strategies, finances
or financial condition, accounting, methods, processes, trade secrets, Intellectual Property, product and business plans, and current
or potential customer, client, business partner or supplier lists and records, service charges, rates and fees, investments plans or projections,
research in respect of acquired or potential target investments and communications and all Work Product; |
| (iv) | “Intellectual Property,” shall mean all source-codes,
object-codes, manuals and other documentation and materials (whether
or not in written form) and all versions thereof, together with all other patents, licenses, trademarks, service marks, trade names (whether
registered or unregistered), copyrights, proprietary computer software, proprietary inventions, proprietary technology, technical information,
intellectual property, discoveries, designs, proprietary rights and non-public information, trade secrets, in each case, whether or not
patentable; |
| (v) | “Person” an individual, corporation, partnership, trust or unincorporated organization, limited liability company, limited
liability partnership, joint venture, joint stock company, any governmental agency or instrumentality or any other entity; |
| (vi) | “Work Product” shall mean all
work product (tangible, recorded or otherwise, and without regard to the form or condition or state of
completion, including, without limitation, Intellectual Property invented, created, assembled,
or developed in connection with, with respect to, for, or in relation to, the Company during the Employee’s employment by the Company. |
Viskase Companies, Inc.
333
East Butterfield Road, Suite 400,
Lombard, Illinois, 60148 USA
Tel:
630 874-0700 - Fax: 630 282-0498
| (i) | The Employee shall not (either during the
continuance of the Employee’s employment by the Company or at any time thereafter) disclose any Confidential Information to any
Person other than designated employees of the Company, and all such Confidential Information, either in electronic, printed or verbal
form will remain the property of the Company and shall not be used by the Employee (either during the continuance of his employment by
the Company or at any time thereafter) for his own purpose or for any purpose other than those of the Company. The Employee
agrees that the Company will retain proprietary rights in the Confidential Information and disclosure
to or awareness by the Employee of the Confidential Information shall not be deemed to confer any rights whatsoever to the Employee in
respect of any part of the Confidential Information. |
| (ii) | The restrictions and covenants set forth in (a) above applicable to the Confidential Information shall not apply to any portion
of the Confidential Information that the Employee can clearly demonstrate is at the time of disclosure or thereafter generally available
to and known by the public (other than as a result of its disclosure by the Employee in breach of his obligations herein). |
| (iii) | In the event that the Employee is (i) requested
by interrogatory, subpoena, deposition, civil investigation demand or other similar legal process or (ii) required by applicable
laws, rules, or regulations, to disclose any Confidential Information, the Employee shall
provide the Company with prompt written notice of any such request or requirement so that the Company may seek an appropriate protective
order. If, failing the entry of a protective order, the Employee is, in the written opinion of his counsel, compelled to disclose Confidential
Information, the Employee may disclose that portion of the Confidential Information which his counsel advises the Employee in such opinion
that he is compelled to disclose. In any event, the Employee will not oppose, and shall assist, action by the Company in any such proceeding
to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. |
| (iv) | Nothing in this agreement prohibits Employee from reporting any possible violations of federal law or regulation to any government
agency or entity, including but not limited to the Department of Justice and the Securities and Exchange Commission, or making any other
disclosures that are protected under the whistle-blower provisions of federal law or regulation. Employee is not required to notify Viskase
that Employee will make or has made such reports or disclosures. |
| 3. | Agreement Not to Compete. |
Employee shall not, within the states of
Illinois, Arkansas and/or Tennessee either directly or indirectly, and either physically or remotely/digitally, as principal, agent, owner,
employee, director, partner, investor, shareholder (other than solely as a holder of not more than 1% of the issued and outstanding shares
of any public corporation), consultant, advisor or otherwise howsoever own, operate, carry on or engage in the operation of or have any
financial interest in or provide, directly or indirectly, financial assistance to or lend money to or guarantee the debts or obligations
of any Person carrying on or engaged in any business that is similar to or competitive with the business conducted by the Company or any
of its subsidiaries during the term of Employee’s employment and for twelve (12) months after Employee ceases, for any reason, to
be employed by Viskase. Employee’s obligation not to disclose Confidential Information of Viskase shall not terminate at the end
of the twelve (12) month period described above.
| 4. | Agreement Not to Solicit. |
The Employee covenants and agrees with the
Company and its subsidiaries that, during the term of Employee’s employment and for twelve (12) months following the last day of
employment by Viskase, the Employee shall not, directly, or indirectly, for himself or for any other Person:
| (i) | solicit, interfere with or endeavor to entice away from the Company or any of its subsidiaries or affiliates, any current or prospective
supplier, customer, client, or any Person in the habit of dealing with any of the foregoing; |
| (ii) | attempt to direct or solicit any current or prospective supplier, customer, or client away from the Company or any of its subsidiaries
or affiliates; |
| (iii) | interfere with, entice away or otherwise attempt to obtain or induce the withdrawal of any employee of the Company or any of its subsidiaries
or affiliates; or |
| (iv) | advise any Person not to do business with the Company or any of its subsidiaries or affiliates. |
| 5. | Acknowledgment of Reasonableness of Agreement. |
Employee acknowledges and agrees that the
restrictions on Employee’s competition with Viskase and Employee’s nonsolicitation obligations contained in Paragraphs 3 and
4 of this Agreement are reasonable and justified in light of the nature of Viskase’s business and of the confidential and proprietary
information of Viskase to which Employee has or may have exposure.
| 6. | Acknowledgment of Need for Injunctive Relief. |
Employee acknowledges and agrees that the
remedy at law for any violation of this Agreement, given the nature of Viskase’s business and the harm which could be done thereto,
would be inadequate, and that Viskase would suffer continuing and irreparable harm to its business as a result of such violations; therefore,
in the event of any actual or threatened violation of this Agreement, Viskase shall be entitled, in addition to any other remedies available
to it, to a temporary restraining order and preliminary and permanent injunctive relief to prevent any violations hereof, without any
requirement to prove actual damages or to post bond, and to any other appropriate equitable relief that any court of competent jurisdiction
deems proper. Employee hereby represents to Viskase that Employee’s past business skills and experience will enable Employee to
obtain satisfactory employment without violating this Agreement and that enforcement of this Agreement will not impose undue hardship
upon Employee.
| 7. | Beneficiaries of Agreements. |
This Agreement shall be for and inure to
the benefit of Viskase, any and all of its subsidiaries, affiliates, parents, or related entities as well as the successors, assigns,
and transferees of any of the above.
| 8. | No Modifications Other than in Writing. |
This Agreement shall not be modified, amended,
rescinded, or waived other than by a subsequent written agreement signed by Employee and Viskase.
| 9. | Construction of Agreement. |
This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Illinois, United Staes, where Viskase has its principal place of business. In
the event any court of competent jurisdiction determines that any of the terms or provisions contained in this Agreement are void or
unenforceable, such court shall have the right, and is authorized by Employee, to modify such terms or provisions as to render the remaining
or modified terms or provisions of this Agreement valid and enforceable to the maximum extent possible and, as so modified, to enforce
this Agreement in accordance with its terms,.
| 10. | Governing Law/Jurisdiction/Service of Process. |
The validity, interpretation, performance,
and enforcement of this Agreement shall be governed by the laws of the State of Illinois, United States, without regard to conflict of
laws rules. In any action between or among the parties arising out of this Agreement, (i) each of the parties irrevocably consents
to the exclusive jurisdiction and venue of the federal and state courts located in, or having jurisdiction over, DuPage County, Illinois,
United States; (ii) if any such action is commenced in a state court, then, subject to applicable law, neither party shall object
to the removal of such action to any federal court located in, or having jurisdiction over, DuPage County, Illinois, United
States; (iii) each of the parties irrevocably waives the right to trial by jury; and (iv) each of the parties irrevocably consents
to service of process by first class certified mail, return receipt requested, postage prepaid, to the address of such party set forth
in the preamble hereto, unless a party notifies the other in writing of a different address.
This Agreement does not alter, change, or
modify the employment-at-will relationship that exists between the Company and the Employee. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and permitted assigns, as the case may be. This Agreement may be assigned by
the Company to any affiliate of the Company and to any successor or assign of all or a substantial portion of the Company’s business.
The Employee may not assign or transfer any of his rights or obligations under this Agreement.
| 12. | Representation of Knowledge of Contents of Agreement. |
Employee agrees and represents to Viskase
that: (i) Employee has read and understands the contents of this Agreement,(ii) Employee has had at least 14 days within which
to consider its terms and has asked any and all questions regarding the same; (iii) Employee is hereby advised by the Company to
consult with legal counsel of Employee’s choice prior to executing this Agreement, and (vii) Employee has not relied on any
statements made by anyone associated with the Company that is not contained in this Agreement in deciding to sign this Agreement.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
| /s/ Jan Stevens 06/07/2024 |
|
| JAN STEVENS |
|
| |
|
| VISKASE COMPANIES, INC. |
|
| |
|
| By: |
|
|
| |
|
| Title: |
|
|
Exhibit 10.21
September 13, 2024
Via
Electronic Delivery
Marcelo Passos
[*****]
marcelompassos@yahoo.com
Dear Marcelo:
On behalf of Viskase
Companies, Inc. (“Company” or “Viskase”), I
am pleased to present you with the following job offer:
| Title: |
Vice President and General Manager Americas |
| |
|
| Reporting to: |
You will report directly to Tim Feast, President, and CEO |
| |
|
| Location |
Remote, Home-Based office in Fayetteville, GA |
| |
|
| Start Date: |
September 30, 2024 |
| |
|
| Compensation: |
Your compensation per semi-monthly pay period will be $15,000,00 (annualized at $360,000), payable on the 15th and the last business day of each month. All of your compensation is subject to deductions as required by the law. |
| |
|
| Bonus Plan: |
In
addition to your base salary, as a full-time, salaried employee, you are eligible to participate in the Viskase Management Incentive
Plan (VMIP) for calendar year 2025 with a target bonus
of 60% of base earnings. The incentive
is predicated on obtaining certain objectives based
upon both personal and Company performance. Additional
details are contained in the Plan’s
Terms and Conditions. The
bonus compensation will be subject to all terms and conditions of the Management Incentive Plan document, which is subject to change
at any time. |
| |
|
| PTO: |
You
will be eligible for 28 days of PTO per year subject to the terms of the Viskase PTO policy. You begin to accrue your PTO from Date
of Hire but cannot use PTO
during your first 90 days of employment. Viskase reserves the right to add, change, or modify the policy at any time. |
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400,
Lombard, Illinois, 60561 USA
Phone: (630) 874-0700 Fax: (630)
874-0176
Marcelo Passos
September 13, 2024
Page 2 of 4
| Benefits: |
You will be eligible to participate in Viskase benefit plans including health; dental; vision; life; dependent life; health savings account (HSA); contributory 401 (k) with Company match and no vesting requirement, and short term and long-term disability insurance. All benefit plans except STD and LTD are effective the first of the month following employment. STD and LTD are effective after 90 days of employment. Viskase reserves the right to add, change, or terminate benefits at any time, including but not limited to, those set forth above. |
This offer, and your
employment, are conditioned upon successful completion of a drug screen (hair follicle) and background and reference check.
Further,
this offer, and your initial and continued employment, are conditioned upon your agreement, as attested by your signature on a
Viskase Confidentiality and Non-Compete Agreement, that you will not either directly or indirectly during your employment by the
Company and for twelve months (12) after your employment with the Company ceases engage in competition with the Company or its
affiliates. In addition to other covenants which will be contained in the Confidentiality and Non-Compete Agreement and other Company
employment documentation, you agree that during and after your employment you shall not disclose to any third party any confidential
or proprietary information of the Company, any of its affiliates or subsidiaries, or any of their respective owners, members,
directors, officers, managers, and employees. You further agree that during and after your employment you will not disparage,
verbally or in writing, anyone in the Company, any of its affiliates or subsidiaries, or any of their respective owners, members,
directors, officers, managers, or employees, and their family members. The details of the Confidentiality
and Non-Compete Agreement and other Company employment documentation will be presented to you and signed by you prior to your
employment. Nothing in this offer of employment prohibits you from reporting any possible violations of federal law or regulation to
any government agency or entity, including but not limited to the Department of Justice and
the Securities and Exchange Commission, or making any other disclosures that are protected under the whistleblower provisions of
federal law or regulation. You are not required to notify the Company that you will make or have made such reports or disclosures.
Non-Compliance with the disclosure provisions of this letter and other Company employment documentation shall not subject you to
criminal or civil liability under any Federal or State trade secret law for the disclosure of a Company trade secret if the
disclosure is made: (i) in confidence to a Federal, State or local government official, either
directly or indirectly, or to an attorney in confidence solely for the purpose of reporting or investigating a suspected violation
of law; (ii) in a complaint or other document filed in a lawsuit or other proceeding, provided that any complaint or document
containing the trade secret is filed under seal; or (iii) to an attorney representing you in a lawsuit for retaliation by the
Company for reporting a suspected violation of law or
to use the trade secret information in that court proceeding, provided that any document containing the trade secret is filed under
seal and you do not disclose the trade secret, except pursuant to court order.
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400,
Lombard, Illinois, 60561 USA
Phone: (630) 874-0700 Fax: (630)
874-0176
Marcelo Passos
September 13, 2024
Page 3 of 4
This
offer, and your employment, are also conditioned upon your covenant and representation that (i) you are not a party to any contract,
commitment, restrictive covenant, or agreement, nor are you subject to, or bound by, any order, judgment, decree, law, statute, ordinance,
rule, regulation or other restriction of any kind or character, which would prevent or restrict you from accepting this position and performing
your duties, (ii) you have not shared with the
Company or any of its affiliates,
or any of its or their directors, officers, employees or agents, and will not share or use, any confidential or proprietary information
of any prior employer or contractor or any third party from whom you may have received confidential or proprietary information, (iii) you
are not subject to any agreement or obligation that would limit your ability to act on behalf of the Company or any of its
subsidiaries, (iv) your acceptance of this offer and your performance of your duties in
respect thereof will not violate or conflict with any agreement or obligation to which you are subject,
and (v) you have delivered to the Company true and complete copies of any currently effective employment agreement, non-competitive
agreement or similar agreement to which you are subject.
This
letter does not constitute a contract or employment agreement. You understand that your employment is
“at will” and can be terminated, with or without cause and with or without notice, at
any time. Nothing contained in this letter shall limit or otherwise
alter the foregoing. Your employment will be subject to other policies, terms and conditions that may be established or modified by the
Company from time to time.
On your first day of
work, we require that you bring proof of your legal right to work in the United States for 1-9 purposes.
We look forward to you
joining our Viskase Companies, Inc. team. Please do not hesitate
to contact Armando Herrera at (708)305-0536 or Lisa Littleton at (985)272-2798 if you have any questions.
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400,
Lombard, Illinois, 60561 USA
Phone: (630) 874-0700 Fax: (630)
874-0176
Marcelo Passos
September 13, 2024
Page 4 of 4
This offer letter expires September 18, 2024,
at 4:00 PM central time.
Sincerely,
Tim Feast
President and CEO, Viskase Companies, Inc.
| Cc: | Human Resources |
| | Employee File |
| ACCEPTED: |
|
|
|
|
| |
|
|
|
|
| Name – Print |
|
Signature |
|
Date |
| |
|
|
|
|
| Marcelo Passos |
|
/s/ Marcelo Passos |
|
9.13.24 |
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400,
Lombard, Illinois, 60561 USA
Phone: (630) 874-0700 Fax: (630)
874-0176
VISKASE
COMPANIES, INC.
CONFIDENTIALITY,
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This Agreement
is made and is effective as of this 13th day of September 12, 2024, by and between Viskase Companies, Inc. (the “Company”),
333 E. Butterfield Road, Suite 400,
Lombard, IL, 60148, and current or prospective
employee, Marcelo M. Passos
(“Employee”), whose principal mailing address is
[*****]. Any offer of employment, or continuation of employment, as the case may be, is expressly
subject to and conditioned upon Employee’s execution of
this Agreement.
In consideration of Employee’s
employment at will by the Company and/or one or more of its subsidiaries
(hereinafter collectively and individually referred to as “Viskase”), and
of the salary and benefits paid to Employee with respect to
such employment and future increases therein, Employee and
Viskase hereby agree as follows:
| 1. | Definitions. For purposes of this
Agreement the terms: |
| (i) | “Affiliate” shall mean with respect
to any specified Person, another Person
which, directly or indirectly,
controls, is controlled by, or
is under common control with such specified Person; |
| (ii) | “Company” shall mean Viskase Companies, Inc. and/or
any of its subsidiaries, parent, or related corporations; |
| (iii) | “Confidential Information”
shall mean all information disclosed or
otherwise made available to the Employee
by the Company or its Affiliates, employees or representatives, about or relating to the Company’s,
or any of its Affiliates’ plans, business or
activities, or employees, including, but not limited to the information
set forth in the business plan of the Company and information concerning advertising, marketing plans
and strategies, finances or financial condition, accounting, methods,
processes, trade secrets, Intellectual Property, product and
business plans, and current or potential customer, client, business
partner or supplier lists and records, service charges, rates and fees, investments plans or projections, research in
respect of acquired or potential target
investments and communications and all Work Product; |
| (iv) | “Intellectual Property,”
shall mean all source-codes, object-codes, manuals and other documentation and materials (whether
or not in written form) and all versions thereof, together with
all other patents, licenses, trademarks,
service marks, trade names (whether registered or unregistered), copyrights, proprietary computer
software, proprietary inventions, proprietary technology, technical
information, intellectual property, discoveries, designs, proprietary
rights and non-public information, trade secrets, in
each case, whether or not patentable; |
| (v) | “Person” an individual, corporation, partnership,
trust or unincorporated organization, limited liability company,
limited liability partnership, joint venture, joint stock company,
any governmental agency or instrumentality or any other entity; |
| (vi) | “Work Product” shall mean all work product (tangible,
recorded or otherwise, and without regard to the form or condition
or state of completion, including, without limitation, Intellectual Property
invented, created, assembled,
or developed in connection
with, with respect to, for, or in relation to, the Company during
the Employee’s employment by the Company. |
Viskase Companies, Inc.
333 East Sutterfield Road. Suite 400,
Lombard Illinois 60148. USA
Tel: 630-874-0700- Fax: 630-282-0498
| (i) | The Employee shall
not (either during the continuance of the Employee’s employment
by the Company or at any time thereafter) disclose any Confidential
Information to any Person
other than designated employees of
the Company, and all such Confidential Information, either in
electronic, printed or verbal form will remain the property of
the Company and shall not be used by the Employee (either during
the continuance of his employment by the
Company or at any time thereafter)
for his own purpose or for
any purpose other than those of the Company. The Employee agrees that the Company will retain proprietary
rights in the Confidential Information and disclosure to
or awareness by the Employee of the
Confidential Information shall not be
deemed to confer any rights
whatsoever to the Employee in
respect of any part of the
Confidential Information. |
| (ii) | The restrictions and covenants set forth in (a) above applicable to the Confidential
Information shall not apply to any portion of the Confidential Information that the Employee can clearly demonstrate is at the time of
disclosure or thereafter generally available to and known by the public (other
than as a result of its disclosure by the Employee in breach of
his obligations herein). |
| (iii) | In the event
that the Employee is (i) requested by interrogatory, subpoena, deposition, civil investigation
demand or other similar legal process
or (ii) required by applicable laws, rules, or regulations,
to disclose any Confidential Information, the Employee shall provide
the Company with prompt written notice of any such request
or requirement so that the Company may seek an appropriate protective order. If, failing the entry
of a protective order, the
Employee is, in the written
opinion of his counsel, compelled to disclose Confidential Information,
the Employee may disclose that portion of the Confidential Information
which his counsel advises the Employee in such opinion that
he is compelled to disclose. In any event,
the Employee will not oppose, and shall assist, action by
the Company in any such proceeding to
obtain an appropriate protective order or other reliable assurance
that confidential treatment will be accorded the
Confidential Information. |
| (iv) | Nothing in this agreement
prohibits Employee from reporting any possible violations of federal
law or regulation to any government agency or entity, including
but not limited to the Department of Justice and the Securities
and Exchange Commission, or making any other disclosures that
are protected under the whistle-blower provisions of federal law or regulation. Employee is not required to notify Viskase that Employee
will make or has made such reports or disclosures. |
| 3. | Agreement Not to Compete. |
Employee shall
not, within the states of Illinois, Arkansas, and or Tennessee either directly or indirectly, and either
physically or remotely/digitally, as principal, agent, owner, employee, director, partner, investor,
shareholder (other than solely as a holder of not
more than 1% of the issued and outstanding shares of any public
corporation), consultant, advisor or otherwise howsoever own, operate, carry on or engage in the operation of or have any financial interest
in or provide, directly or indirectly, financial assistance to
or lend money to or guarantee
the debts or obligations of any Person carrying on
or engaged in any business
that is similar to or competitive with the business conducted
by the Company or any of its subsidiaries during the term
of Employee’s employment and
for twelve (12) months after Employee ceases, for any reason,
to be employed by Viskase.
Employee’s obligation not to disclose Confidential Information of Viskase shall not terminate at the end of the
twelve (12) month period described above.
| 4. | Agreement Not to Solicit. |
The Employee
covenants and agrees with the Company and its subsidiaries that, during the term of Employee’s
employment and for twelve
(12) months following the last day of employment by Viskase, the
Employee shall not, directly, or indirectly, for himself or for any other Person:
| (i) | solicit, interfere with or endeavor to entice
away from the Company or any of its subsidiaries or affiliates,
any current or prospective supplier, customer, client, or any Person in the
habit of dealing with any of the foregoing; |
| (ii) | attempt to direct or solicit any current or prospective supplier, customer, or client
away from the Company or any of its subsidiaries or affiliates; |
| (iii) | interfere with, entice away or
otherwise attempt to obtain or induce the
withdrawal of any employee of the Company or any of its
subsidiaries or affiliates; or |
| (iv) | advise any Person not to do business with the Company or
any of its subsidiaries or affiliates. |
| 5. | Acknowledgment of
Reasonableness of Agreement. |
Employee acknowledges
and agrees that the restrictions on Employee’s
competition with Viskase and Employee’s nonsolicitation obligations contained in Paragraphs
3 and 4 of this Agreement are reasonable and justified in light
of the nature of Viskase’s business and of the confidential
and proprietary information of Viskase to which Employee
has or may have exposure.
| 6. | Acknowledgment of Need for Injunctive Relief. |
Employee acknowledges
and agrees that the remedy at law for any violation of
this Agreement, given the nature of Viskase’s business and the
harm which could be done thereto,
would be inadequate, and that Viskase would suffer continuing
and irreparable harm to its business as a result of such violations;
therefore, in the event of any actual or threatened violation
of this Agreement, Viskase shall be entitled, in addition to any
other remedies available to it, to a temporary restraining order and preliminary and permanent injunctive relief to prevent any violations
hereof, without any requirement to prove actual damages or to post bond, and to any other appropriate
equitable relief that any court of competent jurisdiction deems proper. Employee hereby
represents to Viskase that Employee’s past business skills and experience will enable Employee to
obtain satisfactory employment
without violating this Agreement and that enforcement of this Agreement
will not impose undue hardship upon Employee.
| 7. | Beneficiaries of Agreements. |
This Agreement
shall be for and inure to the
benefit of Viskase, any and all of its subsidiaries, affiliates,
parents, or related entities as well as the
successors, assigns, and transferees of
any of the above.
| 8. | No Modifications
Other than in
Writing. |
This Agreement
shall not be modified, amended, rescinded, or waived other than
by a subsequent written agreement signed by Employee and Viskase.
| 9. | Construction of Agreement. |
This
Agreement shall be governed by, and construed in accordance with, the laws of the State of Illinois, United Staes,
where Viskase has its principal place of business. In the
event any court of competent jurisdiction determines that any of
the terms or provisions contained in
this Agreement are void or
unenforceable, such court shall have the right, and is
authorized by Employee, to modify such terms or provisions as to
render the remaining or modified terms or provisions of this Agreement valid and enforceable to the maximum extent possible
and, as so modified, to
enforce this Agreement in accordance with its terms.
| 10. | Governing Law/Jurisdiction/Service
of Process. |
The validity,
interpretation, performance, and enforcement of this Agreement
shall be governed by the laws
of the State of Illinois,
United States, without regard to conflict of laws rules. In any
action between or among the
parties arising out of this Agreement, (i) each of the parties
irrevocably consents to the exclusive
jurisdiction and venue of the federal and state courts located
in, or having jurisdiction over, DuPage County, Illinois,
United States; (ii) if any such action is commenced in a state court, then, subject to applicable
law, neither party shall object to the removal of such action
to any federal court located in, or
having jurisdiction over, DuPage County, Illinois, United
States; (iii) each of the parties irrevocably waives the
right to trial by jury; and (iv) each of the parties irrevocably consents to service of process
by first class certified mail, return receipt
requested, postage prepaid, to the address
of such party set forth in the preamble
hereto, unless a party notifies the other in writing of a different
address.
This Agreement
does not alter, change, or modify the employment-at-will relationship that exists between the Company
and the Employee. This Agreement shall be binding
upon and inure to the benefit of
the parties and their successors and permitted assigns, as the case may be. This Agreement may be assigned by the Company to any affiliate
of the Company and to any successor or assign of all or a substantial
portion of the Company’s business. The Employee may not
assign or transfer any of
his rights or obligations
under this Agreement.
| 12. | Representation of Knowledge of Contents of Agreement. |
Employee agrees
and represents to Viskase that: (i) Employee
has read and understands the contents of this Agreement,(ii) Employee
has had at least 14 days within which to consider its terms and has
asked any and all questions regarding the same; (iii) Employee
is hereby advised by the Company to consult with legal
counsel of Employee’s choice prior to executing this Agreement, and (vii) Employee has
not relied on any statements made by anyone associated with the Company that is not contained
in this Agreement in deciding to sign this Agreement.
IN WITNESS
WHEREOF, the parties have executed this Agreement as of the day and year first above written.
| /s/ MARCELO M. PASSOS |
|
| MARCELO M. PASSOS |
|
| |
|
| VISKASE COMPANIES, INC. |
|
| |
|
| By: |
|
|
| |
|
| Title: |
|
|
Exhibit 10.22
January 30, 2025
Joseph
Marigliano
[*****]
Dear Joseph:
On
behalf of Viskase Companies, Inc. (“Viskase” or the “Company”), I
am pleased to present you with the following job offer:
| Title: |
Vice President, Business Management |
| |
|
| Primary Focus: |
You will perform such services as requested by the Company’s President & CEO. Unless otherwise directed, your primary focus will be to drive global pricing and product strategy, manage and grow margins, and develop a successor. |
| |
|
| Reporting to: |
Tim Feast, President and CEO |
| |
|
| Location: |
This will be a hybrid assignment based in your home office in Crown Point, IN, with periodic visits to Viskase corporate offices in Lombard. |
| |
|
| Start Date: |
February 24, 2025 |
| |
|
| Compensation: |
Your compensation per semi-monthly pay period will be $ 14,041,67 (annualized at $337,000), payable on the 15th and the last business day of each month. All of your compensation is subject to deductions as required by the law. |
| |
|
| Bonus Plan: |
You will be eligible to participate in the Management Incentive Plan (or its successor plan) for the fiscal year ending December 31, 2025. Your target annual discretionary bonus under this Plan will be 50% of your earned base salary for the Plan year. Bonuses are prorated for the actual time worked in the position. To be eligible for a bonus payment, you must be an active employee on the date the bonus is paid. The bonus compensation will be subject to all terms and conditions of the Management Incentive Plan (or its successor plan) document, which is subject to change at any time. |
| |
|
| Interim Position |
This will be a temporary/interim position. We anticipate that it will be of two (2) to three (3) years in duration. Your employment may be terminated at any time by you or the Company, with or without cause, for any reason or no reason, on thirty (30) days’ written notice. In addition, the Company reserves the right to terminate your employment for cause without prior notice. |
| |
|
| Paid Time Off: |
Viskase
has a Paid Time Off Policy to cover your vacation, sick, and personal
needs. You begin to accrue your PTO from Date of Hire but cannot
use PTO during your first 90 days of employment unless
otherwise approved. Your annual 28 days of earned PTO will be subject to the terms of the Viskase PTO policy. Viskase reserves the right to add, change, or modify the policy at any time. |
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400,
Lombard, Illinois, 60561 USA
Phone: (630) 874-0700 Fax: (630)
874-0176
Joseph Marigliano
January 30, 2025
Page 2 of 3
| Benefits: |
You will be eligible to participate in Viskase benefit plans including health; dental; vision; life; dependent life; health savings account (HSA) and Flexible Spending Account (FSA); contributory 401(k) with Company match and no vesting requirement, and short-term and long-term disability insurance. All benefit plans except STD and LTD are effective the first of the month following employment. STD and LTD are effective after 90 days of employment. You will not be eligible to participate in the Company’s Severance Pay Plan and will not be entitled to severance benefits of any kind upon the termination of your employment. Viskase Companies Inc. reserves the right to add, change, or terminate benefits at any time, including but not limited to, those set forth above. |
This
offer, and your employment, are conditioned upon successful completion
of a drug screen and background and reference
check.
Further,
this offer, and your initial and continued employment, are conditioned
upon your agreement, as attested by your signature on
a Viskase Noncompetition and
Nonsolicitation Agreement, that you will not either directly
or indirectly during your
employment by the Company and for twelve (12) months after your employment with the Company ceases
engage in competition with the Company or its affiliates.
In addition to other
covenants which will be contained in the Viskase Noncompetition and
Nonsolicitation Agreement and the Memorandum of Employee Agreement
- Confidentiality/Work Product/Non-Disparagement, and other Company
employment documentation, you
agree that during and after your employment you shall not
disclose to any third party any confidential or proprietary information
of the Company, any of its affiliates or subsidiaries, or any of their
respective owners, members, directors, officers, managers, and
employees. You further agree that
during and after your employment you will not
disparage, verbally or in
writing, anyone in the Company, any of its affiliates or subsidiaries,
or any of their respective
owners, members, members, directors,
officers, managers, or employees, and their family members. The details
of the Viskase Noncompetition and Nonsolicitation Agreement and
the Memorandum of Employee Agreement - Confidentiality/Work Product/Non-Disparagement,
and other Company employment documentation will be presented
to you and signed by you prior
to your employment. Nothing in this
offer of employment prohibits you
from reporting any possible violations of federal law
or regulation to any government
agency or entity, including but not limited to
the Department of Justice
and the Securities and Exchange Commission, or making any
other disclosures that are
protected under the whistleblower provisions of federal law
or regulation. You are not required
to notify the Company that you will make or have made such reports
or disclosures. Non-compliance with the disclosure provisions of
this letter and other Company employment documentation shall not
subject you to criminal or
civil liability under any Federal or State
trade secret law for the disclosure
of a Company trade secret if the disclosure is made:
(i) in confidence to
a Federal, State or local
government official, either directly or
indirectly, or to an attorney
in confidence solely for the purpose of reporting or investigating
a suspected violation of law; (ii) in a complaint or other
document filed in a lawsuit or other proceeding,
provided that any complaint or document containing the
trade secret is filed under seal; or (iii) to an attorney
representing you in a lawsuit for
retaliation by the Company
for reporting a suspected violation of law or to use
the trade secret information in that court proceeding, provided
that any document containing
the trade secret is filed under
seal and you do not disclose
the trade secret, except pursuant
to court order.
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400,
Lombard, Illinois, 60561 USA
Phone: (630) 874-0700 Fax: (630)
874-0176
Joseph Marigliano
January 30, 2025
Page 3 of 3
This
offer, and your employment, are also conditioned upon your covenant and representation that
(i) you are not a party to any contract, commitment, restrictive covenant or agreement, nor are you subject to, or bound by, any
order, judgment, decree, law, statute, ordinance, rule, regulation or other restriction of any kind or character, which would prevent
or restrict you from accepting this position and performing your duties, (ii) you have not shared with the Company or any of its
affiliates, or any of its or their directors, officers, employees or agents, and will not share or use, any confidential or proprietary
information of any prior employer or contractor or any third party from whom you may have received confidential or proprietary information,
(iii) you are not subject to any agreement or obligation that would limit your ability to act on behalf of the Company or any of
its subsidiaries, (iv) your acceptance of this offer and your performance of your duties in respect thereof will not violate or conflict
with any agreement or obligation to which you are subject, and
(v) you have delivered to the Company true and complete copies of any currently effective employment agreement, non-competitive agreement
or similar agreement to which you are subject.
This
letter does not constitute a contract or employment agreement. You understand that your employment is “at
will.” Your employment will be subject to other policies, terms and conditions that may be established
or modified by the Company from time to time.
On your first day of work, we require that you bring
proof of your legal right to work in the United States for I-9 purposes.
We look forward to you joining our Viskase team. Please
do not hesitate to contact me at [*****] or Armando Herrera at [*****] if you have any questions.
This
offer expires on Monday, February 3, 2025, at 4:00 PM Central Time.
Sincerely,
Tim Feast
President and CEO
| Cc: | Armando Herrera, Vice President, Human Resources |
| | Employee File |
| ACCEPTED: |
|
|
| |
|
|
| JOSEPH MARIGLIANO |
|
Date |
| |
|
|
| /s/ JOSEPH MARIGLIANO |
|
01/31/2025 |
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400,
Lombard, Illinois, 60561 USA
Phone: (630) 874-0700 Fax: (630)
874-0176
Exhibit 10.23
| Exhibit 10.23
Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 1/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 2/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 3/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 4/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 5/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 6/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 7/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 8/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 9/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 10/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 11/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 12/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 13/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 14/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 15/16 |
| Company: Enzon Pharmaceuticals, Inc. Fri Dec 19 2025 04:11
Document: 25-21156-2 S-4/enzn_Ex10_23.pdf (v0.1)
Page: 16/16 |
Exhibit 10.25
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of
November __, 2025 (the “Employment Agreement”), is entered by and between Viskase Companies, Inc.,
a Delaware corporation (the “Company”), and Thomas D. Davis (the “Executive”)
and (except as provided in Section 2.1) is effective December 1, 2025 (the “Effective Date”). In consideration
of the mutual covenants contained herein and other valid consideration, the sufficiency of which is acknowledged, the parties hereto agree
as follows:
1.1. Term.
The Company agrees to employ the Executive on an interim and trial basis, and the Executive agrees to be employed by the Company on an
interim and trial basis, in each case pursuant to this Employment Agreement, for a period commencing on the Effective Date and ending
90 days from the Effective Date (the “Interim Term”). Prior to expiration of the Interim Term, the Company and
the Executive may mutually agree to continue Executive’s employment beyond the Interim Term for an additional period of time to
be determined (an “Additional Term”), subject to all the terms and conditions contained in this Employment Agreement.
The above notwithstanding, the Interim Term or any Additional Term may be terminated after the Effective Date in accordance with Section 3
below.
1.2. Duties.
During both the Interim Term and any Additional Term, the Executive shall serve as Chief Executive Officer and President of the Company
and such other or additional positions as an officer or director of the Company, and of such direct or indirect affiliates of the Company
(“Affiliates”), as the Executive and the board of directors of the Company (the “Board”)
mutually agree from time to time. In such positions, the Executive shall perform such duties, functions and responsibilities during both
the Interim Term and any Additional Term commensurate with the Executive’s positions as reasonably directed by the Board. The Executive
shall be employed in the State of Illinois during both the Interim Term and any Additional Term.
1.3. Exclusivity.
During both the Interim Term and any Additional Term, the Executive shall: (i) devote substantially all of his professional time
and attention to the business and affairs of the Company and its Affiliates; (ii) to the best of his abilities, faithfully serve
the Company and its Affiliates; (iii) in all material respects conform to and comply with the lawful and reasonable directions and
instructions given to Executive by the Board, consistent with Section 1.2 hereof; (iv) use Executive’s best efforts to
advance, promote and serve the interests of the Company and its Affiliates; (v) comply with all the policies of the Company and its
Affiliates (including, without limitation, such policies with respect to legal compliance, conflicts of interest, confidentiality and
business ethics, as are from time to time in effect); and (vi) except as; otherwise permitted herein, not engage in any other business
activity, whether or not such activity shall be engaged in for pecuniary profit. The provisions of this Section 1.3 shall not be
construed to prevent Executive from: (a) investing Executive’s personal, private assets as a passive investor in such form
or manner as will not require any active services on the part of Executive in the management or operation of the affairs of the companies,
partnerships, or other business entities in which
any such passive investments are made,
or (b) serving on the board of directors of one or more companies, family-related businesses or charitable or non-profit organizations,
provided such service does not materially conflict with the Executive’s duties and obligations to the Company and such service is
approved by the chairman of the Board of Directors of the Company.
2.1. Annual
Compensation. As compensation for the performance of the Executive’s services hereunder, during both the Interim Term and
any Additional Term, the Company shall pay to the Executive a salary at an annual rate of $625,000.00, which annual salary
shall be prorated for any partial year at the beginning or end of the Interim Term or any Additional Term and shall accrue and be payable
in accordance with the Company’s standard payroll policies, as such salary may be adjusted upward (but not downward) by the Compensation
Committee (or such other duly authorized committee thereof) of the Board (the “Compensation Committee”) in its
sole and absolute discretion (as adjusted, the “Base Salary”).
2.2. Employee
Benefits. During both the Interim Term and any Additional Term, the Executive shall be eligible to participate in such employee
benefit plans and programs of the Company as in effect from time to time on the same basis as other senior executives of the Company and
subject to the terms and conditions of any such plans and programs.
2.3. Paid
Time Off. During the Interim Term, the Executive shall be entitled to 7 days of paid time off (“PTO”). During
any Additional Term, the Executive shall be entitled to an annualized total of 28 days of PTO pro-rated in accordance with the length
of the Additional Term. For the avoidance of doubt, the amount of PTO to which the Executive is entitled in any 12-month period shall
not exceed 28 days.
2.4. Business
Expenses. The Company shall pay or reimburse the Executive for all commercially reasonable business out-of-pocket expenses that
the Executive incurs during the Tem1 in performing Executive’s duties under this Employment Agreement upon presentation of documentation
and in accordance with the expense reimbursement policy of the Company as approved by the Board and in effect from time to time. Notwithstanding
anything herein to the contrary or otherwise, except to the extent any expense or reimbursement described in this Employment Agreement
does not constitute a “deferral of compensation” within the meaning of Section 409A of the Code and the Treasury regulations
and other guidance issued thereunder, any expense or reimbursement described in this Employment Agreement shall meet the following requirements:
(i) the amount of expenses eligible for reimbursement provided to the Executive during any calendar year will not affect the amount
of expenses eligible for reimbursement to the Executive in any other calendar year; (ii) the reimbursements for expenses for which
the Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in
which the applicable expense is incurred; (iii) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated
or exchanged for any other benefit; and (iii) the reimbursements shall be made pursuant to objectively determinable and nondiscretionary
Company policies and procedures regarding such reimbursement of expenses.
2.5. Long-Term
Incentive Plan. During any Additional Term, the Executive will be eligible to participate in the Viskase Companies, Inc.
Long-Term Incentive Plan (the “LTI Plan”). Any award under the LTI Plan shall be payable in accordance with and subject to
the terms and conditions of the LTI Plan and the Long-Tenn Incentive Award Agreement in substantially the form attached hereto as Appendices
“A” and “B”. For the avoidance of doubt, the Executive will not be able to participate in the LTI Plan during
the Interim Term.
2.6. Ineligibility
for Other Incentive Plans. For the avoidance of further doubt, the Executive is ineligible to participate in any other Management
Incentive Plan (“MIP”) (or any other short-term incentive) and the only incentive plan in which the Executive
is eligible to participate is the LTI Plan.
| 3. | Employment Termination. |
3.1. Termination
of Employment. The Company may terminate the Executive’s employment for any reason during both the Interim or any Additional
Term and may do so either with or without notice. The Executive may voluntarily resign Executive’s employment for any reason during
any Additional Term upon giving at least 6 months’ notice. Upon the termination or resignation of the Executive’s employment
with the Company for any reason (whether during the Interim Term or any Additional Term or thereafter), the Executive shall be entitled
to any Base Salary earned but unpaid through the date of termination or resignation, any earned but unpaid Annual Bonus for completed
fiscal years, any unused accrued PTO, any unreimbursed expenses in accordance with Section 2.5 hereof and any accrued and vested
rights or benefits under any Company sponsored employee benefits plans payable in accordance with the terms and conditions of such plans
(collectively, the “Accrued Amounts”).
| 3.2. | Certain Terminations. |
(a) Termination
by the Company Other Than For Cause or Disability: Resignation by the Executive for Good Reason. If during any Additional Term
(i) the Executive’s employment is terminated by the Company other than (x) for Cause or (y) due to the Executive’s
death or Disability or (ii) the Executive resigns for Good Reason, then in addition to the Accrued Amounts, the Executive shall
be entitled to (collectively, the “Severance Payments”) (a) the continuation of Executive’s Base Salary in accordance
with the Company’s standard payroll policies at the rate in effect immediately prior to the date of termination or resignation
(or, in the case of a resignation for Good Reason, at the rate in effect immediately prior to the occurrence of the event constituting
Good Reason, if greater) for 3 months (as applicable, the “Severance Period”), and (b) a pro-rata Annual
Bonus (“Pro-Rata Bonus”) for the fiscal year of termination based on achievement of the individual and/or corporate
performance criteria established for such fiscal year by the Compensation Committee (in its sole and absolute discretion) and determined
by multiplying the amount of the Annual Bonus which would be due for the full fiscal year by a fraction, the numerator of which is the
number of completed months during the fiscal year of termination that Executive is employed by the Company and the denominator of which
is 12, which amount, if any, shall be payable by the Company to the Executive in the immediately succeeding fiscal year only after the
completion of the audit of the Company’s consolidated financial statements with respect to such fiscal year of termination and,
only after the Compensation Committee, in its sole and absolute discretion, has approved the final achievement level and payout. The
Company’s obligations to make the Severance Payments shall be conditioned upon: (i) the Executive’s continued compliance
with Executive’s obligations under Section 4 of this Employment Agreement and (ii) the Executive’s execution, delivery
and non-revocation of a valid and enforceable release of claims arising in connection with the Executive’s employment and termination
or resignation of employment with the Company (the “Release”) in a form reasonably acceptable to the Company
and the Executive that becomes effective not later than 21 days after the date of such termination or resignation of employment. The
Company shall provide the form of the Release to the Executive within five days following the date of the Executive’s termination
or resignation of employment. In the event the Executive breaches any of the covenants set forth in Section 4 of this Employment
Agreement, the Executive will immediately return to the Company any portion of the Severance Payments (to the extent applicable) that
has been paid to the Executive pursuant to this Section 3.2(a).
(b) Termination
by the Company For Disability. If the Executive’s employment is terminated during either the Interim Term or any Additional
Term by the Company by reason of the Executive’s Disability, Executive shall be entitled to the Accrued Amounts and any payments
to be made to the Executive under the Company’s disability plan(s), if any. For the avoidance of doubt, if the Executive’s
employment ends pursuant to this Section, then Executive is not entitled to the payments set forth in Section 3.2(a).
(c) Termination
by Reason of Death. If the Executive’s employment is terminated during either the Interim Term or any Additional Term by
reason of his death, Executive shall be entitled to the Accrued Amounts and any employee benefits to which the Executive’s estate,
spouse, or other beneficiaries, as applicable, may be entitled. For the avoidance of doubt, if the Executive’s employment ends pursuant
to this Section, then Executive is not entitled to the payments set forth in Section 3.2(a).
(d) Resignation
without Good Reason. If Executive resigns without Good Reason during either the Interim Term or any Additional Term, Executive
shall be entitled to the Accrued Amounts and any employee benefits to which Executive may be entitled. For the avoidance of doubt, if
the Executive’s employment ends pursuant to this Section, then Executive is not entitled to the payments set forth in Section 3.2(a).
(e) Section 409A.
To the extent applicable, this Employment Agreement shall be interpreted, construed and operated in accordance with Section 409A
of the Code and the Treasury regulations and other guidance issued thereunder. If on the date of the Executive’s separation from
service (as defined in Treasury Regulation §l.409A-l(h)) with the Company the Executive is a specified employee (as defined in Code
Section 409A and Treasury Regulation §1.409A-l(i)), no payment constituting the “deferral of compensation” within
the meaning of Treasury Regulation §1.409A-l(b) and after application of the exemptions provided in Treasury Regulation §§1.409A-l(b)(4) and
l.409A-l(b)(9)(iii) shall be made to the Executive at any time prior to the earlier of (a) the .expiration of the 6 month period
following the Executive’s separation from service, and (b) the Executive’s death, and any such amounts deferred during
such period shall instead be paid in a lump sum to the Executive (or, if applicable, the Executive’s estate) on the first payroll
payment date following expiration of such 6 month period or, if applicable, the Executive’s death. For purposes of conforming this
Employment Agreement to Section 409A of the Code, the parties agree that any reference to termination of employment, severance from
employment, resignation from employment or similar terms shall mean and be interpreted as a “separation from service” as
defined in Treasury Regulation §1.409A-l(h). For purposes of applying Section 409A of the Code to this Employment Agreement
(including, without limitation, for purposes of Treasury Regulation §1.409A-2(b)(2)(iii), each payment that the Executive may be
entitled to receive under this Employment Agreement shall be treated as a separate and distinct payment and shall not collectively be
treated as a single payment. Neither the Company, nor any of its Affiliates shall be obligated to pay or otherwise gross-up the Executive
for any federal, state, local or foreign taxes relating to or arising with respect to any benefits, compensation or payment made under
this Employment Agreement
3.3. Exclusive
Remedy. The foregoing payments upon termination or resignation of the Executive’s employment shall constitute the exclusive
severance payments due the Executive upon a termination or resignation of Executive’s employment under this Employment Agreement.
3.4. Resignation
from All Positions. Upon the termination or resignation of the Executive’s employment with the Company for any reason, the
Executive shall be deemed to have resigned, as of the date of such termination or resignation, from and with respect to all positions
the Executive then holds as an officer, director, employee and member of the Board of Directors (and any committee thereof) of the Company
and any of its subsidiaries.
3.5. Cooperation.
Following the termination or resignation of the Executive’s employment with the Company for any reason and during any period in
which the Executive is receiving Severance Payments, or for 6 months following termination or resignation of the Executive’s employment
with the Company if no Severance Payments are payable, the Executive agrees to reasonably cooperate with the Company upon reasonable
request of the Board and to be reasonably available to the Company with respect to matters arising out of the Executive’s services
to the Company and its Affiliates provided, however, such period of cooperation shall be for three years, following any such termination
or resignation of Executive’s employment for any reason, with respect to tax matters involving the Company or any of its Affiliates.
Upon and following any such request of the Board, and only for so long as the Executive is receiving Severance Payments, the Executive
may receive access to email and information technology services from the Company. Notwithstanding the foregoing, (i) the Company
shall have the right to revoke or terminate such access at any time for any or no reason and with or without notice, and (ii) Executive’s
access to such information shall be conditioned upon, and subject to, the Executive not representing himself to be, or holding himself
out as, an employee, officer, director, trustee, agent or representative of the Company for any purpose, or otherwise representing himself
as a person having any authority to act on behalf of the Company. The Company shall reimburse the Executive for expenses reasonably incurred
in connection with such matters as agreed by the Executive and the Board and the Company shall compensate the Executive for such cooperation
at an hourly rate based on the Executive’s most recent Base Salary rate assuming 2,000 working hours per year; provided that
if the Executive is required to spend more than 40 hours in any month on Company matters pursuant to this Section 3.5, the Executive
and the Board shall mutually agree to an appropriate rate of compensation for the Executive’s time over such 40-hour threshold.
| 4. | Confidential Information; Non-Competition; Non-Solicitation; Proprietary Rights; Unauthorized Disclosure. |
| 4.1. | Confidential Information. |
(a) During
both the Interim Term and any Additional Term and at all times thereafter, the Executive shall hold in a fiduciary capacity for the benefit
of the Company and each of its Affiliates, all secret or confidential information, knowledge or data, including, without limitation, technical
information, intellectual property, business and marketing plans, strategies, customer information and lists, software, trade secrets,
sources of supplies and materials, designs, production and design techniques and methods, identity of investments, identity of contemplated
investments, business opportunities, valuation models and methodologies, processes, technologies, and any other intellectual property
relating to the business, or other information concerning the products, promotions, development, financing, expansion plans, business
policies and practices, of the Company and each of its Affiliates, and their respective businesses, and other forms of information considered
by the Company and its Affiliates to be confidential and in the nature of trade secrets (i) obtained by the Executive during the
Executive’s employment by the Company or any of its Affiliates and/or during any period of time in which the Executive has access
to email and/or information technology services from the Company, and (ii) not otherwise in the public domain (collectively, “Confidential
Information”).
(b) The
Executive also agrees to keep confidential and not to publish, post on his own or to disclose any personal information regarding any
controlling Person of the Company (or any of its Affiliates), including, without limitation, Carl C. Icahn, or any of his Affiliates
and their respective employees, and any member of the immediate family of any such Person (and all such personal information shall be
deemed “Confidential Information” for the purposes of this Employment Agreement). The Executive shall not, without the prior
written consent of the Company (acting at the direction of the Board): (i) except to the extent compelled pursuant to an order of
a court or other body having jurisdiction over such matter or based upon the advice of counsel that such disclosure is legally required,
communicate or divulge any Confidential Information to anyone other than the Company and those designated by the Company; or (ii) use
any Confidential Information for any purpose other than the performance of his duties pursuant to this Employment Agreement. Notwithstanding
the foregoing, nothing herein shall prohibit the Executive from reporting or otherwise disclosing possible violations of state, local
or federal law or regulation to any governmental agency or entity, or making other disclosures that, in each case, are protected under
whistleblower provisions of local, state, or federal law or regulation. Nothing in this Agreement is intended to discourage or restrict
the Executive from reporting any theft of trade secrets pursuant to the Defend Trade Secrets Act of 2016 (“DTSA”) or other
applicable state or federal law. The DTSA provides: An individual shall not be held criminally or civilly liable under any federal or
state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a federal, state, or local
government official, either directly or indirectly, or to any attorney; and (ii) solely for the purpose of reporting or investigating
a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing
is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose
the trade secret to an attorney for the individual and use the trade secret information in the court proceeding, if the individual (a) files
any document containing the trade secret under seal; and (b) does not disclose the trade secret, except pursuant to court order.
The Executive will assist the Company or its designee, at the Company’s expense, in obtaining a protective order, other appropriate
remedy or other reliable assurance that confidential treatment will be accorded any Confidential Information disclosed pursuant to the
terms of this Employment Agreement. The Executive agrees not to disparage the Company, its officers and directors, Mr. Icahn, any
Related Parties, or any Affiliate of any of the foregoing, in each case during and/or after the Executive’s employment hereunder.
Without limiting anything contained above, the Executive agrees and acknowledges that all personal and not otherwise public information
about the Company and its Affiliates (including, without limitation, all information regarding Icahn Enterprises L.P. (“IEP”),
Carl C. Icahn, Mr. Icahn’s family, and employees of the Company, IEP and their respective Affiliates) shall constitute
Confidential Information for purposes of this Employment Agreement
(c) Upon
termination or resignation of the Executive’s employment with the Company (excepting any permitted use contemplated by Section 3.2(a)),
the Executive shall promptly return to the Company all property, keys, notes, memoranda, writings, lists, files, reports, customer lists,
correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data and any other tangible product or document, whether
in hard copy or electronic, which has been produced by, received by or otherwise submitted to the Executive during the Executive’s
employment with the Company and related to such employment with the Company, and any copies thereof in Executive’s (or capable
of being reduced to Executive’s) possession.
(d) The
Executive: further agrees not to write, contribute to, or assist any other person in writing or creating, a book, film, broadcast, article,
blog or any other publication (whether in print, electronic or any other form) about or concerning, in whole or in part, the Company, IEP,
Mr. Icahn and his family members or any of the respective Affiliates and subsidiaries of any of the foregoing (as applicable), in
any media, and not to publish or cause to be published in any media, any Confidential Information, and further agrees to keep confidential
and not to disclose to any third party, including, but not limited to, newspapers, authors, publicists, journalists, bloggers, gossip
columnists, producers, directors, script writers, media personalities, and the like, in any and all media or communication methods, any
Confidential Information. In furtherance of the foregoing, the Executive agrees that during both the Interim Term and any Additional Term
and following the termination of his employment with the Company, the sole and only disclosure or statement he will make about or concerning
any or all of the Company, IEP, Mr. Icahn and his family members or any of the respective Affiliates and subsidiaries of any
of the foregoing (as applicable) is to acknowledge that the Executive is or was employed by the Company (unless otherwise required by
applicable law).
4.2. Non-Competition.
By and in consideration of the Company’s entering into this Employment Agreement and the payments to be made and benefits to be
provided by the Company hereunder, and in further consideration of the Executive’s exposure to the Confidential Information of the
Company and its Affiliates, the Executive agrees that the Executive shall not, except as otherwise provided herein, during both the Interim
Term and any Additional Term and thereafter for the period during which the Severance Payments are payable or six months following the
end of the Term if no Severance Payments are payable (the “Restriction Period”), directly or indirectly, own,
manage, operate, join, control, be employed by, or participate in the ownership, management, operation or control of, or be connected
in any manner with, including, without limitation, holding any position as a principal, agent owner. stockholder, director, officer, consultant,
advisor, independent contractor, employee, partner, or investor in, any Restricted Enterprise (as defined below); provided, that
in no event shall ownership of 1% or less of the outstanding securities of any class of any issuer whose securities are registered under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), standing alone, be prohibited by this
Section 4.2, so long as the Executive does not have, or exercise, any rights to manage or operate the business of such issuer other
than rights as a stockholder thereof. For purposes of this paragraph, “Restricted Enterprise” shall mean any
Person that is actively engaged in any business which is either (i) in competition with the business of the Company or any of its
Affiliates conducted during the preceding 6 months (or following the Term, the 6 months preceding the last day of the Term), or (ii) proposed
to be conducted by the Company or any of its Affiliates in the Company’s or Affiliate’s business plan as in effect at that
time (or following the Term, the business plan as in effect as of the last day of the Term). During the Restriction Period, upon request
of the Company, the Executive shall notify the Company of the Executive’s then-current employment status.
4.3. Non-Solicitation
of Employees. During the Restriction Period, the Executive shall not directly or indirectly solicit (or assist any Person to solicit)
for employment any person who is, or within 6 months prior to the date of such solicitation was, an employee of the Company or any of
its Affiliates, provided, however, that this Section 4.3 shall not prohibit the hiring of any individual as a result of the
individual’s response to an advertisement in a publication of general circulation.
4.4. Non-Solicitation
of Customers/Suppliers. During the Restriction Period, the Executive shall not, directly or indirectly, (i) solicit, interfere
with or entice away from the Company or any of its Affiliates, any current supplier, customer or client, (ii) direct or solicit any
current supplier, customer or client away from the Company or any of its Affiliates, or (iii) advise any Person not to do business
with or be employed by the Company or any of its Affiliates.
4.5. Extension
of Restriction Period. The Restriction Period shall be extended for a period of time equal to any period during which the Executive
is in breach of any of Section 4.2, 4.3, or 4.4 hereof.
4.6. Proprietary
Rights. Any and all inventions, processes, know-how, technologies, trade-secrets information, intellectual property, discoveries,
and improvements (whether or not patentable or registrable under copyright or similar statutes}, and all patentable or copyrightable
works, initiated, conceived, discovered, reduced to practice, or made by Executive, either alone or in conjunction with others, during
the Executive’s employment with the Company and related to the business or activities of the Company or its Affiliates (whether
or not on the Company’s or any of its Affiliates’ time or with the use of the Company’s or any of its Affiliates’
facilities or materials) (the “Developments”) shall be the property of the Company or any of its Affiliates,
as the case may be, and shall be promptly and fully disclosed by the Executive to the Company. Except to the extent any rights in any
Developments constitute a work made for hire under the U.S. Copyright Act, 17 U.S.C. § 101 et seq. that are owned ab initio by
the Company and/or its Affiliates, the Executive assigns all of Executive’s right, title and interest in all Developments (including
all intellectual property rights therein) to the Company or its nominee without further compensation, including all rights or benefits
therefor, including without limitation the right to sue and recover for past and future infringement. The Executive acknowledges that
any rights in any developments constituting a work made for hire under the U.S. Copyright Act, 17 U.S.C § 101 et seq. are owned
upon creation by the Company and/or its Affiliates as the Executive’s employer. Whenever requested to do so by the Company, and
without further compensation therefor, the Executive shall execute any and all applications, assignments or other instruments which the
Company shall deem necessary to apply for and obtain trademarks, patents or copyrights of the United States or any foreign country or
otherwise protect the interests of the Company and its Affiliates therein. These obligations shall continue beyond the end of the Executive’s
employment with the Company with respect to the Developments, and shall be binding upon the Executive’s employers, assigns, executors,
administrators and other legal representatives. In connection with Executive’s execution of this Employment Agreement, the Executive
has informed the Company in writing of any interest in any inventions or intellectual property rights that Executive holds as of the
date hereof. If the Company is unable for any reason to obtain the Executive’s signature on any document needed in connection with
the actions described in this Section 4.6, the Executive hereby irrevocably designates and appoints the Company, its Affiliates,
and their respective duly authorized officers and agents as the Executive’s agent and attorney in fact to act for and in the Executive’s
behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this Section with
the same legal force and effect as if executed by the Executive.
4.7. Confidentiality
of Agreement. Other than with respect to information required to be disclosed by applicable law, the parties hereto agree not
to disclose the terms of this Employment Agreement to any Person; provided the Executive may disclose this Employment Agreement and/or
any of its terms to the Executive’s immediate family, financial advisors and attorneys. Notwithstanding anything in this Section 4.7
to the contrary, the parties hereto (and each of their respective employees, representatives, or other agents) may disclose to any and
all Persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Employment Agreement,
and all materials of any kind (including opinions or other tax analyses) related to such tax treatment and tax structure; provided that
this sentence shall not permit any Person to disclose the name of, or other information that would identify, any party to such transactions
or to disclose confidential commercial information regarding such transactions.
4.8. Remedies.
The Executive agrees that any breach of the terms of this Section 4 would result in irreparable injury and damage to the Company
and its Affiliates for which the Company and its Affiliates would have no adequate remedy at law; the Executive therefore also agrees
that in the event of said breach or any threat of breach, the Company and its Affiliates shall be entitled to an immediate injunction
and restraining order to prevent such breach and/or threatened breach and/or continued breach by the Executive and/or any and all Persons
acting for and/or with the Executive, without having to prove damages, in addition to any other remedies to which the Company and its
Affiliates may be entitled at law or in equity, including, without limitation, the obligation of the Executive to return any Severance
Payments paid by the Company back to the Company. The terms of this paragraph shall not prevent the Company or its Affiliates from pursuing
any other available remedies for any breach or threatened breach hereof, including, without limitation, the recovery of damages from the
Executive. The Executive and the Company further agree that the provisions of the covenants contained in this Section 4 are reasonable
and necessary to protect the businesses of the Company and its Affiliates because of the Executive’s access to Confidential Information
and Executive’s material participation in the operation of such businesses.
5. Representation.
The Executive acknowledges, covenants, agrees, warrants and represents that: (i) he is not a party to any contract, nor is he subject
to, or bound by any commitment, restrictive covenant or agreement, order, judgment, decree, law, statute, ordinance, rule, regulation
or other restriction of any kind or character, which either would or purports to, prevent or restrict him from entering into and performing
his obligations under this Employment Agreement free of any limitations; (ii) he is free to enter into the arrangements contemplated
herein; (iii) he is not subject to any agreement or obligation that would limit his ability to act on behalf of the Company or any
of its Affiliates; (iv) the termination of his existing employment, his entry into the employment contemplated herein and the performance
of his duties in respect thereof, will not violate or conflict with any agreement or obligation to which he is subject; and (v) he
has had an opportunity to consult with independent legal counsel regarding his rights and obligations under this Employment Agreement
and that he fully understands the terms and conditions contained herein.
6. Withholding.
All amounts paid to the Executive under this Employment Agreement during or following the Interim Term or any Additional Term shall be
subject to the withholding of income taxes, employment taxes, and all other applicable taxes imposed by applicable law.
| 7. | Effect of Section 280G of the Code. |
7.1. Payment
Reduction. Notwithstanding anything contained in this Employment Agreement to the contrary, (i) to the extent that any payment
or distribution of any type to or for the benefit of the Executive by the Company, any Affiliate of the Company, any Person who acquires
ownership or effective control of the Company or ownership of a substantial portion of the Company’s assets (within the meaning
of Section 280G of the Code and the regulations thereunder), or any Affiliate of such Person, whether paid or payable or distributed
or distributable pursuant to the terms of this Employment Agreement or otherwise (the “Payments”) constitutes
“parachute payments” (within the meaning of Section 280G of the Code), and if(ii) such aggregate Payments would,
if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed under Section 4999 of the Code
(the “Excise Tax”) be less than the amount the Executive would receive, after all taxes, if the Executive received
aggregate Payments equal (as valued under Section 280G of the Code) to only three times the Executive’s “base amount”
(within the meaning of Section 280G of the Code), less $1.00, then (iii) such Payments shall be reduced (but not below zero)
if and to the extent necessary so that no Payments to be made or benefit to be provided to the Executive shall be subject to the Excise
Tax; provided, however, that, solely to the extent applicable, the Company shall use its reasonable best efforts to obtain shareholder
approval of the Payments provided for in this Employment Agreement in a manner intended to satisfy requirements of the “shareholder
approval” exception to Section 280G of the Code and the regulations promulgated thereunder, such that payment may be made to
the Executive of such Payments without the application of an Excise Tax. If the Payments are so reduced, the Company shall reduce or eliminate
the Payments (x) by first reducing or eliminating the portion of the Payments which are not payable in cash (other than that portion
of the Payments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of
the Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Payments (whether payable
in cash or not payable in cash) lo which Treasury Regulation§ 1.2800-1 Q/A 24(c) (or successor thereto) applies, in each case
in reverse order beginning with payments or benefits which are to be paid the farthest in time.
7.2. Determination
of Amount of Reduction (if any). The determination of whether the Payments shall be reduced as provided in Section 7.1 hereof
and the amount of such reduction shall be made at the Company’s expense by an accounting firm selected by the Company from among
the 4 largest accounting firms in the United States (the “Accounting Firm”). The Accounting Firm shall provide
its determination (the “Determination”), together with detailed supporting calculations and documentation,
to the Company and the Executive within 10 days after the Executive’s final day of employment. If the Accounting Firm determines
that no Excise Tax is payable by the Executive with respect to the Payments, it shall furnish the Executive with an opinion reasonably
acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination
shall be binding, final and conclusive upon the Company and the Executive.
8.1. Amendments
and Waivers. This Employment Agreement and any of the provisions hereof may be amended, waived (either generally or in a particular
instance and either retroactively or prospectively), modified or supplemented, in whole or in part, only by written agreement signed by
the parties hereto; provided that, the observance of any provision of this Employment Agreement may be waived in writing by the
party that will lose the benefit of such provision as a result of such waiver. The waiver by any party hereto of a breach of any provision
of this Employment Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any
other or subsequent breach, except as otherwise explicitly provided for in such waiver. Except as otherwise expressly provided herein,
no failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder, or otherwise available
in respect hereof at law or in equity, shall operate as a waiver thereof: nor shall any single or partial exercise of such right, power
or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
8.2. Fees
and Expenses. In the event of any dispute between the Company and the Executive arising under this Employment Agreement, each
party shall be responsible for its own legal fees and related expenses (including the costs of experts, evidence and counsel).
8.3. Indemnification.
To the extent provided in the Company’s Certificate of Incorporation or Bylaws, as in effect from time to time, and subject to any
separate agreement (if any) between the Company and the Executive regarding indemnification, the Company shall indemnify the Executive
for losses or damages incurred by the Executive as a result of causes of action arising from the Executive’s performance of duties
for the benefit of the Company, whether or not the claim is asserted during both the Interim Term and any Additional Term. In addition,
Executive shall participate in Directors & Officers Insurance, if any, maintained by the Company from time to time on the same
terms and conditions as other senior executives or directors of the Company.
8.4. Assignment.
This Employment Agreement, and the Executive’s rights and obligations hereunder, may not be assigned by the Executive, and any purported
assignment by the Executive in violation hereof shall be null and void.
8.5. Payments
Following Executive’s Death. Any amounts payable to the Executive pursuant to this Employment Agreement that remain unpaid
at the Executive’s death shall be paid to the Executive’s estate.
8.6. Notices.
Unless otherwise provided herein, all notices, requests, demands, claims and other communications provided for under the terms of this
Employment Agreement shall be in writing. Any notice, request, demand, claim or other communication hereunder shall be sent by (i) personal
delivery (including receipted courier service) or overnight delivery service, (ii) facsimile during normal business hours, with confirmation
of receipt, to the number indicated, (iii) reputable commercial overnight delivery service courier, or (iv) registered or certified
mail, return receipt requested, postage prepaid and addressed to the intended recipient as set forth below:
If
to the Company:
Viskase Companies, Inc.
Attention: General Counsel
333 East Butterfield Road Suite 400
Lombard, IL 60148-5679 Facsimile: 630 874-0176
with
a copy to:
Icahn Enterprises, L.P.
Attention: General Counsel
16690 Collins Avenue - Penthouse Suite
Sunny Isles Beach, Florida 33160
Facsimile: 917.591.3310
If
to the Executive:
Thomas D. Davis
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or:
At the last known principal residence
address reflected in the payroll records of the Company, or to such other address as either party shall have furnished to the other in
writing in accordance herewith.
All such notices, requests, consents
and other communications shall be deemed to have been given when received. Any party may change its facsimile number or its address to
which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other party hereto notice
in the manner then set forth.
8.7. Governing
Law. This Employment Agreement shall be governed and interpreted and the rights of the parties determined in accordance with
the laws of the United States applicable thereto and the internal laws of the State of Delaware without giving effect to the
conflict of laws principles thereof. Any unresolved dispute arising out of this Employment Agreement shall be litigated solely in
any court of competent jurisdiction in (a) state courts of the State of Florida located in Miami-Dade County and (b) the
United States District Court for the Southern District of the State of Florida for the purposes of any action or proceeding arising
out of or relating to this Agreement; provided that the Company may elect to pursue a court action to seek injunctive relief in any
court of competent jurisdiction to terminate the violation of its proprietary rights, including but not limited to trade secrets,
copyrights or trademarks.
8.8. Waiver
of Jury Trial. THE PARTIES HERETO AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND
VOLUNTARILY MADE BY EXECUTIVE, AND EXECUTIVE ACKNOWLEDGES THAT, EXCEPT FOR THE COMPANY’S AGREEMENT TO LIKEWISE WAIVE ITS RIGHTS
TO A TRIAL BY JURY (WHICH THE COMPANY HEREBY MAKES), THE COMPANY HAS NOT MADE ANY REPRESENTATIONS OF FACTS TO INDUCE THIS WAIVER OF TRIAL
BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS READ AND UNDERSTANDS THE MEANING AND
RAMIFICATIONS OF THIS WAIVER AND AS EVIDENCE OF THIS FACT SIGNS THIS EMPLOYMENT AGREEMENT BELOW.
8.9. Severability.
If any paragraph or part or subpart of any paragraph in this Employment Agreement or the application thereof is construed to be overbroad
and/or unenforceable, then the court making such determination shall have the authority to narrow the paragraph or part or subpart of
the paragraph as necessary to make it enforceable and the paragraph or part or subpart of the paragraph shall then be enforceable in its/their
narrowed form. Moreover, each paragraph or part or subpart of each paragraph in this Employment Agreement is independent of and severable
(separate) from each other. In the event that any paragraph or part or subpart of any paragraph in this Employment Agreement is determined
to be legally invalid or unenforceable by a court and is not modified by a court to be enforceable, the affected paragraph or part or
subpart of such paragraph shall be stricken from this Employment Agreement, and the remaining paragraphs or parts or subparts of such
paragraphs of this Employment Agreement shall remain in full force and effect.
8.10. Entire
Agreement. From and after the Commencement Date, this Employment Agreement constitutes the entire agreement between the parties
hereto, and supersedes all prior representations, agreements and understandings, both written and oral, relating to any employment of
the Executive by the Company or any of its Affiliates.
8.11. Counterparts.
This Employment Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts
shall together constitute one and the same instrument.
8.12. Binding
Effect. The terms of this Employment Agreement shall be binding upon the Executive, the Executive’s heirs, executors, assigns,
administrators and legal representatives, and shall inure to the benefit of the Company and its successors and assigns, including, without
limitation, any successor to all or substantially all the business and/or assets of the Company.
8.13. General
Interpretive Principles. The name assigned to this Employment Agreement and headings of the sections, paragraphs, subparagraphs,
clauses and subclauses of this Employment Agreement are for convenience of reference only and shall not in any way affect the meaning
or interpretation of any of the provisions hereof. Words of inclusion shall not be construed as terms of limitation herein, so that references
to “include”, “includes”, and “including” shall not be limiting and shall be regarded as references
to non-exclusive and non-characterizing illustrations.
8.14. Mitigation.
Notwithstanding any other provision of this Employment Agreement, (a) the Executive will have no obligation to mitigate damages for
any breach or termination of this Employment Agreement by the Company, whether by seeking employment or otherwise and (b) the amount
of any payment or benefit due the Executive after the date of such breach or termination will not be reduced or offset by any payment
or benefit that the Executive may receive from any other source.
8.15. Company
Actions. Any actions, approvals, decisions, or determinations to be made by the Company under this Employment Agreement shall
be made by the Board, except as otherwise expressly provided herein. For purposes of any references herein to the Board’s designee,
any such reference shall be deemed to include such officers of the Company, or committees of the Board, as the Board may expressly designate
from time to time for such purpose.
8.16. Survival.
All provisions of this Employment Agreement which by their terms, contain continuing obligations by Executive shall survive termination
of this Employment Agreement, including without limitation, the covenants, duties and obligations under Sections 3.4, 3.5, and 4 hereof.
8.17. Assumption
of Agreement By Successor. In the event of a Change in Control, the Company will request that any successor expressly assume and
agree, pursuant to an appropriate written assumption agreement, to perform the Company’s obligations under this Employment Agreement
in substantially the same manner and to substantially the same extent that the Company would be required to perform if no such Change
in Control had taken place.
8.18. Definitions.
In addition to the defined terms set forth throughout this Employment Agreement, the capitalized terms set forth on Appendix C
shall have the respective meanings set forth thereon and are incorporated by reference into this Employment Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
BLANK]
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
IN WITNESS WHEREOF, the parties have executed
this Employment Agreement as of the date first written above.
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By Tom Davis
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For Viskase |
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/s/ Tom Davis |
11/26/25 |
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Signed |
Dated |
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Joseph D. King
Senior Vice President,
General Counsel and Secretary
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Dated |
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APPENDIXA
Long-Term
Incentive Plan
APPENDIXB
Long-Term Incentive Award Agreement
APPENDIXC
Definitions
“Affiliate” means any
Person that a Person either directly or indirectly through one or more intermediaries is in common control with, is controlled by or controls,
each within the meaning of the Securities Act of 1933, as amended.
“Cause” shall mean shall
mean that the Executive has engaged in any of the following: (i) willful misconduct or breach of :fiduciary duty; (ii) intentional
failure or refusal to perform reasonably assigned duties after written notice of such willful failure or refusal and the failure or refusal
is not corrected within 10 business days; provided, however, that the Executive’s refusal to participate in or perform any act on
behalf of the Company which upon advice of counsel the Executive in good faith believes is illegal or unethical shall not constitute Cause;
(iii) the indictment for, conviction of or entering a plea of guilty or nolo contendere to a crime constituting a felony (other than
a traffic violation or other offense or violation outside of the course of employment which does not adversely affect the Company and
its Affiliates or their reputation or the ability of the Executive to perform Executive’s employment-related duties or to represent
the Company and its Affiliates); provided, however, that (A) if the Executive is terminated for Cause by reason of Executive’s
indictment pursuant to this clause (iii) and the indictment is subsequently dismissed or withdrawn or the Executive is found to be
not guilty in a court of law in connection with such indictment, then the Executive’s termination shall be treated for purposes
of this Employment Agreement as a termination by the Company other than for Cause, and the Executive will be entitled to receive (without
duplication of benefits and to the extent permitted by law) the payments and benefits set forth in Section 3.2(a) and, to the
extent either or both are applicable, Section 3.2(b) and Section 3.2(e), following such dismissal, withdrawal or finding,
payable in the manner and subject to the conditions set forth in such Sections and (B) if such indictment relates to environmental
matters and does not allege that the Executive was directly involved in or directly supervised the action(s) forming the basis of
the indictment, Cause shall not be deemed to exist under this Employment Agreement by reason of such indictment until the Executive is
convicted or enters a plea of guilty or nolo contendere in connection with such indictment; or (iv) material breach of the Executive’s
covenants in Section 4 of this Employment Agreement or any policy of the Company or any Affiliate.
“Change in Control”
means the occurrence of any of the following:
(a) An
acquisition (other than directly from the Company) of any voting securities of the Company (the “Voting Securities”)
by any “Person” (as the term “person” is used for purposes of Section 13(d) or 14(d) of the Exchange
Act), immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of more than fifty percent (50%) of (i) the then-outstanding Shares or (ii) the combined voting power of
the Company’s then-outstanding Voting Securities; provided, however, that in determining whether a Change in Control has
occurred pursuant to this paragraph (a), the acquisition of Shares or Voting Securities in a Non-Control Acquisition (as hereinafter
defined) shall not constitute a Change in Control. A “Non-Control Acquisition” shall mean an acquisition by
(i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company or (B) any corporation
or other Person the majority of the voting power, voting equity securities or equity interest of which is owned, directly or indirectly,
by the Company (for purposes of this definition, a “Subsidiary”), (ii) the Company, any Principal Stockholder
or any Subsidiary, or (iii) any Person in connection with a Non-Control Transaction (as hereinafter defined);
(i) A
merger, consolidation or reorganization of a Person (x) with or into the Company or (y) in which securities of the Company are
issued (a “Merger”), unless such Merger is a “Non-Control Transaction.” A “Non-Control
Transaction” shall mean a Merger in which:
(A) the
shareholders of the Company immediately before such Merger, or one or more Principal Stockholders, own directly or indirectly immediately
following such Merger at least a majority of the combined voting power of the outstanding voting securities of (I) the corporation
resulting from such Merger (the “Surviving Corporation”), if fifty percent (50%) or more of the combined voting
power of the then outstanding voting securities by the Surviving Corporation is not Beneficially Owned, directly or indirectly, by another
Person (a “Parent Corporation”) or (2) if there is one or more than one Parent Corporation, the ultimate
Parent Corporation;
(B) the
individuals who were members of the Board immediately prior to the execution of the agreement providing for such Merger constitute at
least a majority of the members of the board of directors of(l) the Surviving Corporation, if there is no Parent Corporation, or
(2) if there is one or more than one Parent Corporation, the ultimate Parent Corporation; and
(C) no
Person other than (1) the Company or another corporation that is a party to the agreement of Merger, (2) any Subsidiary, (3) any
employee benefit plan (or any trust forming a part thereof) that, immediately prior to the Merger, was maintained by the Company or any
Subsidiary, (4) any Person who, immediately prior to the Merger, had Beneficial Ownership of thirty percent (30%) or more of the
then outstanding Shares or Voting Securities, or (5) any Principal Stockholder, has Beneficial Ownership, directly or indirectly,
of fifty percent (50%) or more of the combined voting power of the outstanding voting securities or common stock of (x) the Surviving
Corporation, if there is no Parent Corporation, or (y) if there is one or more than one Parent Corporation, the ultimate Parent Corporation.
(ii) A
complete liquidation or dissolution of the Company; or
(iii) The
sale or other disposition of all or substantially all of the assets of the Company and its subsidiaries taken as a whole to any Person
(other than (x) a sale or transfer to a Subsidiary or a Principal Stockholder (or one or more Principal Stockholders acting together)
or (y) the distribution to the Company’s shareholders of the stock of a Subsidiary or any other assets).
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person (the “Subject Person”) acquired Beneficial Ownership
of more than the permitted amount of the then outstanding Shares or Voting Securities as a result of the acquisition of Shares or Voting
Securities by the Company which, by reducing the number of Shares or Voting Securities then outstanding, increases the proportional number
of shares Beneficially Owned by the Subject Persons; provided that if a Change in Control would occur (but for the operation of
this sentence) as a result of the acquisition of Shares or Voting Securities by the Company and, after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any additional Shares or Voting Securities and such Beneficial Ownership
increases the percentage of the then outstanding Shares or Voting Securities Beneficially Owned by the Subject Person, then a Change
in Control shall occur.
“Code” means the Internal
Revenue Code of 1986, as amended.
“Control” means the
possession, directly or indirectly, of the power to direct or cause the direction of management and policies of a Person, whether through
the ownership of stock, by agreement or otherwise and “Controlled” has a corresponding meaning.
“Disability” shall mean
that: (i) the Executive is unable to perform his duties hereunder as a result of illness or physical injury for a period of at least
90 days; (ii) the Executive is entitled to receive payments under the Company’s long-term disability insurance plan; (iii) the
Executive has started to receive such disability insurance payments; and (iv) no person has contested or questioned the Executive’s
right to receive such payments or, if such payments have been contested, the Company has irrevocably and unconditionally agreed to pay
the Executive such amounts as will net to the Executive after reduction for applicable federal and state income taxes the same amount
as he would have received after such taxes from such insurance.
“Good Reason” means
(i) a material reduction in Executive’s Base Salary; (ii) a material reduction by the Company in the duties or responsibilities
of the Executive, including a change in the Executive’s reporting line; or (iii) Executive being required to perform illegal
acts by the Company. Good Reason shall not exist unless both (x) the executive provides written notice to the Company of the condition
claimed to constitute grounds for a Good Reason termination within thirty (30) days of the initial existence of such condition(s), (y) the
Company fails to remedy such condition(s) within thirty (30) days of receiving such written notice thereof; and (z) the Executive
terminates employment within sixty-five (65) days following the expiration of the Company’s cure period.
“Person” or “person,”
shall mean any individual, partnership, limited partnership, corporation, limited liability company, trust, foundation, estate, cooperative,
association (except his homeowners association, if any), organization, proprietorship, firm, joint venture, joint stock company, syndicate,
company, committee, government or governmental subdivision or agency, or other entity, whether or not conducted for profit.
“Principal” means Carl
Icahn.
“Principal Stockholder”
means any of Icahn Enterprises L.P., any Affiliate of Icahn Enterprises L.P., the Principal, and any Related Party.
“Related Party” means
(1) the Principal and his siblings, his and their respective spouses and descendants (including stepchildren and adopted children)
and the spouses of such descendants (including stepchildren and adopted children) (collectively, the “Family Group”);
(2) any trust, estate, partnership, corporation, company, limited liability company or unincorporated association or organization
(each, an “Entity” and collectively “Entities”) Controlled by one or more members
of the Family Group; (3) any Entity over which one or more members of the Family Group, directly or indirectly, have rights that,
either legally or in practical effect, enable them to make or veto significant management decisions with respect to such Entity, whether
pursuant to the constituent documents of such Entity, by contract, through representation on a board of directors or other governing
body of such Entity, through a management position with such Entity or in any other manner (such rights, hereinafter referred to as “Veto
Power”); (4) the estate of any member of the Family Group; (5) any trust created (in whole or in part) by any
one or more members of the Family Group; (6) any individual or Entity who receives an interest in any estate or trust listed in
clauses (4) or (5), to the extent of such interest; (7) any trust or estate, substantially all the beneficiaries of which (other
than charitable organizations or foundations) consist of one or more members of the Family Group; (8) any organization described
in Section S0l(c) of the Code, over which any one or more members of the Family Group and the trusts and estates listed in
clauses (4), (5) and (7) have direct or indirect Veto Power, or to which they are substantial contributors (as such term is
defined in Section 507 of the Code); (9) any organization described in Section 501(c) of the Code of which a member
of the Family Group is an officer, director or trustee; or (10) any Entity, directly or indirectly (a) owned or Controlled
by or (b) a majority of the economic interests in which are owned by, or are for or accrue to the benefit of, in either case, any
Person or Persons identified in clauses (1) through (9) above. For the purposes of this definition, and for the avoidance of
doubt, in addition to any Person or Persons that may be considered to possess Control, (x) a partnership shall be considered Controlled
by a general partner or managing general partner thereof, (y) a limited liability company shall be considered Controlled by a managing
member of such limited liability company and (z) a trust or estate shall be considered Controlled by any trustee, executor, personal
representative, administrator or any other Person or Persons having authority over the control, management or disposition of the income
and assets therefrom.
“Shares”
means the common stock, par value $.01 per share, of the Company and any other securities into which such shares are changed or for which
such shares are exchanged.
Exhibit 10.26
December 8, 2025
Via
Electronic Delivery
John Plescia
[*****][*****]
Email:
[*****][*****]
Dear John:
On behalf of Viskase Companies, Inc. (“Company”
or “Viskase”), I am pleased to present you with the following job offer:
| Title: |
Vice President and General Manager, Americas |
| |
|
| Reporting to: |
You will report directly to Tom Davis, President, and CEO |
| |
|
| Location |
Viskase Corporate HQs, Lombard, IL |
| |
|
| Start Date: |
December 8, 2025 |
| |
|
| Compensation: |
Your compensation per biweekly pay period will be $12,500 (annualized at $325,000), every other Friday. All of your compensation is subject to deductions as required by law. |
| |
|
| Bonus Plan: |
In addition to your base salary, as a full-time, salaried employee, you are eligible to participate in the Viskase Management Incentive Plan (MIP) for calendar year 2026 with a target bonus of 60 % of base earnings. The incentive is predicated on obtaining certain objectives based upon both personal and Company performance. Additional details are contained in the Plan’s Terms and Conditions. |
| |
|
| PTO: |
You will be eligible for 28 days of PTO per year subject to the terms of the Viskase PTO policy. You begin to accrue your PTO from Date of Hire. Viskase reserves the right to add, change, or modify the policy at any time. |
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400, Lombard, Illinois,
60561 USA
Phone: (630) 874-0700 Fax: (630) 874-0176
John Plescia
December 8, 2025
Page 2
of 3
| Benefits: |
You will be eligible to
participate in Viskase benefit plans including health; dental; vision; life; dependent life; flexible spending account (FSA), health
savings account (HSA); contributory 401(k) with Company match and no vesting requirement, and shod term and long-term disability
insurance. All benefit plans except STD and LTD are effective the first of the month following employment. STD and LTD are effective
after 90 days of employment. Viskase reserves the right to add, change, or terminate benefits at any time, including but not limited
to, those set forth above. |
This offer, and your employment, are conditioned
upon successful completion of a drug screen and background and reference check. In addition, you will be required to sign the Company's
Confidentiality/Non-Disparagement/Inventions policy and adhere to such policies.
The details of the Confidentiality and Non-Disparagement
document and other Company employment documentation will be presented to you and signed by you prior to your employment.
This letter does not constitute a contract or
employment agreement. You understand that your employment is “at will” and can be terminated, with or without cause and with
or without notice, at any time. Nothing contained in this letter shall limit or otherwise alter the foregoing. Your employment will be
subject to other policies, terms and conditions that may be established or modified by the Company from time to time.
On your first day of work, we require that you
bring proof of your legal right to work in the United States for 1-9 purposes.
We are excited to welcome you back to the Viskase
team. Please do not hesitate to contact me or Armando Herrera, VP Global Human Resources, [*****].
This offer expires December 11, 2025, at 4:00 PM central time.
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400, Lombard, Illinois,
60561 USA
Phone: (630) 874-0700 Fax: (630) 874-0176
John Plescia
December 8, 2025
Page 3
of 3
Sincerely,
Tom Davis
President and CEO, Viskase Companies, Inc.
Cc: Human Resources
| ACCEPTED: |
|
|
| |
|
|
| /s/
JOHN N. PLESCIA |
|
12/8/25 |
| JOHN N. PLESCIA |
|
DATE |
Viskase Companies, Inc.
333 East Butterfield Road, Suite 400, Lombard, Illinois,
60561 USA
Phone: (630) 874-0700 Fax: (630) 874-0176
Exhibit 10.27
EMPLOYMENT CONTRACT
FOR AN INDEFINITE PERIOD
SEPTEMBER 23,
2025
Between
Viskase GmbH
and
R.M. Schouten
CONTENTS
| Clause |
Page |
| |
|
| 1. |
Start date and position |
3 |
| 2. |
Place of work |
4 |
| 3. |
Duration and termination |
4 |
| 4. |
Salary and holiday allowance |
5 |
| 5. |
Working hours and overtime |
5 |
| 6. |
Travel and expenses |
5 |
| 7. |
Holidays |
6 |
| 8. |
Sickness |
6 |
| 9. |
Pensions |
6 |
| 10. |
Confidentiality |
6 |
| 11. |
Documents and company property |
7 |
| 12. |
Protection of personal data |
8 |
| 13. |
Intellectual property rights |
8 |
| 14. |
Ancillary activities |
9 |
| 15. |
Non-competition and non-solicitation |
10 |
| 16. |
Social media |
10 |
| 17. |
Penalty |
11 |
| 18. |
Other regulations |
11 |
| 19. |
Amendment |
11 |
| 20. |
Various |
11 |
| 21. |
Applicable law and CLA |
12 |
| |
|
|
| Annex |
|
| |
|
| 1. |
Viskase Companies, Inc. - Job Description |
14 |
| | 2 |  |
EMPLOYMENT CONTRACT
THE UNDERSIGNED:
| (1) | Viskase GmbH, having
its registered office in Bomlitz, Germany and its principal place of business at (29699) August-Wolff-Straße 13 in Bomlitz,
Germany, duly represented in this matter by its sole shareholder Viskase S.A.S. having its registered office in Beauvais, France and
its principal place of business at (60000) 10 chaussée Feldtrappe in Beauvais, France, represented by its president
having sole representational power, Mr. Tim Feast, hereinafter the Employer; and |
| (2) | Mr. Robert Martijn
Schouten, born on March 18, 1977 and currently residing a [***[[*****]
[*****]*****]**] hereinafter the Employee; |
jointly referred
to as the Parties and each individually as the Party.
| (A) | the Employee will be fulfilling the role of Vice President and General Manager in the combined regions
of Europe, Middle East & Africa (EMEA) and Asia-Pacific (APAC and together with EMEA: the Region) within
the Employer’s group parent company, Viskase Companies, Inc. (the Parent); and |
| (B) | the Employee will be employed by the Employer and the Parties wish to lay down the terms and conditions
of employment in this employment contract (the Employment Contract). |
HAVE AGREED AS FOLLOWS:
| 1. | START DATE AND POSITION |
| 1.1 | The Employee enters into the Employment Contract with the Employer with effect from 29 September 2025. |
| 1.2 | The Employee will be employed by the Employer in the position of Vice President and General Manager in
the Region within the Parent with the job description set out in Annex 1 to this Employment Contract, and undertakes to
perform, to the best of the Employee’s ability, all the work related to the Employer’s business that can reasonably be assigned
to the Employee by or on behalf of the Employer. The Employee undertakes to act in accordance with the instructions given by or on behalf
of the Employer. |
| 1.3 | The Employee undertakes to also carry out other work or to fulfil another position, insofar as this can
reasonably be requested from the Employee and the work instructed is related to the business of the Employer. The Employee will, at the
request of the Employer, also perform work for any direct or indirect subsidiary or parent company of the Employer, any direct or indirect
subsidiary company of such parent company, or any other group company of the Employer within the meaning of Article 2:24b of the
Dutch Civil Code (Group Company and together: the Group Companies). |
| 1.4 | The nature of the Employee’s position requires that the Employee has to travel frequently to locations
outside of the Netherlands, approximately 50% especially initially to establish key relationships. |
| | 3 | |
| 1.5 | The Employee declares and guarantees to the Employer that there are no impediments (through an agreement,
in writing or not in writing, regulations, court rulings or orders, or otherwise, including a non-competition or non-solicitation clause),
directly or indirectly, to the entering into of the Employment Contract, the performance of the work or the fulfilment of obligations
for the Employee arising from the Employment Contract. The Employee indemnifies the Employer against any claims, costs, damages, liabilities
or expenses that may arise for the Employer, on any ground whatsoever, as a result of such impediments. |
| 1.6 | The Employee declares that at the time of signing this Employment Contract, there are no criminal, compliance
or professional conduct-related investigations or proceedings, whether initiated, pending or concluded in respect of the Employee, either
in a private capacity or in a professional capacity, all in the broadest sense. If, after signing of the Employment Contract, such investigation
or procedure is or will be initiated against the Employee, the Employee will be obliged to fully inform the Employer immediately and to
keep the Employer fully informed at all times of the progress of the investigation or procedure. |
| 2.1 | At the time of entering into the Employment Contract, the place where the work will be performed is the
Employee’s home address referred to in point (2) of this Employment Contract. |
| 2.2 | The Employer reserves the right to unilaterally change the place where the work is carried out insofar
as this can reasonably be required of the Employee. |
| 2.3 | The Employer, together with the Employee, will ensure a good and safe home office for the Employee that
is designed in a manner suited to the personal characteristics of the Employee, unless this cannot reasonably be required from the Employer. |
| 2.4 | The Employee, together with the Employer, is obliged to ensure that the home office meets and continues
to meet the requirements laid down in the applicable laws and regulations relating to working conditions at that time. |
| 2.5 | The Employee will cooperate with an announced visit by the Employer or the occupational health and safety
expert to the private home of the Employee in order to check the home office against the requirements laid down in the applicable laws
and regulations relating to working conditions at that time. |
| 2.6 | If, at any time, the home office does not meet the requirements laid down in the applicable laws and regulations
relating to working conditions at that time, the Employee is obliged to carry out the work at the office of the Employer until the home
office does (again) meet said requirements. |
| 3. | DURATION AND TERMINATION |
| 3.1 | The Employment Contract is entered into for an indefinite period. |
| 3.2 | The Employment Contract ends in any event by operation of law, without notice of termination being required,
on the date on which the Employee reaches the state pension age (AOW-gerechtigde leeftijd) applicable to the Employee. |
| 3.3 | Without prejudice to the above, the Employment Contract may be terminated by either Party with due observance
of a notice period of 4 months for the Employer and a notice period of 2 months for the Employee. |
| | 4 | |
| 3.4 | With regard to the other aspects of termination of the Employment Contract, the applicable laws and regulations
as laid down in the Dutch Civil Code (Title 7.10) and the regulations as included in Clause 18 as applicable from time to time, apply. |
| 4. | SALARY AND HOLIDAY ALLOWANCE |
| 4.1 | The salary is EUR 25,000 gross per month. This salary is including holiday allowance. The salary, subject
to any applicable deductions, is transferred monthly to the Employee’s bank account as known to the Employer. The Employee agrees
to the electronic provision of the salary slip. Employee may be eligible for annual increase in salary at the Company’s discretion. |
| 4.2 | The Employee shall be eligible to participate in the Management Incentive Plan (MIP), up to 60%
of the gross salary mentioned in paragraph 4.1 above (terms shall be provided separately) as long as this bonus and this plan will be
maintained by the Parent. For the first year of employment, any bonus paid under this program is prorated for actual time worked in the
position. To be eligible for a bonus payment, the Employee must be an active employee on the date the bonus is paid. The bonus compensation
will be subject to all terms and conditions of the MIP (or its successor plan) document maintained by the Parent, which is subject to
change at any time. The granting of a bonus in any certain year does not entitle the Employee to a bonus in another year. |
| 4.3 | In addition, to the compensation described above, a Long-Term Incentive Plan (“LTIP”) is currently
being developed. The details of the LTIP will be provided at a later date. Any award under the LTIP will be payable in accordance with
and subject to the terms and conditions of the plan document as approved by the Compensation Committee of the Board of Directors of Viskase
Companies, Inc. Eligibility to participate in the LTIP is at the discretion of the Compensation Committee of the Board of Directors
of Viskase Companies, Inc. |
| 4.4 | The granting of any bonus or variable remuneration in any certain year does not entitle the Employee to
a bonus in another year. |
| 5. | WORKING HOURS AND OVERTIME |
| 5.1 | The customary number of working hours is 40 per week. |
| 5.2 | The nature of the work of the Employee entails that the customary number of working hours set out in Clause
5.1 of this Employment Contract may be exceeded. The Employee undertakes to work overtime at the Employer’s request, to the extent
that, in the Employer’s opinion, business conditions so require. |
| 5.3 | The compensation for working overtime is deemed to be included in the Employee’s fixed salary. That
means that no separate compensation for working overtime is due to the Employee. |
| 6.1 | Business expenses incurred by the Employee are reimbursed in accordance with the expenses scheme as applicable
from time to time at the Employer and the Parent. |
| 6.2 | The Employee will be granted a maximum monthly allowance of EUR 1815 (inclusive of VAT) for a company
car for the professional performance of the Employee’s duties and for private use, in accordance with the company car scheme as
applicable at the Employer from time to time. Taxes on the financial advantage of the private use are borne by the Employee. The company
car including all documents and accessories shall be returned to the Employer at the end of employment. The Employee will not have any
right of retention with regard to these items. The Employee is authorised to
use the vehicle entrusted to it for personal purposes in accordance with the terms and conditions defined by the Employer. |
| | 5 | |
| 7.1 | The Employee will be entitled to 30 days of holiday per year. The statutory time limits and expiry dates
apply. When taking holidays, the Employee will take into account the interests of the Employer. |
| 7.2 | If the Employment Contract commences and/or ends in the course of the year or if the number of working
hours per week changes, the number of days of holiday will accrue on a pro rata basis. |
| 7.3 | With regard to entitlement to other (fully or partially) paid leave, the applicable laws and regulations
(including the Dutch Work and Care Act, Wet arbeid en zorg) and the regulations as included in Clause 18 as applicable from time
to time, apply. |
| 8.1 | In the event of sickness within the meaning of Article 7:629 of the Dutch Civil Code, the Employee
must report sick to the Employer as soon as possible, but not later than at nine o’clock on the first day of sickness. The Employee
shall comply with the rules on notification and inspection of sickness as applicable from time to time at the Employer. |
| 8.2 | In the event of sickness, the Employee is entitled to payment of 100% of his base salary as defined in
clause 4.1 of this Agreement salary during the first 6 weeks of sickness. As of week 7 until the end of the obligations based on Article 7:629
Dutch Civil Code, the Employee is entitled to payment of 70% of his base salary. |
| 8.3 | If and insofar as the Employee can assert a claim for damages against a third party due to loss of income
in connection with the Employee’s sickness referenced in Clause 8, the Employee will assign such claim to the Employer if and insofar
the Employer requests the Employee to do so. |
| 8.4 | If the Employment Contract ends and the Employee becomes incapacitated for work (arbeidsongeschikt)
within four weeks after the end of the Employment Contract, the Employee must immediately inform the Employer of this. |
The Employer has no pension scheme in
place in which the Employee will participate. Therefore, no offer for a pension agreement within the meaning of the Dutch Pensions Act
(Pensioenwet) will be made to the Employee. Also, the Employee will not receive a compensation from the Employer to take out a
possible private old-age provision and/or death cover and/or a provision for incapacity for work.
| 10.1 | Except with the Employer’s prior written consent, the Employee undertakes, both during the existence
of the Employment Contract and after the Employment Contract has been terminated for any reason whatsoever, not to disclose in any manner
whatsoever (including social media expressions), whether directly or indirectly, to anyone (including other personnel of the Employer,
unless such personnel needs to be informed in connection with their work for the Employer) any confidential information concerning or
relating to: |
| | 6 | |
| (a) | the business of the Employer; |
| (b) | the customers (klanten), suppliers and other relations of the Employer; |
| (c) | trade secrets as defined in the Dutch Trade Secrets Act (Wet bescherming bedrijfsgeheimen), and |
| (d) | any other business information relating to the Employer of which the Employee has become aware as a result
of the employment with the Employer and that the Employee knows or should know to be of a confidential nature. |
| 10.2 | In particular if the Employee works from home, the Employee will take all appropriate precautions to:
(i) secure business information (both on paper and electronic) relating to the Employer, (ii) prevent unauthorised access to
and use of the Employer’s business property (including computers, laptops and tablets (if any)) and business information relating
to the Employer and (iii) ensure the confidentiality and integrity of all business information relating to the Employer. The Employee
is, amongst others, obliged to consistently: |
| (a) | shut down or log off the computer, laptop and tablet, insofar as applicable, when the Employee is not
working for the Employer; and |
| (b) | store work-related documents in a secure manner so that third parties, including members of the Employee’s
household, cannot gain knowledge of these documents. |
Furthermore, the Employee will not share
work-related passwords with third parties, will not receive documents, cases or property from customers (klanten), suppliers and
other relations of the Employer at the home address and will and does not hold or participate in physical work-related meetings at the
home address.
| 10.3 | The Employee is obliged to immediately and fully hand over to the Employer all confidential information
as referred to in this Clause 10 at the end of the Employment Contract, or at the first request of the Employer (for example in the event
of sickness or non-activity for any reason), or to destroy it if the Employer so desires. |
| 10.4 | In this Clause 10, the term Employer also means any of its Group Companies including the Parent. |
| 10.5 | This Clause 10 is without prejudice to any of the Employee’s rights and obligations under applicable
law and regulations (as applicable from time to time), including but not limited to the Dutch Whistleblowers Protection Act. |
| 11. |
DOCUMENTS AND COMPANY PROPERTY |
| 11.1 | The Employee is prohibited from keeping in possession, both in electronic or physical form, in any way
any correspondence, documentation, information carrier, copies thereof and other property made available by any of the Employer and its
Group Companies, to the Employee (including but not limited to credit cards, mobile communication devices, keys, documents, handbooks,
financial information, plans, USB sticks and other data carriers, access cards, laptop and/or tablet including accessories), except insofar
and to the extent this is necessary to perform the duties for the Employer. In any event, the Employee is obliged to immediately and fully
hand over to the Employer such correspondence, documentation, other information carriers, copies thereof and other property made available
to the Employee at the end of the Employment Contract or at the first request of the Employer (for example in the event of sickness or
non-activity for any reason). |
| | 7 | |
| 11.2 | The Employee shall not, under any circumstances, store, transfer, or otherwise process any files, documents,
data and other information belonging, concerning or otherwise relating to any of the Employer and its Group Companies on any personal
devices or information carriers. This includes, but is not limited to personal computers, laptops, tablets, smartphones and external storage
devices that have not been expressly authorized by the Employer. In addition, the Employee is strictly prohibited from sending, forwarding,
or otherwise transmitting such files, documents, data and other information to any personal email addresses, messaging applications, cloud
storage services or other personal accounts. |
| 11.3 | In the event of sickness or non-activity of the Employee (for any reason whatsoever), the Employer is
entitled to refuse the Employee access to business information and the use of company property, including but not limited to the Employer’s
intranet, email accounts, electronic platforms and subscriptions. |
| 12. | PROTECTION OF PERSONAL DATA |
| 12.1 | The Employer will process personal data in accordance with the Employee Data Protection Policy. |
| 12.2 | The Employee, when processing personal data, will at all times act in accordance with the instructions
of the Employer and the applicable policies such as the Employee Data Protection Policy and the regulations and guidelines of the Employer
as published on the Employer’s intranet. |
| 13. | INTELLECTUAL PROPERTY RIGHTS |
| 13.1 | It is the intention of the Parties that all (intellectual property) rights relating to inventions and
works, including but not limited to patents, copyrights, trademark rights, model rights, database rights, domain names and rights related
to know-how, including any applications for such rights and claims in respect thereto, related to all inventions and works created within
the framework of and/or in connection with the performance of the Employment Contract through the actions of the Employee (the Intellectual
Property Rights or Intellectual Property Right) will be vested in the Employer. |
| 13.2 | Insofar as certain Intellectual Property Rights are not vested in the Employer by operation of law, the
Employee hereby assigns these Intellectual Property Rights in advance to the Employer, which assignment the Employer hereby accepts in
advance. This assignment is exclusive, irrevocable, unconditional and with full and unencumbered ownership. The Intellectual Property
Rights are assigned in the broadest meaning of the word for all the present and future forms and conceivable manners of exploitation (including
disclosure, reproduction and editing), insofar as permitted under Dutch law. This assignment has effect globally for the entire duration
of the protection of the Intellectual Property Rights, including any extensions of this duration. |
| 13.3 | The Employee will, at the expense of the Employer, comply with each request from the Employer to enable
it to effect the assignment of Intellectual Property Rights as provided for in the Employment Contract, including entering into additional
deeds of assignment, cooperating with the registration of any Intellectual Property Right and the naming of the Intellectual Property
Rights in the registers. In connection with the above, the Employee hereby grants an irrevocable authorisation to the Employer - and will
insofar as necessary cooperate with the Employer - to do all that is necessary to give effect to this assignment, including the preparation
and signing of deeds. The Employer and the Employee expressly exclude the application of Article 3:68 of the Dutch Civil Code. |
| | 8 | |
| 13.4 | Insofar as permitted under Dutch law, the Employer has the exclusive right to determine whether, when
and how the objects to which the assigned rights pertain will be exploited. |
| 13.5 | The compensation received by the Employee under the Employment Contract must be considered as fair compensation
for all obligations and responsibilities resulting from this clause 13, including but not limited to the transfer of Intellectual Property
Rights. This compensation includes compensation within the meaning of Article 12 of the Dutch Patent Act 1995 (Rijksoctrooiwet
1995) and also serves as a fee for each form of exploitation of the work, known or unknown at the time of signing of this Employment
Contract. |
| 13.6 | Insofar as permitted under Dutch law, the Employee hereby waives personality rights (persoonlijkheidsrechten)
within the meaning of Article 25 of the Dutch Copyright Act (Auteurswet). Insofar as a waiver is not possible, Employee
declares not to invoke personality rights. |
| 13.7 | Any applications or submissions for registration of an Intellectual Property Right will be arranged by
the Employer, in the Employer’s name and at the Employer’s expense. The Employee will not file any applications for registration
of an Intellectual Property Right without the explicit written approval of the Employer. |
| 13.8 | If, in the performance of the Employment Contract, the Employee creates or produces objects or works,
tangible or intangible, or any other product that qualifies for protection as an Intellectual Property Right, for which an application
or filing for registration is necessary for the acquisition of an Intellectual Property Right, the Employee will timely inform the Employer
of this and cooperate with the Employer to enable it to arrange such application or filing. |
| 13.9 | The Employee agrees to keep the details of the objects or works, tangible or intangible, or any other
product that qualifies for protection as an Intellectual Property Right, that the Employee creates or produces in the performance of the
Employment Contract confidential, save with the express approval of the Employer, and to refrain from performing acts that may endanger
the validity of the Intellectual Property Rights or that may restrict the scope of protection of the Intellectual Property Rights. |
| 13.10 | The Employee will inform the Employer as soon as becoming aware of (the threat of) an infringement of
the Intellectual Property Rights. |
| 13.11 | The Employee agrees to assist the Employer, at the request and the expense of the Employer, in defending
and maintaining the Intellectual Property Rights. |
| 13.12 | This provision and the ensuing rights and obligations continue to have effect after termination, for any
reason, of the Employment Contract. |
| 14.1 | Without the Employer’s prior written consent, the Employee will not accept (i) any paid work
with or for third parties, (ii) time-consuming or otherwise substantial unpaid work with or for third parties or (iii) any work
with or for third parties that may harm any of the Employer’s interests and will refrain from performing activities on own account. |
| 14.2 | The Employer will only withhold written consent if this can be justified on the basis of an objective
ground as referred to in Article 7:653a(1) of the Dutch Civil Code, including but not limited to the health and safety of the
Employee, the protection of business confidentiality, the avoidance of conflicts of interest and/or the protection of the good name and
reputation of the Employer. Each situation will be judged on its own. Lack of an objective ground in one particular case does not automatically
lead to lack of an objective ground in another case. The lack of an objective ground in a specific case therefore does not affect the
legal validity of this Clause 14 in all other respects. |
| | 9 | |
| 15. | NON-COMPETITION AND NON-SOLICITATION |
| 15.1 | Given the Employee’s duties and responsibilities, Employee shall have access to confidential and
strategic information. As such information is essential for the Employer and the Group Companies, the Employee expressly undertakes, in
the event the present Employment Contract should be terminated for any reason whatsoever by either party and starting as of the effective
date of departure to refrain from: |
| (a) | joining or taking an interest, whether direct or indirect, in any capacity or manner whatsoever, (including
without limitation, as a company officer, manager, administrator, employee, consultant, shareholder, partner) for his own behalf or on
behalf of third parties, to any company or business having a competing activity with the Employer’s, that is to say manufacturing,
sales activities and transformation of identical or similar products to those manufactured and distributed by the Employer (i.e. currently
cellulosic and plastic casings); and |
| (b) | directly or indirectly, in any capacity or manner whatsoever, contact, solicit, canvass or approach with
any natural or legal person with the purpose of manufacturing or distributing competing products to the Employer’s, as mentioned
in this clause 15.1. |
| 15.2 | The Employee expressly accepts this non-compete and non-solicitation clause and acknowledges that it is
necessary to the protection of the Employer’s legitimate interests and of the Group Companies’ to which it belongs. |
| 15.3 | The present non-compete and non-solicitation clause shall apply for a one (1) year duration, effective
from the date of the Employee’s effective departure and is limited to the countries that are members of the European Union, United
Kingdom, Russia, the United States of America, Thailand and the Philippines. |
| 15.4 | In return for such prohibition to compete and solicit, the Employee shall receive during the entire duration
of this clause a monthly indemnity of a gross amount equal to 50% of the Employee’s last base fix gross salary, at value at the
date of his effective departure, any other elements of remuneration that would come in addition to the base salary being excluded (the
N-C/N-S Indemnity). This compensation shall include relating vacation indemnity. This compensation shall be paid every month. A
breach of this non-compete and non-solicitation obligation will cause the Employer’s obligation to pay the N-C/N-S Indemnity to
lapse automatically. |
| 15.5 | The Employer may decide to unilaterally release the Employee from this non-compete and non-solicitation
obligation and correspondingly to be released from the obligation of the N-C/N-S Indemnity, provided this release is notified to the Employee
within fifteen (15) days after the effective termination of his duties. |
| 15.6 | In this Clause 15, the term Employer also means any of its Group Companies including the Parent. |
| 16.1 | The Employee will not make any statements on social media that could damage the reputation of any of the
Employer and its Group Companies. The Employee must at all times comply with the social media policy as set out in
the Viskase Employee Handbook, as amended from time to time at the Employer. |
| | 10 | |
| 16.2 | Ultimately one month after the end of the Employment Contract, the Employee will truthfully change the
Employee’s status, job and position on social media, including but not limited to LinkedIn, Facebook, Instagram and X (formerly
known as Twitter), in such manner that it is clear that the Employee has no further involvement with any of the Employer and its Group
Companies as of the date of termination of the Employment Contract. |
| 17.1 | If the Employee acts contrary to one or more of the obligations ensuing from the provisions of Clause
15 of this Employment Contract, the right to payment of the N-C/N-S Indemnity shall lapse automatically. In such case, in addition to
the reimbursement of the N-C/N-S Indemnity already paid by Employer, the Employer will be entitled to seek full damages. This penalty
clause does not affect the Employer’s right to claim performance. |
| 17.2 | The Employee retains the obligations ensuing from the provisions of Clauses 15, and 17.1 of this Employment
Contract vis-a-vis the Employer if the Employer’s business or any part thereof is transferred by the Employer to a third party within
the meaning of Articles 7:662 et seq. of the Dutch Civil Code and the Employment Contract ends prior to or at the time of the transfer,
while the Employee would have entered the employment of the acquiring party by operation of law if the Employment Contract had continued. |
| 18.1 | Subject to the provisions of the Employment Contract, the terms and conditions of employment adopted by
the Employer or the Parent from time to time, as laid down in the employee handbook, apply, as well as all other policies and regulations
that apply to the employees of the Employer or the Parent from time to time. A copy of these terms and conditions and policies and regulations
has been made available to the Employee and can be consulted on the Employer’s intranet. In the event of conflict between the Employment
Contract and one or more of the above-mentioned terms and conditions and policies and regulations, the Employment Contract shall prevail. |
| 18.2 | The Employee acknowledges to be bound by the terms and conditions and policies and regulations referred
to in Clause 18.1, as they apply from time to time at the Employer or the Parent. As such, the Employee herewith agrees in advance to
possible future amendments. |
The Employer reserves the right to unilaterally
amend the provisions of the Employment Contract if the Employer’s interest outweighs, according to the principles of reasonableness
and fairness, the possible interest of the Employee that would be harmed by the amendment.
| 20.1 | This Employment Contract constitutes the entire agreement between the Employee and the Employer. This
Employment Contract sets aside all previous agreements between the Employee and any of the Employer and its Group Companies, insofar as
it concerns the performance of work or the employment relationship in a broader sense, and replaces these agreements. After this Employment
Contract has been signed, the Employee and the Employer can no longer derive any rights from said agreements which have been superseded
herewith. |
| | 11 | |
| 20.2 | The voidness of one or more of the provisions of this Employment Contract does not render the other provisions
void as well. The Employee and the Employer hereby agree that a void provision will be converted by operation of law into a valid provision
that by its nature and purport will as closely as possible resemble the void provision. |
| 21. | APPLICABLE LAW AND CLA |
| 21.1 | The Employment Contract and all contractual and non-contractual obligations ensuing from or connected
to it are governed by Dutch law. |
| 21.2 | No collective labour agreement applies to the Employment Contract. |
< Signatures on next page >
| | 12 | |
SIGNATORIES
This
Employment Contract has been agreed and executed in duplicate on 9/25/2025 2025 by:
| Viskase GmbH |
|
Robert Martijn Schouten |
| |
|
|
|
|
| |
|
|
|
|
| Signed by: |
/s/ Tim Feast |
|
Signed by: |
/s/ Robert Martijn Schouten |
| By: |
Tim Feast |
|
|
|
| Its: |
Authorised representative |
|
|
|
| |
|
|
|
|
| Date: |
9/25/2025 |
|
Date: |
9/25/2025 |
| |
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|
| Place: |
Arlington Heights, Illinois, USA |
|
Place: |
[*****] |
Annex
[1]: Viskase Companies, Inc. - Job Description
ANNEX 1
VISKASE COMPANIES, INC. - JOB DESCRIPTION
| |
|
|
|
| POSITION TITLE: VP / General Manager - EMEA/AP |
REPORTS TO: Tim Feast, CEO |
| DATE PREPARED: June 5, 2024 |
¨ NEW POSITION ¨ REVISED DESCRIPTION |
| STATUS: (Check One) x Full Time ¨ Part Time ¨ Co-Op ¨ Temporary ¨ Contractor ¨ Intern |
| SHIFT : Days |
FLSA STATUS: x Exempt ¨ Non-Exempt ¨ Hourly |
| LOCATION: Lombard |
DEPARTMENT: |
| JOB CODE: |
JOB GRADE: |
| |
|
|
|
|
| POSITION PURPOSE: |
| Lead and drive the Viskase business in the EMEA/AP region. Review and improve organizational effectiveness by developing processes, overseeing employees, establishing a highly motivational work environment, and driving execution in sales and operations. Responsible for implementing business strategies, ensuring the effectiveness of the sales organization and delivering planned growth in sales and margins. Leads operations in the region, including oversight of plants in Europe and Asia Pacific, with responsibility for achieving output, unit cost and productivity goals. Utilizes supply chain processes and organization to effectively deliver high service while managing inventory, plant schedules and cash. Drives P&L performance maintains a top-line orientation while striving to maximize operating income. |
| |
| Main focus of this search must be the proven ability to lead a B2B business unit and ensure that all functions deliver the performance necessary for bottom line results. This is the most important aspect of the search. Strong capability in driving operational improvement is essential and will be more important than specific sales experience (although oversight of key customers and responsibility for growing top line should be within candidates’ experience). |
| ESSENTIAL RESPONSIBILITIES/DUTIES: |
|
- Deliver planned EBITDA and operational
cash flow for the EMEA/AP region.
- Develop budget and operating plans
for the region. Oversee execution of those plans to deliver committed financial results. Develop effective business strategies that leverage
the strengths of the organization versus evolving market trends and competitive landscape.
- Drive profitable sales growth
in the region, overseeing commercial processes to deliver profitable business mix and enhanced margins. Develop strategic customer relationships
and support the commercial team at key accounts.
- Oversee operations and ensure
that goals are met for safety, quality, cost, delivery, and productivity improvement; work directly with plant leadership to implement
targeted Lean tools.
- Build and manage the regional
organization and ensure the talent exists to achieve the region’s strategic goals; create a culture of accountability, results orientation,
creativity, and success.
- Implement supply chain tools and
processes as developed by global S&OP to optimize inventory levels and effectively utilize cash. Achieve top class OTIF.
- Contribute to development of global
business strategy. Maintain knowledge of competitors’ capabilities, activities, and apparent strategies.
- Operations – 40% |
|
o Optimize
operations across plant, minimizing costs while delivering required quality, capacity and service
o Drive
improvements in waste and operational efficiency; actively manage spending and capital requirements
o Build
on standardized daily management processes
- Commercial — 40%
o Implement
strong commercial processes to manage customer contracting, sales growth, product complexity
o Develop
effective commercial strategies
o Manage
mix and margins
o Build
an effective commercial team in the region
- Supply Chain — 10%
o Ensure
effective and reliable supply chain management.
o Utilize
processes, systems and monthly S&OP cadence to achieve improvement in OTIF, inventory, financial forecast accuracy
o Oversee
global S&OP process and capacity planning
- Finance - (10%)
o Drive
P&L performance, including budget attainment; maintain a heavy focus on operating income.
o Maintain
a focused set of priorities and leverage them to drive financial upsides
o Deliver
effective financial projections and utilize analytics to focus activities and improve results
- Reporting Structure: Direct Reports
o Commercial
Director, EMEA
o General
Manager, AP
o Director
of Operations
o Managing
Director, Poland
o Global
Director, S&OP
o Head
of Applications
o Finance
Director (reports to CFO directly) |
| JOB REQUIREMENTS: |
|
Bachelor’s degree in business or related discipline,
MBA ideal
Minimum 10+ years proven organizational leadership in business,
commercial and/or manufacturing roles.
Proven success in driving operations improvements through
plant leadership
Proven success in achieving profit goals through multiple
business levers, including commercial (volume, price, mix)
Must be numbers driven, fact-based
Manages conflict well. Encourages healthy debate, Challenge
status quo, continuously improves processes.
Strategic thinker, leads by influence and drives stakeholder
alignment.
Travel expectation 50% especially initially, to establish
key relationships.
This document is not an “all encompassing”
list of job duties. Some requirements are subject to possible modification to reasonably accommodate individuals with disabilities. Some
requirements may exclude individuals who pose a direct threat or significant risk to the health and safety of themselves or other employees. |
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