Exhibit 4(h)
December 12, 1996
Celfort Construction Materials Inc.
x/x Xxxxxxx Xxxxxxx
Xxxxx 0000, Xxxxxx Xxxxx
P.O. Box 1012
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xx. Xxxxxx Xxxxxxx
-and-
Jannock Limited
Xxxxx 0000, Xxxxxx Xxxxx
X.X. Xxx 0000
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xx. Xxxxxx Xxxxxxx
Re: Purchase of Celfortec Division of Celfort Construction
Materials Inc.
We refer to the Asset Purchase Agreement dated as of
August 30, 1996 between OC Celfortec Inc. as Purchaser, Xxxxx
Corning as Purchaser's Guarantor, Celfort Construction
Materials Inc. as Vendor and Jannock Limited as Vendor's
Guarantor (the "Purchase Agreement"). We also refer to the
Common Stock Registration Rights Agreement dated as of August
30, 1996 between Xxxxx Corning, Jannock Limited and Celfort
Construction Materials Inc. (the "Registration Rights
Agreement"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Purchase Agreement
or the Registration Rights Agreement, as applicable.
Section 4.4 of the Purchase Agreement sets out the
obligations of the Purchaser with respect to the payment of the
Purchase Price. Pursuant to Section 2(c) of the Registration
Rights Agreement, Xxxxx Corning agreed to ensure that the net
proceeds from the sale of the Registrable Securities shall have
been remitted to the Vendor by December 15, 1996. For good and
valuable consideration, the receipt and sufficiency of which
are acknowledged, Xxxxx Corning, the Purchaser, the Vendor and
Jannock Limited have agreed to amend these obligations on the
terms set out below:
1. Xxxxx Corning shall continue to use reasonable
efforts to have the registration statement contemplated by the
Registration Rights Agreement declared effective by the SEC as
soon as possible after the date hereof so that the Vendor shall
receive the Share Proceeds Amount and the Share Proceeds
Adjustment Amount by December 15, 1996.
2. In the event that any of the Registrable Securities
have not been sold and the net proceeds received by the Vendor
in accordance with Section 2 of the Registration Rights
Agreement (other than as a result of a breach by the Holder(s))
by December 15, 1996 (the "Agreed Date"), then, in lieu of
compliance by the Purchaser with Section 4.4(a)(2) of the
Purchase Agreement and of compliance by Xxxxx Corning with
Section 2 of the Registration Rights Agreement, Xxxxx Corning
shall:
(a) cause the Purchaser on December 16, 1996 to wire
transfer to the Vendor the following amounts:
(i) an amount (the "Interim Adjustment Amount") on
account of the Share Proceeds Adjustment Amount equal
to the Share Proceeds Adjustment Amount calculated:
(A) as if the Registrable Securities had been
sold at the closing price per share (stated in
Canadian Dollars on the basis of the Exchange
Rate on the Business Day immediately preceding
the Agreed Date) of Xxxxx Corning Common Stock
at the close of business on the Business Day
immediately preceding the Agreed Date, and
(B) with an estimate of brokerage commissions
payable by the Vendor of Cdn.$32,008;
(ii) interest on Cdn.$29,000,000 at the Prime Rate
(determined on the Closing Date) from the Closing
Date to and including the Agreed Date; and
(iii) Cdn.$500,000.00 in consideration for the
accommodation made by the Vendor hereunder; and
(b) continue to use reasonable efforts to have the
registration statement contemplated by the Registration
Rights Agreement declared effective by the SEC as soon as
possible after the Agreed Date so that the Vendor shall
receive the Share Proceeds Amount by January 15, 1997; and
(c) cause the Purchaser to pay to the Vendor within 4
Business Days of the receipt of the Notice of Sale
Proceeds an amount equal to the amount, if any, by which
the Share Proceeds Adjustment Amount exceeds the Interim
Adjustment Amount.
(d) cause the Purchaser to pay to the Vendor within 4
Business Days of the receipt of the Notice of Sale
Proceeds an amount equal to the sum of
(i) interest on the difference between
Cdn.$29,000,000 and the Interim Adjustment Amount at
the Prime Rate (established on the Business Day
immediately preceding the Agreed Date) from the
Agreed Date to the date on which the Share Proceeds
Amount is received by the Vendor, and
(ii) interest on the amount, if any, by which the
Share Proceeds Adjustment Amount exceeds the Interim
Amount at the Prime Rate (established on the Business
Day immediately preceding the Agreed Date) from the
date on which the Share Proceeds Amount is received
by the Vendor to the Share Proceeds Adjustment Date.
3. In the event that any of the Registrable Securities
have not been sold in accordance with Section 2 of the
Registration Rights Agreement (other than as a result of a
breach by the Holder(s)) by January 15, 1997, then Xxxxx
Corning shall
(a) cause a Person which is not an Affiliate of Xxxxx
Corning (an "Unaffiliated Purchaser") to forthwith
purchase on commercially reasonable terms for its own
account, in cash in immediately available funds, any and
all of the Registrable Securities then remaining unsold;
and
(b) cause the Purchaser to pay to the Vendor the amounts
contemplated by Sections 2(c) and 2(d) hereof where the
aggregate net proceeds received by the Holder(s) from the
Unaffiliated Purchaser and from any sales of Registrable
Securities sold by the Holder(s) pursuant to Section 2 of
the Registration Rights Agreement (net of all brokerage
commissions) shall be deemed to be the Share Proceeds
Amount.
4. For greater certainty, for the purposes of Section
2(c) hereof, if the Interim Adjustment Amount is greater than
the Share Proceeds Adjustment Amount, the Vendor shall be
entitled to retain the entire Interim Adjustment Amount.
5. The provisions of the Purchase Agreement and the
Registration Rights Agreement are hereby amended to the extent
necessary to conform to the provisions hereof.
Please indicate your acceptance of the terms of this
letter by signing and returning the enclosed duplicate hereof.
Yours truly,
XXXXX CORNING
/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President & Treasurer
AGREED AND ACCEPTED this
12th day of December, 1996
OC CELFORTEC INC.
/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CELFORT CONSTRUCTION MATERIALS INC.
/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board
JANNOCK LIMITED
/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice-President
