Exhibit (4)
STANDSTILL AGREEMENT
STANDSTILL AGREEMENT dated as of January 30, 2001 (this
"Agreement") between Xxxxx Corning ("Xxxxx Corning") and Xxxxx-Xxxxxxx
Fiberglass Technology Inc. ("OC Technology").
PRELIMINARY STATEMENTS:
(1) Xxxxx Corning and OC Technology entered into a certain License Agreement,
dated as of October 1, 1991 (as subsequently amended, the "License Agreement").
(2) On October 5, 2000 (the "Petition Date"), Xxxxx Corning,
OC Technology and certain of their affiliates (collectively with Xxxxx Corning
and OC Technology, the "Debtors") each filed a voluntary petition for relief
under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code")
in the U.S. Bankruptcy Court for the District of Delaware (the "Court"). The
Debtors continue to operate their businesses and manage their properties as
debtors-in-possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
(3) In connection with certain agreements reached with Xxxxx
Corning's and OC Technology's pre-petition lenders, Xxxxx Corning and OC
Technology, among others, agreed to certain restrictions (the "Restrictions") on
cash transfers and other transactions among the Debtors and other affiliates
during the Debtors' chapter 11 cases (the "Cases").
(4) In connection with the Restrictions, Xxxxx Corning and OC
Technology now wish to agree that during the Standstill Period (defined below)
(i) in lieu of Xxxxx Corning making cash royalty payments due after the Petition
Date to OC Technology under the License Agreement, such obligations will accrue
as administrative claims under Sections 503(b) and 507(a)(1) of the Bankruptcy
Code and (ii) OC Technology will not exercise any remedies against Xxxxx Corning
under the License Agreement for such non-payments during the Standstill Period
in consideration of the undertakings set forth below.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
SECTION 1. Agreement to Standstill.
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(a) During the period (the "Standstill Period") from the date
hereof until the date of confirmation of a plan or plans of reorganization in
the Cases, (i) Xxxxx Corning shall not be required to make cash royalty payments
(the "Deferred Payments") due after the Petition Date to OC Technology at the
times specified under the License Agreement and such Deferred Payments shall
accrue as administrative claims under Sections 503(b) and 507(a)(1) of the
Bankruptcy Code and (ii) OC Technology will not exercise any enforcement right
or remedy under the License Agreement against Xxxxx Corning.
(b) Nothing set forth in this Agreement shall constitute a
waiver of the rights of OC Technology with respect to any claim against Xxxxx
Corning arising under the License Agreement.
SECTION 2. Bankruptcy Court Approval. Xxxxx Corning and OC
Technology hereby agree to use reasonable best efforts to obtain Court approval
of this Agreement.
SECTION 3. Termination of Standstill Agreement. Each of OC
Technology and Xxxxx Corning shall have the right to terminate the Standstill
Period upon (i) the giving of 30 days' notice to the other party; or (ii) upon
the entry of an order dismissing the Case of Xxxxx Corning or OC Technology or
converting such Case to a case under chapter 7 of the Bankruptcy Code.
SECTION 4. Amendments and Waivers. No amendment or waiver of
any provision of this Agreement, and no consent with respect to any departure by
any party hereto therefrom, shall be effective unless the same is in writing and
signed by each party hereto, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 5. Successors and Assigns. This Agreement shall
inure to the benefit of, and be binding upon, the parties hereto and their
respective successors and assigns.
SECTION 6. Notices. All notices, demands, requests,
instructions or other communications to be given under this Agreement by any
party to this Agreement to any other party to this Agreement shall be in writing
and shall be duly given (i) upon receipt if personally delivered, (ii) when sent
if confirmed by telecopier, or (iii) upon receipt following deposit with an
overnight courier to the respective addresses set forth below:
If to Xxxxx Corning, to:
Xxxxx Corning
Xxxxx Corning World Headquarters
Xxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxx, Xxxx 00000
Attn: General Counsel
Telecopier No.: (000) 000-0000
If to OC Technology, to:
Xxxxx-Xxxxxxx Fiberglass Technology Inc.
Xxxxx Corning World Headquarters
Xxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxx, Xxxx 00000
Attn: Secretary
Telecopier No.: (000) 000-0000
SECTION 12. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 13. Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective, duly authorized officers, as of
the date first above written.
XXXXX CORNING
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
XXXXX-XXXXXXX FIBERGLASS TECHNOLOGY INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary
