Exhibit 2.3
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of April 1, 1998 (this
"Agreement"), among CORNING INCORPORATED, a New York corporation (the "Seller"),
and CORNING CONSUMER PRODUCTS COMPANY, a Delaware corporation (the "Company").
WHEREAS, the Seller, the Company, the Purchaser, and, for certain
limited purposes, Xxxxxx, Inc. have entered into a Recapitalization Agreement,
dated March 2, 1998 (the "Recapitalization Agreement"; capitalized terms used
and not defined herein are used herein as defined in the Recapitalization
Agreement), providing for the sale by the Seller to the Purchaser of certain
shares of the Company and the recapitalization of the Company, as a result of
which the Purchaser will own 92% of the outstanding common shares of the Company
and the Seller will own 8% of the outstanding common shares of the Company as of
the Closing; and
WHEREAS, the execution and delivery of this Agreement by the Seller
and the Company is a condition to the obligations of the Purchaser to consummate
the transactions contemplated by the Recapitalization Agreement;
WHEREAS, the Company has transferred any reserves for the
Pre-Closing Workers and Products Claims (as defined below) by book-entry to the
Seller;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Seller and the Company
hereby agree as follows:
1. The Seller hereby assumes and agrees to pay, perform and
discharge when due, and to indemnify the Company and each of its Affiliates
(including, but not limited to, Purchaser and the Subsidiaries) against and hold
each of them harmless from, all of the following debts, liabilities and
obligations of the Company and the Subsidiaries:
(i) those certain post-retirement medical and life insurance
liability obligations and pension liability obligations for certain
Acquired Employees (the "Post Retirement Medical and Pension Obligations")
described in Sections 6.02(a) and 6.02(c) of the Recapitalization
Agreement;
(ii) all liabilities of the Company and the Subsidiaries relating to
workers' compensation and product liabilities to the extent based on or
arising out of injuries, accidents or incidents the respective dates of
occurrence of which were prior to the date hereof (the "Pre-Closing
Workers and Products Claims").
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2. The Seller hereby assigns, transfers, conveys and delivers to the
Company, its successors and assigns free and clear of any claim, lien or
encumbrance, the entire right, title and interest of the Seller in and to:
(i) all emissions credits relating to the Business; and
(ii) the confidentiality agreements listed on Exhibit A hereto (the
"Confidentiality Agreements") between the Seller and Persons other than
the Purchaser that were entered into in connection with or relating to a
possible sale of the Business, including, without limitation, the right to
enforce all terms of such confidentiality agreements. Original copies of
the Confidentiality Agreements have been delivered to the Purchaser
simultaneously with the execution of this Agreement.
3. The Seller hereby assigns, transfers conveys and delivers to the
Company, its successors and assigns free and clear of any claim, lien or
encumbrance, the entire right, title and interest of the Seller in and to, and
the Company hereby assumes, agrees to pay, perform and discharge when due, and
to indemnify the Seller against and hold the Seller harmless in respect of, the
Facility Financing Interests, except for the 1988 Guaranty and the 1992
Guaranty.
4. Any notice, request or other document to be given hereunder to
either party hereto shall be given in accordance with Section 11.02 of the
Recapitalization Agreement.
5. This Agreement shall not be assigned by either party without the
express written consent of the other party; provided, however, that the Company
may assign this Agreement to an Affiliate of the Company without the consent of
the Seller.
6. This Agreement shall be governed by the laws of the State of New
York. All actions and proceedings arising out of or relating to the Agreement
shall be heard and determined in any New York state or federal court sitting in
The City of New York, and the parties hereto hereby consent to the jurisdiction
of such courts in any such action or proceeding.
7. This Agreement may not be amended, waived or otherwise modified
except by a written instrument signed by the Seller and the Company.
8. This Agreement may be executed in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written by their respective officers
thereunto duly authorized.
CORNING INCORPORATED
By
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Name:
Title:
CORNING CONSUMER PRODUCTS
COMPANY
By
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Name:
Title:
