EXHIBIT 99.1
THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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:
In re: : Chapter 11
:
OWENS CORNING, et al., : Case No. 00-03837 (JKF)
:
Debtors. : Jointly Administered
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Proposed Emergency Hearing Date:
February 28, 2005 requested
Objection Date: TBD
Before the Honorable Judith K. Fitzgerald,
U.S. Bankruptcy Judge
DEBTORS' EMERGENCY MOTION FOR ENTRY OF INTERIM AND FINAL
ORDERS PURSUANT TO SECTIONS 105(a), 362(a)(3) AND 541 OF THE BANKRUPTCY
CODE (A) LIMITING CERTAIN TRANSFERS OF EQUITY SECURITIES OF
THE DEBTORS AND (B) APPROVING RELATED NOTICE PROCEDURES
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Owens Corning and its affiliated debtors and debtors in possession
(collectively, the "Debtors"), by and through their undersigned attorneys,
hereby move the Court (the "Motion") for the entry of interim and final orders
pursuant to Sections 105(a), 362(a)(3) and 541 of the Bankruptcy Code (A)
limiting certain transfers of equity securities of the Debtors and (B)
approving related notice procedures. In support of the Motion, the Debtors
respectfully state as follows:(1)
Jurisdiction
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1. This Court has jurisdiction over this Motion pursuant to 28 U.S.C.
ss.ss. 157 and 1334. This Motion is a core proceeding within the meaning of 28
U.S.C. ss. 157(b)(2).
2. Venue of this proceeding and the Motion is proper in this District
pursuant to 28 U.S.C. ss.ss. 1408 and 1409.
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(1) The facts and circumstances supporting this Motion are set forth in
the Affidavit of Joseph J. Mikelonis, attached hereto.
Background
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3. Owens Corning, together with its debtor and non-debtor affiliates
(collectively, the "Company"), is a world leader in the manufacture and sale of
building material systems and composites systems. The Company employs
approximately 18,000 persons worldwide and is headquartered in Toledo,
Ohio.
4. The Company produces and sells insulation, roofing systems,
exterior systems for the home and glass fiber materials used in composites. The
Debtors conduct their manufacturing, distribution and sales operations
primarily in the United States, but the Company has operations worldwide.
5. The Company has had net sales of over $5 billion per year for the
last four years. Excluding provisions for asbestos litigation claims, Owens
Corning has been profitable for years.
6. The Debtors commenced these Chapter 11 cases to protect the
Company's business and value for all of its constituents, and to resolve all
claims, including asbestos claims, asserted against it.
The Debtors' Tax Attributes
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7. The Debtors currently possess valuable tax attributes, including
net operating loss carryforwards ("NOLs") that may substantially exceed $130
million as of December 31, 2004 and certain unrealized built-in deductions in
excess of $1 billion, that are expected to be realized when the Debtors emerge
from Chapter 11 (these NOLs and built-in deductions are collectively referred
to herein as the "Tax Attributes").
8. The Tax Attributes are an extremely valuable asset of the Debtors'
estates because under the Internal Revenue Code (the "IRC"), the Tax Attributes
generally can be utilized to offset the Debtors' taxable income in the taxable
year in which they are realized, with any excess generally being carried
forward (and thus reducing the Debtors' future aggregate tax obligations) or
being carried back (and generating refunds of taxes paid in prior taxable
periods).(2) The Debtors believe the Tax Attributes will be a vital asset of
their reorganized business upon emergence from Chapter 11.
9. The tax savings generated by the Tax Attributes - and the
accompanying increase in the Debtors' cash flow while they are subject to
Chapter 11, as well as after they emerge from Chapter 11 - will greatly
facilitate the Debtors' successful reorganization. As one bankruptcy court has
recognized, "what is certain is that NOL has a potential value, as yet
undetermined, which will be of benefit to creditors and will assist [the
debtors] in their reorganization process. This asset is entitled to protection
while [the debtors] move forward toward reorganization." See In re Phar-Mor,
Inc., 152 B.R. 924, 927 (Bankr. N.D. Ohio 1993).
10. A corporation's ability to use its tax attributes is subject to
certain limitations under the IRC. One limitation is contained in 26 U.S.C.
ss. 382 ("Section 382"), which, for a corporation that undergoes an
"ownership change," limits that corporation's ability to use its tax
attributes to offset future income and, in certain circumstances, carry back
such tax attributes to offset taxable income in prior taxable periods. For
purposes of Section 382, an "ownership change" occurs if, immediately after a
"testing date," as measured during a rolling 3-year "testing period,"(3) the
percentage of the corporation's stock (measured by value) held by
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(2) See 26 U.S.C. ss. 172.
(3) Generally, a "testing date" occurs when there is a change in the
percentage of stock owned by a 5% shareholder before or after the
change or when certain options to purchase the stock of the
corporation are issued by the corporation. The "testing period"
generally consists of the 3-year period ending on the testing date.
certain significant shareholders (i.e., shareholders owning 5% or more)
increases by more than 50 percentage points.(4)
11. If an ownership change under Section 382 occurs, the corporation's
use of its tax attributes becomes subject to an annual limitation. The amount
of such annual limitation generally equals the value of the corporation's
equity on the change date multiplied by the "long-term tax-exempt rate," a rate
which is published monthly by the Internal Revenue Service and is 4.27% for
ownership changes occurring in February 2005.
12. In the case of the Debtors, their current market capitalization,
which is approximately $115 million as of February 23, 2005, would likely be
considered to be the value of the corporation for purposes of Section 382.
Using a long-term tax-exempt rate of 4.27%, if the Debtors experienced an
ownership change prior to emerging from Chapter 11, their ability to use their
Tax Attributes to offset future taxable income could be limited to
approximately $4.9 million per year and they would likely be unable to carry
back to prior taxable years (and receive a tax refund with respect to) certain
of such Tax Attributes after they are realized upon emergence.
13. Once all or part of a Tax Attribute is limited under Section 382,
its use is generally limited forever, and once an equity interest in a loss
corporation is transferred, the transfer cannot be nullified without court
action. Thus, unrestricted transfers of Owens Corning's equity securities prior
to emerging from Chapter 11 could hinder the Debtors' reorganization efforts by
limiting their ability to maximize the utilization of their Tax Attributes.
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(4) Under IRC Section 382(g)(4)(A), all stockholders who individually hold
less than 5% of the shares of stock of a company are generally deemed
to be a single 5% stockholder throughout the 3-year testing period,
and transfers between such stockholders are generally disregarded for
purposes of determining whether an "ownership change" has occurred
(the "Public Group Rule"). Thus, so long as more than half of the loss
corporation's stock continues to be owned by "old and cold" less than
5% stockholders throughout the 3-year testing period, there will be no
"ownership change" under Section 382.
14. Restricting the transfer of Owens Corning's equity securities is
particularly important in the Debtors' chapter 11 cases because certain
entities have recently acquired substantial ownership stakes in Owens Corning's
equity securities. If such acquisitions were allowed to continue prior to
emerging from Chapter 11, an "ownership change" of the Debtors could occur,
thereby significantly impairing the Debtors' ability to use their Tax
Attributes.
15. As a result of filings made with the Securities and Exchange
Commission, the Debtors are aware of at least two entities that have acquired
significant equity positions in Owens Corning within the applicable three-year
testing period. One entity (Harbert Distressed Investment Master Fund Ltd.)
acquired approximately 5.5 million shares of Owens Corning's common stock
(approximately 10% of the shares outstanding) in the period leading up to
December 3, 2004. Another entity (Lehman Brothers Holdings Inc.) acquired
approximately 3.9 million shares of Owens Corning's common stock (approximately
7% of the shares outstanding) in the same time period. The aggregate 17%
interest acquired by these two entities is treated under Section 382 as
contributing towards an ownership change of the Debtors.
16. This amount, when combined with other shifts in the ownership of
Owens Corning's common stock during the three year testing period aggregating
over 8 percentage points, lead the Debtors to conclude that there has already
been an increase in the ownership of its 5% shareholders of approximately 25
percentage points during the current three year testing period.
17. Because of the significant potential tax savings that could be
lost if an "ownership change" occurs, the further trading of equity securities
of Owens Corning must be restricted to avoid an ownership change and to
facilitate a successful restructuring.
Relief Requested
----------------
18. By this Motion, the Debtors request that this Court enter interim
and final orders establishing certain notice and waiting periods governing
transfers of equity securities of Owens Corning. Such provisions will provide
the Debtors with advance notice of transfers that may jeopardize their Tax
Attributes and will enable the Debtors, if necessary, to obtain substantive
relief from this Court. The limited relief requested in this Motion will enable
Debtors to monitor certain transfers of equity and ensure that the Debtors are
in a position to act expeditiously to prevent such transfers if necessary.
Specifically, the Debtors request that the Court enter the proposed interim and
final orders attached hereto, approving the procedures and restrictions
contained therein (the "Notice and Hearing Procedures").
19. The only restrictions sought by the Debtors are limitations upon
(i) acquisitions of equity securities of Owens Corning by persons or entities
who already hold 4.75% or more of Owens Corning's equity securities (each, a
"Substantial Equityholder"); (ii) acquisitions of equity securities of Owens
Corning by persons or entities who hold less than 4.75% of Owens Corning's
equity securities (including persons or entities that currently hold no equity
securities of Owens Corning) if such acquisitions would cause such persons or
entities to become Substantial Equityholders; and (iii) dispositions of equity
securities of Owens Corning by Substantial Equityholders. The use of a 4.75%
threshold (as opposed to a 5% threshold) is intended to provide the Debtors
with a "cushion" to allow for the inherent ambiguity and complexity of Section
382. Such a cushion is customary in orders such as those sought herein.
20. The restrictions sought by this Motion, which would not apply to
trading among virtually all "small" public shareholders, are limited and
minimal in nature and are consistent with the restrictions sought and granted
in many other cases (see discussion below).
Applicable Authority
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A. Tax Attributes are Property of a Debtor's Estate Entitled to Protection
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21. Courts have uniformly held that a debtor's Tax Attributes
constitute property of the estate under Section 541 of the Bankruptcy Code.
Courts also have uniformly held that they have the authority to impose measures
intended to protect and preserve a debtor's NOLs. The seminal case articulating
this rule is In re Prudential Lines, Inc., 107 B.R. 832 (Bankr. S.D.N.Y. 1989),
aff'd, 119 B.R. 430 (S.D.N.Y. 1990), aff'd, 928 F.2d 565 (2d Cir. 1991), cert.
denied 502 U.S. 821 (1991). In Prudential Lines, the Court enjoined a parent
corporation from taking a worthless stock deduction with respect to its equity
in a bankrupt wholly-owned subsidiary, on the grounds that allowing the parent
to take such a deduction would destroy its debtor-subsidiary's NOLs. In issuing
the injunction, the Court held that the "debtor's potential ability to utilize
NOLs is property of an estate," and that "the taking of a worthless stock
deduction is an exercise of control over a debtor's NOLs" that was properly
subject to the automatic stay. Prudential Lines, 107 B.R. 832, 838-42; see also
In re Southeast Banking Corp., Case No. 91-14561-BKC-PGH (Bankr. S.D. Fla.,
July 21, 1994) (debtors' interest in their NOLs "constitutes property of the
estate within the scope of [11 U.S.C. ss. 541(a)(1)] and is entitled to the
protection of the automatic stay"); In re Phar-Mor, Inc., 152 B.R. 924, 926
(Bankr. N.D. Ohio 1993) ("the sale of stock is prohibited by ss. 362(a)(3) as
an exercise of control over the NOL, which is property of the estate"); In re
Grossman's, Inc., Case No. 97-695 (PJW) (Bankr. D. Del. Oct. 9, 1997) (the
debtors' NOL is property of the debtors' estates and is protected by the
automatic stay).
22. Because the Debtors' Tax Attributes are property of their
estates, this Court has the authority under Section 362 of the Bankruptcy Code
to enforce the automatic stay by restricting the transfer of equity securities
of the Debtors, which could reduce the value of the Tax Attributes. Under
Section 382(h)(1)(B)(i) of the IRC, the built-in deductions of the Debtors
are "subject to limitation under [Section 382] in the same manner as if such
loss were [an NOL of the Debtor]." These built-in deductions are of the same
value, provide the same benefit and are subject to limitation in the same
manner as NOLs and thus the Debtors' potential ability to utilize such
deductions are property of the Debtors' estate just as the potential ability
to utilize NOLs are property of their estate.
B. Propriety of Relief Requested
-----------------------------
23. Courts have commonly restricted or enjoined transfers of claims or
equity securities or issued other injunctive relief in order to protect a
debtor against the possible loss of its NOLs; similarly, this Court should not
hesitate to protect the Debtors against the possible loss of their Tax
Attributes. See, e.g., In re Enron Corp., et al., Case No. 01-160-34 (ALT)
(Bankr. S.D.N.Y. April 25, 2003) (no person can acquire debtor stock if (i)
such person owns 4.75% of the debtors' stock before such acquisition or (ii)
would own 4.75% of the debtor's stock after such acquisition and is provided 20
days notice of any proposed transfer of stock by a 4.75% stockholder); In re
UAL Corp., et al., Case No. 02-B-48191 (ERW) (Bankr. N.D.Ill. February 24,
2003) (holders of substantial equity or claims interests must provide debtor
notice of such holdings and must provide debtor 15 days notice to object to any
proposed transfers or acquisitions of stock or claims that would increase the
transferee's holdings to or above approximately 4.5% of all shares or a
designated dollar threshold for claims); In re US Airways Group, Inc., et al.,
Case No. 02-83984 (SSM) (Bankr. E.D. Va. Oct. 2, 2002) (debtor provided 10 days
notice to object to proposed transfers of claims against the debtor that would
increase the transferee's holdings to or above $100 million in the aggregate
face amount; $100 million in claims was the lowest amount that could reasonably
be expected to lead to a distribution of 5% of the stock in the reorganized
debtor); In re Williams Comm. Group. Inc., Case No. 02-11957 (BRL) (Bankr.
S.D.N.Y. July 24, 2002) (debtor provided 30 days notice to object to proposed
transfers of claims against the debtor that would increase the transferee's
holdings to or above $200 million in the aggregate face amount; $200 million
in claims was the lowest amount that could reasonably be expected to lead to
a distribution of 5% of the stock in the reorganized debtor); In re
Metrocall, et al., Case No. 02-11579 (RB) (Bankr. D. Del. June 6, 2002)
(debtor provided 5 business days notice to object to proposed transfers of
stock that would result in the transferee holding 5% or more of the debtor's
stock or a reduction in the ownership interest of an existing 5% or greater
shareholder); In re Casual Male Corp., Case No. 01-41404 (REG) (Bankr.
S.D.N.Y. May 18, 2001) (enjoining transfers of common stock and convertible
notes that would result in the transferee's holdings increasing to or beyond
4.99%; debtor provided 30 days notice to object to proposed transfers of
senior subordinated notes or other general unsecured claims against the
debtor); In re Worldtex, Inc., Case No. 01-785 (MFW) (Bankr. D. Del. Apr. 2,
2001) (debtor provided 30 days notice to object to proposed transfers that
would result in the transferee holding 5% or more of the debtor's common
stock or decrease the ownership interest of an existing 5% or greater
shareholder); In re Reliance Acceptance Group Inc., Case No. 98-288 (PJW)
(Bankr. D. Del. Apr. 28, 1998) (debtor provided 30 days notice to object to
proposed transfers that would result in the transferee holding 5% or more of
debtor's common stock); In re First Merchants Acceptance Corp., 1998 Bankr.
LEXIS 1816 (Bankr. D. Del. 1998) (debtor provided 30 days notice to object to
proposed transfers of stock in the debtor that would increase the
transferee's holdings to or above 300,000 shares of the debtor's stock and to
any proposed transfers of 1995 subordinated reset notes or general unsecured
claims against the debtor); In re Grossman's, Inc., Case No. 97-695 (PJW)
(Bankr. D. Del. Oct. 9, 1997) (debtor provided 30 days notice to object to
proposed transfers of stock that would increase the transferee's holdings to
or above 1,350,000 shares of debtor's stock and to proposed transfers of
general unsecured claims that would increase the transferee's holdings to or
above an aggregate face amount of $3,500,000); In re Southeast Banking Corp.,
Case No. 91-14561-BKC-PGH (Bankr. S.D. Fla. July 21, 1994) (enjoining
5% trades of common stock); In re Phar-Mor, Inc., 152 B.R. 924 (Bankr. N.D.
Ohio 1993) (enjoining shareholders from selling stock in the debtor unless
they obtained relief from the automatic stay); In re McLean Indus. Inc., Case
Nos. 86-B-12238-12241 (Bankr. S.D.N.Y. Feb. 16, 1989) (requiring an
application to the court for authority to transfer any claims); In re W.R.
Grace & Co., et al., Case No. 01-01139 (JKF) (Bankr. D. Del. Jan. 24, 2005)
(requiring designated shareholders to provide debtors with notice prior to
purchasing or selling stock).
24. Courts ordering such relief generally have done so by imposing
notice and hearing requirements on any proposed transfer of stock or claims to
or by a person or entity whose holdings of such stock or claims exceeds, or
would exceed as a result of the proposed transfer, a certain threshold amount.
The order in UAL Corp, supra, was typical in this regard. There, the Court
entered an order imposing on any party a duty to provide notice to the Court
and to debtor's counsel if such party intended to (a) acquire, accumulate or
sell more than a prescribed number of shares of the debtor, or to add
additional shares to such a block, or (b) acquire or sell certain claims
against the debtors. The debtor then was afforded 15 days to object to such
transaction, at which point a hearing would be held so that the court could
decide whether to allow any such transfer to be consummated. See also In re
Williams Comm. Group. Inc., Case No. 02-11957 (BRL) (Bankr. S.D.N.Y. July 24,
2002) (claims trading restrictions applied to certain claimholders); In re
Worldtex, Inc., Case No. 01-785 (MFW) (Bankr. D. Del. Apr. 2, 2001) (stock
trading restrictions applied to persons who were, or would become as a result
of the proposed transfer, 5% stockholders).
C. The Relief Sought Is Narrow in Scope
------------------------------------
25. The requested relief has been narrowly tailored to apply only to
those persons or entities who own (or would be treated as owning as a result
of the proposed transfer) equity in Owens Corning representing 4.75% or more
of the equity securities of Owens Corning. As of the date hereof, the Debtors
are aware of only two persons whose holdings exceed this
threshold. The procedures requested by the Debtors would still permit most
transactions involving the acquisition or disposition of equity securities to
continue, subject only to Bankruptcy Rule 3001(e) and applicable securities,
corporate and other laws.(5)
26. Unlike a number of the orders described above, the Debtors are not
seeking to impose any notification procedures or restrictions upon holders of
claims against the Debtors or otherwise limit trading in such claims. Thus, the
Debtors' proposed procedures apply to a narrower group of persons and entities
than those approved in many other cases.
27. It is imperative that the Debtors closely scrutinize any
transactions that would increase the risk of an "ownership change" because a
substantial owner shift (an estimated 25%) has already occurred. The proposed
restrictions are crucial because once equity securities are transferred, the
transaction is unlikely to be reversible for tax purposes. Accordingly, once a
transfer acts to limit the Debtors' ability to use their Tax Attributes under
Section 382, such limitation may be permanent.
Request for Expedited Relief
----------------------------
28. The Debtors respectfully request that the Court shorten the
notice period with respect to this Motion, because such action is necessary
to protect a vital and endangered asset of their estates. As set forth above,
the Debtors currently possess significant and valuable tax attributes, the
benefit of which may be lost if prior to the effective date of the Debtors'
plan of reorganization there occurs an "ownership change" within the meaning
of Section 382.
29. The Debtors believe that, at present, and particularly due to
the recent trading activity in Owens Corning stock outlined above, they are
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(5) The Debtors do not seek to impose the requested notice and hearing
procedures on persons or entities holding less than 4.75% of Owens
Corning's equity securities so long as an acquisition or disposition
would not result in the ownership by any person or entity of 4.75% or
more of Owens Corning's equity securities.
vulnerable to experiencing an"ownership change" under Section 382 as
a result of trading in Owens Corning's equity. If an ownership change occurs,
the value of the Debtors' Tax Attributes will be significantly eroded.
30. The Debtors anticipate that entry of the proposed final order
attached hereto will eventually permit the Debtors and the Court to monitor
equity trading in a manner that ensures that assets of the Debtors' estates
will not be adversely affected. However, unless an expedited hearing is held on
the interim relief sought in this Motion, the Debtors are concerned that their
notice of this Motion may lead to a sudden increase in trading, which in turn
may cause an ownership change to occur before the requested relief can become
effective. Therefore, the Debtors believe that it is essential that an
expedited hearing be held on this motion and that the Court enter the proposed
interim order attached hereto.
31. The Debtors propose that the Court schedule the hearing on the
interim relief sought in this Motion at the next regularly scheduled omnibus
hearing on February 28, 2005 at 10:00 a.m. in Wilmington, Delaware. The Debtors
submit that it will be more efficient and economical to schedule the Motion for
February 28, 2005 since many parties have already planned to be present at the
omnibus hearing and, at this time, only a handful of items are expected to go
forward. Use of the February 28th hearing date would also avoid calendaring a
separate hearing date in Pittsburgh. This Court previously scheduled a similar
motion on such shortened notice. See W.R. Grace & Co., Inc., 01-01139 (JKF).
The Debtors propose that the hearing on the final relief sought be scheduled
for the April 25, 2005 omnibus hearing, so that all parties have a opportunity
to consider fully the final relief requested and raise any objections or
concerns with the Debtors and/or the Court.
32. Because the interim relief sought herein is temporary in nature,
and because all equity holders will have an opportunity to object to the
proposed interim order, no party-in-interest will be unduly prejudiced by
shortening notice.
No Prior Request
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33. No previous request for the relief sought herein has been made to
this or any other Court.
Conclusion
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34. The Debtors' Tax Attributes are valuable assets of their estates
that will facilitate the Debtors' reorganization and benefit all of their
stakeholders. If the Debtors are unable to monitor and object to the
above-referenced transfers, the Debtors' future use of their Tax Attributes may
be jeopardized. The Debtors have proposed notice and hearing procedures that
impose minimal burdens on affected entities to achieve a substantial benefit to
the Debtors' estates, and the Debtors believe that granting the relief
requested in this Motion is in the best interests of the Debtors' estates,
their creditors and other parties in interest.
Notice
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35. In accordance with Rule 2002-1(b) of the Local Rules of the
United States Bankruptcy Court for the District of Delaware and the Order
Clarifying Case Notice Procedures Pursuant to 11 U.S.C. ss.ss. 102 and 105;
Fed. R. Bankr. P. 2002(m) and 9007; and Local Rule 2002-1(b), signed May 16,
2001, (NIBS Docket No. 1838), notice of this Motion has been given (A) by
email, hand-delivery and/or overnight delivery and first-class United States
mail, to: (i) the Office of the United States Trustee; (ii) counsel for the
Creditors' Committee; (iii) counsel for the Asbestos Committee; (iv) the
Office of the United States Attorney for the District of Delaware; (v) Bank
of America, N.A., as the Debtors' Post-Petition Lender; (vi) Credit Suisse
First Boston, as agent with respect to that $2.0 billion Credit Agreement
dated June 26, 1997; (vii) special counsel to the Creditors' Committee;
(viii) the Futures Representative and his counsel; and (ix) all known
Substantial Equityholders; and (B) by first-class United States mail, to
those parties who have requested service of all motions and pleadings
pursuant to Bankruptcy Rule 2002. The proposed interim order attached hereto,
if entered by the Court, provides for additional notice to be given to
shareholders of Owens Corning.
WHEREFORE, the Debtors respectfully request that the Court
enter interim and final orders, substantially in the forms attached hereto,
approving the relief requested herein on an interim and final basis, and
granting such other and further relief as is just and proper.
Dated: February 23, 2005
SAUL EWING LLP
By: /s/ Kate Stickles
----------------------------------------
Norman L. Pernick (No. 2290)
J. Kate Stickles (No. 2917)
222 Delaware Avenue
P.O. Box 1266
Wilmington, Delaware 19899-1266
(302) 421-6800
and
Adam H. Isenberg
Centre Square West
1500 Market Street, 38th Floor
Philadelphia, PA 19102
(215) 972-8662
Counsel to Owens Corning, et al.
and
Stuart M. Finkelstein
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036-6522
(215) 735-2841
Special Counsel to Owens Corning, et al.
THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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:
In re: : Chapter 11
:
OWENS CORNING, et al., : Case No. 00-03837 (JKF)
:
Debtors. : Jointly Administered
- -----------------------------------:
Related to: ______
Hearing Date: ___________, 2005
Agenda Item: ____
INTERIM ORDER PURSUANT TO SECTIONS 105(a), 362(a)(3)
AND 541 OF THE BANKRUPTCY CODE (A) LIMITING CERTAIN
TRANSFERS OF EQUITY SECURITIES OF THE DEBTORS
AND (B) APPROVING RELATED NOTICE PROCEDURES
-------------------------------------------
Upon the emergency motion (the "Motion")(1) of the above-captioned
debtors and debtors in possession (the "Debtors") seeking entry of interim and
final orders pursuant to sections 105(a), 362(a)(3) and 541 of the Bankruptcy
Code (A) limiting certain transfers of equity securities of the Debtors and (B)
approving related notice procedures; and it appearing that this Court has
jurisdiction over this matter pursuant to 28 U.S.C. ss.ss. 157 and 1334; and it
appearing that this proceeding is a core proceeding within the meaning of 28
U.S.C. ss. 157(b)(2); and it appearing that venue is proper in this District
pursuant to 28 U.S.C. ss.ss. 1408 and 1409; and it appearing that good and
sufficient notice of the Motion having been given and that no other or further
notice of the Motion need be provided; and after due deliberation and
sufficient cause appearing therefore,
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(1) Unless otherwise defined herein, all capitalized terms used herein
shall have the meanings set forth in the Debtors' Emergency Motion For
Entry of Interim and Final Orders Pursuant to Sections 105(a),
362(a)(3) and 541 of the Bankruptcy Code (A) Limiting Certain
Transfers of Equity Interests of the Debtors and (B) Approving Related
Notice Procedures.
IT IS HEREBY ORDERED THAT:
1. The Motion is granted to the extent set forth in this Interim Order
(the "Order").
2. Any purchase, sale or other transfer of equity securities of Owens
Corning in violation of the restrictions or the procedures set forth herein
(including the notice requirements set forth in P. P. 3(C) or 3(D)) shall be
null and void ab initio as an act in violation of this Order and shall confer
no rights on the transferee.
3. The following procedures and restrictions shall apply to trading in
the equity securities of Owens Corning:
A. Notice of Substantial Equityholder Status. Any person or
entity who currently or in the future Beneficially Owns (as defined in
paragraph (B) below) at least 4.75% of the outstanding equity securities of
Owens Corning (a "Substantial Equityholder") shall file with the Court and
serve upon the Debtors and the Debtors' counsel a notice of such status in the
form attached hereto as 3 on or before the date that is the later of:
(A) March 21, 2005 or (B) ten (10) calendar days after such person or entity
becomes a Substantial Equityholder.
B. Beneficial Ownership. "Beneficial Ownership" of "equity
securities" shall be defined consistent with the applicable definitions found
in Section 382 of the Internal Revenue Code (the "IRC") and the Treasury
Regulations thereunder (including attribution rules). In particular, Beneficial
Ownership of equity securities shall include (but shall not be limited to):
i. direct and indirect ownership by a holder (e.g., an
individual shareholder of a holding company would he
considered to "beneficially own" a proportionate share
of all interests, as the case may be, owned or
acquired by the holding company, its subsidiaries
and/or affiliates);
ii. ownership of a participation interest in a pass-through
or grantor trust, with any such participant being
considered to beneficially own a ratable share of all
interests owned or acquired by such pass-through entity
or such trust or its trustee;
iii. ownership by a holder's family members;
iv. ownership by persons or entities acting in concert with
a holder to make a coordinated acquisition;
v. ownership of an interest that such holder has a right to
acquire through the ownership of an option, a contingent
purchase right, a warrant, convertible debt or equity, a
put, a call, an equity security subject to risk of
forfeiture, a contract to acquire an interest, or a similar
interest (including those interests described in Treasury
Regulation ss. 1.382-4(d)(9)), regardless of whether such
interest or right to acquire is contingent or otherwise not
currently exercisable (each such right or interest to
acquire, an "Option"); and
vi. ownership by a trust qualified under Section 401(a) of the
IRC.
For purposes of this Order, "equity securities" shall not
include any instrument or obligation (other than an
instrument or obligation that, pursuant to its terms, is
convertible into stock of Owens Corning) that when issued
or incurred, as the case may be, constituted debt for all
federal income tax purposes.
C. Acquisition of Equity Securities. Prior to effecting any
acquisition of Owens Corning's equity securities (including the acquisition of
Options to acquire Owens Corning 's equity securities) that would result in an
increase in the amount of Owens Corning's equity securities Beneficially Owned
by a Substantial Equityholder or would result in a person or entity becoming a
Substantial Equityholder (a "Proposed Equity Acquisition Transaction"), such
person, entity or Substantial Equityholder (a "Proposed Equity Transferee")
shall file with the Court and serve on the Debtors' counsel a Notice of Intent
to Purchase, Acquire or Otherwise Accumulate an Equity Security (an "Equity
Acquisition Notice"), in the form attached hereto as Exhibit 1B, specifically
and in detail describing the intended transaction acquiring Owens Corning 's
equity securities.
D. Disposition of Equity Securities. Prior to effecting any
disposition of Owens Corning 's equity securities (including the disposition of
Options to acquire Owens Corning 's equity securities) that would result in a
decrease in the amount of Owens Corning's equity securities Beneficially Owned
by a Substantial Equityholder or that would result in a person or entity
ceasing to be a Substantial Equityholder (a "Proposed Equity Disposition
Transaction"), such person, entity or Substantial Equityholder (a "Proposed
Equity Transferor") shall file with the Court and serve on the Debtors' counsel
a Notice of Intent to Sell, Trade or Otherwise Transfer an Equity Security (an
"Equity Disposition Notice"), in the form attached hereto as Exhibit 1C,
specifically and in detail describing the intended transaction disposing of
Owens Corning's equity securities.
E. Objection Procedures. No later than the date that is fifteen
(15) calendar days after the Debtors' actual receipt of an Equity
Acquisition Notice or Equity Disposition Notice (the "Objection Deadline"),
the Debtors may file with the Court and serve on a Proposed Equity Transferor
or Proposed Equity Transferee, as appropriate, an objection (an "Objection")
to any proposed transfer of Owens Corning's equity securities on the grounds
that such transfer poses a material risk of adversely affecting the Debtors'
ability to utilize any of their Tax Attributes as a result of an ownership
change under Section 382 or Section 383 of the Internal Revenue Code.
i. If the Debtors timely file an Objection by the Objection
Deadline, the Proposed Equity Acquisition Transaction
and/or Proposed Equity Disposition Transaction, as
applicable, shall not be effective unless approved by an
order of this Court, after notice and a hearing and such
time as such order is not subject to appeal, stay,
modification, or reconsideration.
ii. If the Debtors do not timely file an Objection by the
Objection Deadline, or if the Debtors provide written
notice to the Proposed Equity Transferor or Proposed Equity
Transferee, as appropriate, that they do not object to such
transaction prior to the expiration of the 15-day notice
period, then the Proposed Equity Acquisition Transaction
and/or Proposed Equity Disposition Transaction may proceed
only as specifically described in an Equity Acquisition
Notice or Equity Disposition Notice, as applicable.
4. Special Rules
A. Agents, Brokers, Custodians, Nominees. Clearinghouses and
Trustees. Sales, acquisitions or other transfers of equity securities of Owens
Corning by a person or entity acting as a broker, agent, custodian, nominee,
prime broker, clearinghouse or trustee on behalf of another person or entity
shall not be subject to this Order with respect to that particular sale,
acquisition or other transfer; provided, however, that a trustee of a trust
qualified under Section 401(a) of the IRC, and the customer or principal of
such agent, broker, custodian, nominee, prime broker, clearinghouse or trustee,
shall not be excluded from this Order by reason of this paragraph.
B. Account Managers. Sales, acquisitions or other transfers of
equity securities of Owens Corning by a person or entity acting as a
discretionary account manager or manager for one or more accounts, customers,
regulated investment companies or mutual funds shall not be subject to this
Order with respect to that particular sale, acquisition or other transfer;
provided, however, that each of an account manager's individual customers,
individual account holders, individual regulated investment companies or
individual mutual funds shall not be excluded from this Order by reason of this
paragraph (although such account manager shall not have any affirmative duty to
inquire whether its customer or account holder shall be subject to this Order).
C. Money Loans. A person or entity's use of equity securities of
Owens Corning as collateral for a money loan shall not cause such person or
entity to be subject to this Order with respect to such money loan; provided,
however, that any transfer of collateral pursuant to the collection of such
money loan shall not be excluded from this Order solely by reason of this
paragraph.
D. Riskless Principals. Market trades in equity securities of Owens
Corning in which a person or entity acts as a "riskless principal" between
customers by buying and selling the same aggregate amounts on the same trade
date for effect on the same settlement date shall not be subject to this Order
with respect to such trades; provided, however, that such trades shall not he
excluded from this Order with respect to such customers solely by reason of
this paragraph.
E. Day Trading. "Day trading" market purchases and sales of equity
securities of Owens Corning by a person or entity that net to zero at the end
of each day (and that settle on the same day) shall not be subject to this
Order with respect to such purchases and sales.
F. Derivatives. Trading by a person or entity in its capacity as a
dealer in derivative contracts in respect of derivatives on equity securities
of Owens Corning shall not be subject to this Order with respect to such
trades, so long as (i) those derivative contracts provide for cash settlement
only and are in fact so cash settled and (ii) such person or entity undertakes
to maintain its books of derivative contracts on such equity securities
(including for this purpose cash short sales and cash long positions currently
owned by such person or entity that are from time to time designated as
appertaining to those derivative books) in approximately the same net long or
short position as was the case on February 23, 2005; provided that nothing
herein shall cause the actual acquisition or disposition of equity securities
not to be subject to this Order, even if such actual acquisition or disposition
is in connection with or related to a derivatives contract. Nothing in this
Order shall limit the scope of Sections 362, 546, 548, 555, 556, 559 and 560 of
the Bankruptcy Code with respect to the financial and related contracts and
agreements referenced therein.
G. Short Sales. The borrowing of equity securities of Owens Corning
for the purpose of effecting short sales or for on-lending, whether for the
borrower's own account or for a customer account, shall not be subject to this
Order so long as such borrowing does not occur prior to the day when such
equity securities are used to complete and settle the short sale or on-lending;
provided that the initial lender of such shares or the purchaser of such shares
shall not be excluded from this Order solely by reason of this paragraph. The
closing and settlement upon unwinding of such short sale by the short-seller
shall also not be subject to this Order, so long as the equity securities of
Owens Corning used to close such short sale are acquired on the date such
equity are returned to the lender.
H. Waiver of Restrictions. The Debtors shall be permitted to waive
any restrictions, limitations or notice requirements imposed by this Order;
provided, however, that any such waiver shall be filed with this Court.
5. Other Notice Procedures
A. Service of Procedures Notice. Following entry of this Order, the
Debtors shall deliver a copy of the Notice of (A) Notification Procedures
Applicable to Substantial Holders of Equity Securities and (B) Notification and
Hearing Procedures for the Trading in Equity Securities (the "Notice of
Notification Procedures") (a copy of which is attached hereto as Exhibit 2) to
the entities listed below. The Notice of Notification Procedures shall inform
all recipients thereof how to obtain copies of these notice procedures and the
relevant notices described herein.
i. the Office of the United States Trustee;
ii. any official statutory committee appointed in these Chapter
11 Cases;
iii. counsel for the Debtors' debtor-in-possession lenders;
iv. the transfer agents for all classes of equity securities of
the Debtors; and
v. all entities who file notices of appearance and request
service of papers pursuant to Bankruptcy Rule 2002.
B. The Debtors shall also deliver the Notice of Notification
Procedures to any and all registered holders of equity securities of Owens
Corning.
i. Any such registered holder shall, in turn, deliver a copy
of the Notice of Notification Procedures to any holder for
whose account such registered holder holds such equity
securities, and so on down the chain of ownership.
ii. Any person or entity in its individual capacity (a
"Prospective Seller"), and any broker or agent acting on
behalf of a Prospective Seller, who contemplates selling 1%
or more of Owens Corning's equity securities to another
person or entity (a "Prospective Purchaser") must provide a
copy of the Notice of Notification Procedures to each
Prospective Purchaser or any broker or agent acting on
behalf of a Prospective Purchaser.
C. The Debtors shall publish the Notice of Notification Procedures
in the domestic editions of the Wall Street Journal, USA Today and the Toledo
Blade.
6. The requirements set forth in this Order are in addition to the
requirements of Federal Rule of Bankruptcy Procedure 3001(e) and applicable
securities, corporate and other laws, and do not excuse compliance therewith.
7. This Court retains jurisdiction with respect to all matters arising
from or related to the implementation of this Order.
8. Notwithstanding the possible applicability of Bankruptcy Rules
6004(g), 7062, or 9014, the terms, conditions and notification procedures of
this Order shall be effective as of the date this Order is entered; provided,
however, that any transaction permissible without notice under this Order shall
be deemed to be in compliance with this Order.
9. Nothing in this Order is intended to have any precedential effect
in any other proceeding involving a Debtor or a Substantial Equityholder and
shall not be used as either res judicata or collateral estoppel, or otherwise
have precedential effect, in any such other proceeding.
10. Except for those persons or entities that are required to provide
notice pursuant to Paragraphs 3 of this Order, no person or entity shall be
liable for any damages or losses resulting from or caused by a violation of
this Order.
11. Parties in interest that oppose the interim relief granted in this
Order becoming final, and the entry of a final order granting the relief sought
in the Motion, must file an objection with this Court and serve such objection
on Debtors' counsel on or before ______________, 2005 at 4:00 p.m. prevailing
Eastern time. If objections are filed, they will be heard on _________________,
2005 at ________ at the United States Bankruptcy Court in Wilmington, Delaware.
If no objections are timely filed, the Court may enter a final order granting
the relief sought in the Motion without further notice or hearing.
12. This Order shall not apply after the effective date of the
Debtors' plan of reorganization.
13. All time periods set forth in this Order shall be calculated in
accordance with Bankruptcy Rule 9006(a).
Dated: _______________, 2005
----------------------------------
The Honorable Judith K. Fitzgerald
United States Bankruptcy Judge
Exhibit 1A
THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- -----------------------------------
:
In re: : Chapter 11
:
OWENS CORNING, et al., : Case No. 00-03837 (JKF)
:
Debtors. : Jointly Administered
- -----------------------------------:
NOTICE OF STATUS AS A SUBSTANTIAL EQUITYHOLDER(1)
----------------------------------------------
PLEASE TAKE NOTICE that [name of equityholder] is/has become a
Substantial Equityholder with respect to the equity securities (the "Equity
Securities") of Owens Corning, a debtor and debtor in possession in Case No.
00-03837, pending in the United States Bankruptcy Court for the District of
Delaware (the "Court").
PLEASE TAKE FURTHER NOTICE that, as of [date], [name of equityholder]
Beneficially Owns [___] shares of the Equity Securities of Owens Corning. The
following table sets forth the date(s) on which [name of equityholder] acquired
or otherwise became the Beneficial Owner of such Equity Securities:
- --------------------------------------------------------------------------------
Number of Shares Type of Equity Security Date Acquired
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Attach additional page if necessary)
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of
[name of equityholder] is __________________.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, [name of
equityholder] hereby declares that it has examined this Notice and accompanying
attachments (if any) and, to the best of its knowledge and belief, this Notice
and any attachments that purport to he part of this Notice are true, correct
and complete.
- --------------------
(1) For purposes of this Notice, all capitalized terms not defined herein
shall have the same meaning as is set forth in the Interim Order of
this Court, entered [___________, 2005], Limiting Certain Transfers of
Equity Securities of the Debtors and Approving Related Notice Procedures.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order of this
Court, entered on [____________, 2005], Limiting Certain Transfers of Equity
Securities of the Debtors and Approving Related Notice Procedures, this Notice
is being (A) filed with the Court, 824 Market Street, 3rd Floor, Wilmington DE
19801, (B) served upon Saul Ewing LLP, 222 Delaware Avenue, P.O. Box 1266,
Wilmington, DE 19899, attn. Norman L. Pernick, Esq. and upon Saul Ewing LLP,
Centre Square West, 1500 Market Street, 38th Floor, Philadelphia, PA 19102,
attn. Adam H. Isenberg, Esq.; (C) served upon Skadden, Arps, Slate, Meagher &
Flom LLP, Four Times Square, New York, NY 10036-6522, attn. Stuart M.
Finkelstein, Esq.; and (D) served upon Owens Corning, One Owens Corning
Parkway, Toledo, Ohio 43659, attn. General Counsel.
Dated:
[city, state]
Respectfully submitted,
[Name of Acquirer/Seller] [Address]
[telephone and facsimile]
Exhibit 1B
THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- -----------------------------------
:
In re: : Chapter 11
:
OWENS CORNING, et al., : Case No. 00-03837 (JKF)
:
Debtors. : Jointly Administered
- -----------------------------------:
NOTICE OF INTENT TO PURCHASE, ACQUIRE
OR OTHERWISE ACCUMULATE EQUITY SECURITIES
-----------------------------------------
PLEASE TAKE NOTICE that [name of prospective acquirer] hereby provides
notice of its intention to purchase, acquire or otherwise accumulate one or
more shares of the equity securities (the "Equity Securities") of Owens Corning
or an Option with respect thereto (the "Proposed Transfer").
PLEASE TAKE FURTHER NOTICE that, if applicable, on [prior date(s)],
[name of prospective acquirer] filed a Notice of Status as a Substantial
Equityholder(1) with the United States Bankruptcy Court for the District of
Delaware (the "Court") and served copies thereof on the Debtors' counsel.
PLEASE TAKE FURTHER NOTICE that [name of prospective acquirer]
currently Beneficially Owns _________ shares of the Equity Securities of Owens
Corning.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Proposed Transfer,
[name of prospective acquirer] proposes to purchase, acquire or otherwise
accumulate [_____] shares of Equity Securities or an Option with respect to
[_____] shares of Equity Securities. If the Proposed Transfer is permitted to
occur, [name of prospective acquirer] will Beneficially Own [____________]
shares of Equity Securities after the transfer.
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of
[name of prospective acquirer] is ___________________________________.
- -------------------
(1) For purposes of this Notice, all capitalized terms not defined herein
shall have the same meaning as is set forth in the Interim Order of
this Court, entered [_______________, 2005], Limiting Certain
Transfers of Equity Securities of the Debtors and Approving Related
Notice Procedures.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, [name of
prospective acquirer] hereby declares it has examined this Notice and
accompanying attachments (if any), and, to the best of its knowledge and
belief, this Notice and any attachments that purport to be part of this Notice
are true, correct and complete.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order of this
Court, entered on [_________, 2005], Limiting Certain Transfers of Equity
Securities of the Debtors and Approving Related Notice Procedures, this Notice
is being (A) filed with the Court, (B) served upon Saul Ewing LLP, 222 Delaware
Avenue, P.O. Box 1266, Wilmington, DE 19899, attn. Norman L. Pernick, Esq. and
upon Saul Ewing LLP, Centre Square West, 1500 Market Street, 38th Floor,
Philadelphia, PA 19102, attn. Adam H. Isenberg, Esq.; (C) served upon Skadden,
Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036-6522,
attn. Stuart M. Finkelstein, Esq.; and (D) served upon Owens Corning, One Owens
Corning Parkway, Toledo, Ohio 43659, attn. General Counsel.
PLEASE TAKE FURTHER NOTICE that the Debtors have fifteen (15) calendar
days after receipt of this Notice to object to the Proposed Transfer described
herein. If the Debtors timely file an objection, such Proposed Transfer will
not be effective unless approved by an order of the Court, after notice and an
opportunity for a hearing, and such time as such order is not subject to
appeal, modification, stay, or reconsideration. If the Debtors do not object
within such fifteen (15) day period, then after expiration of such period the
Proposed Transfer may proceed specifically as set forth in this Notice;
provided, however, that if, prior to the expiration of the foregoing fifteen
(15) day notice period, the Debtors provide written notice that they do not
object to the Proposed Transfer, the Proposed Transfer may proceed as
specifically as set forth in this Notice.
The undersigned prospective acquirer understands that any further
transactions that may result in [name of prospective acquirer] purchasing,
acquiring or otherwise accumulating additional shares of Equity Securities (or
an Option with respect thereto) will each require an additional notice filed
with the Court to be served in the same manner as this Notice.
Dated:
[city, state]
Respectfully submitted,
[Name of Acquirer/Seller] [Address]
[telephone and facsimile]
Exhibit 1C
THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- -----------------------------------
:
In re: : Chapter 11
:
OWENS CORNING, et al., : Case No. 00-03837 (JKF)
:
Debtors. : Jointly Administered
- -----------------------------------:
NOTICE OF INTENT TO SELL, TRADE OR OTHERWISE
TRANSFER EQUITY SECURITIES
--------------------------
PLEASE TAKE NOTICE that [name of prospective seller] hereby provides
notice of its intention to sell, trade or otherwise transfer one or more shares
of the equity securities (the "Equity Securities") of Owens Corning or an
Option with respect thereto (the "Proposed Transfer").
PLEASE TAKE FURTHER NOTICE that, if applicable, on [prior date(s)],
[name of prospective seller] filed a Notice of Status as a Substantial
Equityholder(1) with the United States Bankruptcy Court for the District of
Delaware (the "Court") and served copies thereof on the Debtors' counsel.
PLEASE TAKE FURTHER NOTICE that [name of prospective seller] currently
Beneficially Owns __________ shares of Equity Securities of Owens Corning.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Proposed Transfer,
[name of prospective seller] proposes to sell, trade or otherwise transfer
_______ shares of Equity Securities or an Option with respect to ______ shares
of Equity Securities. If the Proposed Transfer is permitted to occur, [name of
prospective seller] will Beneficially Own ______ shares of Equity Securities
after the transfer.
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of
[name of prospective acquirer] is ___________________.
- --------------------
(1) For purposes of this Notice, all capitalized terms not defined herein
shall have the same meaning as is set forth in the Interim Order of
this Court, entered [__________, 2005], Limiting Certain Transfers of
Equity Securities of the Debtors and Approving Related Notice Procedures.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, [name of
prospective seller] hereby declares that it has examined this Notice and
accompanying attachments (if any) and, to the best of its knowledge and belief,
this Notice and any attachments that purport to be part of this Notice are
true, correct and complete.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order of this
Court, entered on [_________, 2005], Limiting Certain Transfers of Equity
Securities of' the Debtors and Approving Related Notice Procedures, this Notice
is being (A) filed with the Court, (B) served upon Saul Ewing LLP, 222 Delaware
Avenue, P.O. Box 1266, Wilmington, DE 19899, attn.: Norman L. Pernick, Esq. and
upon Saul Ewing LLP, Centre Square West, 1500 Market Street, 38th Floor,
Philadelphia, PA 19102, attn. Adam H. Isenberg, Esq., (C) served upon Skadden,
Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036-6522,
attn.: Stuart M. Finklestein, Esq.; and (D) served upon Owens Corning, One
Owens Corning Parkway, Toledo, Ohio 43659, attn. General Counsel.
PLEASE TAKE FURTHER NOTICE that the Debtors have fifteen (15) calendar
days after receipt of this Notice to object to the Proposed Transfer described
herein. If the Debtors timely file an objection, such Proposed Transfer will
not be effective unless approved by an Order of the Court, after notice and a
hearing and such time as such Order is not subject to appeal, modification,
stay, or reconsideration. If the Debtors do not object within such fifteen (15)
day period, then after expiration of such period, the Proposed Transfer may
proceed specifically as set forth in this Notice; provided, however, that if,
prior to the expiration of the foregoing fifteen (15) day notice period, the
Debtors provide written notice that they do not object to the Proposed
Transfer, the Proposed Transfer may proceed as specifically as set forth in
this Notice.
[Name of prospective seller] understands that any further transactions
that may result in [name of prospective seller] selling, trading or otherwise
transferring shares of Equity Securities (or an Option with respect thereto)
will each require an additional notice filed with the Court to be served in the
same manner as this Notice.
Dated:
[city, state]
Respectfully submitted,
[Name of Acquirer/Seller] [Address]
[telephone and facsimile]
Exhibit 2
THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- -----------------------------------
:
In re: : Chapter 11
:
OWENS CORNING, et al., : Case No. 00-03837 (JKF)
:
Debtors. : Jointly Administered
- -----------------------------------:
NOTICE OF (A) NOTIFICATION PROCEDURES APPLICABLE
TO SUBSTANTIAL HOLDERS OF EQUITY SECURITIES
AND (B) NOTIFICATION AND HEARING
PROCEDURES FOR TRADING IN EQUITY SECURITIES
-------------------------------------------
TO ALL PERSONS OR ENTITIES WITH EQUITY INTERESTS IN OWENS CORNING:
PLEASE TAKE NOTICE that on October 5, 2000 (the "Petition Date"),
Owens Corning, together with certain of its subsidiaries and affiliates
(collectively, the "Debtors"), commenced cases under Chapter 11 of Title 11 of
the United States Code as amended from time to time (the "Bankruptcy Code").
PLEASE TAKE FURTHER NOTICE that on [_________, 2005], the United
States Bankruptcy Court for the District of Delaware (the "Court") entered an
interim order (the "Interim Order") imposing certain transfer restrictions on
equity securities of Owens Corning and approving the procedures set forth in
the Interim Order (the "Notice Procedures") to preserve the certain tax
attributes of the Debtors.
As further specified in the Interim Order, the Interim Order imposes
limitations upon (i) acquisitions of equity securities of Owens Corning by
persons or entities who already hold 4.75% or more of Owens Corning's equity
securities; (ii) acquisitions of equity securities of Owens Corning by persons
or entities who hold less than 4.75% of Owens Corning's equity securities if
such acquisitions would cause such persons or entities to hold 4.75% or more of
Owens Corning equity securities; and (iii) disposition of equity securities of
Owens Corning by persons or entities who hold 4.75% or more of Owens Corning's
equity securities. Any acquisition, sale or other transfer of equity securities
of Owens Corning in violation of the Interim Order or the Notice Procedures
shall be null and void ab initio and shall confer no rights on the transferee.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order, the
Notice Procedures shall apply to holding, acquiring and disposing, and any
other transfers of EQUITY SECURITIES IN OWENS CORNING.
PLEASE TAKE FURTHER NOTICE that any person or entity may obtain a copy
of the Interim Order, the Notice Procedures and the forms of each of the
required notices described therein by:
1. Obtaining a copy of such documents from the website www.ocplan.com.
2. Contacting Saul Ewing LLP, counsel to the Debtors, 222 Delaware
Avenue, P.O. Box 1266, Wilmington, DE 19899, attn. Pauline Z. Ratkowiak,
Paralegal, 302-421-6861, pratkowiak@saul.com.
3. Contacting Digital Legal Services, L.L.C., at the following
address: DIGITAL LEGAL SERVICES, L.L.C., 1001 Jefferson Plaza, Suite 100,
Wilmington, DE 19801 (302) 888-2060.
Such documents also may be viewed at the Office of the Clerk, United States
Bankruptcy Court for the District of Delaware, 824 Market Street, 3rd Floor,
Wilmington, Delaware 19801, 302-252-2900, Monday through Friday during the
hours of 8:00 a.m. to 4:00 p.m., excluding Federal Holidays.
PLEASE TAKE FURTHER NOTICE that the requirements set forth in this
Notice are in addition to the requirements of Rule 3001(e) of the Federal Rules
of Bankruptcy Procedure and applicable securities, corporate and other laws,
and do not excuse compliance therewith.
PLEASE TAKE FURTHER NOTICE that parties-in-interest that oppose the
relief granted in the Interim Order becoming final must file an objection with
the Court and serve such objection on counsel to the Debtors on or before
_______________, 2005, at 4:00 p.m. prevailing Eastern time. If objections are
filed, they will be heard on ____________, 2005, at ______ [a.m/p.m.] at the
United States Bankruptcy Court in ________________. If no objections are timely
filed, the Court may enter an order making the relief granted in the Interim
Order final, without further notice or hearing.
Dated: [city]
________, 2005 OWENS CORNING, et al.
By: Saul Ewing LLP
222 Delaware Avenue
P.O. Box 1266
Wilmington, DE 19899-1266
Counsel for the Debtors
and Debtors in Possession
THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- -----------------------------------
:
In re: : Chapter 11
:
OWENS CORNING, et al., : Case No. 00-03837 (JKF)
:
Debtors. : Jointly Administered
- -----------------------------------:
Related to: ______
Hearing Date: ___________, 2005
Agenda Item: ____
FINAL ORDER PURSUANT TO SECTIONS 105(a), 362(a)(3)
AND 541 OF THE BANKRUPTCY CODE (A) LIMITING CERTAIN
TRANSFERS OF EQUITY SECURITIES OF THE DEBTORS
AND (B) APPROVING RELATED NOTICE PROCEDURES
-------------------------------------------
Upon the emergency motion (the "Motion")(1) of the above-captioned
debtors and debtors in possession (the "Debtors") seeking entry of interim and
final orders pursuant to Sections 105(a), 362(a)(3) and 541 of the Bankruptcy
Code (A) limiting certain transfers of equity securities of the Debtors and (B)
approving related notice procedures; and it appearing that this Court has
jurisdiction over this matter pursuant to 28 U.S.C. ss.ss. 157 and 1334; and it
appearing that this proceeding is a core proceeding within the meaning of 28
U.S.C. ss. 157(b)(2); and it appearing that venue is proper in this District
pursuant to 28 U.S.C. ss.ss. 1408 and 1409; and it appearing that good and
sufficient notice of the Motion having been given and that no other or further
notice of the Motion need be provided; and after due deliberation and
sufficient cause appearing therefore,
- ----------------------
(1) Unless otherwise defined herein, all capitalized terms used herein
shall have the meanings set forth in the Debtors' Emergency Motion For
Entry of Interim and Final Orders Pursuant to Sections 105(a),
362(a)(3) and 541 of the Bankruptcy Code (A) Limiting Certain
Transfers of Equity Interests of the Debtors and (B) Approving Related
Notice Procedures.
IT IS HEREBY ORDERED THAT:
1. The Motion is granted to the extent set forth in this Final Order
(the "Order"). The Interim Order entered by this Court on ________________,
2005 on the same subject matter [Docket No. ___] is hereby superseded by this
Order, except as noted herein.
2. Any purchase, sale or other transfer of equity securities of Owens
Corning in violation of the restrictions or the procedures set forth herein
(including the notice requirements set forth in P. 3(C) or 3(D) below) shall be
null and void ab initio as an act in violation of this Order and shall confer
no rights on the transferee.
3. The following procedures and restrictions shall apply to trading in
the equity securities of Owens Corning:
A. Notice of Substantial Equityholder Status. Any person or entity
who currently or in the future Beneficially Owns (as defined in paragraph
(B) below) at least 4.75% of the outstanding equity securities of Owens
Corning (a "Substantial Equityholder") shall file with the Court and serve
upon the Debtors and the Debtors' counsel a notice of such status in the
form attached hereto as Exhibit 1A on or before the date that is the later
of: (A) ___________, 2005 or (B) ten (10) calendar days after such person
or entity becomes a Substantial Equityholder.
B. Beneficial Ownership. "Beneficial Ownership" of "equity
securities" shall be defined consistent with the applicable definitions
found in Section 382 of the Internal Revenue Code (the "IRC") and the
Treasury Regulations thereunder (including attribution rules). In
particular, Beneficial Ownership of equity securities shall include (but
shall not be limited to):
i. direct and indirect ownership by a holder (e.g., an
individual shareholder of a holding company would be
considered to "beneficially own" a proportionate share of
all interests, as the case may be, owned or acquired by the
holding company, its subsidiaries and/or affiliates);
ii. ownership of a participation interest in a pass-through or
grantor trust, with any such participant being considered
to beneficially own a ratable share of all interests owned
or acquired by such pass-through entity or such trust or
its trustee;
iii. ownership by a holder's family members;
iv. ownership by persons or entities acting in concert with a
holder to make a coordinated acquisition;
v. ownership of an interest that such holder has a right to
acquire through the ownership of an option, a contingent
purchase right, a warrant, convertible debt or equity, a
put, a call, an equity security subject to risk of
forfeiture, a contract to acquire an interest, or a similar
interest (including those interests described in Treasury
Regulation ss. 1.382-4(d)(9)), regardless of whether such
interest or right to acquire is contingent or otherwise not
currently exercisable (each such right or interest to
acquire, an "Option"); and
vi. ownership by a trust qualified under Section 401(a) of the
IRC.
For purposes of this Order, "equity securities" shall not include any
instrument or obligation (other than an instrument or obligation that,
pursuant to its terms, is convertible into stock of Owens Corning) that
when issued or incurred, as the case may be, constituted debt for all
federal income tax purposes.
C. Acquisition of Equity Securities. Prior to effecting any
acquisition of Owens Corning's equity securities (including the
acquisition of Options to acquire Owens Corning 's equity securities) that
would result in an increase in the amount of Owens Corning's equity
securities Beneficially Owned by a Substantial Equityholder or would
result in a person or entity becoming a Substantial Equityholder (a
"Proposed Equity Acquisition Transaction"), such person, entity or
Substantial Equityholder (a "Proposed Equity Transferee") shall file with
the Court and serve on the Debtors' counsel a Notice of Intent to
Purchase, Acquire or Otherwise Accumulate an Equity Security (an "Equity
Acquisition Notice"), in the form attached hereto as Exhibit 1B,
specifically and in detail describing the intended transaction acquiring
Owens Corning's equity securities.
D. Disposition of Equity Securities. Prior to effecting any
disposition of Owens Corning's equity securities (including the
disposition of Options to acquire Owens Corning's equity securities) that
would result in a decrease in the amount of Owens Corning's equity
securities Beneficially Owned by a Substantial Equityholder or that would
result in a person or entity ceasing to be a Substantial Equityholder (a
"Proposed Equity Disposition Transaction"), such person, entity or
Substantial Equityholder (a "Proposed Equity Transferor") shall file with
the Court and serve on the Debtors' counsel a Notice of Intent to Sell,
Trade or Otherwise Transfer Equity Securities (an "Equity Disposition
Notice"), in the form attached hereto as Exhibit 1C, specifically and in
detail describing the intended transaction disposing of Owens Corning's
equity securities.
E. Objection Procedures. No later than the date that is fifteen
(15) calendar days after the Debtors' actual receipt of an Equity
Acquisition Notice or Equity Disposition Notice (the "Objection
Deadline"), the Debtors may file with the Court and serve on a Proposed
Equity Transferor or Proposed Equity Transferee, as applicable, an
objection (an "Objection") to any proposed transfer of Owens Corning's
equity securities described in such notice on the grounds that such
transfer poses a material risk of adversely affecting the Debtors' ability
to utilize any of their Tax Attributes as a result of an ownership change
under Section 382 or Section 383 of the Internal Revenue Code.
i. If the Debtors timely file an Objection by the Objection
Deadline, the Proposed Equity Acquisition Transaction
and/or Proposed Equity Disposition Transaction, as
applicable, shall not be effective unless approved by an
order of this Court, after notice and a hearing and such
time as such order is not subject to appeal, stay,
modification, or reconsideration.
ii. If the Debtors do not timely file an Objection by the
Objection Deadline, or if the Debtors provide written
notice to the Proposed Equity Transferor or Proposed Equity
Transferee, as applicable, that they do not object to such
transaction prior to the expiration of the 15-day notice
period, then the Proposed Equity Acquisition Transaction or
Proposed Equity Disposition Transaction may proceed only as
specifically described in an Equity Acquisition Notice or
Equity Disposition Notice, as applicable.
4. Special Rules
A. Agents, Brokers. Custodians, Nominees, Clearinghouses and
Trustees. Sales, acquisitions or other transfers of equity securities of
Owens Corning by a person or entity acting as a broker, agent, custodian,
nominee, prime broker, clearinghouse or trustee on behalf of another
person or entity shall not be subject to this Order with respect to that
particular sale, acquisition or other transfer; provided, however, that a
trustee of a trust qualified under Section 401(a) of the IRC, and the
customer or principal of such agent, broker, custodian, nominee, prime
broker, clearinghouse or trustee, shall not be excluded from this Order by
reason of this paragraph.
B. Account Managers. Sales, acquisitions or other transfers of
equity securities of Owens Corning by a person or entity acting as a
discretionary account manager or manager for one or more accounts,
customers, regulated investment companies or mutual funds shall not be
subject to this Order with respect to that particular sale, acquisition or
other transfer; provided, however, that each of an account manager's
individual customers, individual account holders, individual regulated
investment companies or individual mutual funds shall not be excluded from
this Order by reason of this paragraph (although such account manager
shall not have any affirmative duty to inquire whether its customer or
account holder shall be subject to this Order).
C. Money Loans. A person or entity's use of equity securities of
Owens Corning as collateral for a money loan shall not cause such person
or entity to be subject to this Order with respect to such money loan;
provided, however, that any transfer of collateral pursuant to the
collection of such money loan shall not be excluded from this Order solely
by reason of this paragraph.
D. Riskless Principals. Market trades in equity securities of
Owens Corning in which a person or entity acts as a "riskless principal"
between customers by buying and selling the same aggregate amounts on the
same trade date for effect on the same settlement date shall not be
subject to this Order with respect to such trades; provided, however, that
such trades shall not be excluded from this Order with respect to such
customers solely by reason of this paragraph.
E. Day Trading. "Day trading" market purchases and sales of
equity securities of Owens Corning by a person or entity that net to zero
at the end of each day (and that settle on the same day) shall not be
subject to this Order with respect to such purchases and sales.
F. Derivatives. Trading by a person or entity in its capacity as
a dealer in derivative contracts in respect of derivatives on equity
securities of Owens Corning shall not be subject to this Order with
respect to such trades, so long as (i) those derivative contracts provide
for cash settlement only and are in fact so cash settled and (ii) such
person or entity undertakes to maintain its books of derivative contracts
on such equity securities (including for this purpose cash short sales and
cash long positions currently owned by such person or entity that are from
time to time designated as appertaining to those derivative books) in
approximately the same net long or short position as was the case on
February 23, 2005; provided that nothing herein shall cause the actual
acquisition or disposition of equity securities not to be subject to this
Order, even if such actual acquisition or disposition is in connection
with or related to a derivatives contract. Nothing in this Order shall
limit the scope of Sections 362, 546, 548, 555, 556, 559 and 560 of the
Bankruptcy Code with respect to the financial and related contracts and
agreements referenced therein.
G. Short Sales. The borrowing of equity securities of Owens
Corning for the purpose of effecting short sales or for on-lending,
whether for the borrower's own account or for a customer account, shall
not be subject to this Order so long as such borrowing does not occur
prior to the day when such equity securities are used to complete and
settle the short sale or on-lending; provided that the initial lender of
such shares or the purchaser of such shares shall not be excluded from
this Order solely by reason of this paragraph. The closing and settlement
upon unwinding of such short sale by the short-seller shall also not be
subject to this Order, so long as the equity securities of Owens Corning
used to close such short sale are acquired on the date such equity are
returned to the lender.
H. Waiver of Restrictions. The Debtors shall be permitted to
waive any restrictions, limitations or notice requirements imposed by this
Order; provided, however, that any such waiver shall be filed with this
Court.
5. Other Notice Procedures
A. Service of Procedures Notice. Following entry of this Order, the
Debtors shall deliver a copy of the Notice of (A) Notification Procedures
Applicable to Substantial Holders of Equity Securities and (B)
Notification and Hearing Procedures for Trading in Equity Securities (the
"Notice of Notification Procedures") (a copy of which is attached hereto
as Exhibit 2) to the entities listed below. The Notice of Notification
Procedures shall inform all recipients thereof how to obtain copies of
these notice procedures and the relevant notices described herein.
i. the Office of the United States Trustee;
ii. any official statutory committee appointed in these Chapter
11 Cases;
iii. counsel for the Debtors' debtor-in-possession lenders; iv.
the transfer agents for all classes of equity securities of
the Debtors; and
v. all entities who file notice of appearance and request
service of papers pursuant to Bankruptcy Rule 2002.
B. The Debtors may, no more often than once every three months
during the pendency of these Chapter 11 cases, deliver the Notice of
Notification Procedures to any and all registered holders of equity
securities of Owens Corning.
i. Any such registered holder shall, in turn, deliver a copy
of the Notice of Notification Procedures to any holder for
whose account such registered holder holds such equity
securities, and so on down the chain of ownership.
ii. Any person or entity in its individual capacity (a
"Prospective Seller"), and any broker or agent acting on
behalf of a Prospective Seller, who contemplates selling 1%
or more of Owens Corning's equity securities to another
person or entity (a "Prospective Purchaser") must provide a
copy of the Notice of Notification Procedures to each
Prospective Purchaser or any broker or agent acting on
behalf of a Prospective Purchaser.
6. The requirements set forth in this Order are in addition to the
requirements of Federal Rule of Bankruptcy Procedure 3001(e) and applicable
securities, corporate and other laws, and do not excuse compliance therewith.
7. This Court retains jurisdiction with respect to all matters arising
from or related to the implementation of this Order.
8. Notwithstanding the possible applicability of Bankruptcy Rules
6004(g), 7062, or 9014, the terms, conditions and notification procedures of
this Order shall be effective as of the date this Order is entered.
9. Nothing in this Order is intended to have any precedential effect
in any other proceeding involving a Debtor or a Substantial Equityholder and
shall not be used as either res judicata or collateral estoppel, or otherwise
have precedential effect, in any such other proceeding.
10. Except for those persons or entities that are required to provide
notice pursuant to Paragraph 3 of this Order, no person or entity shall be
liable for any damages or losses resulting from or caused by a violation of
this Order.
11. This Order shall not apply after the effective date of the
Debtors' plan of reorganization.
12. All time periods set forth in this Order shall be calculated in
accordance with Bankruptcy Rule 9006(a).
Dated: _____________, 2005
----------------------------------
The Honorable Judith K. Fitzgerald
United States Bankruptcy Judge
Exhibit 1A
THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- -----------------------------------
:
In re: : Chapter 11
:
OWENS CORNING, et al., : Case No. 00-03837 (JKF)
:
Debtors. : Jointly Administered
- -----------------------------------:
NOTICE OF STATUS AS A SUBSTANTIAL EQUITYHOLDER(1)
-----------------------------------------------
PLEASE TAKE NOTICE that [name of equityholder] is/has become a
Substantial Equityholder with respect to the equity securities (the "Equity
Securities") of Owens Corning, a debtor and debtor in possession in Case No.
00-03837, pending in the United States Bankruptcy Court for the District of
Delaware (the "Court").
PLEASE TAKE FURTHER NOTICE that, as of [date], [name of equityholder]
Beneficially Owns [___] shares of the Equity Securities of Owens Corning. The
following table sets forth the date(s) on which [name of equityholder] acquired
or otherwise became the Beneficial Owner of such Equity Securities:
--------------------------------------------------------------------------
Number of Shares Type of Equity Security Date Acquired
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(Attach additional page if necessary)
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of
name of equityholder is ____________________.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, [name of
equityholder] hereby declares that it has examined this Notice and accompanying
attachments (if any) and, to the best of its knowledge and belief, this Notice
and any attachments that purport to be part of this Notice are true, correct
and complete.
- -------------------------
(1) For purposes of this Notice, all capitalized terms not defined herein
shall have the same meaning as is set forth in the Final Order of this
Court, entered [___________, 2005], Limiting Certain Transfers of
Equity Securities of the Debtors and Approving Related Notice Procedures.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Final Order of this
Court, entered on [ __________, 20005], Limiting Certain Transfers of Equity
Securities of the Debtors and Approving Related Notice Procedures, this Notice
is being (A) filed with the Court, (B) served upon Saul Ewing LLP, 222 Delaware
Avenue, P.O. Box 1266, Wilmington, DE 19899, attn. Norman L. Pernick, Esq. and
upon Saul Ewing LLP, Centre Square West, 1500 Market Street, 38th Floor,
Philadelphia, PA 19102, attn. Adam H. Isenberg, Esq.; (C) served upon Skadden,
Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036-6522,
attn. Stuart M. Finkelstein, Esq.; and (D) served upon Owens Corning, One Owens
Corning Parkway, Toledo, Ohio 43659, attn. General Counsel.
Dated:
[city, state]
Respectfully submitted,
[Name of Acquirer/Seller] [Address]
[telephone and facsimile]
Exhibit 1B
THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- -----------------------------------
:
In re: : Chapter 11
:
OWENS CORNING, et al., : Case No. 00-03837 (JKF)
:
Debtors. : Jointly Administered
- -----------------------------------:
NOTICE OF INTENT TO PURCHASE, ACQUIRE
OR OTHERWISE ACCUMULATE EQUITY SECURITIES
-----------------------------------------
PLEASE TAKE NOTICE that [name of prospective acquirer] hereby provides
notice of its intention to purchase, acquire or otherwise accumulate one or
more shares of the equity securities (the "Equity Securities") of Owens Corning
or an Option with respect thereto (the "Proposed Transfer").
PLEASE TAKE FURTHER NOTICE that, if applicable, on [prior date(s)],
[name of prospective acquired] filed a Notice of Status as a Substantial
Equityholder(1) with the United States Bankruptcy Court for the District of
Delaware (the "Court") and served copies thereof on the Debtors' counsel.
PLEASE TAKE FURTHER NOTICE that [name of prospective acquirer]
currently Beneficially Owns shares of the Equity Securities of Owens Corning.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Proposed Transfer,
[name of prospective acquirer] proposes to purchase, acquire or otherwise
accumulate [ ] shares of Equity Securities or an Option with respect to [ ]
shares of Equity Securities. If the Proposed Transfer is permitted to occur,
[name of prospective acquirer] will Beneficially Own [ ] shares of Equity
Securities after the transfer.
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of
[name of prospective acquirer] is _________________________________.
- -------------------------
(1) For purposes of this Notice, all capitalized terms not defined herein
shall have the same meaning as is set forth in the Final Order of this
Court, entered [___________, 2005], Limiting Certain Transfers of
Equity Securities of the Debtors and Approving Related Notice
Procedures.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, [name of
prospective acquirer] hereby declares it has examined this Notice and
accompanying attachments (if any), and, to the best of its knowledge and
belief, this Notice and any attachments that purport to be part of this Notice
are true, correct and complete.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Final Order of this
Court, entered on [___________, 2005], Limiting Certain Transfers of Equity
Securities of the Debtors and Approving Related Notice Procedures, this Notice
is being (A) filed with the Court, (B) served upon Saul Ewing LLP, 222 Delaware
Avenue, P.O. Box 1266, Wilmington, DE 19899, attn. Norman L. Pernick, Esq. and
upon Saul Ewing LLP, Centre Square West, 1500 Market Street, 38th Floor,
Philadelphia, PA 19102, attn. Adam H. Isenberg, Esq., (C) served upon Skadden,
Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036-6522,
attn. Stuart M. Finkelstein, Esq.; and (D) served upon Owens Corning, One Owens
Corning Parkway, Toledo, Ohio 43659, attn. General Counsel.
PLEASE TAKE FURTHER NOTICE that the Debtors have fifteen (15) calendar
days after receipt of this Notice to object to the Proposed Transfer described
herein. If the Debtors timely file an objection, such Proposed Transfer will
not be effective unless approved by an order of the Court, after notice and an
opportunity for a hearing, and such time as such order is not subject to
appeal, modification, stay, or reconsideration. If the Debtors do not object
within such fifteen (15) day period, then after expiration of such period the
Proposed Transfer may proceed specifically as set forth in this Notice;
provided, however, that if, prior to the expiration of the foregoing fifteen
(15) day notice period, the Debtors provide written notice that they do not
object to the Proposed Transfer, the Proposed Transfer may proceed as
specifically as set forth in this Notice.
The undersigned prospective acquirer understands that any further
transactions that may result in [name of prospective acquirer] purchasing,
acquiring or otherwise accumulating additional shares of Equity Securities (or
an Option with respect thereto) will each require an additional notice filed
with the Court to be served in the same manner as this Notice.
Dated:
[city, state]
Respectfully submitted,
[Name of Acquirer/Seller] [Address]
[telephone and facsimile]
Exhibit 1C
THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- -----------------------------------
:
In re: : Chapter 11
:
OWENS CORNING, et al., : Case No. 00-03837 (JKF)
:
Debtors. : Jointly Administered
- -----------------------------------:
NOTICE OF INTENT TO SELL, TRADE
OR OTHERWISE TRANSFER EQUITY SECURITIES
---------------------------------------
PLEASE TAKE NOTICE that [name of prospective seller] hereby provides
notice of its intention to sell, trade or otherwise transfer one or more shares
of the equity securities (the "Equity Securities") of Owens Corning or an
Option with respect thereto (the "Proposed Transfer").
PLEASE TAKE FURTHER NOTICE that [if applicable] on [prior date(s)],
[name of prospective seller] filed a Notice of Status as a Substantial
Equityholder(1) with the United States Bankruptcy Court for the District of
Delaware (the "Court") and served copies thereof on the Debtors' counsel.
PLEASE TAKE FURTHER NOTICE that [name of prospective acquirer]
currently Beneficially Owns shares of the Equity Securities of Owens Corning.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Proposed Transfer,
[name of prospective seller] proposes to sell, trade or otherwise transfer
shares of Equity Securities or an Option with respect to shares of Equity
Securities. If the Proposed Transfer is permitted to occur, [name of
prospective seller] will Beneficially Own ______________ shares of Equity
Securities.
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of
[name of prospective acquirer] is .
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, [name of
prospective seller] hereby declares that it has examined this Notice and
accompanying attachments (if any) and, to the best of its knowledge and belief,
this Notice and any attachments that purport to be part of this Notice are
true, correct and complete.
- ---------------------
(1) For purposes of this Notice, all capitalized terms not defined herein
shall have the same meaning as is set forth in the Final Order of this
Court, entered [_____________, 2005], Limiting Certain Transfers of
Equity Securities of the Debtors and Approving Related Notice
Procedures.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Final Order of this
Court, entered on [_________, 2005], Limiting Certain Transfers of Equity
Securities of the Debtors and Approving Related Notice Procedures, this Notice
is being (A) filed with the Court, (B) served upon Saul Ewing LLP, 222 Delaware
Avenue, P.O. Box 1266, Wilmington, DE 19899, attn. Norman L. Pernick, Esq. and
upon Saul Ewing LLP, Centre Square West, 1500 Market Street, 38th Floor,
Philadelphia, PA 19102, attn. Adam H. Isenberg, Esq.; (C) served upon Skadden,
Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036-6522,
attn. Stuart M. Finkelstein, Esq.; and (D) served upon Owens Corning, One Owens
Corning Parkway, Toledo, Ohio 43659, attn. General Counsel.
PLEASE TAKE FURTHER NOTICE that the Debtors have fifteen (15) calendar
days after receipt of this Notice to object to the Proposed Transfer described
herein. If the Debtors timely file an objection, such Proposed Transfer will
not be effective unless approved by an order of the Court, after notice and a
hearing and such time as such order is not subject to appeal, modification,
stay, or reconsideration. If the Debtors do not object within such fifteen (15)
day period, then after expiration of such period the Proposed Transfer may
proceed specifically as set forth in the Notice; provided, however, that if,
prior to the expiration of the foregoing fifteen (15) day notice period, the
Debtors provide written notice that they do not object to the Proposed
Transfer, the Proposed Transfer may proceed as specifically as set forth in
this Notice.
[Name of prospective seller] understands that any further transactions
that may result in [name of seller] selling, trading or otherwise transferring
shares of Equity Securities (or an Option with respect thereto) may each
require an additional notice filed with the Court to be served in the same
manner as this Notice.
Dated:
[city, state]
Respectfully submitted,
[Name of Acquirer/Seller] [Address]
[telephone and facsimile]
Exhibit 2
THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- -----------------------------------
:
In re: : Chapter 11
:
OWENS CORNING, et al., : Case No. 00-03837 (JKF)
:
Debtors. : Jointly Administered
- -----------------------------------:
NOTICE OF (A) NOTIFICATION PROCEDURES APPLICABLE
TO SUBSTANTIAL HOLDERS OF EQUITY SECURITIES
AND (B) NOTIFICATION AND HEARING PROCEDURES
FOR TRADING IN EQUITY SECURITIES
--------------------------------
TO ALL PERSONS OR ENTITIES WITH EQUITY INTERESTS IN OWENS CORNING:
PLEASE TAKE NOTICE that on October 5, 2000 (the "Petition Date"),
Owens Corning, together with certain of its subsidiaries and affiliates
(collectively, the "Debtors"), commenced cases under Chapter 11 of Title 11 of
the United States Code as amended from time to time (the "Bankruptcy Code").
PLEASE TAKE FURTHER NOTICE that on [_________, 2005], the United
States Bankruptcy Court for the District of Delaware (the "Court") entered a
final order (the "Order") imposing certain transfer restrictions on equity
securities of Owens Corning and approving the related notification procedures
set forth in the Order (the "Notice Procedures") to preserve certain tax
attributes of the Debtors.
As further specified in the Order, the Order imposes limitations upon
(i) acquisitions of equity securities of Owens Corning by persons or entities
who already hold 4.75% or more of Owens Corning's equity securities; (ii)
acquisitions of equity securities of Owens Corning by persons or entities who
hold less than 4.75% of Owens Corning's equity securities if such acquisitions
would cause such persons or entities to hold 4.75% or more of Owens Corning
equity securities; and (iii) disposition of equity securities of Owens Corning
by persons or entities who hold 4.75% or more of Owens Corning's equity
securities. Any sale or other transfer of equity securities in Owens Corning in
violation of the Order or the Notice Procedures shall be null and void ab
initio and shall confer no rights on the transferee.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, the Notice
Procedures shall apply to holding, acquiring and disposing, and any other
transfers of EQUITY SECURITIES IN OWENS CORNING.
PLEASE TAKE FURTHER NOTICE that any person or entity may obtain a copy
of the Order, the Notice Procedures and the forms of each of the required
notices described therein by:
1. Obtaining a copy of such documents from the website www.ocplan.com.
2. Contacting Saul Ewing LLP, counsel to the Debtors, 222 Delaware
Avenue, P.O. Box 1266, Wilmington, DE 19899, attn. Pauline Z. Ratkowiak,
Paralegal, 302-421-6861, pratkowiak@saul.com.
3. Contacting Digital Legal Services, L.L.C., at the following
address: DIGITAL LEGAL SERVICES, L.L.C., 1001 Jefferson Plaza, Suite 100,
Wilmington, DE 19801, (302) 888-2060.
Such documents also may be viewed at the Office of the Clerk, United States
Bankruptcy Court for the District of Delaware, 824 Market Street, 3rd Floor,
Wilmington, Delaware 19801, 302-252-2900, Monday through Friday during the
hours of 8:00 a.m. to 4:00 p.m., excluding Federal Holidays.
PLEASE TAKE FURTHER NOTICE that the requirements set forth in this
Notice are in addition to the requirements of Rule 3001(e) of the Federal Rules
of Bankruptcy Procedure and applicable securities, corporate and other laws,
and do not excuse compliance therewith.
Dated: [city]
________, 2005 OWENS CORNING, et al.
By: Saul Ewing LLP
222 Delaware Avenue
P.O. Box 1266
Wilmington, DE 19899-1266
Counsel for the Debtors
and Debtors in Possession