-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UZDHtxD9JiKimD6N5zFHYTUossqRyKnq8tXwO/GEseR/n3CHAcuGAS+PP934H7aT 9/NzVCmcCXp6Cewpdpiapg== 0000950142-06-002105.txt : 20061109 0000950142-06-002105.hdr.sgml : 20061109 20061109171613 ACCESSION NUMBER: 0000950142-06-002105 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20061109 DATE AS OF CHANGE: 20061109 GROUP MEMBERS: DAVID J. MATLIN GROUP MEMBERS: MARK R. PATTERSON GROUP MEMBERS: MATLINPATTERSON ASSET MANAGEMENT LLC GROUP MEMBERS: MATLINPATTERSON GLOBAL ADVISERS LLC GROUP MEMBERS: MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS (CAYMAN) II LP GROUP MEMBERS: MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS II L.P. GROUP MEMBERS: MATLINPATTERSON GLOBAL PARTNERS II LLC GROUP MEMBERS: MATLINPATTERSON LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Owens Corning CENTRAL INDEX KEY: 0001370946 STANDARD INDUSTRIAL CLASSIFICATION: ABRASIVE ASBESTOS & MISC NONMETALLIC MINERAL PRODUCTS [3290] IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-82162 FILM NUMBER: 061203680 BUSINESS ADDRESS: STREET 1: ONE OWENS CORNING PARKWAY CITY: TOLEDO STATE: OH ZIP: 43659 BUSINESS PHONE: 419-248-8000 MAIL ADDRESS: STREET 1: ONE OWENS CORNING PARKWAY CITY: TOLEDO STATE: OH ZIP: 43659 FORMER COMPANY: FORMER CONFORMED NAME: Owens Corning (Reorganized) Inc. DATE OF NAME CHANGE: 20060731 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MATLINPATTERSON LLC CENTRAL INDEX KEY: 0001178798 IRS NUMBER: 134202931 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 520 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2126519500 SC 13D 1 sc13d_owens.txt SCHEDULE 13D ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) Under the Securities Exchange Act of 1934 OWENS CORNING -------------------------------- (Name of Issuer) COMMON STOCK, PAR VALUE $0.01 PER SHARE -------------------------------------------- (Title of Class of Securities) 690742101 --------------- (CUSIP Number) Robert H. Weiss General Counsel MatlinPatterson Global Advisers LLC 520 Madison Avenue New York, New York 10022 Telephone: (212) 651-9525 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) OCTOBER 31, 2006 ------------------------ (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-l(e), 240.13d-l(f) or 240.13d-l(g), check the following box |_| Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss. 240.13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Exchange Act") or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes). ================================================================================ - --------------------------- --------------------------- CUSIP NO. 690742101 Page 2 of 16 - --------------------------- --------------------------- SCHEDULE 13D - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MatlinPatterson Global Opportunities Partners II L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS AF, WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES 384,667 BENEFICIALLY OWNED ------------------------------------------------ BY EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 384,667 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 384,667 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.373% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - --------------------------- --------------------------- CUSIP NO. 690742101 Page 3 of 16 - --------------------------- --------------------------- SCHEDULE 13D - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MatlinPatterson Global Opportunities Partners (Cayman) II L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS AF, WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES 137,455 BENEFICIALLY OWNED ------------------------------------------------ BY EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 137,455 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 137,455 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.133% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - --------------------------- --------------------------- CUSIP NO. 690742101 Page 4 of 16 - --------------------------- --------------------------- SCHEDULE 13D - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MatlinPatterson Global Partners II LLC - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS AF, WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES 522,122 BENEFICIALLY OWNED ------------------------------------------------ BY EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 522,122 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 522,122 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.506% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON HC - -------------------------------------------------------------------------------- - --------------------------- --------------------------- CUSIP NO. 690742101 Page 5 of 16 - --------------------------- --------------------------- SCHEDULE 13D - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MatlinPatterson Global Advisers LLC - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS AF, WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES 522,122 BENEFICIALLY OWNED ------------------------------------------------ BY EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 522,122 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 522,122 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.506% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IA - -------------------------------------------------------------------------------- - --------------------------- --------------------------- CUSIP NO. 690742101 Page 6 of 16 - --------------------------- --------------------------- SCHEDULE 13D - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MatlinPatterson Asset Management LLC - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS AF, WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES 522,122 BENEFICIALLY OWNED ------------------------------------------------ BY EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 522,122 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 522,122 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.506% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON HC - -------------------------------------------------------------------------------- - --------------------------- --------------------------- CUSIP NO. 690742101 Page 7 of 16 - --------------------------- --------------------------- SCHEDULE 13D - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MatlinPatterson LLC - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS AF, WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES 522,122 BENEFICIALLY OWNED ------------------------------------------------ BY EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 522,122 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 522,122 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.506% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON HC - -------------------------------------------------------------------------------- - --------------------------- --------------------------- CUSIP NO. 690742101 Page 8 of 16 - --------------------------- --------------------------- SCHEDULE 13D - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON David J. Matlin - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS AF, WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES 522,122 BENEFICIALLY OWNED ------------------------------------------------ BY EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 522,122 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 522,122 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.506% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- - --------------------------- --------------------------- CUSIP NO. 690742101 Page 9 of 16 - --------------------------- --------------------------- SCHEDULE 13D - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Mark R. Patterson - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS AF, WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES 522,122 BENEFICIALLY OWNED ------------------------------------------------ BY EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 522,122 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 522,122 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.506% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- - --------------------------- --------------------------- CUSIP NO. 690742101 Page 10 of 16 - --------------------------- --------------------------- INTRODUCTION. - ------------- This Schedule l3D Statement (this "Statement") is filed on behalf of (i) MatlinPatterson Global Opportunities Partners II L.P. ("Matlin Partners (Delaware)"), a Delaware limited partnership, (ii) MatlinPatterson Global Opportunities Partners (Cayman) II L.P. ("Matlin Partners (Cayman)" and, together with Matlin Partners (Delaware), the "Matlin Partners"), a Cayman Islands limited partnership, (iii) MatlinPatterson Global Advisers LLC ("Matlin Advisers"), a Delaware limited liability company, by virtue of its investment authority over securities held by each of the Matlin Partners, (iv) MatlinPatterson Global Partners II LLC ("Matlin Global Partners"), a Delaware limited liability company, as the general partner of each of the Matlin Partners, (v) MatlinPatterson Asset Management LLC ("Matlin Asset Management"), a Delaware limited liability company, as the holder of all of the membership interests in Matlin Global Partners and Matlin Advisers, (vi) MatlinPatterson LLC ("MatlinPatterson"), a Delaware limited liability company, as the holder of all of the membership interests in Matlin Asset Management, (vii) and David J. Matlin and Mark R. Patterson each, as a holder of 50% of the membership interests in MatlinPatterson. Matlin Partners (Delaware), Matlin Partners (Cayman), Matlin Advisers, Matlin Global Partners, Matlin Asset Management, MatlinPatterson, David J. Matlin and Mark R. Patterson, are collectively referred to in this Statement as the "Reporting Persons" and each is a "Reporting Person." This purpose of this Statement is to disclose the beneficial ownership of the Reporting Persons in common stock, par value $0.01 per share ("Common Stock") of Owens Corning (formerly Owens Corning (Reorganized) Inc., the "Issuer"). ITEM 1. SECURITY AND ISSUER The name of the issuer is Owens Corning. This Statement relates to the Issuer's common stock, par value $0.01 per share. The principal executive offices of the Issuer are located at One Owens Corning Way, Toledo, Ohio 43659. ITEM 2. IDENTITY AND BACKGROUND The address of the principal office of each Reporting Person is: c/o MatlinPatterson Global Advisers LLC 520 Madison Avenue New York, New York 10022 (i) Matlin Partners (Delaware) is a limited partnership organized under the laws of Delaware. Matlin Partners (Cayman) is a limited partnership organized under the laws of the Cayman Islands. Each of Matlin Partners (Delaware) and Matlin Partners (Cayman) are in the business of investing in equity and debt securities of companies. (ii) Matlin Advisers is a limited liability company organized under the laws of Delaware. The principal business of Matlin Advisers is to serve as investment adviser to Matlin Partners (Delaware) and Matlin Partners (Cayman). - --------------------------- --------------------------- CUSIP NO. 690742101 Page 11 of 16 - --------------------------- --------------------------- (iii) Matlin Global Partners is a limited liability company organized under the laws of Delaware. The principal business of Matlin Global Partners is to serve as General Partner of Matlin Partners (Delaware) and Matlin Partners (Cayman). (iv) Matlin Asset Management is a limited liability company organized under the laws of Delaware. Matlin Asset Management is the holder of all the membership interests in Matlin Global Partners and Matlin Advisers. Matlin Asset Management's principal business is owning Matlin Global Partners and Matlin Advisers. (v) MatlinPatterson is a limited liability company organized under the laws of Delaware. MatlinPatterson is the holder of all of the membership interests in Matlin Asset Management. MatlinPatterson's principal business is owning Matlin Asset Management. (vi) David J. Matlin and Mark R. Patterson are each the holder of 50% of the membership interests in MatlinPatterson. David J. Matlin's principal occupation is acting as Chief Executive Officer of Matlin Advisers and Mark R. Patterson's principal occupation is acting as Chairman of Matlin Advisers. Each of David J. Matlin and Mark R. Patterson are citizens of the United States of America. (vii) In the past five years, none of the Reporting Persons have been (a) convicted in a criminal proceeding (other than traffic violations or similar misdemeanors) or (b) party to a civil proceeding of a judicial or administrative body of competent jurisdiction in which it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws nor has it been found to have violated such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION Pursuant to the Sixth Amended Joint Plan of Reorganization For Owens Corning And Its Affiliated Debtors And Debtors-In-Possession (as Modified) (the "Plan"), which became effective on October 31, 2006, the Reporting Persons acquired beneficial ownership of 778,722 shares of Common Stock of the Issuer in consideration of the cancellation of certain debt instruments (and all pre-petition interest thereon)(the "Debt Instruments") which had been acquired by the Reporting Persons through a series of market purchases. The Reporting Persons sold 256,600 shares of Common Stock on October 31, 2006 for aggregate proceeds of approximately $6.9 million. As described below, the remaining 522,122 shares issued to the Reporting Persons pursuant to the Plan (the "Plan Shares") are the only shares of Common Stock of the Issuer that are currently beneficially owned by the Reporting Persons and included in this Statement. Separately, on the same date, the Reporting Persons, through PI SPE LLC, a Delaware limited liability company and a wholly-owned subsidiary of Matlin Partners (Delaware), and PI SPE CI LLC, a Delaware limited liability - --------------------------- --------------------------- CUSIP NO. 690742101 Page 12 of 16 - --------------------------- --------------------------- company and a wholly-owned subsidiary of Matlin Partners (Cayman) (collectively, the "Private Share Purchasers"), completed transactions with J.P. Morgan Securities Inc. ("JPM") as assignees under a Syndication Agreement, dated as of May 10, 2006 (the "Syndication Agreement") and a Purchase Agreement, dated as of August 31, 2006 (the "Purchase Agreement"). The Syndication Agreement and the Purchase Agreement had been entered into between JPM and various parties including the assignors, and were executed for the purpose of syndicating JPM's obligations to purchase Common Stock from the Issuer under an Equity Commitment Agreement between JPM and the Issuer, dated as of May 10, 2006 (the "Equity Commitment Agreement"). Under the Equity Commitment Agreement, JPM agreed to purchase unsubscribed shares of Common Stock offered to the Issuer's claimholders in a rights offering conducted by the Issuer as a component of the Plan. The transactions between the Private Share Purchasers and JPM covered an aggregate of 9,331,957 shares of Common Stock (the "Private Shares"). The Private Share Purchasers and the Matlin Partners collectively paid an aggregate of approximately $248.4 million pursuant to the Syndication Agreement and the Purchase Agreement and to acquire the Debt Instruments. The source of funds for the transactions was the general working capital of the Reporting Persons. Together, the Plan Shares and the Private Shares would constitute approximately 9.55% of the outstanding Common Stock of the Issuer. Upon the closing of the transactions under the Syndication Agreement and the Purchase Agreement on October 31, 2006, the Private Shares were deposited by the Issuer into two escrow accounts (the "Escrow Accounts") at Investors Bank and Trust Company (the "Escrow Agent") pursuant to Escrow Agreements, dated as of October 31, 2006 (the "Escrow Agreements"). Under the Escrow Agreements, the Private Shares will be released to the Private Share Purchasers upon the expiration or termination of the applicable waiting period that may be required pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Condition"). The Reporting Persons currently do not know when or if the HSR Condition will be satisfied. Should the HSR Condition not be satisfied on or prior to January 29, 2007, the Escrow Agent is directed by the Escrow Agreements to sell the Private Shares into the market and pay the net proceeds from the sales to the Private Share Purchasers. While the Private Shares are held in the Escrow Accounts pending satisfaction of the HSR Condition, no Reporting Person or Private Share Purchaser will have the right to directly or indirectly vote or dispose of the Private Shares or to receive any dividends or distributions made thereon. Therefore, the Private Shares are not included in this Statement, and the Reporting Persons (as well as the Private Share Purchasers) disclaim beneficial ownership of such Private Shares at this time. Pursuant to Rule 13d-4 under the Securities Exchange Act of 1934 (the "Exchange Act"), this Statement shall not be construed as an admission of beneficial ownership of the Private Shares by the Reporting Persons or the Private Share Purchasers for purposes of Section 13(d) or 13(g) of the Exchange Act. ITEM 4. PURPOSE OF TRANSACTION The information set forth in Item 3 hereof is hereby incorporated by reference into this Item 4. - --------------------------- --------------------------- CUSIP NO. 690742101 Page 13 of 16 - --------------------------- --------------------------- The Reporting Persons (through the Private Share Purchasers) intend to acquire the Private Shares upon satisfaction of the HSR Condition. The Reporting Persons also continuously evaluate the Issuer's businesses and prospects, alternative investment opportunities and all other factors deemed relevant in determining whether additional Common Stock of the Issuer will be acquired by the Reporting Persons or whether the Reporting Persons will dispose of Common Stock of the Issuer. At any time, additional Common Stock may be acquired or some or all of the Common Stock of the Issuer beneficially owned by the Reporting Persons may be sold, in either case in the open market, in privately negotiated transactions or otherwise. Except as otherwise disclosed herein, no Reporting Person currently has any agreements, beneficially or otherwise, which would be related to or would result in any of the matters described in Items 4(a) - (j) of Schedule 13D; however, as part of the ongoing evaluation of this investment and investment alternatives, any Reporting Person may consider such matters, and, subject to applicable law, may formulate a plan with respect to such matters, and, from time to time, any Reporting Person may hold discussions with or make formal proposals to management or the Board of Directors of the Issuer, other shareholders of the Issuer or other third parties regarding such matters. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) (i) As of the date hereof, (A) Matlin Partners (Delaware), is a direct beneficial owner of 384,667 shares of Common Stock and (B) MatlinPatterson, Matlin Asset Management, Matlin Advisers, Matlin Global Partners, David J. Matlin and Mark R. Patterson are each an indirect beneficial owner of such shares. The 384,667 shares of Common Stock represent beneficial ownership of approximately 0.373% of the Issuer's issued and outstanding shares of Common Stock. The Issuer disclosed in its Prospectus, dated October 27, 2006, which was filed with the Commission pursuant to Rule 424(b)(1) under the Securities Act of 1933 on October 30, 2006, that it has approximately 103.2 million shares of Common Stock outstanding following consummation of the Plan. (ii) As of the date hereof, (A) Matlin Partners (Cayman), is a direct beneficial owner of 137,455 shares of Common Stock and (B) MatlinPatterson, Matlin Asset Management, Matlin Advisers, Matlin Global Partners, David J. Matlin and Mark R. Patterson are each an indirect beneficial owner of such shares. The 137,455 shares of Common Stock represent beneficial ownership of approximately 0.133% of the Issuer's issued and outstanding shares of Common Stock. (iii) Matlin Global Partners serves as General Partner of each of the Matlin Partners. By reason of such relationships, Matlin Global Partners may be deemed to beneficially own the aggregate of 522,122 shares owned by the Matlin Partners, which represents beneficial ownership of approximately 0.506% of the Issuer's issued and outstanding shares of Common Stock. (iv) Matlin Advisers serves as investment advisor to each of the Matlin Partners. By reason of such relationships, Matlin Advisers may be deemed to beneficially own the shares owned by the Matlin Partners. - --------------------------- --------------------------- CUSIP NO. 690742101 Page 14 of 16 - --------------------------- --------------------------- (v) Matlin Asset Management is the holder of all of the membership interests in Matlin Global Partners and Matlin Advisers. By reason of such relationships, Matlin Asset Management may be deemed to beneficially own the shares owned by the Matlin Partners. (vi) MatlinPatterson is the holder of all of the membership interests in Matlin Asset Management. By reason of such relationship, MatlinPatterson may be deemed to beneficially own the shares owned by the Matlin Partners. (vii) David J. Matlin and Mark R. Patterson are the holders of all of the membership interests in MatlinPatterson. By reason of such relationships, each of David J. Matlin and Mark R. Patterson and may be deemed to share voting and dispositive power over the shares owned by the Matlin Partners. (b) All of the Reporting Persons described in section (a) above share voting and dispositive power over the Plan Shares with all of the other Reporting Persons, except that: (i) Matlin Partners (Delaware) does not have voting or dispositive power over the Plan Shares held directly by Matlin Partners (Cayman); and (ii) Matlin Partners (Cayman) does not have voting or dispositive power over the Plan Shares held directly by Matlin Partners (Delaware). (c) The information set forth in Item 3 hereof is hereby incorporated herein by reference. Except as described in Item 3 hereof, the Reporting Persons have effected no transactions in the Common Stock in the past 60 days. (d) Not applicable. (e) Not applicable. The filing of this Statement shall not be construed as an admission by any of the Reporting Persons that it is, for purposes of Section 13(d) of the Exchange Act, the beneficial owner of shares of Common Stock owned by other parties. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER The information set forth in Item 3 hereof is hereby incorporated by reference into this Item 6. In order to facilitate the resale of the Private Shares by the Reporting Persons, the Private Share Purchasers agreed to be bound by a Registration Rights Agreement, dated as of July 7, 2006 (the "Registration Rights Agreement"), initially among the Issuer and holders signatory thereto. As the Private Shares are "Registrable Securities" pursuant to the Registration Rights Agreement, resales by the Reporting Persons will be effected pursuant to a shelf registration statement which has been declared effective by the Securities and Exchange Commission. - --------------------------- --------------------------- CUSIP NO. 690742101 Page 15 of 16 - --------------------------- --------------------------- ITEM 7. MATERIAL TO BE FILED AS EXHIBITS 1 Joint Filing Agreement, dated as of November 9, 2006, among the Reporting Persons. 2 Sixth Amended Joint Plan of Reorganization For Owens Corning And Its Affiliated Debtors And Debtors-In-Possession (as Modified). (Incorporated herein by reference to Exhibit 2.1 of the Issuer's Current Report on Form 8-K filed on September 29, 2006) 3 Registration Rights Agreement, dated as of July 7, 2006, among the Issuer and the holders signatory thereto. (Incorporated herein by reference to Exhibit P-1 to Exhibit 2.1 of the Issuer's Current Report on Form 8-K filed on September 29, 2006) 4 Escrow Agreement, dated as of October 31, 2006, by and between PI SPE LLC and Investors Bank and Trust Company, as escrow agent. 5 Escrow Agreement, dated as of October 31, 2006, by and between PI SPE CI LLC and Investors Bank and Trust Company, as escrow agent. - --------------------------- --------------------------- CUSIP NO. 690742101 Page 16 of 17 - --------------------------- --------------------------- SIGNATURE After reasonable inquiry and to the best of our knowledge and belief, we certify that the information set forth in this Statement is true, complete and correct. Dated: November 9, 2006 MATLINPATTERSON LLC By: /s/ Mark R. Patterson ------------------------- Name: Mark R. Patterson Title: Member MATLINPATTERSON ASSET MANAGEMENT LLC By: /s/ Mark R. Patterson ------------------------- Name: Mark R. Patterson Title: Chairmam MATLINPATTERSON GLOBAL ADVISERS LLC By: /s/ Mark R. Patterson ------------------------- Name: Mark R. Patterson Title: Chairmam MATLINPATTERSON GLOBAL PARTNERS II LLC By: /s/ Mark R. Patterson ------------------------- Name: Mark R. Patterson Title: Director MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS II L.P. By: MatlinPatterson Global Partners II LLC, its general partner By: /s/ Mark R. Patterson ------------------------- Name: Mark R. Patterson Title: Director - --------------------------- --------------------------- CUSIP NO. 690742101 Page 17 of 17 - --------------------------- --------------------------- MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS (Cayman) L.P. By: MatlinPatterson Global Partners II LLC, its general partner By: /s/ Mark R. Patterson ------------------------- Name: Mark R. Patterson Title: Director DAVID J. MATLIN By: /s/ David J. Matlin ----------------------- Name: David J. Matlin MARK R. PATTERSON By: /s/ Mark R. Patterson ------------------------- Name: Mark R. Patterson EXHIBIT INDEX ------------- 1 Joint Filing Agreement, dated as of November 9, 2006, among the Reporting Persons. 2 Sixth Amended Joint Plan of Reorganization For Owens Corning And Its Affiliated Debtors And Debtors-In-Possession (as Modified). (Incorporated herein by reference to Exhibit 2.1 of the Issuer's Current Report on Form 8-K filed on September 29, 2006) 3 Registration Rights Agreement, dated as of July 7, 2006, among the Issuer and the holders signatory thereto. (Incorporated herein by reference to Exhibit P-1 to Exhibit 2.1 of the Issuer's Current Report on Form 8-K filed on September 29, 2006) 4 Escrow Agreement, dated as of October 31, 2006, by and between PI SPE LLC and Investors Bank and Trust Company, as escrow agent. 5 Escrow Agreement, dated as of October 31, 2006, by and between PI SPE CI LLC and Investors Bank and Trust Company, as escrow agent. EX-99 2 ex-1sc13d_owens.txt EXHIBIT 1 EXHIBIT 1 --------- JOINT FILING AGREEMENT In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing of MatlinPatterson LLC, MatlinPatterson Asset Management LLC, MatlinPatterson Global Advisers LLC, MatlinPatterson Global Partners II LLC, MatlinPatterson Global Opportunities Partners II L.P., MatlinPatterson Global Opportunities Partners (Cayman) II L.P., David J. Matlin and Mark R. Patterson, on behalf of each of them a statement on Schedule 13D (including amendments thereto) with respect to shares of common stock, par value $0.01 per share, of Owens Corning, a Delaware corporation, and that this Agreement be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned hereby execute this Agreement this 9th day of November 2006. MATLINPATTERSON LLC By: /s/ Mark R. Patterson -------------------------- Name: Mark R. Patterson Title: Member MATLINPATTERSON ASSET MANAGEMENT LLC By: /s/ Mark R. Patterson -------------------------- Name: Mark R. Patterson Title: Chairman MATLINPATTERSON GLOBAL ADVISERS LLC By: /s/ Mark R. Patterson -------------------------- Name: Mark R. Patterson Title: Chairman MATLINPATTERSON GLOBAL PARTNERS II LLC By: /s/ Mark R. Patterson -------------------------- Name: Mark R. Patterson Title: Director MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS II L.P. By: MatlinPatterson Global Partners II LLC, its general partner By: /s/ Mark R. Patterson ----------------------------- Name: Mark R. Patterson Title: Director MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS (Cayman) L.P. By: MatlinPatterson Global Partners II LLC, its general partner By: /s/ Mark R. Patterson ----------------------------- Name: Mark R. Patterson Title: Director DAVID J. MATLIN By: /s/ David J. Matlin ---------------------------------- Name: David J. Matlin MARK R. PATTERSON By: /s/ Mark R. Patterson ---------------------------------- Name: Mark R. Patterson EX-99 3 ex-4sc13d_owens.txt EXHIBIT 4 EXHIBIT 4 --------- ESCROW AGREEMENT Escrow Agreement (the "Escrow Agreement") dated as of October 31, 2006 (the "Effective Date") by and between PI SPE LLC (the "Assignee") and Investors Bank & Trust Company, as escrow agent hereunder (the "Escrow Agent"). WHEREAS, J.P. Morgan Securities Inc. (in such capacity, the "Initial Purchaser") and Owens Corning (the "Issuer") have entered into an equity commitment agreement dated May 10, 2006 (as amended, supplemented, or otherwise modified, the "Commitment Agreement") pursuant to which the Initial Purchaser agreed to purchase Unsubscribed Shares (as defined therein) on the Closing Date (as defined therein); WHEREAS, the Initial Purchaser and the several backstop purchasers (the "Backstop Purchasers") have entered into a syndication agreement dated May 10, 2006 (as amended, supplemented, or otherwise modified, the "Syndication Agreement"), pursuant to which the Backstop Purchasers agreed to purchase from the Initial Purchaser Unsubscribed Shares purchased from the Issuer by the Initial Purchaser pursuant to the Commitment Agreement; WHEREAS, certain Backstop Purchasers (each, an "Assignor") and the Assignee have entered into 13 separate assignment agreements, dated October 24, 2006 or October 25, 2006, as the case may be (each, an "Assignment Agreement"), pursuant to which each Assignor individually assigned, and the Assignee assumed, certain rights and obligations of each Assignor under the Syndication Agreement with respect to each such Assignor's commitment to purchase Unsubscribed Shares equal in the aggregate to 6,871,689 Unsubscribed Shares (the "Assigned Shares"); WHEREAS, pursuant to Section 1(d) of the Assignment Agreements and Section 1(f) of the Syndication Agreement, the Assignee has notified the Initial Purchaser that the Assignee's purchase of Unsubscribed Shares is subject to the terms of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and the expiration or termination of the applicable waiting period with respect to such purchase (the "HSR Condition") has not occurred; WHEREAS, the Assignee is required, pursuant to Section 1(f) of the Syndication Agreement, to enter into this Escrow Agreement; and WHEREAS, the Initial Purchaser and the Issuer have entered into a registration rights agreement, dated as of July 7, 2006 (as amended, supplemented, or otherwise modified, the "Registration Rights Agreement"), with respect to certain shares of New Common Stock (as defined therein). NOW THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. APPOINTMENT. The Assignee hereby appoints the Escrow Agent as escrow agent for the purposes set forth herein, and the Escrow Agent hereby accepts such appointment under the terms and conditions set forth herein. 2. ESCROW PROPERTY. Simultaneous with the execution and delivery of this Escrow Agreement, the Assigned Shares are being deposited by the Initial Purchaser with the Escrow Agent (the "Share Escrow"). The Assignee represents and warrants that, pursuant to Section 1(d) of each of the Assignment Agreements, it has the authority under the Syndication Agreement to cause the Assigned Shares to be deposited in the Share Escrow and to appoint the Escrow Agent as the escrow agent for the purposes set forth herein. The Escrow Agent may assume without inquiry that the Share Escrow constitutes all the shares subject to the Assignment Agreements and that it represents all of the Assigned Shares that the Escrow Agent is required to hold. The Escrow Agent shall (i) safeguard and treat the Share Escrow and any Profit Escrow (as defined below and, together with the Share Escrow, the "Escrow Property") in an escrow account in accordance with the provisions of hereof and (ii) hold, administer and dispose of the Escrow Property subject to and only in accordance with the terms and conditions hereof. 3. ADMINISTRATION OF ESCROW PROPERTY. (a) The Share Escrow shall be registered in the name of the Escrow Agent and held in a share escrow account at the Escrow Agent (the "Share Escrow Account"). During the term of this Escrow Agreement, except for the rights specifically provided for herein, the Assignee shall have no rights with respect to the Share Escrow. Without limiting the generality of the foregoing, except for the Profit Escrow and the right to receive the Share Escrow under Section 4(a), unless and until the HSR Condition has occurred, the Assignee shall have none of the indicia of ownership of the Assigned Shares and, therefore, shall have no right to vote, or direct the vote of, the Share Escrow or to otherwise exercise any of the rights of a stockholder of the Issuer in respect of the Share Escrow. The Escrow Agent will not deliver to the Assignee or to any person acting on its behalf any proxy statements, proxy cards, written consents in lieu of stockholder meetings or any other document or instrument it may receive with respect to the Share Escrow. Dividends or distributions upon the Share Escrow accrued or distributed in shares of common stock of the Issuer shall be added to the Share Escrow and held in the Share Escrow Account and shall be administered by the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent shall have no voting rights in respect of the Share Escrow and therefore shall not complete and return to the Issuer any proxy cards, written consents in lieu of stockholder meetings or any other document or instrument it may receive in connection with any meeting of stockholders, or requests for written consents in lieu of meetings of stockholders, of the Issuer. (b) Any and all dividends or other amounts accrued or distributed in respect of the Share Escrow (other than of shares of common stock of the Issuer which shall, upon receipt by the Escrow Agent be deemed to be Share Escrow and placed in the escrow account) during the term of this Escrow Agreement shall be held by the Escrow Agent in a profit escrow account pursuant to the terms and conditions herein (all such dividends or other profits other than shares of common stock of the Issuer, the "Profit Escrow"). All cash amounts received by the Escrow Agent in respect of the Profit Escrow shall be invested and reinvested by the Escrow Agent as described in Schedule 1 attached hereto. The Escrow Agent shall have the right to liquidate any such investments held pursuant to the immediately preceding sentence and shall liquidate such investments, but solely in order to provide funds necessary to make required payments under this Escrow Agreement. The Escrow Agent shall have no liability for any loss sustained as a result of any investment made pursuant to the instructions of the parties hereto or as a result of any liquidation of any investment prior to its maturity or for the failure of the parties to give the Escrow Agent instructions to invest or reinvest the Profit Escrow. 4. DISPOSITION AND TERMINATION. (a) The Escrow Agent shall, within one business day after receiving written notice from the Initial Purchaser and the Assignee that the HSR Condition has occurred, deliver the Share Escrow and the Profit Escrow to the Assignee with a duly executed stock power and shall, if requested by Assignee, direct the transfer agent for the Share Escrow to transfer and register such shares in the name of Assignee or its assigns. (b) If the Escrow Agent shall not have received written notice from the Initial Purchaser and the Assignee that the HSR Condition has occurred by January 29, 2007, the Escrow Agent shall, by 5:00 p.m. New York City time on January 30, 2007, (i) in accordance with the procedures described in Schedule 1 and applicable law, commence selling all of the Share Escrow (a "Sale"), and distribute all of the net proceeds of such Sale to the Assignee upon receipt thereof and (ii) distribute the Profit Escrow to the Assignee. (c) Upon delivery or disposition and distribution of the Share Escrow and the Profit Escrow by the Escrow Agent pursuant to Sections 4(a) or (b) above, as applicable, this Escrow Agreement shall terminate, subject to the provisions of Section 8. 5. ESCROW AGENT. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties shall be implied. The Escrow Agent shall have no liability under and no duty to inquire as to the provisions of any agreement other than this Escrow Agreement. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. The Escrow Agent shall have no duty to solicit any payments, dividends or other profits in respect of the Escrow Property that may be due. The Escrow Agent shall not be liable for any action taken or omitted by it, except to the extent that a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to the Assignee. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by the Assignee or by a final order or judgment of a court of competent jurisdiction. 6. SUCCESSION. The Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving 10 days advance notice in writing of such resignation to the Assignee, specifying a date when such resignation shall take effect. The Escrow Agent shall have the right to withhold an amount equal to any amount due and owing to the Escrow Agent, plus any costs and expenses the Escrow Agent shall reasonably believe may be incurred by the Escrow Agent in connection with the termination of the Escrow Agreement. Any corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any corporation or association to which all or substantially all the escrow business of the Escrow Agent's corporate trust line of business may be transferred, shall be the Escrow Agent under this Escrow Agreement without further act. 7. FEES. The Assignee agrees to (i) pay the Escrow Agent upon execution of this Escrow Agreement and from time to time thereafter reasonable compensation for the services to be rendered hereunder, which unless otherwise agreed in writing shall be as described in Schedule 1, and (ii) pay or reimburse the Escrow Agent upon request for all reasonable and documented expenses, disbursements and advances, including reasonable attorney's fees and expenses, incurred or made by it in connection with the preparation, execution, performance, delivery, modification and termination of this Escrow Agreement, including in connection with any required public filings to be made by the Escrow Agent.. 8. INDEMNITY. The Assignee shall indemnify, defend and save harmless the Escrow Agent and its directors, officers, agents and employees (the "indemnitees") from all loss, liability or expense (including the reasonable and documented fees and expenses of in house or outside counsel) arising out of or in connection with (i) the Escrow Agent's execution and performance of this Escrow Agreement, except in the case of any indemnitee to the extent that such loss, liability or expense is due to the gross negligence or willful misconduct of such indemnitee, or (ii) its following any instructions or other directions from the Initial Purchaser or the Assignee, except to the extent that its following any such instruction or direction is expressly forbidden by the terms hereof. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent or the termination of this Escrow Agreement. 9. NO LIENS. The Escrow Property shall be held as an escrow account and shall not be subject to any Lien, trustee process or any other judicial process of any creditor of any party hereto. Except as contemplated by Section 13(b), no portion of the Escrow Property or any beneficial interests therein may be pledged, sold, assigned or transferred, including by operation of law, by the Assignee or be taken or reached by any legal or equitable process in satisfaction of any debt or other liability of the Assignee, prior to the delivery to the Assignee of the Escrow Property by the Escrow Agent. 10. TINS. The Assignee represents that its Taxpayer Identification Number ("TIN") assigned by the Internal Revenue Service ("IRS") or any other taxing authority is set forth in Schedule 1. Upon execution of this Escrow Agreement, the Assignee shall provide the Escrow Agent with a fully executed W-8 or W-9 IRS form, which shall include such party's TIN. In addition, all income earned under the Escrow Agreement shall be allocated and/or paid as directed in a written direction of the Assignee, as set forth herein, and reported by the recipient to the IRS or any other taxing authority. Notwithstanding such written directions, the Escrow Agent shall report and, as required withhold any taxes as it determines may be required by any law or regulation in effect at the time of the distribution. In the absence of timely direction, all proceeds of the Share Escrow or the Profit Escrow shall be retained in the Escrow Property for the benefit of the Assignee and reinvested from time to time by the Escrow Agent as provided in this Escrow Agreement. In the event that any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation or, to the extent consistent therewith, as directed in writing by the Assignee. In addition, the Escrow Agent shall withhold any taxes it deems appropriate and shall remit such taxes to the appropriate authorities. 11. NOTICES. All communications hereunder shall be in writing and shall be deemed to be duly given and received: (a) upon delivery if delivered personally or upon confirmed transmittal if by facsimile; (b) on the next Business Day (as hereinafter defined) if sent by overnight courier; or (c) four (4) Business Days after mailing if mailed by prepaid registered mail, return receipt requested, to the appropriate notice address set forth on Schedule 1 or at such other address as any party hereto may have furnished to the other parties in writing by registered mail, return receipt requested. In the event that the Escrow Agent, in its sole discretion, shall determine that an emergency exists, the Escrow Agent may use such other means of communication as the Escrow Agent deems appropriate. "Business Day" shall mean any day other than a Saturday, Sunday or any other day on which the Escrow Agent located at the notice address set forth on Schedule 1 is authorized or required by law or executive order to remain closed. 12. SECURITY PROCEDURES. In the event funds transfer instructions are given (other than in writing at the time of execution of this Escrow Agreement, as indicated in Schedule 1 attached hereto), whether in writing, by facsimile or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on schedule 2 hereto ("Schedule 2"), and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. If the Escrow Agent is unable to contact any of the authorized representatives identified in Schedule 2, the Escrow Agent is hereby authorized to seek confirmation of such instructions by telephone call-back to any one or more of the executive officers ("Executive Officers") of the Assignee, as the Escrow Agent may select. Such "Executive Officer" shall deliver to the Escrow Agent a fully executed Incumbency Certificate, and the Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. The Escrow Agent may rely solely upon any account numbers or similar identifying numbers provided by the Assignee to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank. The Escrow Agent may apply any of the escrowed funds for any payment order it executes using any such identifying number, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary's bank or an intermediary bank designated. The parties to this Escrow Agreement acknowledge that these security procedures are commercially reasonable. 13. MISCELLANEOUS. (a)The provisions of this Escrow Agreement may be waived, altered, amended or supplemented, in whole or in part, only by a writing signed by each of the parties hereto and by the Initial Purchaser. (b) Neither this Escrow Agreement nor any right or interest hereunder may be assigned in whole or in part by any party, except as provided in Section 6, without the prior consent of the other parties, except as provided in Section 6. (c) Nothing in this Escrow Agreement is intended to confer upon any person any legal or equitable right, remedy or claim under or by reason of this Agreement other than the parties hereto and the Initial Purchaser. (d) This Escrow Agreement shall be governed by and construed under the laws of the State of New York. Each party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts located in the State of New York. The parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Escrow Agreement. (e) The Assignee will supply all supplemental documentation as the Escrow Agent shall reasonably request, including in order to comply with the Escrow Agent's obligations arising under and compliance with federal anti-terrorism and anti-money laundering laws. (f) The Assignee acknowledges that regulations of the Comptroller of the Currency grant the Assignee the right to receive brokerage confirmations of security transactions as they occur. The Assignee specifically waives such notification to the extent permitted by law and acknowledges that the Assignee will receive periodic cash transaction statements, which will detail all investment transactions. (g) No party to this Escrow Agreement is liable to any other party for losses due to, or if it is unable to perform its obligations under the terms of this Escrow Agreement because of, acts of God, fire, floods, strikes, equipment or transmission failure, or other causes reasonably beyond its control. (h) This Escrow Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (i) The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof. (j) Each of the parties hereto shall not be liable to the other, directly or indirectly, for any special or consequential damages, even if such party has been advised of the possibility of such damages. IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of the date first set forth above. INVESTORS BANK & TRUST COMPANY AS ESCROW AGENT By: /s/ Stephen Desalvo ---------------------------- Name: Stephen DeSalvo Title: Managing Director PI SPE LLC AS ASSIGNEE By: /s/ Robert H. Weis ---------------------------- Name: Robert H. Weiss Title: Authorized Person EX-99 4 ex-5sc13d_owens.txt EXHIBIT 5 EXHIBIT 5 --------- ESCROW AGREEMENT Escrow Agreement (the "Escrow Agreement") dated as of October 31, 2006 (the "Effective Date") by and between PI SPE CI LLC (the "Assignee") and Investors Bank & Trust Company, as escrow agent hereunder (the "Escrow Agent"). WHEREAS, J.P. Morgan Securities Inc. (in such capacity, the "Initial Purchaser") and Owens Corning (the "Issuer") have entered into an equity commitment agreement dated May 10, 2006 (as amended, supplemented, or otherwise modified, the "Commitment Agreement") pursuant to which the Initial Purchaser agreed to purchase Unsubscribed Shares (as defined therein) on the Closing Date (as defined therein); WHEREAS, the Initial Purchaser and the several backstop purchasers (the "Backstop Purchasers") have entered into a syndication agreement dated May 10, 2006 (as amended, supplemented, or otherwise modified, the "Syndication Agreement"), pursuant to which the Backstop Purchasers agreed to purchase from the Initial Purchaser Unsubscribed Shares purchased from the Issuer by the Initial Purchaser pursuant to the Commitment Agreement; WHEREAS, certain Backstop Purchasers (each, an "Assignor") and the Assignee have entered into 13 separate assignment agreements, dated October 24, 2006 or October 25, 2006, as the case may be (each, an "Assignment Agreement"), pursuant to which each Assignor individually assigned, and the Assignee assumed, certain rights and obligations of each Assignor under the Syndication Agreement with respect to each such Assignor's commitment to purchase Unsubscribed Shares equal in the aggregate to 2,460,268 Unsubscribed Shares (the "Assigned Shares"); WHEREAS, pursuant to Section 1(d) of the Assignment Agreements and Section 1(f) of the Syndication Agreement, the Assignee has notified the Initial Purchaser that the Assignee's purchase of Unsubscribed Shares is subject to the terms of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and the expiration or termination of the applicable waiting period with respect to such purchase (the "HSR Condition") has not occurred; WHEREAS, the Assignee is required, pursuant to Section 1(f) of the Syndication Agreement, to enter into this Escrow Agreement; and WHEREAS, the Initial Purchaser and the Issuer have entered into a registration rights agreement, dated as of July 7, 2006 (as amended, supplemented, or otherwise modified, the "Registration Rights Agreement"), with respect to certain shares of New Common Stock (as defined therein). NOW THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. APPOINTMENT. The Assignee hereby appoints the Escrow Agent as escrow agent for the purposes set forth herein, and the Escrow Agent hereby accepts such appointment under the terms and conditions set forth herein. 2. ESCROW PROPERTY. Simultaneous with the execution and delivery of this Escrow Agreement, the Assigned Shares are being deposited by the Initial Purchaser with the Escrow Agent (the "Share Escrow"). The Assignee represents and warrants that, pursuant to Section 1(d) of each of the Assignment Agreements, it has the authority under the Syndication Agreement to cause the Assigned Shares to be deposited in the Share Escrow and to appoint the Escrow Agent as the escrow agent for the purposes set forth herein. The Escrow Agent may assume without inquiry that the Share Escrow constitutes all the shares subject to the Assignment Agreements and that it represents all of the Assigned Shares that the Escrow Agent is required to hold. The Escrow Agent shall (i) safeguard and treat the Share Escrow and any Profit Escrow (as defined below and, together with the Share Escrow, the "Escrow Property") in an escrow account in accordance with the provisions of hereof and (ii) hold, administer and dispose of the Escrow Property subject to and only in accordance with the terms and conditions hereof. 3. ADMINISTRATION OF ESCROW PROPERTY. (a) The Share Escrow shall be registered in the name of the Escrow Agent and held in a share escrow account at the Escrow Agent (the "Share Escrow Account"). During the term of this Escrow Agreement, except for the rights specifically provided for herein, the Assignee shall have no rights with respect to the Share Escrow. Without limiting the generality of the foregoing, except for the Profit Escrow and the right to receive the Share Escrow under Section 4(a), unless and until the HSR Condition has occurred, the Assignee shall have none of the indicia of ownership of the Assigned Shares and, therefore, shall have no right to vote, or direct the vote of, the Share Escrow or to otherwise exercise any of the rights of a stockholder of the Issuer in respect of the Share Escrow. The Escrow Agent will not deliver to the Assignee or to any person acting on its behalf any proxy statements, proxy cards, written consents in lieu of stockholder meetings or any other document or instrument it may receive with respect to the Share Escrow. Dividends or distributions upon the Share Escrow accrued or distributed in shares of common stock of the Issuer shall be added to the Share Escrow and held in the Share Escrow Account and shall be administered by the Escrow Agent in accordance with this Escrow Agreement. The Escrow Agent shall have no voting rights in respect of the Share Escrow and therefore shall not complete and return to the Issuer any proxy cards, written consents in lieu of stockholder meetings or any other document or instrument it may receive in connection with any meeting of stockholders, or requests for written consents in lieu of meetings of stockholders, of the Issuer. (b) Any and all dividends or other amounts accrued or distributed in respect of the Share Escrow (other than of shares of common stock of the Issuer which shall, upon receipt by the Escrow Agent be deemed to be Share Escrow and placed in the escrow account) during the term of this Escrow Agreement shall be held by the Escrow Agent in a profit escrow account pursuant to the terms and conditions herein (all such dividends or other profits other than shares of common stock of the Issuer, the "Profit Escrow"). All cash amounts received by the Escrow Agent in respect of the Profit Escrow shall be invested and reinvested by the Escrow Agent as described in Schedule 1 attached hereto. The Escrow Agent shall have the right to liquidate any such investments held pursuant to the immediately preceding sentence and shall liquidate such investments, but solely in order to provide funds necessary to make required payments under this Escrow Agreement. The Escrow Agent shall have no liability for any loss sustained as a result of any investment made pursuant to the instructions of the parties hereto or as a result of any liquidation of any investment prior to its maturity or for the failure of the parties to give the Escrow Agent instructions to invest or reinvest the Profit Escrow. 4. DISPOSITION AND TERMINATION. (a) The Escrow Agent shall, within one business day after receiving written notice from the Initial Purchaser and the Assignee that the HSR Condition has occurred, deliver the Share Escrow and the Profit Escrow to the Assignee with a duly executed stock power and shall, if requested by Assignee, direct the transfer agent for the Share Escrow to transfer and register such shares in the name of Assignee or its assigns. (b) If the Escrow Agent shall not have received written notice from the Initial Purchaser and the Assignee that the HSR Condition has occurred by January 29, 2007, the Escrow Agent shall, by 5:00 p.m. New York City time on January 30, 2007, (i) in accordance with the procedures described in Schedule 1 and applicable law, commence selling all of the Share Escrow (a "Sale"), and distribute all of the net proceeds of such Sale to the Assignee upon receipt thereof and (ii) distribute the Profit Escrow to the Assignee. (c) Upon delivery or disposition and distribution of the Share Escrow and the Profit Escrow by the Escrow Agent pursuant to Sections 4(a) or (b) above, as applicable, this Escrow Agreement shall terminate, subject to the provisions of Section 8. 5. ESCROW AGENT. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no duties shall be implied. The Escrow Agent shall have no liability under and no duty to inquire as to the provisions of any agreement other than this Escrow Agreement. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. The Escrow Agent shall have no duty to solicit any payments, dividends or other profits in respect of the Escrow Property that may be due. The Escrow Agent shall not be liable for any action taken or omitted by it, except to the extent that a court of competent jurisdiction determines that the Escrow Agent's gross negligence or willful misconduct was the primary cause of any loss to the Assignee. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which, in its opinion, conflict with any of the provisions of this Escrow Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by the Assignee or by a final order or judgment of a court of competent jurisdiction. 6. SUCCESSION. The Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving 10 days advance notice in writing of such resignation to the Assignee, specifying a date when such resignation shall take effect. The Escrow Agent shall have the right to withhold an amount equal to any amount due and owing to the Escrow Agent, plus any costs and expenses the Escrow Agent shall reasonably believe may be incurred by the Escrow Agent in connection with the termination of the Escrow Agreement. Any corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any corporation or association to which all or substantially all the escrow business of the Escrow Agent's corporate trust line of business may be transferred, shall be the Escrow Agent under this Escrow Agreement without further act. 7. FEES. The Assignee agrees to (i) pay the Escrow Agent upon execution of this Escrow Agreement and from time to time thereafter reasonable compensation for the services to be rendered hereunder, which unless otherwise agreed in writing shall be as described in Schedule 1, and (ii) pay or reimburse the Escrow Agent upon request for all reasonable and documented expenses, disbursements and advances, including reasonable attorney's fees and expenses, incurred or made by it in connection with the preparation, execution, performance, delivery, modification and termination of this Escrow Agreement, including in connection with any required public filings to be made by the Escrow Agent.. 8. INDEMNITY. The Assignee shall indemnify, defend and save harmless the Escrow Agent and its directors, officers, agents and employees (the "indemnitees") from all loss, liability or expense (including the reasonable and documented fees and expenses of in house or outside counsel) arising out of or in connection with (i) the Escrow Agent's execution and performance of this Escrow Agreement, except in the case of any indemnitee to the extent that such loss, liability or expense is due to the gross negligence or willful misconduct of such indemnitee, or (ii) its following any instructions or other directions from the Initial Purchaser or the Assignee, except to the extent that its following any such instruction or direction is expressly forbidden by the terms hereof. The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of the Escrow Agent or the termination of this Escrow Agreement. 9. NO LIENS. The Escrow Property shall be held as an escrow account and shall not be subject to any Lien, trustee process or any other judicial process of any creditor of any party hereto. Except as contemplated by Section 13(b), no portion of the Escrow Property or any beneficial interests therein may be pledged, sold, assigned or transferred, including by operation of law, by the Assignee or be taken or reached by any legal or equitable process in satisfaction of any debt or other liability of the Assignee, prior to the delivery to the Assignee of the Escrow Property by the Escrow Agent. 10. TINS. The Assignee represents that its Taxpayer Identification Number ("TIN") assigned by the Internal Revenue Service ("IRS") or any other taxing authority is set forth in Schedule 1. Upon execution of this Escrow Agreement, the Assignee shall provide the Escrow Agent with a fully executed W-8 or W-9 IRS form, which shall include such party's TIN. In addition, all income earned under the Escrow Agreement shall be allocated and/or paid as directed in a written direction of the Assignee, as set forth herein, and reported by the recipient to the IRS or any other taxing authority. Notwithstanding such written directions, the Escrow Agent shall report and, as required withhold any taxes as it determines may be required by any law or regulation in effect at the time of the distribution. In the absence of timely direction, all proceeds of the Share Escrow or the Profit Escrow shall be retained in the Escrow Property for the benefit of the Assignee and reinvested from time to time by the Escrow Agent as provided in this Escrow Agreement. In the event that any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation or, to the extent consistent therewith, as directed in writing by the Assignee. In addition, the Escrow Agent shall withhold any taxes it deems appropriate and shall remit such taxes to the appropriate authorities. 11. NOTICES. All communications hereunder shall be in writing and shall be deemed to be duly given and received: (a) upon delivery if delivered personally or upon confirmed transmittal if by facsimile; (b) on the next Business Day (as hereinafter defined) if sent by overnight courier; or (c) four (4) Business Days after mailing if mailed by prepaid registered mail, return receipt requested, to the appropriate notice address set forth on Schedule 1 or at such other address as any party hereto may have furnished to the other parties in writing by registered mail, return receipt requested. In the event that the Escrow Agent, in its sole discretion, shall determine that an emergency exists, the Escrow Agent may use such other means of communication as the Escrow Agent deems appropriate. "Business Day" shall mean any day other than a Saturday, Sunday or any other day on which the Escrow Agent located at the notice address set forth on Schedule 1 is authorized or required by law or executive order to remain closed. 12. SECURITY PROCEDURES. In the event funds transfer instructions are given (other than in writing at the time of execution of this Escrow Agreement, as indicated in Schedule 1 attached hereto), whether in writing, by facsimile or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on schedule 2 hereto ("Schedule 2"), and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. If the Escrow Agent is unable to contact any of the authorized representatives identified in Schedule 2, the Escrow Agent is hereby authorized to seek confirmation of such instructions by telephone call-back to any one or more of the executive officers ("Executive Officers") of the Assignee, as the Escrow Agent may select. Such "Executive Officer" shall deliver to the Escrow Agent a fully executed Incumbency Certificate, and the Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. The Escrow Agent may rely solely upon any account numbers or similar identifying numbers provided by the Assignee to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank. The Escrow Agent may apply any of the escrowed funds for any payment order it executes using any such identifying number, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary's bank or an intermediary bank designated. The parties to this Escrow Agreement acknowledge that these security procedures are commercially reasonable. 13. MISCELLANEOUS. (a)The provisions of this Escrow Agreement may be waived, altered, amended or supplemented, in whole or in part, only by a writing signed by each of the parties hereto and by the Initial Purchaser. (b) Neither this Escrow Agreement nor any right or interest hereunder may be assigned in whole or in part by any party, except as provided in Section 6, without the prior consent of the other parties, except as provided in Section 6. (c) Nothing in this Escrow Agreement is intended to confer upon any person any legal or equitable right, remedy or claim under or by reason of this Agreement other than the parties hereto and the Initial Purchaser. (d) This Escrow Agreement shall be governed by and construed under the laws of the State of New York. Each party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts located in the State of New York. The parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Escrow Agreement. (e) The Assignee will supply all supplemental documentation as the Escrow Agent shall reasonably request, including in order to comply with the Escrow Agent's obligations arising under and compliance with federal anti-terrorism and anti-money laundering laws. (f) The Assignee acknowledges that regulations of the Comptroller of the Currency grant the Assignee the right to receive brokerage confirmations of security transactions as they occur. The Assignee specifically waives such notification to the extent permitted by law and acknowledges that the Assignee will receive periodic cash transaction statements, which will detail all investment transactions. (g) No party to this Escrow Agreement is liable to any other party for losses due to, or if it is unable to perform its obligations under the terms of this Escrow Agreement because of, acts of God, fire, floods, strikes, equipment or transmission failure, or other causes reasonably beyond its control. (h) This Escrow Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (i) The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof. (j) Each of the parties hereto shall not be liable to the other, directly or indirectly, for any special or consequential damages, even if such party has been advised of the possibility of such damages. IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of the date first set forth above. INVESTORS BANK & TRUST COMPANY AS ESCROW AGENT By: /s/ Stephen Desalvo ---------------------------- Name: Stephen DeSalvo Title: Managing Director PI SPE CI LLC AS ASSIGNEE By: /s/ ROBERT H. WEISS ---------------------------- Name: Robert H. Weiss Title: Authorized Person -----END PRIVACY-ENHANCED MESSAGE-----