As filed with the Securities and Exchange Commission on December 15, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CORNING INCORPORATED
(Exact name of Registrant as specified in its charter)
New York Corning Incorporated
(State or other jurisdiction of One Riverfront Plaza 16-0393470
incorporation or organization) Corning, New York 14831 (IRS Employer
(607) 974-9000 Identification No.)
(Address, including zip code, and telephone number, including area code,
of Registrant s principal executive offices)
William C. Ughetta, Esq.
Senior Vice President and General Counsel
Corning Incorporated
One Riverfront Plaza
Corning, New York 14831
(607) 974-9000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copy to:
Robert W. Reeder, III, Esq.
Sullivan & Cromwell
250 Park Avenue
New York, New York 10177
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [x]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed
Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Unit (1) Offering Price (1) Fee
Debt Securities $300,000,000 100% $300,000,000 $103,449
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Or, if any Debt Securities are issued (i) with a principal amount
denominated in a foreign currency (including a composite currency), such
principal amount as shall result in an aggregate initial offering price the
equivalent of $300,000,000 or (ii) at an original issue discount, such
greater principal amount as shall result in an aggregate initial public
offering price of $300,000,000.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
The Prospectus herein is a combined prospectus and also relates to
Registration Statement No. 33-49903 pursuant to Rule 429 under the Securities
Act of 1933. This Registration Statement constitutes Post-Effective Amendment
No. 1 to Registration Statement No. 33-49903.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
SUBJECT TO COMPLETION, DATED DECEMBER 15, 1994
PROSPECTUS
Corning Incorporated
Debt Securities
Corning Incorporated (the "Company" or "Corning") may offer and sell from
time to time its debt securities, consisting of debentures, notes and/or
other unsecured evidences of indebtedness (the "Debt Securities"), in an
aggregate principal amount as shall result in an aggregate initial public
offering price not exceeding $500,000,000 (or net proceeds in the case of
Debt Securities issued at an original issue discount) or the equivalent
thereof in a foreign currency (including a composite currency). The Debt
Securities may be offered as separate series on terms to be determined at the
time of sale. The specific designation, aggregate principal amount,
denomination, maturity, premium, if any, rate or rates and time of payment of
interest, if any, terms for any redemption at the option of the Company or
the holder, terms for any sinking fund payments, the initial public offering
price and the other terms in connection with the offering and sale of the
Debt Securities in respect of which the Prospectus is being delivered are set
forth in the accompanying Prospectus Supplement (the "Prospectus
Supplement"). As used herein, Debt Securities shall include securities
denominated in United States dollars or, at the option of the Company if so
specified in the applicable Prospectus Supplement, in any other currency,
including composite currencies such as the European Currency Unit.
The Company may sell Debt Securities to or through underwriters, and also may
sell Debt Securities directly to other purchasers or through agents. See
"Plan of Distribution". The names of such underwriters or agents and the
principal amounts, if any, to be purchased by them and their compensation are
set forth in the accompanying Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is December , 1994.
<PAGE>
No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained in this Prospectus or
the Prospectus Supplement and, if given or made, such information or
representation must not be relied upon as having been authorized by the
Company or any underwriter, dealer or agent. Neither this Prospectus nor any
Prospectus Supplement constitutes an offer to sell or a solicitation of an
offer to buy any of the securities offered hereby in any jurisdiction to any
person to whom it is unlawful to make such offer in such jurisdiction. The
delivery of this Prospectus or any Prospectus Supplement at any time does not
imply that the information herein or therein is correct as of any time
subsequent to the date of such imformation.
TABLE OF CONTENTS
Page
Available Information 2
Incorporation of Certain Documents by Reference 2
The Company 3
Use of Proceeds 3
Ratios of Earnings to Fixed Charges 3
Description of Debt Securities 4
Plan of Distribution 8
Validity of Debt Securities 9
Experts 9
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information and the Registration Statements referred to below may be
inspected at the Commission's public reference facilities, Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549, as well as the following regional
offices: Seven World Trade Center, New York, New York 10048 and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661; and copies of such
materials may be obtained from the Public Reference Section of the Commission
at 450 Fifth Street, Washington, D.C. 20549, at prescribed rates. In
addition, such reports, proxy statements and other information concerning the
Company may also be inspected at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York, 10005, upon which Exchange certain
securities of the Company are listed.
This Prospectus constitutes a part of the Registration Statement with respect
to the Debt Securities filed by the Company with the Commission under the
Securities Act of 1933. This Prospectus omits certain of the information
contained in the Registration Statement, and reference is hereby made to the
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the Debt Securities. Any
statement contained herein concerning the provisions of any document is not
necessarily complete, and, in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety
by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-3247) are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
January 2, 1994, filed pursuant to Section 13(a) of the Exchange Act.
2. The Company's Current Reports on Form 8-K dated August 4, 1993 and
August 13, 1993.
3. All other reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Exchange Act since January 2, 1994, consisting of the Company's
Quarterly Reports on Form 10-Q for the twelve, twenty-four and forty weeks
ended March 27, 1994, June 19, 1994, and October 9, 1994, respectively; the
Company's Current Reports on Form 8-K dated January 24, 1994, April 6, 1994,
June 28, 1994, July 26, 1994, August 3, 1994, August 31, 1994, September 29,
1994, October 18, 1994, October 24, 1994, and December 12, 1994,
respectively; and the Company's Current Report on Form 8-KA dated December
12, 1994.
<PAGE>
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
dates of filing of such documents.
Any statement contained herein or in a document all or part of which is
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any document subsequently filed with
the Commission which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon the written or oral request of any such person,
a copy of any or all of the documents incorporated by reference herein, other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such documents. Such requests should be directed
to the Secretary, Corning Incorporated, One Riverfront Plaza, Corning, New
York 14831; telephone (607) 974-9000.
THE COMPANY
Corning traces its origin to a glass business established by the Houghton
family in 1851. The present corporation was incorporated in the State of New
York on December 24, 1936, and its name was changed from Corning Glass Works
to Corning Incorporated in April 1989.
Corning is an international corporation competing in four broadly based
business segments: Specialty Materials, Communications, Laboratory Services
and Consumer Products. Corning is engaged directly or through subsidiaries
and affiliates principally in the manufacture and sale of products made from
specialty glasses and related inorganic materials having special properties
of chemical stability, electrical resistance, heat resistance, light
transmission and mechanical strength. Corning and its subsidiaries annually
produce some 60,000 different products at 41 plants in eight countries. In
addition, Corning, through subsidiaries and affiliates, engages in laboratory
services businesses, including life and environmental sciences and clinical
laboratory testing at more than 50 facilities in 10 countries.
Corning's strategy includes growth from new products developed from Corning's
long-standing commitment to research and development and from mergers and
acquisitions. Accordingly, Corning continuously reviews potential acquisition
opportunites, primarily in the laboratory services and communications areas.
However, there can be no assurance that Corning will pursue any such
acquisition opportunity.
Corning's executive offices are located at One Riverfront Plaza, Corning, New
York 14831; telephone (607) 974-9000.
USE OF PROCEEDS
Except as may be set forth in the Prospectus Supplement, the net proceeds
from the sale of the Debt Securities will be used by the Company for general
corporate purposes. Such purposes may include, among others, repayment or
reduction of indebtedness, working capital requirements, the funding of a
portion of the Company's normal, ongoing capital spending program and
acquisitions. The precise amounts and timing of the application of proceeds
will depend on the funding requirements of the Company.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to fixed
charges of the Company for the periods indicated:
<TABLE>
<CAPTION>
Forty Weeks Fiscal Year Ended
Ended
October 9, Jan. 2, Jan. 3, Dec. 29, Dec. 30, Dec. 31,
1994 1994 1993 1991 1990 1989
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings
to Fixed Charges 3.8x 1.1x 3.8x 4.5x 4.7x 5.0x
</TABLE>
<PAGE>
For the purposes of computing the ratio of earnings to fixed charges,
earnings consist of ( 1 ) income before taxes on income, before equity in
earnings and minority interest and before fixed charges (excluding interest
capitalized during the period), (2) Corning's share of pre-tax earnings of
fifty-percent owned companies, (3) Corning's share of pre-tax earnings of
greater than fifty-percent owned unconsolidated subsidiaries, (4) dividends
received from less than fifty-percent owned companies and Corning's share of
losses of such companies, if any, if any debt of such companies is guaranteed
by Corning and (5) previously capitalized interest amortized during the
period; and fixed charges consist of (1) interest on indebtedness, (2)
amortization of debt issuance costs, (3) a portion of rental expenses which
represent an appropriate interest factor, (4) Corning's share of the fixed
charges of fifty-percent owned companies, (5) fixed charges of greater than
fifty-percent owned unconsolidated subsidiaries and (6) pre-tax dividends on
convertible preferred securities of subsidiary.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Debt Securities") will be
described in the Prospectus Supplement relating to such Offered Debt
Securities.
The Debt Securities are to be issued under an Indenture (the "Indenture"),
dated as of April 1, 1991, between the Company and United States Trust
Company of New York, as Trustee (the "Trustee"), a copy of which is filed as
an exhibit to the Registration Statement of which this Prospectus is a part.
The following summary of certain provisions of the Debt Securities and the
Indenture does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, all the provisions of the Indenture.
Capitalized terms used herein have the respective meanings set forth in the
Indenture, and references to sections or articles are to sections or articles
of the Indenture.
General
The Debt Securities will be unsecured obligations of the Company.
The Indenture does not limit the aggregate principal amount of the debt
securities that may be issued thereunder and provides that Debt Securities
may be issued thereunder from time to time in one or more series. (Section
301)
Reference is made to the Prospectus Supplement for certain terms or additional
provisions of the Offered Debt Securities, including: (i) the title of the
Offered Debt Securities; (ii) any limit on the aggregate principal amount of the
Offered Debt Securities; (iii) the price (expressed as a percentage of the
aggregate principal amount thereof) at which the Offered Debt Securities will be
issued; (iv) the date or dates on which the principal of the Offered Debt
Securities will be payable; (v) the rate or rates (which may be fixed or
variable) per annum at which the Offered Debt Securities will bear interest, if
any; (vi) the date or dates from which such interest, if any, on the Offered
Debt Securities will accrue, the dates on which such interest, if any, will be
payable, the date on which payment of such interest, if any, will commence and
the regular record dates for any such interest payment dates; (vii) the period
or periods within which, the price or prices at which and the terms and
conditions upon which the Offered Debt Securities may be redeemed, in whole or
in part, at the option of the Company; (viii) the obligation, if any, of the
Company to redeem or purchase Offered Debt Securities pursuant to any sinking
fund or analogous provisions or at the option of a Holder, and the periods
within, the prices at and the terms and conditions upon which such Offered Debt
Securities may be redeemed or purchased; (ix) if other than U.S. dollars, the
currency (including composite currencies) in which payment of principal of and
any premium and interest on the Offered Debt Securities shall be payable; (x)
any currency (including composite currencies) other than the stated currency of
the Offered Debt Securities in which the principal of and any premium and
interest on the Offered Debt Securities may, at the election of the Company or
the Holders, be payable, and the periods within which, and terms and conditions
upon which, such election may be made; (xi) if the amount of payments of
principal of and any premium and interest on the Offered Debt Securities may be
determined with reference to an index, the manner in which such amounts shall be
determined; (xii) the right of the Company to defease the Offered Debt
Securities or certain restrictive covenants and certain Events of Default under
the Indenture; (xiii) whether the Offered Debt Securities will be issued as
Global Securities and, if so, the Depositary for the Global Securities and the
terms and conditions upon which a Global Security may be exchanged for
definitive Debt Securities; and (xiv) any restrictive covenants, Events of
Default, or other terms relating to the Offered Debt Securities in addition to
those described herein.
Principal and any premium or interest will be payable, and the Debt
Securities will be transferable, at the Place of Payment designated for such
Debt Securities (Sections 305, 1002); provided that the payment
<PAGE>
of any interest may, at the option of the Company, be made by check mailed to
the address of the Person entitled thereto as it appears in the Security
Register.
Unless otherwise indicated in the Prospectus Supplement relating thereto, the
Debt Securities will be issued only in fully registered form, without
coupons, in denominations of $1,000 or any integral multiple thereof.
(Section 302) No service charge will be made for any registration of transfer
or exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith. (Section 305)
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities to be offered and sold at a substantial discount below their
stated principal amount. Federal income tax consequences and other special
considerations applicable to any such Original Issue Discount Securities will
be described in the Prospectus Supplement relating thereto. "Original Issue
Discount Security" means any security which provides for an amount less than
the principal amount to be due and payable upon a declaration of acceleration
of the maturity thereof. (Section 101)
Subsidiaries
The term "Subsidiary" will be defined as a manufacturing corporation 80% or
more of the outstanding voting stock of which is owned, directly or
indirectly, by the Company and/or one or more Subsidiaries of the Company.
The term "Domestic Subsidiary" will be defined as a Subsidiary of the Company
except (i) a Subsidiary which neither transacts any substantial portion of
its business nor regularly maintains any substantial portion of its fixed
assets within the United States, or (ii) a Subsidiary which is engaged
primarily in financing the operations of the Company and/or its Subsidiaries
outside the United States. (Section 101)
Restrictions on Secured Debt
If the Company or any Domestic Subsidiary shall incur, issue, assume or
guarantee any notes, bonds, debentures or other similar instruments ("Debt")
secured by a pledge, mortgage or lien (a "Mortgage") on any Principal
Domestic Manufacturing Property or on any shares of stock or Debt of any
Domestic Subsidiary, the Company will secure, or cause such Domestic
Subsidiary to secure, the Debt Securities equally and ratably with (or prior
to) such Debt, unless after giving effect thereto the aggregate amount of all
such Debt so secured together with all Attributable Debt of the Company and
its Domestic Subsidiaries in respect of sale and leaseback transactions
involving Principal Domestic Manufacturing Properties would not exceed 10% of
the Consolidated Net Tangible Assets of the Company and its consolidated
subsidiaries. This restriction will not apply to, and there shall be excluded
in computing secured Debt for the purpose of such restriction, Debt secured
by (a) Mortgages on property of, or on any shares of stock or Debt of, any
corporation existing at the time such corporation becomes a Domestic
Subsidiary, (b) Mortgages in favor of the Company or a Domestic Subsidiary,
(c) Mortgages in favor of U.S. governmental bodies to secure progress,
advance or other payments, (d) Mortgages on property, shares of stock or Debt
existing at the time of acquisition thereof (including acquisition through
merger or consolidation), purchase money Mortgages and construction Mortgages
and (e) any extension, renewal or refunding of any Mortgage referred to in
the foregoing clauses (a) through (d), inclusive. (Section 1008) The
Indenture will not restrict the Mortgage of any of the Company's shares of
stock of less than 80% owned subsidiaries or the incurring of unsecured Debt
by the Company or its subsidiaries.
"Principal Domestic Manufacturing Property" will be defined to include any
facility (together with the land on which it is erected and fixtures
comprising a part thereof) used primarily for manufacturing or warehousing,
located in the United States, owned or leased by the Company or a Subsidiary
of the Company and having a gross book value in excess of 3% of Consolidated
Net Tangible Assets, other than any such facility or portion thereof (i)
which is financed by means of industrial revenue bonds or (ii) which, in the
opinion of the Board of Directors of the Company, is not of material
importance to the total business conducted by the Company and its
Subsidiaries as an entirety. (Section 101) "Consolidated Net Tangible Assets"
will be defined to mean the consolidated assets of the Company less
applicable reserves and other deductible items, current liabilities (other
than extendible or renewable Funded Debt) and good will, tradenames,
trademarks, patents, unamortized debt discount and expense and like
intangibles, all as set forth on the most recent balance sheet of the Company
prepared in accordance with generally accepted accounting principles.
(Section 101) "Funded Debt" will be defined to mean any indebtedness for
borrowed money with a maturity of more than 12 months or having a maturity of
less than 12 months but renewable or extendible beyond 12 months. (Section 101)
<PAGE>
Restrictions on Sales and Leasebacks
Neither the Company nor any Domestic Subsidiary may enter into any sale and
leaseback transaction involving any Principal Domestic Manufacturing
Property, completion of construction and commencement of full operation of
which has occurred more than 120 days prior thereto, unless (a) the Company
or such Domestic Subsidiary could create Debt secured by a Mortgage on such
property pursuant to the restrictions set forth under "Restrictions on
Secured Debt" in an amount equal to the Attributable Debt with respect to the
sale and leaseback transaction without equally and ratably securing the Debt
Securities or (b) the Company, within 120 days, applies to the retirement of
its Funded Debt an amount equal to the greater of (i) the net proceeds of the
sale of the Principal Domestic Manufacturing Property leased pursuant to such
arrangement or (ii) the fair market value of the Principal Domestic
Manufacturing Property so leased (subject to credits for certain voluntary
retirements of Funded Debt). This restriction will not apply to any sale and
leaseback transaction (a) between the Company and a Domestic Subsidiary or
between Domestic Subsidiaries or (b) involving the taking back of a lease for
a period of three years or less (including renewals). (Section 1009)
"Attributable Debt" will be defined to mean the total net amount of rent
(discounted at the rate per annum equal to the weighted average interest rate
borne as of the date of determination by the Outstanding Debt Securities
compounded semiannually) required to be paid during the remaining term of any
lease. (Section 101)
Merger and Consolidation
The Indenture will provide that the Company may, without the consent of any
Holder, consolidate with, or sell or convey all or substantially all of its
assets to, or merge with or into any other corporation, provided that in any
such case, (i) either the Company shall be the continuing corporation, or the
successor corporation shall be a corporation organized and existing under the
laws of the United States of America or a State thereof and such successor
corporation shall expressly assume the due and punctual payment of the
principal of and interest on all the Debt Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of the Indenture to be performed by the Company, and
(ii) the Company or such successor corporation, as the case may be, shall
not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or
condition. (Sectin 801) The Indenture will provide that no consolidation or
merger of the Company with or into any other corporation and no sale or
conveyance of its property as an entirety, or substantially as an entirety,
may be made to another corporation if, as a result thereof, any Principal
Domestic Manufacturing Property or any shares of stock or Debt of any
Domestic Subsidiary would become subject to a Mortgage, unless either (i) the
Debt Securities shall be equally and ratably secured with (or prior to) the
Debt secured by such Mortgage or (ii) such Mortgage could be created pursuant
to the restrictions set forth under "Restrictions on Secured Debt" without
equally and ratably securing the Debt Securities. (Section 803)
Modification, Amendment or Waiver
With certain limited exceptions, modifications and amendments of the
Indenture may only be made by the Company and the Trustee with the consent of
the Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of each series affected thereby, and compliance
with certain covenants (including those referred to above relating to
restrictions on secured debt and on sales and leasebacks) may be waived on
behalf of the Holders of all Debt Securities of any series, either generally
or in a specific instance and either before or after the time for compliance
with such covenants, with the consent of Holders of not less than a majority
in principal amount of the Outstanding Debt Securities of that series,
provided that without the consent of each Holder of Debt Securities affected
thereby no such modifications or amendments may, among other things, reduce the
principal amount of or interest on any of the Outstanding Debt Securities,
change the maturity date of the principal, the Redemption Price, the Interest
Payment Dates or terms of payment or reduce the percentage of Holders
necessary to waive certain covenants or modify or amend the Indenture.
(Section 901, 902, 1010)
Events of Default
The following will be Events of Default with respect to the Debt Securities
of any series: (a) default in the payment of interest, if any, on a Debt
Security of that series when due, continued for 30 days; (b) default in the
payment of principal of (or premium, if any, on) a Debt Security of that
series when due; (c) failure to deposit any sinking fund payment, when due,
in respect of any Debt Security of that series; (d) default in the
performance of any other covenant of the Company (other than a covenant
included in
<PAGE>
the Indenture solely for the benefit of series of Debt Securities other than
that series), continued for 60 days after written notice; (e) acceleration of
any indebtedness for money borrowed in excess of $10,000,000 by the Company
under the terms of the instrument under which such indebtedness is or may be
outstanding, if such acceleration is not annulled, or such indebtedness is
not paid, within 10 days after written notice; (f) certain events in
bankruptcy, insolvency or reorganization; and (g) any other Event of Default
provided with respect to Debt Securities of that series. (Section 501)
If an Event of Default with respect to Debt Securities of any series shall
occur and be continuing, then in every such case the Trustee or the Holders
of not less than 25% in principal amount (or if the Debt Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of the Outstanding
Debt Securities of that series may declare the principal amount of all of the
Debt Securities of that series to be due and payable immediately by a notice
in writing to the Company (and to the Trustee if given by Holders). Upon any
such declaration, such principal amount (or specified amount), plus any
interest accrued on such Debt Securities to the date of declaration, shall
become immediately due and payable. Upon payment (i) of (A) such principal
amount and (B) such interest and (ii) of interest on any overdue principal
and overdue interest, all of the Company's obligations in respect of the
payment of the principal of and interest on such Debt Securities shall
terminate. Overdue principal and overdue interest will each bear interest at
the rate specified in the Debt Securities of such series. At any time after
such declaration of acceleration with respect to the Debt Securities of any
series, but before a judgment or decree based on such declaration, the
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of that series may, under certain circumstances, rescind and annul
such declaration if all Events of Default, other than the nonpayment of
accelerated principal, have been cured or waived as provided in the
Indenture. (Section 502)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any
trust or power conferred on the Trustee with respect to the Debt Securities
of such series, provided that such direction shall not be in conflict with
any rule or law or the Indenture. (Section 512) Before proceeding to exercise
any right or power under the Indenture at the direction of any Holders, the
Trustee shall be entitled to receive from such Holders reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
by it in compliance with any such direction. (Section 603(e))
No holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing
Event of Default with respect to the Debt Securities of that series, (ii) the
Holders of at least 25% in aggregate principal amount of the Outstanding Debt
Securities of that series have made written request, and such Holder or
Holders have offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee and (iii) the Trustee has failed to institute such
proceeding, and has not received from the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of that series a
direction inconsistent with such request, within 60 days after such notice,
request and offer. (Section 507) However, such limitations do not apply to a
suit instituted by a Holder of a Debt Security for the enforcement of payment
of the principal of or any premium or interest on such Debt Security on or
after the applicable due date specified in such Debt Security. (Section 508)
The Company will be required to furnish to the Trustee annually a statement
that the Company is not in default in the performance and observation of any
of the terms, provisions and conditions of the Indenture (without regard to
any period of grace or requirement of notice) and if the Company is in
default, specifying all such defaults. (Section 1004)
Defeasance
The Prospectus Supplement will state if defeasance and/or covenant defeasance
provisions will apply to the Offered Debt Securities.
The Indenture provides, if such provisions are made applicable to the Debt
Securities of any series, that the Company may elect either (A) to defease
and be discharged from any and all obligations with respect to such Debt
Securities (except from the obligations to register the transfer or exchange
of such Debt Securities, to replace temporary or mutilated, destroyed, lost
or stolen Debt Securities, to maintain an office or agency in respect of the
Debt Securities and to hold moneys for payment in trust) ("defeasance") or
(B) to be released from its obligations with respect to such Debt Securities
under Sections
<PAGE>
501(5), 1008 and 1009 of the Indenture (being the cross-acceleration
provision described in clause (e) under "Events of Default", the restrictions
described under "Restrictions on Secured Debt" and the restrictions described
under "Restrictions on Sales and Leasebacks," respectively) and any other
restrictive covenants and Events of Default applicable to such series of Debt
Securities if indicated in the Prospectus Supplement relating thereto
("covenant defeasance"), upon the deposit with the Trustee (or other
qualifying trustee), in trust for such purpose, of money and/or U.S.
Government Obligations which through the payment of principal and interest in
accordance with their terms will provide money in an amount sufficient to pay
the principal of and any premium and interest on such Debt Securities, and
any mandatory sinking fund or analogous payments thereon, on the scheduled
due dates therefor. In the case of defeasance, the Holders of such Debt
Securities are entitled to receive payments in respect of such Debt
Securities solely from such trust. Such a trust may only be established if,
among other things, the Company has delivered to the Trustee an opinion of
counsel (as specified in the Indenture) to the effect that the Holders of
such Debt Securities will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance or covenant defeasance and
will be subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance or
covenant defeasance had not occurred. Such opinion, in the case of defeasance
under clause (A) above, must refer to and be based upon a ruling of the
Internal Revenue Service or a change in applicable Federal income tax law
occurring after the date of the Indenture. The Prospectus Supplement may
further describe the provisions, if any, permitting such defeasance or
covenant defeasance with respect to the Debt Securities of a particular
series. (Article Thirteen)
In the event the Company exercised its covenant defeasance option with respect
to the Securities of any series and the Securities of such series were declared
due and payable because of the occurrence of any Event of Default, the amount of
money and U.S. Government Obligations deposited in trust may not be sufficient
to pay amounts due on the Securities of such series upon any acceleration
resulting from such Event of Default. In such a case, the Company would remain
liable for such payments. (Sections 1303 and 1304)
Regarding the Trustee
United States Trust Company of New York serves as the Trustee under several
Indentures pursuant to which there is outstanding long-term indebtedness of
the Company as follows: $75,000,000 principal amount of 8-1/4% Debentures due
2002, $75,000,000 principal amount of 8-3/8% Notes due 1996, $75,000,000
principal amount of 8-7/8% Debentures due 2016, $75,000,000 principal amount
of 8-7/8% Debentures due 2021, $100,000,000 principal amount of 6.75%
Debentures due 2013, $100,000,000 principal amount of 7.625% Debentures
due 2024 and $100 million principal amount of 6% Notes due 2003. United
States Trust Company also serves as the Trustee of Medium Term Notes in the
aggregate principal amount of $145,000,000 bearing various interest rates
ranging from 7.08% to 7.93% and maturing at various dates from August, 2000, to
March, 2023. United States Trust Company also serves as a Trustee of the
Company's Pension Plan and Investment Plan, both of which are maintained by the
Company for the benefit of the employees of the Company and certain
participating subsidiaries.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters, and also may
sell Debt Securities directly to other purchasers or through agents. Unless
otherwise set forth in the Prospectus Supplement, the obligations of any
underwriters to purchase the Offered Debt Securities will be subject to
certain conditions precedent and such underwriters will be obligated to
purchase all the Offered Debt Securities if any are Purchased.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The applicable Prospectus
Supplement will describe the method of distribution of the Offered Debt
Securities.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of Debt
Securities may be deemed to be underwriters, and any discounts or commissions
received by them and any profit on the resale of Debt Securities by them may
be deemed to be underwriting discounts and commissions, under the Securities
Act of 1933 (the "Act"). Any such underwriter, dealer or agent will be
identified, and any such compensation will be described, in the Prospectus
Supplement.
<PAGE>
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Debt Securities may
be entitled to indemnification by the Company against certain liabilities,
including liabilities under the Act, or to contribution with respect to
payments which the underwriters, dealers or agents may be required to make in
respect thereof.
If so indicated in the Prospectus Supplement, the Company will authorize
dealers or other persons acting as the Company's agent to solicit offers by
certain institutions to purchase Debt Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others.
VALIDITY OF DEBT SECURITIES
The validity of the Debt Securities is being passed on for the Company by
William C. Ughetta, Esq., Senior Vice President and General Counsel of
Corning, and for any underwriters, dealers or agents by Sullivan & Cromwell,
125 Broad Street, New York, New York. Mr. Ughetta owns substantially less
than 1% of the outstanding shares of Corning Common Stock.
EXPERTS
The consolidated financial statements of the Company and of Dow Corning
Corporation incorporated in this Prospectus by reference to the Company's
1993 Annual Report on Form 10-K for the year ended January 2, 1994, have been
so incorporated in reliance on the reports of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The consolidated financial statements of Damon Corporation, as of December 31,
1992 and 1991 and for each of the three years ended December 31, 1992,
incorporated in this Prospectus by reference to the Company's Current Report
on Form 8-K filed on August 4, 1993 have been so incorporated in reliance on
the report of Arthur Andersen LLP, independent public accountants, given on
the authority of said firm as experts in auditing and accounting.
The financial statements of Moran Research Labs as of and for the year ended
December 31, 1993 incorporated in this Prospectus by reference to Corning's
Current Report on Form 8-KA dated December 12, 1994 have been so incorporated
in reliance on the report of Leverone & Company, certified public
accountants, given on the authority of said firm as experts in auditing and
accounting.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses of issuance and
distribution other than underwriting discounts and commissions:
<TABLE>
<CAPTION>
<S> <C>
Registration Fee $103,449
Trustee's Fees $ 10,000
Printing and Engraving Fees $ 40,000
Rating Agency Fees $120,000
Blue Sky Fees and Expenses $ 20,000
Accounting Fees $ 15,000
Miscellaneous $ 6,551
Total $315,000
</TABLE>
Item 15. Indemnification of Directors and Officers.
Sections 722 and 723 of the Business Corporation Law of the State of New York
(the "BCL") provide that a corporation may indemnify its current and former
directors and officers under certain circumstances. Article VIII of the
Company's By-Laws provides that the Company shall indemnify each director and
officer against all costs and expenses actually and reasonably incurred by
him in connection with the defense of any claim, action, suit or proceeding
against him by reason of his being or having been a director or officer of
the Company to the full extent permitted by, and consistent with, the BCL.
Section 402(b) of the BCL provides that a corporation may include a provision
in its certificate of incorporation limiting the liability of its directors
to the corporation or its shareholders for damages for the breach of any
duty, except for a breach involving intentional misconduct, bad faith, a
knowing violation of law or receipt of an improper personal benefit or for
certain illegal dividends, loans or stock repurchases. Paragraph 7 of the
Company's Restated Certificate of Incorporation contains such a provision.
Item 16. Exhibits.
<TABLE>
<CAPTION>
<S> <C>
1. Form of Underwriting Agreement.
4.1 Indenture dated as of April 1, 1991 between the Company and United
States Trust Company of New York as Trustee which appears as
Exhibit 4.1 to Post-Effective Amendment No. 1 to Registration
Statement on Form S-3 (File No. 33-20675) is incorporated by reference
in this Registration Statement.
4.2 Form of Debt Securities (included in Exhibit 4.1 at pages 15
through 22).
5. Opinion of William C. Ughetta, Esq., Senior Vice President and General
Counsel.
12. Computation of ratios of earnings to fixed charges which appears as
Exhibit 12 to the Company's
Quarterly Report on Form 10-Q for the forty weeks ended October 9,
1994 is incorporated by reference in this Registration Statement.
23.1 Consents of Price Waterhouse LLP, Arthur Andersen LLP and Leverone &
Company, independent accountants
23.2 Consent of William C. Ughetta, Esq., Senior Vice President and
General Counsel (included in Exhibit 5).
24. Powers of Attorney
25. Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of United States Trust Company of New York.
</TABLE>
Item 17. Undertakings
The Company hereby undertakes (1) to file, during any period in which offers
or sales are being made, a post-effective amendment to this Registration
Statement; (i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933; (ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereto) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution
<PAGE>
not previously disclosed in this Registration Statement or any material
change to such information in the Registration Statement; provided, however,
that paragraphs (1)(i) and (1)(ii) do not apply if the information required
to be included in a post-effective amendment thereby is contained in periodic
reports filed by the Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement; (2) that, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; (3) to remove
from registration by means of post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering; and
(4) that, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Company's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in this Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in such
Act and is, therefore, unenforceable. In the event a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in such Act
and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Corning Incorporated, a New York corporation, certifies that it has
reasonable grounds to believe it meets all the requirements for filing on
Form S-3 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Corning,
State of New York, on the 15th day of December, 1994.
Corning Incorporated
(Registrant)
By: /s/ William C. Ughetta
William C. Ughetta, Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below on December 15, 1994 by the following Persons
in the capacities indicated.
<TABLE>
<CAPTION>
<S> <C>
Signature Capacity
/s/ James R. Houghton Chairman of the Board, Principal Executive
James R. Houghton Officer and Director
/s/ Van C. Campbell Vice Chairman, Principal Financial Officer and
Van C. Campbell Director
/s/ Larry Aiello, Jr. Vice President, Controller, and Principal
Larry Aiello, Jr. Accounting Officer
* Director
Roger G. Ackerman
* Director
Robert Barker
Director
Mary L. Bundy
* Director
Barber B. Conable, Jr.
* Director
David A. Duke
Director
John H. Foster
* Director
Gordon Gund
* Director
John M. Hennessy
* Director
Vernon E. Jordan, Jr.
* Director
James W. Kinnear
<PAGE>
Signature Capacity
* Director
James J. O'Connor
* Director
Catherine A. Rein
* Director
Henry Rosovsky
* Director
William D. Smithburg
* Director
Robert G. Stone, Jr.
*By /s/ William C. Ughetta
William C. Ughetta
Attorney-in-fact
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Page
<S> <C> <C>
1. --Form of Underwriting Agreement
4.1 --Indenture dated as of April 1, 1991 between the Company and United
States Trust Company of New York as Trustee which appears as Exhibit
4.1 to Post-Effective Amendment No. 1 to Registration Statement on
Form S-3 (File No. 33-20675) is incorporated by reference in this
Registration Statement
4.2 --Form of Debt Securities (included in Exhibit 4.1 at pages 15
through 22)
5. --Opinion of William C. Ughetta, Esq., Senior Vice President and
General Counsel
12. --Computation of ratios of earnings to fixed charges which appears as
Exhibit 12 to the Company's Quarterly Report on Form 10-Q for the
forty weeks ended October 9, 1994 is incorporated by reference in
this Registration Statement
23.1 --Consents of Price Waterhouse LLP, Arthur Andersen LLP and Leverone
& Company, independent accountants
23.2 --Consent of William C. Ughetta, Esq., Senior Vice President and
General Counsel (included in Exhibit 5).
24. --Powers of Attorney
25. --Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of United States Trust Company of New York
</TABLE>
Draft of December 14, 1994
LAN03/63947.7
Corning Incorporated
Debt Securities
Underwriting Agreement
January __, 1995
Lazard Freres & Co.,
Goldman, Sachs & Co.,
c/o Lazard Freres & Co.,
One Rockefeller Plaza,
New York, New York 10020.
Dear Sirs:
From time to time Corning Incorporated, a New York corporation (the "Company"),
proposes to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain of its debt securities (the "Securities") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
The terms and rights of any particular issuance of Designated Securities shall
be as specified in the Pricing Agreement relating thereto and in or pursuant to
the indenture (the "Indenture") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to time to
the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representative. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus or registration statements and
prospectuses with
<PAGE>
respect thereto) the terms of such Designated Securities. The Pricing Agreement
also may specify such additional terms and conditions as the parties thereto may
agree. A Pricing Agreement shall be in the form of an executed writing (which
may be in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Two registration statements in respect of the Securities have been filed
with the Securities and Exchange Commission (the "Commission"); such
registration statements and any post-effective amendment thereto, each in
the forms heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statements, but including all
documents incorporated by reference in the prospectuses contained therein,
to the Representatives for each of the other Underwriters, have been
declared effective by the Commission in such form; no other document with
respect to such registration statements or document incorporated by
reference therein has heretofore been filed or transmitted for filing with
the Commission (other than prospectuses filed pursuant to Rule 424(b) of
the rules and regulations of the Commission under the Securities Act of
1933, as amended (the "Act"), each in the form heretofore delivered to the
Representatives) and no stop order suspending the effectiveness of any such
registration statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission and pursuant to Rule 429
under the Act, the prospectus included in registration statement no.
33-_____ is deemed to meet the requirements of the Act for use in
connection with Securities registered under registration no. 33-49903 (any
preliminary prospectus included in any such registration statement being
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statements, including all exhibits to registration statement
no. 33-_____ but excluding Form T-1, each as amended at the time such part
became effective, being hereinafter collectively called the "Registration
Statement"; the prospectus included in registration statement no. 33-_____,
in the form in which it has most recently been filed or transmitted for
filing with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) and 15(d) of the Exchange Act
after the effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a) of
this Agreement, including any documents incorporated by reference therein
as of the date of such filing);
<PAGE>
(b) The documents incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed
in all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any further
amendments or supplements thereto will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise then as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than
as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and
<PAGE>
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) The Securities have been duly authorized, and. when Designated Securities
are issued and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities, such Designated
Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, which is
substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and, at the Time of
Delivery (as defined in Section 4 hereof), the Indenture will constitute a
valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the Company with
all of the provisions of the Securities, the Indenture, this Agreement and
any Pricing Agreement, and the consummation of the transactions herein and
therein contemplated, will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is bound or to which
any of the property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation, as amended, or the By-Laws of the Company or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of the
other transactions contemplated by this Agreement or any Pricing Agreement
or the Indenture, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Underwriters;
and
(i) The statements set forth in the Prospectus under the captions "Description
of Debt Securities", insofar as they purport to constitute a summary of the
terms of the Securities and under the caption "Plan of Distribution"
insofar as they purport to describe the provisions of the documents
referred to therein, are accurate, complete and fair;
(j) Neither the Company nor any of its subsidiaries is in violation of its
Certificate of Incorporation, as amended, or By-laws or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture,
<PAGE>
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or its properties may
be bound;
(k) Other than as set forth or contemplated in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(l) The Company is not and, after giving effect to the offering and sale of the
Securities, will not be an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act"); and
(m) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, the several Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight hours' prior notice
to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, or by such other means as may be specified
in such Pricing Agreement, all at the place and time and date specified in such
Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation to the
applicable Designated Securities in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement to
the Registration Statement or Prospectus as amended or supplemented after
the date of the Pricing Agreement relating to such Securities and prior to
the Time of Delivery for such
<PAGE>
Securities which shall be disapproved by the Representatives for such
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such
Time of Delivery and furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or become
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Representatives may
reasonably request to qualify such Securities for offering and sale under
the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of such Securities, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as amended or
supplemented in such quantities as the Representatives may from time to
time reasonably request, and, if the delivery of a prospectus is required
at any time in connection with the offering or sale of the Securities and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as soon as practicable,
but in any event not later than eighteen months after the effective date of
the Registration Statement (as defined in Rule 158(c) under the Act) and of
the post-effective amendment
<PAGE>
thereto hereinafter referred to, an earning statement of the Company and
its subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including at the option to the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement for such
Designated Securities and continuing to and including the earlier of (i)
the termination of trading restrictions for such Designated Securities, as
notified to the Company by the Representatives and (ii) the Time of
Delivery for such Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company which
mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Blue Sky and Legal Investment Memoranda and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and legal investment
survey; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 8 and Section 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under the
Pricing Agreement relating to such Designated Securities shall be subject, in
the discretion of the Representatives, to the condition that all representations
and warranties and other statements of the Company in or incorporated by
reference in the Pricing Agreement relating to such Designated Securities are,
at and as of the Time of Delivery for such Designated Securities, true and
correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation to the applicable
Designated Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations
<PAGE>
under the Act and in accordance with Section 5(a) of this Agreement; no
stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to
the Representatives' reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have furnished to
the Representatives such opinion or opinions, dated the Time of Delivery
for such Designated Securities, with respect to the incorporation of the
Company, the validity of the Indenture, the Designated Securities, the
Registration Statement, the Prospectus as amended or supplemented and other
related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) William C. Ughetta, Esq., General Counsel of the Company, shall have
furnished to the Representatives his written opinion, dated the Time of
Delivery for such Designated Securities, in form and substance satisfactory
to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New York,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iii) With such exceptions as are not material, the Company has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties so as to require such qualification (such
counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel, and, as to matters of fact,
upon certificates of officers of the Company, provided that such
counsel shall state that he believes that both you and he are
justified in relying upon such opinions and certificates);
(iv) To the best of such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
(other than as set forth in the Prospectus and other than litigation
incident to the kind of business conducted by the Company and its
subsidiaries, none of which litigation is material to the Company and
its subsidiaries considered as a whole) which, if determined adversely
to the Company or any of its subsidiaries, as the case may be, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and to the best of
such counsel's knowledge no such proceedings are threatened by
<PAGE>
governmental authorities or by others; and such counsel has not
received notice that any such proceedings are contemplated by
governmental authorities;
(v) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
(vi) The Designated Securities have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the Indenture; and the Designated Securities and the Indenture
conform as to legal matters to the descriptions thereof in the
Prospectus as amended or supplemented;
(vii) The Indenture has been duly authorized, executed and delivered by the
parties thereto and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(viii) The issue and sale of the Designated Securities and the compliance
by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to
which the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject, nor
will such action result in any violation of the provisions of the
Certificate of Incorporation, as amended, or the By-Laws of the
Company or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(ix) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Designated Securities or the
consummation by the Company of the other transactions contemplated by
this Agreement or such Pricing Agreement or the Indenture, except such
as have been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(x) The statements set forth in the Prospectus under the captions
"Description of Debt Securities", and "Description of Debentures",
insofar as they purport to constitute a summary of the terms of the
Securities and the Designated Securities, and under the captions "Plan
of Distribution" and "Underwriting", insofar as they purport to
describe the provisions of the documents referred to therein, are
accurate, complete and fair;
<PAGE>
(xi) The Company is not an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in the
Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus as amended
or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and such counsel
has no reason to believe that any of such documents, when they became
effective or were so filed, as the case may be, contained, in the case
of a registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(xiii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations thereunder; such
counsel has no reason to believe that, as of the effective date of the
Registration Statement, either the Registration Statement or the
Prospectus (or, as of its date, any further amendment or supplement
thereto made by the Company prior to the Time of Delivery) contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, that the Prospectus as of its date and as of
the date of any amendment or supplement thereto, did not contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that, as
of the Time of Delivery, either the Registration Statement or the
Prospectus (or any such further amendment or supplement thereto)
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and such counsel does not know of
any contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement
or the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) On the date of the Pricing Agreement for such Designated Securities and at
the Time of Delivery of such Designated Securities, Price Waterhouse LLP,
Arthur Andersen LLP and Leverone & Company shall each have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
<PAGE>
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annexes II, III and IV hereto, and with respect to
such letter dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented, and (ii)
since the respective dates as of which information is given in the
Prospectus as amended or supplemented there shall not have been any change
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, the effect of which, in any such
case described in Clause (i) or (ii), is in the reasonable judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the
rating accorded any debt securities of the Company by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any debt securities of the Company;
(g) On or after the date of the Pricing Agreement relating to the Designated
Securities there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange; (iii) a
general moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities, or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event specified in this Clause (iv) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented relating to the
Designated Securities; and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (e) of this Section and as to such other matters as
the Representatives may reasonably request.
<PAGE>
8. (a) The Company will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses
are incurred; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities; and provided, further, that the
Company shall not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any Preliminary Prospectus
to the extent that the Company demonstrates that any such loss, claim,
damage or liability of such Underwriter results from the fact that such
Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents
incorporated by reference) in any case where such delivery is required by
the Act if the Company has previously furnished copies thereof to such
Underwriter and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained
in the Preliminary Prospectus which was corrected in the Prospectus
(excluding documents incorporated by reference) or the Prospectus as
amended or supplemented (excluding documents incorporated by reference).
(b) Each Underwriter will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably
<PAGE>
incurred by the Company in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b)
above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs
of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from the offering of
the Designated Securities to which such loss, claim, damage or liability
(or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and the Underwriters
of the Designated Securities on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact
<PAGE>
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in addition to
any liability, which the Company may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may
in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter
the Representatives do not arrange for the purchase of such Designated
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated Securities
on such terms. In the event that, within the respective prescribed period,
the Representatives notify the Company that they have so arranged for the
purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Company shall have the right to
postpone the Time of Delivery for such Designated Securities for a period
of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus
as amended or supplemented, or in any other documents or arrangements, and
the Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this
Section
<PAGE>
with like effect as if such person had originally been a party to the
Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition,
to require each nondefaulting Underwriter to purchase its pro rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter with
respect to the Designated Securities covered by such Pricing Agreement except as
provided in Section 6 and Section 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
<PAGE>
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in writing,
and if to the Underwriters shall be delivered or sent by registered mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
registered mail to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one or more
of the parties hereto and thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
<PAGE>
If the foregoing is in accordance with your understanding, please
sign and return seven counterparts hereof.
Very truly yours,
CORNING INCORPORATED
By:_______________________
Name:
Title:
Accepted as of the date hereof:
Lazard Freres & Co.
By:___________________________
Name:
Title:
_____________________________
(Goldman, Sachs & Co.)
<PAGE>
ANNEX I
Pricing Agreement
Lazard Freres & Co.,
Goldman, Sachs & Co.,
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Lazard Freres & Co.,
One Rockefeller Plaza,
New York, New York 10020.
__________ __, 199_
Dear Sirs:
Corning Incorporated (the "Company") proposes, subject to the terms
and conditions stated herein and in the Underwriting Agreement, dated
__________ __, 1995 (the "Underwriting Agreement"), between the Company
on the one hand and Lazard Freres & Co. and Goldman, Sachs & Co. on the
other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters"), the Securities specified in Schedule II
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each
of the representations and warranties set forth therein shall be deemed
to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty with respect to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to
be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement.
Each reference to the Representatives herein and in the provisions of
the Underwriting Agreement so incorporated by reference shall be deemed
to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and
on behalf of each of the Underwriters of the Designated Securities
pursuant to Section 12 of the Underwriting Agreement and the address of
the Representatives referred to in such Section 12 are set forth at the
end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities,
in the form heretofore delivered to you, is now proposed to be filed, or
in the case of a supplement mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company
agrees to issue and sell to each of the Underwriters,
<PAGE>
and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at the time and place and at the purchase price to the Underwriters
set forth in Schedule II hereto, the principal amount of Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the
part of the Representatives as to the authority of the signers thereof.
Very truly yours,
CORNING INCORPORATED
By:___________________________
Name:
Title:
Accepted as of the date hereof:
Lazard Freres & Co.
By:____________________________
Name:
Title:
______________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
<PAGE>
SCHEDULE I
Principal Amount
of Designated
Securities to be
Underwriter Purchased
Goldman, Sachs & Co. $
Lazard Freres & Co.
-----
Total $
=========
<PAGE>
SCHEDULE II
Title of Designated Securities:
[ %][Floating Rate][Zero Coupon][Notes]
due
Aggregate principal amount:
$
Price to Public:
% of the principal amount of the Designated Securities, plus accrued interest
from to [and accrued amortization, if any
from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued interest
from to [and accrued amortization, if any,
from to ]
Specified Funds for Payment of Purchase Price:
New York Clearing House funds
Indenture:
Indenture, dated as of April 1, 1991, between the Company and United States
Trust Company of New York, as Trustee
Maturity:
Interest Rate:
[ %][Zero Coupon][See Floating Rate Provisions]
<PAGE>
Interest Payment Dates:
[months and dates]
Redemption or Repayment Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %, and
if] redeemed during the 12-month period beginning ,
Redemption
Year Price
---- -----
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the
election of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[The Designated Securities may be repaid, in whole or in part, at the option
of the holder, in the amount of [$ ] or an integral multiple
thereof, upon the following terms:]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$ ] principal amount of Designated Securities on in each of the
years through at 100% of their principal amount plus accrued
interest] [, together with [cumulative] [noncumulative] redemptions at the
option of the Company to retire an additional [$ ] principal amount of
<PAGE>
Designated Securities in the years through at 100% of their
principal amount plus accrued interest].
[If Securities are extendable debt Securities, insert--
Extendable provisions:
Securities are repayable on , [insert date and years], at the option of
the holder, at their principal amount with accrued interest. Initial annual
interest rate will be %, and thereafter annual interest rate will be
adjusted on , and to a rate not less than % of the effective
annual interest rate on U.S. Treasury obligations with -year maturities as
of the [insert date 15 days prior to maturity date] prior to such
[insert maturity date].]
[If Securities are Floating Rate debt Securities, insert--
Floating rate provisions:
Initial annual interest rate will be % through [and thereafter will be
adjusted [monthly] [on each , , and ] [to an annual rate of % above the
average rate for -year [month][securities][certificate of deposit] issued by
and [insert names of banks].] [and the annual interest rate [thereafter]
[from through ] will be the interest yield equivalent of the weekly
average per annum market discount rate for -monthly Treasury bills plus %
of Interest Differential (the excess, if any, of (i) then current weekly average
per annum secondary market yield for -month certificates of deposit over (ii)
then current interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills); [from and thereafter the rate
will be the then current interest yield equivalent plus % of Interest
Differential].]
Defeasance:
Time of Delivery:
Closing Location:
<PAGE>
Names and Addresses of Representatives:
Designated Representatives:
Goldman, Sachs & Co.
Lazard Freres & Co.
Address for Notices, etc.:
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Registration Department
[Other Terms]:
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, Price Waterhouse LLP
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary financial
information and schedules (and, if applicable, financial forecasts and/or
pro forma financial information) examined by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus as
indicated in their reports thereon copies of which have been separately
furnished to the Representatives and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(a)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and regulations,
nothing came to their attention that caused them to believe that the
unaudited condensed consolidated financial statements do not comply as to
form in all material respects with the applicable accounting requirements
of the Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the
basis of limited procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that caused them to
believe that
<PAGE>
this information does not conform in all material respects with the
disclosure requirements of Items 301, 302 and 503(d) of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company, and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act as it applies to
Form 10-Q and the related published rules and regulations thereunder or (ii) any
material modifications should be made to the unaudited consolidated statements
of income, consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus, for them to be in conformity
with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet items included
in the Prospectus do not agree with the corresponding items in the unaudited
consolidated financial statements from which such data and items were derived,
and any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding amounts in the
audited consolidated financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the Prospectus
but from which were derived the unaudited condensed financial statements
referred to in Clause (A) and any unaudited income statement data and balance
sheet items included in the Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the Company's
Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements included
or incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the date of such
letter, there have been any changes in the consolidated capital stock (other
than issuances of capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
<PAGE>
conversions of convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by reference in
the Prospectus) or any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in consolidated net current
assets or net assets or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet included or incorporated
by reference in the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial statements included or
incorporated by reference in the Prospectus to the specified date referred to in
Clause (E) there were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net income or other
items specified by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length specified
by the Representatives, except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in such
letter; and
(vii) In addition to the examination referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii), (iv), (v) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives which are
derived from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by reference in
the Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting records
of the Company and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer to
the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
<PAGE>
ANNEX III
Pursuant to Section 7(d) of the Underwriting Agreement, Arthur Andersen LLP
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to Damon
Corporation ("Damon") and its subsidiaries within the meaning of the Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary financial
information and schedules audited (and, if applicable, financial forecasts
and/or pro forma financial information) examined by them and included or
incorporated by reference in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of Damon for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the Underwriters;
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of Damon for the
three most recent fiscal years included or incorporated by reference in the
Prospectus agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such three
fiscal years which were included or incorporated by reference in Damon's
Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in accordance
with generally accepted auditing standards, consisting of a reading of the
unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of Damon and
its subsidiaries, inspection of the minutes books of Damon and its
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of Damon and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows of Damon included or
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act as it applies to Form 10-Q and the related published rules and regulations
thereunder, or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by reference in
the Prospectus, for them to be in conformity with generally accepted accounting
principles;
<PAGE>
(B) any other unaudited income statement data and balance sheet items of Damon
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items were
derived, and any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding amounts in the
audited consolidated financial statements of Damon included or incorporated by
reference in the Prospectus; and
(C) the unaudited financial statements of Damon which were not included in the
Prospectus but from which were derived any unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the basis for the
audited consolidated financial statements of Damon included or incorporated by
reference in the Prospectus.
All references in this Annex III to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the
date of the letter delivered on the date of the Underwriting Agreement
and to the Prospectus as amended or supplemented (including all
documents incorporated by reference therein) for the purposes of the
letter delivered at each Time of Delivery.
<PAGE>
ANNEX IV
Pursuant to Section 7(d) of the Underwriting Agreement, Leverone & Company shall
furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to Moran
Research Labs ("Moran") and its subsidiaries within the meaning of the Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary financial
information and schedules audited (and, if applicable, financial forecasts
and/or pro forma financial information) examined by them and included or
incorporated by reference in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of Moran for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the Underwriters;
(iii) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of Moran and its subsidiaries, inspection of the minutes books
of Moran and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of Moran and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows of Moran included or
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act as it applies to Form 10-Q and the related published rules and regulations
thereunder, or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by reference in
the Prospectus, for them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet items of Moran
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items were
derived, and any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding amounts in the
audited consolidated financial statements of Moran included or incorporated by
reference in the Prospectus; and
<PAGE>
(C) the unaudited financial statements of Moran which were not included in the
Prospectus but from which were derived any unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the basis for the
audited consolidated financial statements of Moran included or incorporated by
reference in the Prospectus.
All references in this Annex IV to the Prospectus shall be deemed to refer to
the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Underwriting Agreement and to the Prospectus as amended or
supplemented (including all documents incorporated by reference therein) for the
purposes of the letter delivered at each Time of Delivery.
EXHIBIT 5
December 15, 1994
To the Board of Directors of
Corning Incorporated
Dear Sirs:
As General Counsel for Corning Incorporated (the "Company"), I have participated
in the preparation of the Registration Statement on Form S-3 to be filed with
the Securities and Exchange Commission on December 15, 1994, or as soon
thereafter as practicable, with respect to up to $300,000,000 aggregate
principal amount of Debt Securities to be issued from time to time under an
Indenture dated as of April 1, 1991 between the Company and United States Trust
Company of New York, a form of which is filed as Exhibit 4.1 to Post-Effective
Amendment No. 1 to the Registration Statement on Form S-3 File No. 33-20675 (the
"Indenture").
In this capacity I have examined signed copies of the Registration Statement to
be filed with the Commission on December 15, 1994, or as soon thereafter as
practicable. I have also examined the originals, or copies identified to my
satisfaction, of such corporate records of the Company, such other agreements
and instruments, certificates of public officials, officers of the Company and
other persons, and such other documents as I have deemed necessary as a basis
for the opinions hereinafter expressed.
Based upon the foregoing and having regard for such legal considerations that
I deem relevant, I am of the opinion that:
1. The Company has been duly incorporated and is validly existing under the
laws of the State of New York.
2. The Indenture constitutes a legal, valid and binding instrument of the
Company.
3. The issuance by the Company of up to $300,000,000 in aggregate
principal amount of Debt Securities has been duly authorized and the Debt
Securities, when executed and authenticated in accordance with the Indenture
and when delivered and paid for as contemplated by the Registration
Statement, will constitute legal, valid and binding obligations of the
Company.
I hereby consent to the use of this opinion as an exhibit to the Registration
Statement and to the use of my name in "Validity of Debt Securities" in the
related prospectus.
Very truly yours,
/s/ WILLIAM C. UGHETTA
WILLIAM C. UGHETTA
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated January 24, 1994 (except Note 16 which is as of February 7, 1994),
appearing on Page 21 of the Corning Incorporated 1993 Annual Report on Form
10-K for the year ended January 2, 1994. We also consent to the incorporation
by reference of our report dated January 20, 1994 on the financial statements
of Dow Corning Corporation, which appears on Page 56 of the Corning
Incorporated Annual Report on Form 10-K for the year ended January 2, 1994.
We also consent to the reference to us under the heading "Experts" in the
Prospectus.
PRICE WATERHOUSE LLP
Price Waterhouse LLP
1177 Avenue of the Americas
New York, New York
December 13, 1994
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Prospectus constituting part of this Registration Statement
on Form S-3 of our report dated March 11, 1993 (except with respect to Note
N, as to which the date is July 3, 1993) on the consolidated financial
statements of Damon Corporation and Subsidiaries as of December 30, 1992 and
1991 and for each of the three years ended December 31, 1992 which are
included in Corning's Form 8-K filed on August 4, 1993 which is incorporated
into this Prospectus. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
ARTHUR ANDERSEN LLP
Arthur Andersen LLP
Boston, Massachusetts
December 12, 1994
<PAGE>
Exhibit 23.1
CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS
As certified public accountants, we hereby consent to the incorporation by
reference in the Prospectus constituting part of this Registration Statement
on Form S-3 of our report dated November 10, 1994 on the financial statements
of Moran Research Labs as of and for the year ended December 31, 1993 which
are included in Corning's Form 8-KA filed on December 12, 1994 which is
incorporated into this Prospectus. We also consent to the reference to us
under the heading "Experts" in such Prospectus.
LEVERONE & COMPANY
Billerica, Massachusetts
December 12, 1994
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 28th
day of October, 1994.
/s/ Roger G. Ackerman
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 28th
day of October, 1994.
/s/ Robert Barker
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 3rd
day of November, 1994.
/s/ Van C. Campbell
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 3rd
day of November, 1994.
/s/ Barber B. Conable, Jr.
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 3rd
day of November, 1994.
/s/ David A. Duke
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 1st
day of November, 1994.
/s/ Gordon Gund
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 7th
day of November, 1994.
/s/ John M. Hennessy
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 3rd
day of November, 1994.
/s/ James R. Houghton
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 1st
day of November, 1994.
/s/ Vernon E. Jordon, Jr.
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 20th
day of November, 1994.
/s/ James W. Kinnear
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 1st
day of November, 1994.
/s/ James J. O'Connor
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 3rd
day of November, 1994.
/s/ Catherine A. Rein
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 3rd
day of November, 1994.
/s/ Henry Rosovsky
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 1st
day of November, 1994.
/s/ William D. Smithburg
<PAGE>
Exhibit 24
CORNING INCORPORATED
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or Officer
of CORNING INCORPORATED, a New York corporation, hereby constitutes and
appoints Van C. Campbell, Larry Aiello, Jr., and William C. Ughetta, and each
of them, his true and lawful attorneys and agents, in the name and on behalf
of the undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable CORNING INCORPORATED to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of an issue
not exceeding $300,000,000 principal amount of debentures or notes to be
issued and sold by it in 1994 or thereafter, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as Director and/or Officer
of CORNING INCORPORATED to a Registration Statement on Form S-3 to be filed
with the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statement,
including Post-Effective Amendments, and to any and all instruments and
documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys and agents, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 3rd
day of November, 1994.
/s/ Robert G. Stone, Jr.
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2)
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York
(Jurisdiction of incorporation
if not a U.S. National Bank)
13-5459866
(I.R.S. employer
identification No.)
114 West 47th Street
New York, NY
(Address of principal executive offices)
10036-1532
(Zip Code)
CORNING INCORPORATED
(Exact name of obligor as specified in its charter)
New York
(State or other jurisdiction of
incorporation or organization)
16-0393470
(I.R.S. employer
identification No.)
Houghton Park
Corning, New York
(Address of principal executive offices)
14831
(Zip Code)
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
1. General Information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Federal Reserve Bank of New York (2nd District), New York, New York
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, D.C.
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with the Obligor
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15.
Corning Incorporated currently is not and has not been in default under any
of its outstanding securities issued under indentures for which United States
Trust Company of New York is Trustee. Accordingly, responses to Items 3, 4,
5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of Form T-1 are not required under
General Instruction B.
16. List of Exhibits.
<TABLE>
<CAPTION>
<S> <C>
T-1.1 -- "Chapter 204, Laws of 1853, An Act to Incorporate the United States Trust Company of New York, as
Amended", is incorporated by reference to Exhibit T-1.1 to Form T-1 filed on September 20, 1991
with the Securities and Exchange Commission (the "Commission") pursuant to the Trust Indenture Act
of 1939 (Registration No. 2221291).
T-1.2 -- The trustee was organized by a special act of the New York Legislature in 1853 prior to the time
that the New York Banking Law was revised to require a Certificate of authority to commence
business. Accordingly, under New York Banking Law, the Charter (Exhibit T-1.1) constitutes an
equivalent of a certificate of authority to commence business.
T-1.3 -- The authorization of the trustee to exercise corporate trust powers is contained in the Charter
(Exhibit T- 1.1).
T-1.4 -- The By-laws of the United States Trust Company of New York, as amended to date, are incorporated
by reference to Exhibit T-1.4 to Form T-1 filed on September 20, 1991 with the Commission pursuant
to the Trust Indenture Act of 1939 (Registration No. 2221291).
T-1.6 -- The consent of the trustee required by Section 321(b) of the Trust Indenture Act of 1939.
T-1.7 -- A copy of the latest report of condition of the trustee published pursuant to law or the
requirements of its supervising or examining authority.
</TABLE>
NOTE
As of December 13, 1994, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in Item 2, refers to each of United States
Trust Company of New York and its parent company, U.S. Trust Corporation.
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, United States Trust Company of New York, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York, and State of New
York, on the 13th day of December, 1994.
UNITED STATES TRUST COMPANY OF
NEW YORK, Trustee
By: /s/ Margaret Ciesmelewski
Margaret Ciesmelewski
Assistant Vice President
<PAGE>
Exhibit T-1.6
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
March 19, 1992
Securities and Exchange Commission
450 5th Street, N.W.
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of
1939, as amended by the Trust Indenture Reform Act of 1990, and subject to
the limitations set forth therein, United States Trust Company of New York
("U.S. Trust") hereby consents that reports of examinations of U.S. Trust by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY OF NEW YORK
By: /s/ Gerard F. Ganey
Gerard F. Ganey
Senior Vice President
<PAGE>
Exhibit T-1.7
Consolidated Report of Condition of
United States Trust Company
of New York
and Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business on September 30, 1994, published in
accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
a. Noninterest bearing balances and currency and coin: $ 356,398
b. Interest bearing balances: 70,000
Held to maturity securities: 448,254
Available for sale securities: 1,021,191
Federal funds sold and securities purchased under agreements to resell
in domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBF's:
a. Federal funds sold: 24,448
b. Securities purchased under agreements to resell: 0
Loans and lease financing receivables:
a. Loans and leases, net of unearned income: 1,392,864
b. LESS: Allowance for loan and lease losses: 12,619
c. Loans and leases, net of unearned income, allowance and reserve: 1,380,245
Assets held in trading accounts: 0
Premises and fixed assets (including capitalized leases): 95,900
Other real estate owned: 11,418
Investments in unconsolidated subsidiaries and associated companies: 581
Customers' liability to this bank on acceptance outstanding: 0
Intangible assets: 1,854
Other assets: 123,230
TOTAL ASSETS: $3,533,519
<PAGE>
LIABILITIES
Deposits:
a. In domestic offices: $2,032,684
(1) Noninterest bearing: 898,457
(2) Interest bearing: 1,134,227
b. In foreign offices, Edge and Agreement subsidiaries, and IBF's: 7,611
(1) Noninterest bearing: 0
(2) Interest bearing: 7,611
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBF's:
a. Federal funds purchased: 1,148,301
b. Securities sold under agreements to repurchase: 8,099
Demand notes issued to the U.S. Treasury: 2,000
Trading Liabilities: 0
Other Borrowed Money:
With original maturity of one year or less: 35,035
With original maturity of more than one year: 0
Mortgage indebtedness and obligations under capitalized leases: 1,243
Bank's liability on acceptances executed and outstanding: 0
Subordinated notes and debentures: 12,453
Other liabilities: 84,934
TOTAL LIABILITIES: $3,332,360
Limited life preferred stock and related surplus: 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus: 0
Common Stock: $ 14,995
Surplus: 41,500
Undivided profits and capital reserves: 148,014
Net unrealized holding gains (losses) on available-for-sale securities: (3,350)
Cumulative foreign currency translation adjustments: 0
TOTAL EQUITY CAPITAL: $ 201,159
TOTAL LIABILITIES, LIMITED LIFE PREFERRED STOCK, AND EQUITY
CAPITAL: $3,533,519
</TABLE>
<PAGE>
I, RICHARD E. BRINKMANN, SENIOR VICE PRESIDENT & CONTROLLER, of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
RICHARD E. BRINKMANN, SVP & Controller
October 31, 1994
We, the undersigned directors, attest the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true
and correct.
H. MARSHALL SCHWARZ | Directors
JEFFREY S. MAURER |
FREDERICK S. WONHAM |
