As filed with the Securities and Exchange Commission on December , 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
(State or other jurisdiction of
incorporation or organization)
16-0393470
(IRS Employer
Identification No.)
One Riverfront Plaza
Corning, New York 14831
(607) 974-9000
(Address, including zip code and telephone number of issuer's
principal executive offices)
William C. Ughetta
Corning Incorporated
One Riverfront Plaza
Corning, New York 14831
(607) 974-9000
(Name, address, including zip code, and telephone number of agent for
service)
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. |B&
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>
Proposed Proposed
Maximum 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 Fee
- --------------------------------- -------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Common Stock ($.50 par value) 6,188,151 shs. $30.1875 $186,804,808 $64,416
</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating
the registration fee on the basis of the average of the high and low prices
of the Registrant's Common Stock on the New York Stock Exchange Composite
Tape on December 9, 1994.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
PRELIMINARY PROSPECTUS DATED DECEMBER , 1994
6,188,151 shares
Corning Incorporated
Common Stock
($.50 par value)
The Company's Common Stock is listed
on the New York Stock Exchange
This Prospectus relates to 6,188,151 presently outstanding shares of Common
Stock, $.50 par value (the "Common Stock"), of Corning Incorporated, a New
York corporation ("Corning" or the "Company"), which may be offered from time
to time by certain stockholders of the Company as identified herein under
"Selling Stockholders." The term "Shares" as used herein includes the shares
of Common Stock held by the Selling Stockholders. The distribution of the
Shares by the Selling Stockholders may be effected from time to time by
underwriters who may be selected by the Selling Stockholders and one or more
other broker-dealers, in one or more transactions (which may involve crosses
and block transactions) on the New York Stock Exchange or other stock
exchanges, in special offerings, exchange distributions or secondary
distributions pursuant to and in accordance with the rules of such exchanges,
in the over-the-counter market, in negotiated transactions or otherwise, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. On December 9, 1994, the
closing price of the Common Stock on the New York Stock Exchange was $30.25.
None of the proceeds from the sale of the Shares will be received by the
Company. The Company has agreed to indemnify the Selling Stockholders,
underwriters who may be selected by the Selling Stockholders and certain
other persons against certain liabilities, including liabilities under the
Securities Act of 1933, as amended (the "Securities Act"). See "Plan of
Distribution" and "Selling Stockholders."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
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 representations, other than those contained in
this Prospectus in connection with the offering described herein, and, if
given or made, such other information or representations must not be relied
upon as having been authorized by the Company, the Selling Stockholders or
any Underwriter. This Prospectus does not constitute an offer to sell or
solicitation of an offer to buy any securities other than those specifically
offered hereby or any securities offered hereby in any jurisdiction to any
person to whom it is unlawful to make an offer or solicitation in such
jurisdiction. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that the
information herein is correct as of any time subsequent to its date.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
Page
--------
Available Information 2
Incorporation of Certain Documents by Reference 3
The Company 3
Selling Stockholders 4
Description of Common Stock 5
Plan of Distribution 9
Legal Opinions 9
Experts 9
</TABLE>
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 Statement 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: 7 World Trade Center, 13th Floor, New York, New York 10048, and 500
West Madison Street, 14th Floor, Chicago, Illinois 60661. Copies of such
materials may be obtained from the Public Reference Section of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, such reports, proxy statements and other information concerning the
Company and such Registration Statement 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 Shares filed by the Company with the Commission under the Securities
Act. 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 Shares. Any statements contained herein
concerning the provisions of any document are not necessarily complete, and
in each instance reference is made to the copy of such document filed with
the Commission. Each such statement is qualified in its entirety by such
reference.
Corning's By-Laws provide that Corning shall indemnify each of its directors
and officers against all costs and expenses actually and reasonably incurred
by him or her in connection with the defense of any claim, action, suit or
proceeding against him or her by reason of his or her being or having been a
director or officer of Corning to the full extent permitted by, and
consistent with, the Business Corporation Law of the State of New York.
Insofar as indemnification for liabilities under the Securities Act may be
permitted to directors, officers or persons controlling Corning pursuant to
the foregoing provisions, Corning has been informed that, in the opinion of
the Commission, such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange 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. All other reports filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of said 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.
3. The Company's Current Reports on Form 8-K dated August 4, 1993 and
August 13, 1993, which include certain historical financial statements of
Damon Corporation.
4. The registration statement on Form 8-A filed by the Company on July 8,
1986 which contains a description of the Company's Preferred Share Purchase
Rights Plan and the amendment thereto on Form 8 filed by the Company on
October 9, 1989.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date of this
Prospectus and prior to the termination of this offering of Common Stock
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.
The Company will provide without charge to each person, including any
beneficial owner, 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 request should be directed to the Secretary, Corning
Incorporated, One Riverfront Plaza, Corning, New York 14831; telephone (607)
974-9000.
IN CONNECTION WITH THIS OFFERING, UNDERWRITERS ACTING ON BEHALF OF THE
SELLING STOCKHOLDERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR
MAINTAIN THE MARKET PRICE OF THE COMMON STOCK AT A LEVEL ABOVE THAT WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED
ON THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE.
SUCH STABILIZING MAY TAKE PLACE IN CONNECTION WITH THE OFFERING OF ANY OF THE
SHARES OFFERED HEREBY OTHER THAN AT THE MARKET AND, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
THE COMPANY
Corning Incorporated 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 in December 1936, and its name was changed from Corning
Glass Works to Corning Incorporated on April 28, 1989.
Corning competes 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. In addition, Corning, through subsidiaries and affiliates, engages
in laboratory services businesses, including life and environmental sciences
and clinical-laboratory testing.
Corning's executive offices are located at One Riverfront Plaza, Corning, New
York 14831, telephone (607) 974-9000.
Other information concerning Corning's business, securities and financial
condition is incorporated by reference from its reports filed with the
Commission. See "Incorporation of Certain Documents by Reference."
<PAGE>
SELLING STOCKHOLDERS
The Selling Stockholders listed in the table below have indicated that they
wish to be in a position to sell all of the Shares set forth below. The
number of Shares which may actually be sold by the Selling Stockholders will
be determined from time to time by the Selling Stockholders and will depend
on a number of factors, including the price of the Company's Common Stock
from time to time. The table sets forth information as of December 7, 1994,
concerning the beneficial ownership of the Shares by the Selling
Stockholders. All information as to the beneficial ownership prior to this
offering has been furnished by the respective Selling Stockholders.
<TABLE>
<CAPTION>
Shares
Shares Shares Which May
Presently Which May Be Owned
Name Owned Be Sold After Sale
- ------------------------------------------------------------- ----------- ----------- --------------
<S> <C> <C> <C>
Shirley A. Fennell et al, Trustees of Susan E. Khoury
Irrevocable Trust u/d/t dated October 17, 1991 1,445,864 1,445,864 -0-
Shirley A. Fennell et al, Trustees of Linda M. Shea
Irrevocable Trust u/d/t dated October 17, 1991 1,445,864 1,445,864 -0-
Shirley A. Fennell et al, Trustees of Kathleen M. Fennell
Irrevocable Trust u/d/t dated October 17, 1991 and 1,445,864 1,445,864 -0-
Shirley A. Fennell, et al, Trustees of Patricia A. McEachern
Irrevocable Trust u/d/t dated October 17, 1991 1,445,864 1,445,864 -0-
S. A. Fennell Limited Partnership 177,514 177,514 -0-
</TABLE>
The Shares owned by the Selling Stockholders as set forth above were acquired
as the result of the acquisition of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory ("Bioran"), by
Corning on October 9, 1994, pursuant to the Acquisition Agreement and Plan of
Reorganization dated as of September 8, 1994 between the Company, Bioran, the
stockholders of Bioran and S. A. Fennell Limited Partnership, a Massachusetts
limited partnership. A portion of such Shares are being held in escrow for a
period of twelve months. Prior to the acquisition, J. Richard Fennell, Ph.D.
was the trustee, President and Clerk of Bioran and Kathleen M. Fennell was a
trustee of all of the trusts, and a beneficiary of one of the trusts, holding
shares of beneficial interest in Bioran. Bioran subsequently merged into
Corning Bioran Inc., a newly organized subsidiary of Bioran. J. Richard
Fennell is currently the President of Corning Bioran Inc.
The Shares owned by the Selling Stockholders as set forth below were acquired
as the result of the acquisition of Medical Reference Laboratories, Inc., a
Montana commercial laboratory ("Medlabs"), by Corning on December 1, 1994,
pursuant to the Acquisition Agreement dated as of December 1, 1994 between
the Company, MRL NuCor, Inc., Medlabs and the stockholders of Medlabs. A
portion of such Shares are being held for a period of twelve months. Prior to
the acquisition, and following the acquisition, the officers of Medlabs
included the following Selling Stockholders: Scott K. Steinfeldt, President
and Hoyle E. Setzer, Secretary.
<TABLE>
<CAPTION>
Shares
Shares Shares Which May
Presently Which May Be Owned
Name Owned Be Sold After Sale
- ------------------------------------------------ ---------- ---------- --------------
<S> <C> <C> <C>
Saint Vincent Hospital and Health Care Center 87,377 87,377 -0-
Hoyle E. Setzer 43,689 43,689 -0-
Paul W. Holley 43,689 43,689 -0-
Virgil Minden 34,951 34,951 -0-
Scott K. Steinfeldt 17,475 17,475 -0-
</TABLE>
<PAGE>
DESCRIPTION OF CORNING CAPITAL STOCK
General
The following is a brief summary of certain provisions of the Restated
Certificate of Incorporation of Corning (the "Restated Certificate") and does
not relate to or give effect to provisions of statutory or other law except
as specifically stated. The Restated Certificate authorizes the issuance of
500,000,000 shares of Corning Common Stock. As of November 4, 1994,
227,542,353 shares of Corning Common Stock were outstanding. The rights of
holders of Corning Common Stock are governed by the Restated Certificate,
Corning's By-Laws and by the New York Business Corporation Law (the "NYBCL").
Voting Rights
Subject to the voting of any shares of Series Preferred Stock (as defined
below) that may be outstanding, voting power is vested in Corning Common
Stock, each share having one vote.
Preemptive Rights
The Restated Certificate provides that no holder of Corning Common Stock or
Series Preferred Stock shall have any preemptive rights except as the Board
of Directors of Corning (the "Corning Board") may determine from time to
time. No such rights have been granted by the Corning Board.
Corning Common Stock
Liquidation Rights. Subject to the preferential rights of any outstanding
Series Preferred Stock, in the event of any liquidation of Corning, holders
of Corning Common Stock then outstanding are entitled to share ratably in the
assets of Corning available for distribution to such holders.
Dividend Rights and Restrictions. Subject to any preferential rights of any
outstanding Series Preferred Stock and any outstanding preferred securities
of Corning, such dividends as may be determined by the Corning Board may be
declared and paid on Corning Common Stock from time to time out of any funds
legally available therefor. Corning has regularly paid cash dividends since
1881 and currently expects to continue to pay cash dividends. Corning's
current quarterly cash dividend is $.17 per share of Corning Common Stock.
The continued declaration of dividends by the Corning Board is subject to,
among other things, Corning's current and prospective earnings, financial
condition and capital requirements and such other factors as the Corning
Board may deem relevant.
Other Provisions. Corning Common Stock has no redemption, sinking fund or
conversion privileges applicable thereto and holders of Corning Common Stock
are not liable to assessments or to further call.
MIPS Offering
On July 21, 1994 Corning and Corning Delaware, L.P., a Delaware special
purpose limited partnership in which Corning is the sole general partner,
completed the offering (the "MIPS Offering") of $373.8 million aggregate
principal amount of 6% Convertible Monthly Income Preferred Securities (the
"Preferred Securities") of Corning Delaware.
Dividends on the Preferred Securities will be cumulative and will be payable
monthly at an annual rate of six percent. In certain circumstances, holders
of the Preferred Securities, voting as a class or by written consent, may
cause the exchange of the Preferred Securities for shares of Corning's Series
C Preferred Stock (herein defined), at a rate of one share of Series C
Preferred Stock for every two Preferred Securities. Each Preferred Security
is convertible at the option of the holder into Corning Common Stock at the
rate of 1.2821 shares of Corning Common Stock for each Preferred Security
(equivalent to a conversion price of $39.00 per share of Corning Common
Stock), subject to adjustment in certain circumstances. From time to time
after four years from the date of issuance, the Preferred Securities will be
redeemable, at the option of Corning Delaware, in whole or in part, for cash
at stated redemption prices. The Preferred Securities are subject to
mandatory redemption on the 30th anniversary of the date of original issuance
at a redemption price of $50 per Preferred Security together with accumulated
and unpaid dividends (whether or not earned or declared). Holders of the
Preferred Securities do not have any voting rights, except in certain
instances of default.
Series Preferred Stock
The Restated Certificate authorizes the issuance of up to 10,000,000 shares
of Series Preferred Stock, par value $100 per share (the "Series Preferred
Stock"). The Corning Board has the authority to issue such shares from time
to time, without stockholder approval, and the authority to determine the des-
<PAGE>
ignations, preferences, rights, including voting rights, and restrictions of
such shares, subject to the NYBCL. Pursuant to this authority, the Corning
Board has designated 600,000 shares of Series Preferred Stock as Series A
Preferred Stock, 316,822 shares of Series Preferred Stock as Series B
Preferred Stock (the "Series B Preferred Stock"), and 4,683,710 shares of
Series Preferred Stock as Series C 6% Cumulative Convertible Preferred Stock
(the "Series C Preferred Stock"). No other class of Series Preferred Stock
has been designated by the Corning Board.
Series B Preferred Stock
Cumulative cash dividends at the rate of 8% per annum are payable on shares
of the Series B Preferred Stock that have been issued. Corning has regularly
paid dividends on the Series B Preferred Stock. No dividends may be paid or
declared on the Series A Preferred Stock or Corning Common Stock unless all
dividends for all prior dividend periods have been paid or declared on the
Series B Preferred Stock, the Series C Preferred Stock and the Preferred
Securities.
Holders of Series B Preferred Stock are entitled to vote, voting together
with Corning Common Stock and not as a separate class, on all matters
submitted to holders of Corning Common Stock, each share of Series B
Preferred Stock having four votes, subject to adjustment.
Holders of Series B Preferred Stock have no preemptive rights. In the event
of a liquidation, dissolution or winding-up of Corning, holders of Series B
Preferred Stock shall be entitled to receive a distribution in the amount of
$100 per share, plus accrued and unpaid dividends, before any distribution on
Corning Common Stock or Series A Preferred Stock.
The Series B preferred Stock is redeemable, in whole or in part, at the
election of Corning, at any time, at the following redemption prices per
share:
<TABLE>
<CAPTION>
During the Twelve-Month Price Per
Period Beginning October 1, Share
- ----------------------------- ------------
<S> <C>
1993 $104.00
1994 $103.00
1995 $102.00
1996 $101.00
</TABLE>
and thereafter at $100.00 per share plus, in each case, accrued and unpaid
dividends.
The Series B Preferred Stock is subject to redemption, at the option of the
holder, at any time upon five business days' notice, at a redemption price
equal to $100.00 plus accrued and unpaid dividends, if the proceeds are
necessary (i) to make a distribution pursuant to an investment election made
under the employee benefit plan or (ii) to satisfy any indebtedness to which
the employee benefit plan is subject, provided that such payment is necessary
to remedy or prevent a default under such indebtedness.
Corning, at its option, may make payment of the redemption price required
upon redemption of shares of Series B Preferred Stock in cash or in Corning
Common Stock, or in any combination of such shares and cash.
The Series B Preferred Stock is convertible at the option of the holder, at
any time, into Corning Common Stock at a conversion price of $25.00 per share
of Corning Common Stock, each share of Series B Preferred Stock being valued
at $100 for the purpose of such conversion, producing a conversion ratio
equal to four shares of Corning Common Stock for each share of Series B
Preferred Stock so converted, subject to certain adjustments to prevent
dilution.
Series C Preferred Stock
In certain circumstances, the holders of a majority of the aggregate
liquidation preference of the Preferred Securities then outstanding, voting
as a class or by written consent, may cause the exchange of the Preferred
Securities for Series C Preferred Stock at a rate of one share of Series C
Preferred Stock for every two Preferred Securities.
The terms of the Series C Preferred Stock are substantially similar to those
of the Preferred Securities except that, among other differences, (i) in
certain events of default, the number of directors of Corning shall be
increased by two persons and the holders of the Series C Preferred Stock will
be entitled to elect the persons to fill such positions and (ii) the Series C
Preferred Stock will not be subject to mandatory redemption.
<PAGE>
The Series C Preferred Stock ranks senior to the Corning Common Stock and the
Series A Preferred Stock with respect to the payment of dividends and amounts
on liquidation, dissolution and winding-up. In the event of a voluntary or
involuntary bankruptcy, liquidation, dissolution or winding-up of Corning,
the holders of Series C Preferred Stock are entitled to receive out of the
net assets of Corning, but before any distribution is made on any class of
securities ranking junior to the Series C Preferred Stock, $100.00 per share
in cash plus accumulated and unpaid dividends (whether or not earned or
declared) to the date of final distribution to such holders.
Preferred Share Purchase Rights
Attached to each share of Corning Common Stock is one Right, which entitles
the registered holder to purchase from Corning one four-hundredth of a share
of Series A Preferred Stock at a price of $62.50 per one four-hundredth of a
share of Series A Preferred Stock (the "Exercise Price"), subject to
adjustment. The Rights expire on July 15, 1996 (the "Final Expiration Date"),
unless the Final Expiration Date is extended or unless the Rights are earlier
redeemed by Corning.
The Rights represented by the certificates for Corning Common Stock are not
exercisable, and are not transferable apart from the Corning Common Stock
until the earlier of (i) ten days following the public announcement by
Corning or an Acquiring Person (as defined below) that a person or group has
acquired beneficial ownership of 20% or more of the Corning Common Stock (an
"Acquiring Person") or (ii) ten business days (or such later date as the
Corning Board may determine) after the commencement or first public
announcement of a tender or exchange offer that would result in a person or
group beneficially owning 20% or more of the Corning Common Stock (the
earlier of such dates being called the "Distribution Date"). Separate
certificates for the Rights will be mailed to holders of record of Corning
Common Stock as of such date. The Rights could then begin trading separately
from Corning Common Stock.
Generally, in the event that a person or group becomes an Acquiring Person,
each Right, other than the Rights owned by the Acquiring Person, will
thereafter entitle the holder to receive, upon exercise of the Right, Corning
Common Stock having a value equal to two times the Exercise Price of the
Right. In the event that Corning is acquired in a merger, consolidation, or
other business combination transaction or more than 50% of Corning's assets,
cash flow or earning power is sold or transferred, each Right, other than the
Rights owned by an Acquiring Person, will thereafter entitle the holder
thereof to receive, upon the exercise of the Right, common stock of the
surviving corporation having a value equal to two times the Exercise Price of
the Right.
The Rights are redeemable in whole, but not in part, at $0.125 per Right at
any time on or prior to any person or group becoming an Acquiring Person. The
right to exercise the Rights terminates at the time that the Corning Board
elects to redeem the Rights. Notice of redemption shall be given by mailing
such notice to the registered holders of the Rights. At no time will the
Rights have any voting rights. The Rights Agent is Harris Trust and Savings
Bank (the "Rights Agent").
The exercise price payable, and the number of shares of Series A Preferred
Stock or other securities or property issuable, upon exercise of the Rights
are subject to adjustment from time to time to prevent dilution (i) in the
event of a stock dividend on, or a subdivision, combination or
reclassification of, the shares of Series A Preferred Stock, (ii) upon the
grant to holders of the shares of Series A Preferred Stock of certain rights
or warrants to subscribe for or purchase shares of Series A Preferred Stock
at a price, or securities convertible into shares of Series A Preferred Stock
with a conversion price, less than the then current market price of the
shares of Series A Preferred Stock or (iii) upon the distribution to holders
of the shares of Series A Preferred Stock of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in shares of Series A Preferred Stock)
or of subscription rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one four-hundredths of a
share of Series A Preferred Stock issuable upon exercise of each Right are
also subject to adjustment in the event of a stock split of, or stock
dividend on, or subdivision, consolidation or combination of, Corning Common
Stock prior to the Distribution Date. With certain exceptions, no adjustment
in the exercise price will be required until cumulative adjustments require
an adjustment of at least 1% in such exercise price.
Upon exercise of the Rights, no fractional shares of Series A Preferred Stock
will be issued (other than fractions which are integral multiples of one
four-hundredth of a share, which may, at the election of Corning, be
evidenced by depositary receipts) and in lieu thereof an adjustment in cash
will be made.
The Rights have certain anti-takeover effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire Corning on
terms not approved by the Corning Board, except pursuant
<PAGE>
to an offer conditioned on a substantial number of Rights being acquired. The
Rights should not interfere with any merger or other business combination
approved by the Corning Board since the Rights may be redeemed by Corning at
$.125 per Right prior to the fifteenth day after the acquisition by a person
or group of beneficial ownership of 20% or more of the Corning Common Stock
(subject to certain exceptions).
The shares of Series A Preferred Stock purchasable upon exercise of the
Rights will rank junior to all other series of Corning's preferred stock
(including the Series B and Series C Preferred Stock) or any similar stock
that specifically provides that they shall rank prior to the shares of Series
A Preferred Stock. The shares of Series A Preferred Stock will be
nonredeemable. Each share of Series A Preferred Stock will be entitled to a
minimum preferential quarterly dividend of $10.00 per share, but will be
entitled to an aggregate dividend of 100 times the dividend declared per
share of Corning Common Stock. In the event of liquidation, the holders of
the shares of Series A Preferred Stock will be entitled to a minimum
preferential liquidation payment of $100 per share, but will be entitled to
an aggregate payment of 100 times the payment made per share of Corning
Common Stock. Each share of Series A Preferred Stock will have 100 votes,
voting together with the Corning Common Stock. In the event of any merger,
consolidation or other transaction in which Corning Common Stock is
exchanged, each share of Series A Preferred Stock will be entitled to receive
100 times the amount and type of consideration received per share of Corning
Common Stock. These rights are protected by customary antidilution
provisions. Because of the nature of the Series A Preferred Stock's dividend,
liquidation and voting rights, the value of the interest in a share of Series
A Preferred Stock purchasable upon the exercise of each Right should
approximate the value of one share of Corning Common Stock.
The foregoing description of the Rights does not purport to be complete and
is qualified in its entirety by reference to the description of the Rights
contained in the Rights Agreement, dated as of July 2, 1986 between Corning
and the Rights Agent, as amended by the Amended Rights Agreement, dated as of
October 4, 1989, which has been previously filed with the Commission.
Corning's Fair Price Amendment
In 1985 Corning's stockholders adopted an amendment (the "Fair Price
Amendment") to the Restated Certificate that, in general, requires the
approval by the holders of at least 80% of the voting power of the
outstanding capital stock of Corning (other than the Series C Preferred
Stock) entitled to vote generally in the election of directors (the "Corning
Voting Stock") as a condition for mergers and certain other business
combinations with any beneficial owner of more than 10% of such voting power
unless (1) the transaction is approved by at least a majority of the
Continuing Directors (as defined in the Restated Certificate) or (2) certain
minimum price, form of consideration and procedural requirements are met.
Certain terms used herein are defined in the Restated Certificate.
Amendment or repeal of this provision or the adoption of any provision
inconsistent therewith would require the affirmative vote of at least 80% of
the Corning Voting Stock unless the proposed amendment or repeal or the
adoption of the inconsistent provisions were approved by two-thirds of the
entire Corning Board and a majority of the Continuing Directors.
Certain Other Provisions of Corning's Restated Certificate and By-Laws
In addition to the Preferred Share Purchase Rights and the Fair Price
Amendment, the Restated Certificate and By-Laws contain other provisions that
may discourage a third party from seeking to acquire Corning or to commence a
proxy contest or other takeover-related action. Corning has classified its
Board such that one-third of the Corning Board is elected each year to
three-year terms of office. In addition, holders of Corning Common Stock may
remove a Director from office at any time prior to the expiration of his or
her term only with cause and by vote of a majority of holders of Corning
Common Stock outstanding. These provisions, together with provisions
concerning the size of the Corning Board and requiring that premature
vacancies on the Corning Board be filled only by a majority of the entire
Corning Board, may not be amended, altered or repealed, nor may Corning adopt
any provisions inconsistent therewith, without the affirmative vote of at
least 80% of the Corning Voting Stock of Corning or the approval of two-
thirds of the entire Corning Board.
Corning's By-Laws contain certain procedural requirements with respect to the
nomination of directors by stockholders that require, among other things,
delivery of notice by such stockholders to the Secretary of Corning not later
than 60 days nor more than 90 days prior to the date of the stockholders
meeting at which such nomination is to be considered. The Corning By-Laws do
not provide that a meeting of the Corning Board may be called by
stockholders.
<PAGE>
The Restated Certificate provides that no director will be liable to Corning
or its stockholders for a breach of duty as a director except as provided by
the NYBCL.
The effect of these provisions may be to deter attempts either to obtain
control of Corning or to acquire a substantial amount of its stock, even if
such a proposed transaction were at a significant premium over the
then-prevailing market value of the Corning Common Stock, or to deter
attempts to remove the Corning Board and management of Corning, even though
some or a majority of the holders of Corning Common Stock may believe such
actions to be beneficial.
PLAN OF DISTRIBUTION
The Shares are being sold by the Selling Stockholders for their own accounts.
Except for the following limited circumstance, Corning will receive none of
the proceeds from the offering. For the purpose of securing the
indemnification obligations of the Selling Stockholders to the Company set
forth in the Agreement, a portion of the Shares are and will be held in
escrow until no later than December 1, 1995.
The Shares may be sold from time to time directly by the Selling
Stockholders. In the alternative, the distribution of the Shares by the
Selling Stockholders may be effected from time to time by underwriters who
may be selected by the Selling Stockholders and one or more other
broker-dealers, in one or more transactions (which may involve crosses and
block transactions) on the New York Stock Exchange or other exchanges, in
special offerings, exchange distributions or secondary distributions pursuant
to and in accordance with the rules of such exchanges, in the
over-the-counter market, in negotiated transactions or otherwise, at market
prices prevailing at time of sale, at prices related to such prevailing
market prices or at negotiated prices. In the event that such underwriters or
broker-dealers agree to sell the Shares, they may do so by purchasing the
Shares as principals or by selling the Shares as agents for the Selling
Stockholders. Underwriters selected by the Selling Stockholders, and any such
other broker-dealer, may receive compensation from the Selling Stockholders
in the form of underwriting discounts, concessions or commissions and may
receive commissions from purchasers of the Shares for who they may act as
agents. If underwriters who may be selected by the Selling Stockholders, and
any such other broker- dealer, purchase the Shares as principals, they may
effect resales of the Shares from time to time to or through other
broker-dealers, and such other broker-dealers may receive compensation in the
form of concessions or commissions from the Selling Stockholders or
purchasers of Shares for whom they may act as agents. Corning has agreed to
indemnify the Selling Stockholders, against certain liabilities, including
liabilities under the Securities Act, and to pay the expenses of registering
the Shares for offering and sale to the public under the Securities Act.
Information as to whether underwriters who may be selected by the Selling
Stockholders, or any other broker-dealer, is acting as principal or agent for
the Selling Stockholders, the compensation to be received by underwriters who
may be selected by the Selling Stockholders, or any broker-dealer, acting as
principal or agent for the Selling Stockholders and the compensation to be
received by other broker-dealers, in the event the compensation of such other
broker-dealers is in excess of usual and customary commissions, will be
disclosed in a prospectus filed pursuant to Rule 424(b) under the Securities
Act, or in a supplement to this prospectus filed pursuant to Rule 424(c) of
the Securities Act to the extent required.
The Company has agreed with the Selling Stockholders to maintain the
continuous effectiveness of the Registration Statement (of which this
Prospectus is a part) during the period commencing on the date the
Registration Statement is declared effective and ending on the second
anniversary of the effective date of the Registration Statement or such
shorter period which will terminate when all the Shares have been sold
pursuant to the Registration Statement.
LEGAL OPINIONS
The validity of the shares of Corning Common Stock offered hereby is being
passed on for the Company by William C. Ughetta, Esq., Senior Vice President
and General Counsel of Corning. 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 Corning'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.
<PAGE>
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 by reference in this Prospectus by reference to Corning's
Current Report on Form 8-K dated 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 accounting and
auditing.
The financial statements of Bioran 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>
No dealer, salesman or other person has been authorized to give any
information or to make any representations, other than those contained in
this Prospectus in connection with the offering described herein, and, if
given or made, such other information or representations must not be relied
upon as having been authorized by the Company, the Selling Stockholders or
any Underwriter. This Prospectus does not constitute an offer to sell or
solicitation of an offer to buy any securities other than those specifically
offered hereby or any securities offered hereby in any jurisdiction to any
person to whom it is unlawful to make an offer or solicitation in such
jurisdiction. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that the
information herein is correct as of any time subsequent to its date.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----------
<S> <C>
Available Information 2
Incorporation of Certain
Documents by Reference 3
The Company 3
Selling Stockholders 4
Description of Common Stock 5
Plan of Distribution 9
Legal Opinions 9
Experts 9
</TABLE>
6,188,151 Shares
Corning
Incorporated
COMMON STOCK
PROSPECTUS
December , 1994
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses to be incurred in
connection with the distribution of the securities to be registered, other
than underwriting discounts and commissions. The Company will pay the
following expenses:
<TABLE>
<CAPTION>
<S> <C>
Registration Fee $64,416
Legal Fees $ 3,000
Printing Fees $ 2,000
Accounting Fees $15,000
Miscellaneous $ 5,584
Total $90,000
</TABLE>
Item 15. Indemnification of Directors and Officers.
Under the NYBCL, a corporation may indemnify its directors and officers made,
or threatened to be made, a party to any action or proceeding, except for
stockholder derivative suits, if such director or officer acted in good
faith, for a purpose which he or she reasonably believed to be in or, in the
case of service to another corporation or enterprise, not opposed to, the
best interests of the corporation, and, in criminal proceedings, had no
reasonable cause to believe his or her conduct was unlawful. In the case of
stockholder derivative suits, the corporation may indemnify a director or
officer if he or she acted in good faith for a purpose which he or she
reasonably believed to be in or, in the case of service to another
corporation or enterprise, not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of (i) a
threatened action, or a pending action which is settled or otherwise disposed
of, or (ii) any claim, issue or matter as to which such person has been
adjudged to be liable to the corporation, unless and only to the extent that
the court in which the action was brought, or, if no action was brought, any
court of competent jurisdiction, determines upon application that, in view of
all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such portion of the settlement amount and expenses
as the court deems proper.
Any person who has been successful on the merits or otherwise in the defense
of a civil or criminal action or proceeding will be entitled to
indemnification. Except as provided in the preceding sentence, unless ordered
by a court pursuant to the NYBCL, any indemnification under the NYBCL
pursuant to the above paragraph may be made only if authorized in the
specific case and after a finding that the director or officer met the
requisite standard of conduct by (i) the disinterested directors if a quorum
is available, (ii) the board upon the written opinion of independent legal
counsel or (iii) the stockholders.
The indemnification described above under the NYBCL is not exclusive of other
indemnification rights to which a director or officer may be entitled,
whether contained in the certificate of incorporation or by-laws or when
authorized by (i) such certificate of incorporation or by-laws, (ii) a
resolution of stockholders, (iii) a resolution of directors or (iv) an
agreement providing for such indemnification, provided that no
indemnification may be made to or on behalf of any director or officer if a
judgment or other final adjudication adverse to the director or officer
establishes that his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or that he or she personally gained in fact a
financial profit or other advantage to which he or she was not legally
entitled.
The foregoing statement is qualified in its entirety by reference to Sections
715, 717 and 721 through 725 of the NYBCL.
Article VIII of the registrant's By-Laws provides that the registrant 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 registrant to the full extent permitted by, and
consistent with, the NYBCL.
The directors and officers of the registrant are covered by insurance
policies indemnifying them against certain liabilities, including certain
liabilities arising under the Securities Act, which might be incurred by them
in such capacities.
<PAGE>
Item 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
------- ----------------------------------------------------------------------------------
<S> <C>
2.01 Acquisition Agreement and Plan of Reorganization dated as of September 18, 1994, among
Corning Incorporated, Moran Research Labs doing business as Bioran Medical Laboratory,
J. Richard Fennell, Susan E. Khoury Irrevocable Trust, Linda M. Shea Irrevocable Trust,
Kathleen M. Fennell Irrevocable Trust, Patricia A. McEachern Irrevocable Trust and
S. A. Fennell Limited Partnership (incorporated by reference to Exhibit 2 of the
registrant's Current Report on Form 8-K filed with the Commission on October 24, 1994).
2.02 Acquisition Agreement dated as of December 1, 1994 among Medical Reference Laboratories,
Inc., Hoyle E. Setzer, M.D., Paul W. Holley, M.D., Virgil L. Minden, Scott K. Steinfeldt,
Saint Vincent Hospital and Health Center, Corning Incorporated and MRL NuCor, Inc.
3.01 Restated Certificate of Incorporation of the registrant, dated July 12, 1989, and
the Certificate of Amendment, dated September 28, 1989, to the Restated Certificate
of Incorporation of the registrant (incorporated by reference to Exhibit 3(a) of the
registrant's Annual Report on Form 10-K for the fiscal year ending December 31, 1989).
3.02 By-laws of the registrant (incorporated by reference to Exhibit 3(a) of the registrant's
Annual Report on Form 10-K for the fiscal year ended December 30, 1990).
3.03 Certificate of Amendment, dated April 30, 1992, to the Restated Certificate of
Incorporation of the registrant (incorporated by reference to Exhibit 3(a) of the
registrant's Annual Report on Form 10-K for the fiscal year ended January 3, 1993).
3.04 Certificate of Amendment dated July 15, 1994, to the Restated Certificate of Incorporation
of the registrant (incorporated by reference to Exhibit 3.04 to Registration Statement
on Form S-4 filed with the Commission on July 28, 1994 (Registration Statement No.
33-54793)).
3.05 Certificate of Amendment dated October 5, 1994, to the Restated Certificate of
Incorporation of the registrant.
4.01 Form of Common Stock Certificate of the registrant (incorporated by reference to Exhibit
4 to Registration Statement on Form S-4 filed with the Commission on June 17, 1992
(Registration Statement No. 33-48488)).
4.02 Rights Agreement, dated as of July 2, 1986, between the registrant and Harris Trust
and Savings Bank, as amended (incorporated by reference to Exhibit 1 to Registration
Statement on Form 8-A, filed with the Commission on July 2, 1986, and Exhibit 1 to
Amendment No. 1 on Form 8, filed with the Commission on October 10, 1989).
4.03 Form of Preferred Share Purchase Right of the registrant (included in Exhibit 4.02).
5.01 Opinion of William C. Ughetta, Senior Vice President and General Counsel of the registrant,
as to the legality of the securities being registered.
23.01 Consent of William C. Ughetta, Esq. (included in Exhibit 5.01).
23.02 Consent of Price Waterhouse LLP
23.03 Consent of Arthur Andersen LLP
23.04 Consent of Leverone & Company
24.01 Powers of Attorney
</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 thereof) 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 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 incor-
<PAGE>
porated 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 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to 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, 14th on the 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 14, 1994 by the following Persons
in the capacities indicated.
<TABLE>
<CAPTION>
Signature Capacity
- ------------------------------- --------------------------------------------------
<S> <C>
/s/ James R. Houghton Chairman of the Board, Principal Executive Officer
(James R. Houghton) 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 Accounting
(Larry Aiello, Jr.) Officer
* President, Principal Operating
(Roger G. Ackerman) Officer and Director
(Robert Barker) Director
* Director
(Mary L. Bundy)
(Barber B. Conable, Jr.) Director
* Director
(David A. Duke)
* Director
(John H. Foster)
* Director
(Gordon Gund)
(John M. Hennessy) Director
* Director
(Vernon E. Jordan, Jr.)
<PAGE>
Signature Capacity
- ------------------------------- --------------------------------------------------
* Director
(James W. Kinnear)
* 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>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Description Number
------ -------------------------------------------------------------------------------- ------
<S> <C>
2.01 Agreement and Plan of Reorganization dated as of September 18, 1994, among Corning
Incorporated, Moran Research Labs doing business as Bioran Medical Laboratory, J.
Richard Fennell, Susan E. Khoury Irrevocable Trust, Linda M. Shea Irrevocable Trust,
Kathleen M. Fennell Irrevocable Trust, Patricia A. McEachern Irrevocable Trust and
S. A. Fennell Limited Partnership (incorporated by reference to Exhibit 2 of the
registrant's Current Report on Form 8-K filed with the Commission on October 24,
1994).
2.02 Acquisition Agreement dated as of December 1, 1994 among Medical Reference Laboratories,
Inc., Hoyle E. Setzer, M. D. Paul W. Holley, M. D., Virgil L. Minden, Scott K. Steinfeldt,
Saint Vincent Hospital and Health Center, Corning Incorporated and MRL NuCor, Inc.
3.01 Restated Certificate of Incorporation of the registrant, dated July 12, 1989, and
the Certificate of Amendment, dated September 28, 1989, to the Restated Certificate
of Incorporation of the registrant (incorporated by reference to Exhibit 3(a) of
the registrant's Annual Report on Form 10-K for the fiscal year ending December
31, 1989).
3.02 By-laws of the registrant (incorporated by reference to Exhibit 3(a) of the registrant's
Annual Report on Form 10-K for the fiscal year ended December 30, 1990).
3.03 Certificate of Amendment, dated April 30, 1992, to the Restated Certificate of
Incorporation of the registrant (incorporated by reference to Exhibit 3(a) of the
registrant's Annual Report on Form 10-K for the fiscal year ended January 3, 1993).
3.04 Certificate of Amendment dated July 15, 1994, to the Restated Certificate of
Incorporation of the registrant (incorporated by reference to Exhibit 3.04 to
Registration Statement on Form S-4 filed with the Commission on July 28, 1994
(Registration Statement No. 33- 54793)).
3.05 Certificate of Amendment dated October 5, 1994, to the Restated Certificate of
Incorporation of the registrant.
4.01 Form of Common Stock Certificate of the registrant (incorporated by reference to
Exhibit 4 to Registration Statement on Form S-4 filed with the Commission on June
17, 1992 (Registration Statement No. 33-48488)).
4.02 Rights Agreement, dated as of July 2, 1986, between the registrant and Harris Trust
and Savings Bank, as amended (incorporated by reference to Exhibit 1 to Registration
Statement on Form 8-A, filed with the Commission on July 2, 1986, and Exhibit 1
to Amendment No. 1 on Form 8, filed with the Commission on October 10, 1989).
4.03 Form of Preferred Share Purchase Right of the registrant (included in Exhibit 4.02).
5.01 Opinion of William C. Ughetta, Senior Vice President and General Counsel of the
registrant, as to the legality of the securities being registered.
23.01 Consent of William C. Ughetta, Esq. (included in Exhibit 5.01).
23.02 Consent of Price Waterhouse LLP
23.03 Consent of Arthur Andersen LLP
23.04 Consent of Leverone & Company
24.01 Powers of Attorney
</TABLE>
EXHIBIT 2.02
ACQUISITION AGREEMENT
AGREEMENT dated the 1st day of December, 1994, by and among Medical Reference
Laboratories, Inc., a Montana corporation (the "Company"); Hoyle E. Setzer,
M.D. of Billings, Montana, Paul W. Holley, M.D. of Billings, Montana, Virgil
L. Minden of Vancouver, Washington, Scott K. Steinfeldt of Billings, Montana,
and Saint Vincent Hospital and Health Center, Billings, Montana ("SVHHC")
(collectively the "Shareholders", the Company and the Shareholders
hereinafter collectively referred to as the "Sellers" and each of them as a
"Seller"); and Corning Incorporated, a New York corporation ("Corning") and
MRL NuCor, Inc., a Delaware corporation and a wholly owned subsidiary of
Corning ("NuCor") (Corning and NuCor hereinafter collectively referred to as
the "Corning Parties" and each of them as a "Corning Party").
WHEREAS, the Company operates a clinical laboratory testing business,
including the provision of pathology services (the "Business"), located in
and serving the geographical area set forth on Schedule I hereto (the
"Territory"); and
WHEREAS, Corning desires to cause NuCor to acquire substantially all of the
assets and certain of the liabilities of the Company as provided herein in
exchange for shares of common stock of Corning, par value $0.50 per share
(the "Corning Common Stock") in a transaction qualifying as a reorganization
as defined in Section 368(a)(1)(C) of the Internal Revenue Code of 1986 (the
"Code"), upon the terms and conditions hereinafter set forth; and
WHEREAS, the Shareholders are the sole shareholders of the Company and are
entering into this Agreement as an inducement to Corning and NuCor to enter
into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein contained and
intending to be legally bound hereby, the parties hereto declare, covenant
and agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.01. Closing. The closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Veeder Law Firm, 400 North
Broadway, Billings, Montana, at 9:00 A.M., local time, on December 1, 1994,
or such other date, time or place as shall be mutually agreed upon (the
"Closing Date").
1.02. Assets Being Sold and Purchased.
(a) Subject to and upon the terms and conditions of this Agreement, at the
Closing the Company shall transfer, sell, convey, assign and deliver to NuCor
(by instruments in form and substance satisfactory to Corning), and NuCor
shall purchase from the Company, all of the Company's right and title to and
interest in the Business, and all of its properties and assets of every kind,
nature and description used in the Business, as the same existed immediately
prior to the Closing, excluding those assets listed in Schedule 1.02, and
including, without limitation, the following:
(i) its customer list attached hereto as Schedule 1.02A;
(ii) all tangible assets used in the Business whether owned or leased,
including without limitation all equipment, instruments, tools, vehicles,
furniture and office equipment and all fixtures and leasehold improvements as
listed on Schedules 1.02B-1 (owned) and 1.02B-2 (leased);
(iii) all of its inventory used in the operation of the Business existing
as of the Closing Date;
(iv) all of its right, title and interest under manufacturers' and
vendors' warranties in connection with the assets being transferred
hereunder;
(v) all of its right, title and interest in agreements to provide
services, equipment and real estate leases, equipment maintenance agreements,
non-competition and proprietary information agreements, debt agreements and
instruments, and other agreements listed on Schedule 1.02C hereto (the
"Assigned Agreements");
(vi) all of its right, title and interest in and to its trade names,
including but not limited to the name Medical Reference Laboratories, and
service marks and trademarks used in connection with the Business and the
right to use the logo as set forth on Schedule 1.02D hereto;
<PAGE>
(vii) all prepaid expenses and deposits existing as of the Closing Date
and listed on the Latest Balance Sheet (as defined below) or acquired in the
ordinary course of business since the date thereof, in connection with the
assets of the Business being transferred hereunder, as listed on Schedule
1.02E hereto (the "Prepaid Expenses");
(viii) all of the Company's books and records relating to the Business,
including its laboratory records, but excluding its financial records,
charter, minute books, stock record books and corporate seal;
(ix) all computer programs and other software, patents, trade secrets,
know-how and proprietary information owned or used by the Company and all
licenses and other rights thereto;
(x) all of the Company's accounts and notes receivable, including any
receivables that have been previously written off (the "Assigned
Receivables"), other than any receivables listed on Schedule 1.02F hereto;
(xi) all assets representing the Company's cash and cash equivalents for
financial reporting purposes at the Closing Date, including without
limitation the Company's rights to the bank accounts, credit card accounts,
securities accounts, and safe deposit boxes listed on Schedule 1.02G hereto
(including the cash held therein and the right to receive cash on collection
of checks previously deposited therein), all of the Company's checks
representing payment for services rendered in connection with the Business
that have not yet been deposited, as well as securities, bonds and
certificates of deposit;
(xii) all of its right, title and interest in licenses, certifications
and approvals to do business granted by government and other accrediting
agencies in connection with the Business as set forth on Schedule 1.02H
hereto; and
(xiii) its goodwill.
(b) The assets being sold and purchased hereunder are hereinafter
collectively referred to as the "Assets."
(c) Simultaneously with the Closing, the Company shall deliver to NuCor
physical possession of all of the Assets at the locations at which they have
been used in the Business.
1.03. Purchase Price and Non-Competition Payments. NuCor shall purchase the
Assets for an aggregate purchase price, including compensation to Sellers for
their non-competition agreements set forth in Article VI in accordance with
this Section 1.03.
(a) Closing Payment. At the Closing, Corning will deliver to the Company
the number of shares of Corning Common Stock resulting from dividing $7
million by the average closing price for Corning Common Stock on the New York
Stock Exchange Composite Index as reported in The Wall Street Journal
(Eastern edition) for the ten consecutive trading days ending three (3)
business days prior to the Closing Date.
The shares of Corning Common Stock delivered to the Company at Closing are
being issued in a private placement pursuant to Section 4(2) of the
Securities Act of 1933, as amended (the "1933 Act"), and are therefore exempt
from registration under the 1933 Act. The certificate representing such
shares will bear the legend set forth below reflecting that such shares are
not issued in a transaction registered under said Act, and cannot be resold
in the absence of a registration under said Act or pursuant to an exemption
thereto.
The Securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended. They may not be sold or
transferred in the absence of registration or an exemption therefrom under
said Act.
No certificates representing fractional shares will be issued by Corning to
the Company. Fractional interests in shares of Corning Common Stock shall be
eliminated by rounding up to the next whole share interests of the Company.
(b) Adjustment. Within thirty (30) days after the Closing, NuCor will
calculate and pay to Company the Adjustment Amount, as defined in Section
1.04(a)(iii).
<PAGE>
1.04. Assumption of Liabilities.
(a) The Company shall delegate to NuCor and NuCor shall assume only those
obligations and liabilities of the Company
(i) under the Assigned Agreements listed in Schedule 1.02C accruing or
arising subsequent to the Closing Date and wholly relating to events
occurring after the Closing Date,
(ii) reflected on the Latest Balance Sheet (as defined in Section
2.01(j)) as long term debt, provided that true and complete copies of all
loan or lease agreements, mortgages, notes and other instruments evidencing
such debt or obligating the Company in any way in connection therewith have
been provided to Corning and are described in Schedule 1.02C and that the
Company has paid all amounts required thereunder as of the Closing Date, and
(iii) that are accrued current liabilities as of the Closing (including
accrued vacation pay, up to two weeks per employee, not to exceed amounts
accrued therefor on the Latest Balance Sheet) other than as specifically
excluded pursuant to Section 1.04(b), but only in an amount not to exceed the
cash and book value of receivables of Company as of the Closing, as
determined by Corning in accordance with generally accepted accounting
principles (the obliga- tions and liabilities described in Section
1.04(a)(i)-(iii) hereinafter referred to as the "Assumed Liabilities").
The excess, if any, of the cash and book value of receivables of Company as
of the Closing over the Company's accrued current liabilities assumed by
NuCor shall be called herein the "Adjustment Amount". If additional accrued
current liabilities or cash or receivables of Company as of the Closing are
discovered following calculation and payment of the Adjustment Amount
pursuant to Section 1.03(b), then such liabilities and assets shall be the
responsibility and property, respectively, of Company, and not of Corning or
NuCor. The calculation of the Adjustment Amount will be subject to the
arbitration procedure described in Section 7.01.
(b) Neither Corning nor NuCor shall assume any liabilities of any Seller
other than those of the Company expressly assumed pursuant to Subsection
1.04(a), and they shall not assume, without limitation, any liability with
respect to professional liability claims, enforcement actions, civil money
penalties, claims of any taxing authorities, reimbursement agencies or
insurance carriers, violations or alleged violations of law, or environmental
conditions existing, or resulting from conduct of the Company, prior to the
Closing. Sellers will perform and discharge or cause Company to perform and
discharge all such other obligations and liabilities as and when they become
due.
1.05. Closing Deliveries. At the Closing, the Company shall deliver to NuCor
a bill of sale and such other documents as Corning shall request so as to
convey good and marketable title to the Assets to NuCor, free and clear of
all claims, liens, charges and encumbrances of any nature whatsoever other
than those created or incurred by Corning or NuCor and those relating to
equipment leases and debt instruments described in Schedule 1.02C, and
Corning shall make the payments to be made by it at the Closing pursuant to
Section 1.03.
1.06. Books and Records. At the Closing, the Company shall deliver to NuCor
all books of account, leases, other agreements, securities, customer lists,
files and other documents, instruments and papers of all kind and nature
belonging to Company or relating to the Business, whether in the possession
of the Company or any Shareholder. With respect to the financial records of
the Company being retained by the Company and the records being assigned to
NuCor, each party will store such records in an orderly manner in Billings,
Montana for a period of at least five (5) years or any longer period required
by law and grant reasonable access thereto to the other party for its
reasonable business purposes.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01. Representations and Warranties of the Sellers. The Sellers hereby
jointly and severally represent and warrant to each other Seller and to
Corning and NuCor, as follows:
(a) Organization; Subsidiaries. The Company is a corporation duly
organized, validly existing and in good standing under the laws of Montana,
and is authorized and qualified to own and operate its properties and assets
as and in all jurisdictions where such properties and assets are owned and
operated, and has all requisite power and authority to consummate the
transactions contemplated hereby. The Company does not own, directly or
indirectly, any capital stock or other equity securities
<PAGE>
representing a controlling interest or any general partnership interest of
any entity. The Company does not have any direct or indirect ownership
interest in any business except the Business.
(b) Corporate Authority. Each of the Sellers has taken all corporate and
other actions necessary to authorize each Seller to execute, deliver and
perform its obligations under this Agreement and all instruments and
agreements delivered pursuant hereto and to consummate the transactions
contemplated hereby and thereby, including any necessary approval by its
Board of Directors or shareholders, and this Agreement and all instruments
and agreements to be delivered in connection herewith or therewith by any of
the Sellers constitute their respective legal, valid and binding obligations,
enforceable against each of them (to the extent they are a party thereto) in
accordance with their respective terms, subject to laws of general
application relating to the rights of creditors generally.
(c) No Default. No Seller that is a corporation is in default under or in
violation of any provision of its Charter or By-laws, each as amended to
date, nor is any Seller in default under or in violation of any provision of
any restriction, lien, encumbrance, indenture, contract, lease, loan
agreement, note or other obligation or liability to which such Seller is a
party or by which such Seller is bound and, with respect to the Shareholders,
which could adversely affect the Business, the transactions contemplated
hereby, or NuCor's unencumbered possession or use of the Assets. Neither the
execution and delivery of this Agreement or any other agreement or instrument
to be delivered to Corning or NuCor in connection herewith, nor the
consummation of the transactions contemplated hereby or thereby, by any
Seller, shall (i) result in the acceleration of, or the creation in any party
of the right to accelerate, terminate, modify or cancel, or cause a payment
obligation to arise under, any indenture, contract, lease, sublease, loan
agreement, note or other obligation or liability to which such Seller is a
party or by which such Seller is bound, and with respect to the Shareholders,
which could adversely affect the transactions contemplated hereby, or NuCor's
unencumbered possession or use of the Assets, (ii) conflict with or result in
a breach of or constitute a violation or default under (A) any provision of
the Charter or By-laws, each as amended to date, of such Seller, or (B) any
restriction, lien, encumbrance, license, permit, indenture, contract, lease,
loan agreement, note or other obligation or liability to which such Seller is
a party or by which such Seller is bound, and, with respect to the
Shareholders, which could adversely affect the Business, the transactions
contemplated hereby, or NuCor's unencumbered possession or use of the Assets,
or (C) any order, writ, injunction, decree, law, statute, rule or regulation,
license or permit applicable to such Seller, or (iii) result in the creation
of any lien or encumbrance upon any of the Assets.
(d) Approvals; Consents. No approval, consent, order or authorization of,
exemption by, or registration, declaration or filing with, any federal or
state governmental authority or any person not a party to this Agreement is
required by or with respect to the Company or any of the Shareholders in
connection with the execution, delivery and performance of this Agreement by
the Company or the Shareholders or any other agreement or instrument to be
delivered to Corning or NuCor in connection herewith or the consummation by
the Company or the Shareholders of the transactions contemplated hereby or
thereby, including but not limited to the transfer of the Assets, other than
notification to and consents from the persons and entities specified on
Schedule 2.01D hereto. Each consent listed on Schedule 2.01D shall have been
duly and unconditionally obtained and shall be in full force and effect as of
the Closing Date.
(e) No Investigations; Litigation. To the best of any one Seller's
knowledge, no Seller or any individual or entity having an ownership interest
in, or who is an officer, director, agent or managing agent of a Seller has
been (i) convicted of, charged with or, investigated for a Medicare, Medicaid
or state health program-related offense that could affect the Business, the
transactions contemplated hereby or NuCor's unencumbered possession or use of
the Assets; (ii) within the past three (3) years, convicted of, charged with
or investigated for a violation of federal or state law related to fraud,
theft, embezzlement, breach of fiduciary responsibility, financial
misconduct, obstruction of an investigation or controlled substances that
could affect the Business, the transactions contemplated hereby or NuCor's
unencumbered possession or use of the Assets; (iii) has been excluded or
suspended from participation in Medicare, Medicaid or any federal or state
health program that could affect the Business, the transactions contemplated
hereby or NuCor's unencumbered possession or use of the Assets; or (iv)
within the past three (3) years has been subject to any judgment,
stipulation, order or decree of, or criminal or civil fine or penalty imposed
by, any court or governmental agency that could affect the Business, the
transactions contemplated hereeby or NuCor's unencumbered possession or use
of the Assets. Except as set forth in Schedule 2.01E, there are no actions,
suits or
<PAGE>
proceedings pending or threatened against any Seller or affecting any of
their respective properties or rights, at law or in equity, or before any
federal, state, municipal or other governmental agency or instrumentality
and, with respect to the Shareholders, that could affect the Business, the
transactions contemplated hereby or NuCor's unencumbered possession or use of
the Assets, nor are Sellers aware of any facts or third party claims which to
their knowledge could result in any such action, suit or proceedings.
(f) No Violation of Law. No Seller is in violation of or has received
notice of any deficiency in or violation of any applicable law, rule,
regulation, license, permit, or requirement of any governmental authority
relating to the Business or Assets, nor has any such violation occurred in
the past. The Company has obtained and maintained in effect through the date
hereof all governmental licenses, permits, authorizations, certifications and
approvals necessary to conduct the Business as it has been conducted, all of
which are listed on Schedule 1.02H. Neither the Company nor any of the
Shareholders has received notice of any threatened, pending or possible
revocation, termination, suspension or limitation of any of the licenses or
permits listed on Schedule 1.02H, nor are there grounds for any of the
foregoing. The Company has provided to Corning true and complete copies of
all (i) surveys, reports, notices, inquiries, subpoenas and other
correspondence related to any and all certification, licensure or other
governmental inspections, and summaries of all proficiency test results
relating to the Business, for the three (3) year period prior to the date
hereof; (ii) any and all inquiries, notices, subpoenas and correspondence
related to utilization, reimbursement or other government or third party
audits or investigations for the three (3) year period prior to the date
hereof; (iii) all filings made by the Company pursuant to Section 1877 of the
Social Security Act (the "Stark Law"); and (iv) all filings made by the
Company pursuant to the Clinical Laboratory Improvement Amendments of 1988
and the regulations promulgated pursuant thereto. The Business and the
services performed by the Company, its employees and affiliated professionals
in connection therewith have at all times heretofore been in compliance with
all applicable federal and state statutory and regulatory requirements and
all applicable standards of due care.
(g) No Fraud and Abuse Violations. No Seller is aware of any arrangement
relating to the Business providing for any rebates, kickbacks or other forms
of compensation that could be determined to be unlawful to be paid to any
person or entity in return for the referral of business or for the
arrangement for recommendation of such referrals. All billings by the Company
for its services and marketing practices in connection therewith, including
but not limited to billings to the federal Medicare program, state Medicaid
programs and private individuals and insurors, have been true and correct and
in compliance with all applicable rules and regulations. Except as set forth
on Schedule 2.01G, no Seller is aware of any financial or compensation
relationships between any Seller or its affiliates or family members, on the
one hand, and any of the Customers (as defined in Section 2.01(r)) or their
affiliates or family members, on the other. All relationships listed on
Schedule 2.01G comply with the safe harbor regulations adopted pursuant to
federal anti-kickback laws and do not render unlawful the Company's billings
to Medicare resulting from referrals by such Customers under the Stark Law.
(h) Capitalization of the Company. The authorized capital stock of the
Company consists of 100,000 shares of common stock, no par value, of which
48,074 shares are issued and outstanding on the date hereof, all of which
shares are owned of record and beneficially by the Shareholders in the
quantities set forth on Schedule 2.01H. All issued and outstanding shares of
capital stock of the Company are validly issued, fully paid and
nonassessable. There are no outstanding (i) securities convertible into or
exchangeable for the capital stock of the Company; (ii) options, warrants or
other rights to purchase or subscribe to capital stock of the Company or
securities convertible into or exchangeable for capital stock of the Company;
or (iii) contracts, commitments, agreements, understandings or arrangements
of any kind relating to the issuance of any capital stock of the Company, any
such convertible or exchangeable securities or any such options, warrants or
rights.
(i) Ownership of Properties.
(i) The Company has, and will at the Closing transfer to NuCor, good and
clear record and marketable title to, and possession of all of the Assets,
free and clear of all restrictions, liens, encumbrances, rights, title and
interests of others, except that the Company has, and is transferring to
NuCor, valid and subsisting leasehold interests or licenses in, and
possession of all of the Assets that are leased by the Company. Schedule
1.02B-1 correctly sets forth all of the tangible assets owned by the Company
and used in the
<PAGE>
operation of the Business. Schedule 1.02B-2 correctly sets
forth all of the tangible assets leased by the Company and used in the
operation of the Business and all leases and licenses pertaining to such
assets are identified on such Schedule opposite the respective asset. Except
as noted on Schedule 1.02B-2, no one other than the Company has any right,
title, interest, restriction, lien or encumbrance in, on or to any of the
Assets leased by the Company, or in other personal property located in any
premises occupied by the Company. The Assets transferred to NuCor under this
Agreement constitute substantially all of the assets necessary to conduct the
Business consistent with past business practices.
(ii) The Company's use of its trade names, including but not limited to
the name Medical Reference Laboratories, service marks, trademarks and the
logo set forth on Schedule 1.02D hereto does not infringe upon the rights of
any third party. There is currently no claim of infringement or
misappropriation relating to any trade name, service mark, trademark or logo
of any third party or of infringement or misappropriation by a third party of
any trade name, service mark, trademark or logo of the Company, nor has there
been any such claim in the past.
(j) Financial Statements.
(i) Financial Statements of the Company. The Company has delivered to
Corning audited balance sheets dated as of December 31, 1991 and December 31,
1992 of the Company and the related statements of operations, changes in
stockholders' equity and cash flows of the Company for each of the two (2)
years in the period January 1, 1991 to December 31, 1992; the unaudited
balance sheet dated as of December 31, 1993 of the Company and the related
statements of operations, statements of changes in stockholders' equity and
statements of cash flows of the Company for the twelve (12) month period then
ended; and the unaudited balance sheet dated as of September 30, 1994 (the
September 30, 1994 Balance Sheet shall be referred to herein as the "Latest
Balance Sheet" and September 30, 1994 shall be referred to herein as the
"Latest Balance Sheet Date") and the related statements of operations,
changes in stockholders' equity and cash flows of the Company for the
nine-month period then ended (collectively with the Latest Balance Sheet, the
"Latest Financial Statements"); copies of all of which are attached to this
Agreement as Schedule 2.01J. Such balance sheets and financial statements are
correct and complete and fairly present the financial condition of the
Company at the dates, and the results of its operations for the periods,
described therein, and have been prepared in accordance with generally
accepted accounting principles consistently applied. Such audited balance
sheets and financial statements have been certified as being in accordance
with generally accepted accounting principles by Anderson ZurMuehlen & Co.,
P.C. The unaudited financial statement for the year 1993 has been reviewed by
Anderson ZurMuehlen & Co., P.C.
(k) Condition of Equipment. All equipment owned or leased by the Company
and being transferred hereunder has been properly maintained in accordance
with regulatory standards and is in good and working order and repair,
ordinary wear and tear excepted, free from known defects in construction or
design, soundly and properly functioning, usable for its intended purpose in
the ordinary course of the Business and not obsolete.
(l) Real Estate Leases. The Company enjoys exclusive, peaceful and
undisturbed possession of all premises which it is leasing and where the
Business is conducted, all of which real estate leases are described on
Schedule 1.02C hereto. The Company has the right to use all such premises for
the respective purposes for which they are being used currently in the
Business. The Company is not in default under any of such leases nor is its
interest in any of such leases encumbered by any prior transfer, assignment,
mortgage or encumbrance. All of the Business is conducted in the premises
that are the subject of such leases and there are no disputes concerning such
occupancy as of the date hereof. The Company owns no real estate except as
disclosed.
(m) Prepaid Expenses. Schedule 1.02E hereto consists of a true list of all
prepaid expenses and deposits of the Company as of the Closing Date,
including but not limited to security deposits for real estate and equipment
leases and utilities, all of which are being transferred to NuCor under this
Agreement.
(n) Debt. Schedule 1.02C includes a true and complete list of all
indebtedness of the Company, including operating and capital leases,
including non-recourse indebtedness, and a listing of principal amount,
accrued and unpaid interest thereon and all other fees owing with respect to
such indebtedness assuming repayment or prepayment thereof on the Closing
Date, which payments in the
<PAGE>
aggregate are no more than $ . All of such indebtedness is prepayable
without additional penalty or premium at the option of Corning or NuCor on
the Closing Date assuming payment of the prepayment amounts set forth on
Schedule 1.02C.
(o) Accounts and Notes Receivable. All accounts and notes receivable of the
Company shown on the Latest Balance Sheet that are included in the Assets,
and all receivables acquired by the Company subsequent to the Latest Balance
Sheet Date, have arisen in the ordinary course of business and have been
collected or are in the process of collection and are collectible in the
ordinary course of business in the aggregate recorded amounts thereof.
Adequate provisions for doubtful accounts have been set up on the respective
books of the Company.
(p) Agents; Powers of Attorney. Attached hereto as Schedule 2.01P is a list
of agents of the Company, other than its employees, authorized to act on
behalf of the Company and the scope of their authority. The Company has no
powers of attorney or similar authorizations outstanding except as set forth
on such Schedule.
(q) Bank Accounts. Schedule 1.02G consists of a true and complete listing
of all bank accounts, credit card accounts, securities accounts and safe
deposit boxes in which all of the Company's cash and cash equivalents,
securities, bonds, and certificates of deposit are or may be deposited or
from which the funds or credit of the Company can be accessed.
(r) Customers. The list attached hereto as Schedule 1.02A of the Company's
customers (the "Customers"), their addresses, and the amounts collected by
the Company as a result of orders by each such customer during the twelve
(12) month period ended December 31, 1993 (or if that is not available, as
indicated in each case, the most recent twelve (12) month or annualized
collections calculation that is available) is true and complete in all
respects. Such list is an accurate list of the current active customers of
the Company who have ordered at least $100.00 of clinical laboratory testing
services (measured in collected revenues), per month from the Company in each
of the last six (6) months. No Seller is aware of any facts indicating that
any of the Customers intends to cease doing business with or materially
diminish the amount of the business that it is now doing with the Company or,
after the Closing Date, with NuCor or its affiliates.
(s) Insurance. The Company has in full force and effect the insurance set
forth on Schedule 2.01S hereto, true and complete copies of which policies
have been delivered to Corning. The Company has delivered to Corning a true
and complete summary of the professional liability and health and disability
claims history of the Company and its predecessors during the past five (5)
years.
(t) Agreements. Except for the agreements set forth on Schedule 2.01T (none
of which are being assumed by NuCor or Corning), the Company has no material
obligation, liability, agreement, commitment or understanding of any kind,
fixed or contingent, due or to become due, existing or inchoate, relating to
the Business other than under the Assigned Agreements listed on Schedule
1.02C, or any agreements in its favor or restricting it limiting the rights
of any party to compete in any business. Each Assigned Agreement is valid,
existing and in full force and effect and no party thereto is in default
thereunder, nor has any default been threatened nor are there any disputes
related thereto. The Company has heretofore or simultaneously herewith
delivered to Corning or NuCor executed originals or true and complete copies
of all Assigned Agreements listed on Schedule 1.02C.
(u) Employee Benefit Plans. Set forth on Schedule 2.01U hereto are the
following:
(i) a complete and accurate list of the names, titles, dates of hire and
rates of pay of all Company employees as of the date hereof. Except as set
forth separately on Schedule 2.01U, no employment manual or written
employment policy and/or procedures have been provided to employees, and no
written or verbal employment, consultant or independent contractor agreement
exists to which Company may be bound;
(ii) A description of the termination or severance pay policy of Company;
(iii) A description of each employee benefit or compensation plan,
including without limitation, 401(k), pension, retirement, deferred
compensation, profit sharing, bonus or incentive, medical, dental, health
insurance and life insurance or other employee benefit plans, arrangements or
undertakings of Company;
(iv) A complete and accurate list of all holiday and vacation pay accrued
as of the date hereof, in respect of Company employees; and
<PAGE>
(v) A description of the workers compensation loss experience of Company
as of the date hereof.
Except as set forth in Schedule 2.01U, Company is not a party to, bound by,
nor does it maintain or make any contribution to, nor has it incurred any
expense with respect to any employment agreement, pension, retirement,
deferred compensation, profit sharing, bonus or incentive plan, medical,
dental or other health insurance plan, life insurance plan, or other employee
benefit plan, program, arrangement or undertaking, whether or not legally
binding (including, without limitation, any "employee benefit plan" as
defined in Section 3(3) of the federal Employee Retirement Income Security
Act ("ERISA")), under which employees of Company are eligible to participate
or derive a benefit (collectively "Employee Plans" and individually "Employee
Plan"). The Company has furnished or made available to Corning complete and
accurate copies of all the Employee Plans (and, in the case of any unwritten
trust or other funding agreements, all amendments thereto, and all favorable
determination letters issued by the Internal Revenue Service with respect to
the Employee Plans and amendments thereto. Each Employee Plan complies in all
material respects with all applicable laws, including, without limitation,
ERISA and the Internal Revenue Code of 1986, as amended.
(v) Employees.
(i) All compensation, severance pay, vacation pay, bonuses, gifts,
pension, profit sharing, stock option and other arrangements and all other
fringe benefits of all employees or consultants of the Company have been
properly accrued and reflected on its balance sheets included in Schedule
2.01J. The Company has no obligation to pay post-retirement health or welfare
benefits to its current or former employees.
(ii) The Company is not a party to any contract with a labor union. No
election or proceeding relating to the labor relations of the Company is
pending or, to the best knowledge of any Seller, threatened and no Seller has
committed any unfair labor practice with respect to the Business. The Company
has not had any union activity or any labor dispute at any time heretofore.
(iii) None of the Company's employees is currently on short or long-term,
or temporary or permanent disability leave.
(w) Environmental Matters. All uses of the premises occupied by the
Company, have been, and as of the date of NuCor's leasing of same, will be in
compliance with all federal, state and local laws, rules, regulations and
ordinances, including without limitation, all federal, state and local
environmental laws, rules, regulations and ordinances (collectively "Laws").
Sellers have not received any notices of any violations of any Laws regarding
such premises. The Sellers, and to the Sellers' knowledge, all current and
previous owners of such premises, have complied with all Laws regarding the
storage and removal of hazardous or toxic substances and medical wastes. The
Company has not caused the use, storage, handling or release (as that term is
defined below) of any hazardous substance (as defined below) to occur on such
premises, and, to the best of the Company's knowledge, the same never has
occurred on such premises. Neither the Company nor such premises are subject
to any federal, state or local "superfund" or other lien, proceeding, claim,
liability or action for the cleanup, removal (as defined below), or
remediation of any hazardous substance. Such premises are not the subject of
any notice or notification regarding same, or subject to the threat or
likelihood thereof.
The terms "hazardous substance", "release" and "removal" as used herein shall
have the same meaning and definition as set forth in paragraphs (14), (22)
and (23), respectively, of Title 42 U.S.C. Section 9601 et seq. and any
applicable state laws, as well as regulations provided thereunder, however,
the term "hazardous substance" as used herein also shall include: (i)
"hazardous waste" as defined in paragraph (5) of 42 U.S.C. Section 6903; (ii)
"petroleum" as defined in paragraph (8) of 42 U.S.C. Section 6991; (iii) any
asbestos containing material; (iv) any polychlorinated biphenyls or PCB's;
and (v) radon.
The term "superfund" as used herein means the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, being Title 42 U.S.C.
Section 9601 et seq. as amended, and any similar state statute or local
ordinance applicable to the Company premises, and all rules and regulations
promulgated, administered and enforced by any governmental agency or
authority pursuant thereto.
(x) Underground Storage Tanks. No underground storage tanks (as defined
below) are located upon and/or serve the Company premises. "Underground
storage tank" for the purposes of this Agreement shall mean any one or
combination of tanks, including appurtenant pipes, lines, fixtures and
<PAGE>
other related equipment, used to contain an accumulation of hazardous
substances (as defined in Section 2.01(w)), the volume of which, including
the volume of the appurtenant pipes, lines, fixtures and other related
equipment, is ten (10%) percent or more below the ground.
(y) Taxes. The term "Taxes" shall mean all Federal, state, local and
foreign income, profits, franchise, gross receipts, payroll, sales,
emplyment, use, occupation, property, excise, value added, unitary and other
taxes, duties or assessments (including the recapture of any tax items such
as investment credits), together with all interest, penalties and additions
imposed with respect to such amounts. The Latest Financial Statements include
full and complete accruals and disclosure in conformity with generally
accepted accounting principles for all unpaid Taxes, whether or not disputed,
for the period ended on the Latest Balance Sheet Date and for all fiscal
periods prior thereto or arising out of transactions entered into or any
state of facts existing on or prior thereto. The books and records of the
Company include full and complete accruals in conformity with generally
accepted accounting principles for all unpaid Taxes, whether or not due or
assessed as of the Closing Date. There have been timely filed with the
appropriate governmental agencies all Federal, foreign, state and local tax
returns, reports and forms (including consolidated, combined, unitary or
similar tax returns, reports and forms and estimated tax and information
returns) ("Returns") required to have been filed as of the date hereof with
respect to the Company and the Business for the periods covered thereby and
such Returns are complete and accurate in all material respects and correctly
reflect all Taxes owed. All Taxes owed pursuant to such Returns have been
paid or adequate provision has been made for such amounts. None of such
Returns is, to the best knowledge of the Sellers, currently being audited by
the applicable taxing authority. No Seller (i) has received or has knowledge
of any notice of audit, deficiency or assessment or proposed audit,
deficiency or assessment with respect to the Company or the Business or the
properties of the Company from the Internal Revenue Service or any other
taxing authority or (ii) has waived or has knowledge of any waiver of any law
or regulation fixing, or has consented or has knowledge of any consent ot the
extension of any period of time for assessment of, any Tax with respect to
the Company or the Business or the properties of the Company. The Company has
not heretofore made the election referred to in Section 341(f) of the Code.
The Company is not a party to any agreement which would fall within the
provisions of Section 280G of the Code. The Company has, and following the
Closing Date, will have, no liability for any taxes, penalties, fines,
assessments or other liabilities as a result of having been a member of a
controlled group or a group of businesses under common control with the
Company and/or the Shareholders and/or any of their affiliates under the
Code.
(z) Absence of Certain Changes. Since the Latest Balance Sheet Date, there
has not been (i) any material adverse change in the assets, business or
prospects or net worth of the Company nor, to the best knowledge of the
Sellers, are any such changes threatened, anticipated or contemplated; (ii)
any actual or any threatened, anticipated or contemplated damage,
destruction, loss, conversion, termination, cancellation, default or taking
by eminent domain or other action by governmental authority which has
materially adversely affected or may hereafter materially adversely affect
the properties, assets, business or prospects of the Company, (iii) any
materially adverse pending or, to the best knowledge of the Sellers, any
threatened, anticipated or contemplated dispute of any kind with any
customer, supplier, source of financing, employee, landlord, subtenant or
licensee of the Company or any pending or, to the best knowledge of the
Sellers, any threatened, anticipated or contemplated occurrence or situation
of any kind, nature or description which is reasonably likely to result in
any reduction in the amount, or any material adverse change in the terms or
conditions, of business with any substantial customer, supplier, or source of
financing of the Company; (iv) any increase in the compensation payable or to
become payable to the Company's officers, employees, agents or consultants
other than any such increase in the ordinary course of business; or (v) any
pending or, to the best knowledge of the Sellers, any threatened, anticipated
or contemplated occurrence or situation of any kind, nature or description
materially adversely affecting the assets, business, affairs or prospects of
the Company.
(aa) Book Value of Certain Assets. The Assets at the Closing Date,
disregarding all liabilities to be assumed by NuCor and all cash and
receivables assigned to NuCor, will have a book value of no less than
$600,000, as calculated by Corning in accordance with generally accepted
accounting principles. This calculation will be subject to the arbitration
provision described in Section 7.01.
(bb) No Undisclosed Liabilities of Seller. The Company has no liabilities
or obligations of any nature, whether known or unknown, absolute, accrued,
contingent or otherwise and whether due or
<PAGE>
to become due, except those (i) reflected on the Latest Financial Statements;
or (ii) incurred by the Company in the ordinary course of business subsequent
to the Latest Balance Sheet Date for the purchase or sale of goods, wares,
merchandise, materials or supplies to be delivered to or by, or for services
rendered or to be rendered to or by, the Company and which do not vary in
amount and nature from those incurred as of the Latest Balance Sheet Date.
(cc) Investment. The Company is purchasing the Corning Common Stock to be
received at the Closing, and upon distribution by the Company to the
Shareholders as contemplated by Section 7.09, each of the Shareholders is
purchasing the Corning Common Stock distributed to it, for investment and has
no present plan or intention to sell or otherwise distribute such Corning
Common Stock other than as contemplated by Section 7.09.
(dd) No Misrepresentations. There is no fact or transaction which the
Company has not disclosed to Corning in writing of which the Company or any
of the Shareholders is aware which materially adversely affects or is likely
to materially adversely affect the Business or the financial condition of the
Company. Neither the Company nor any of the Shareholders has made any
material misstatement of fact herein or in any document delivered to Corning
pursuant hereto or in connection with the transactions contemplated hereby or
omitted to state any material fact necessary or desirable to make complete,
accurate and not misleading every representation, warranty and agreement set
forth herein or in any document to be delivered pursuant hereto or in
connection with transactions contemplated hereby.
2.02 Representations and Warranties of Corning. Corning and NuCor jointly and
severally hereby represent and warrant to the Sellers as follows:
(a) Capitalization of Corning. The authorized capital stock of Corning
consists of 10,000,000 shares of Series Preferred Stock, par value $100 each,
and 500,000,000 shares of Corning Common Stock. As of July 14, 1994, 257,905
shares of Series B 8% Convertible Preferred Stock, $100 par value per share
were issued and outstanding. As of July 14, 1994, 213,736,161 shares of
Corning Common Stock were issued and outstanding, 15,802,292 shares of
Corning Common Stock were reserved for issuance in connection with employee
stock option plans, convertible securities and an incentive stock plan, and
9,583,698 shares were reserved for issuance in connection with the 6%
Convertible Monthly Income Preferred Securities of Corning Delaware, L.P. All
of the outstanding shares of Corning Common Stock are, and the shares of
Corning Common Stock to be issued to the Shareholders will be, when issued,
duly authorized, validly issued, fully paid and nonassessable.
(b) Organization; Subsidiaries. Each Corning Party is a corporation duly
organized, validly existing and in good standing under the laws of its
respective state of incorporation and is authorized and qualified to own and
operate its properties and assets as and in all jurisdictions where such
parties and assets are owned and operated, and has all requisite power and
authority to consummate the transactions contemplated hereby.
(c) Corporate Authority. Each Corning Party has taken all corporate and
other actions necessary to authorize it to execute, deliver and perform its
obligations under this Agreement and all instruments and agreements delivered
pursuant hereto and to consummate the transactions contemplated hereby and
thereby, including any necessary approval by its Board of Directors or
shareholders, and this Agreement and all instruments and agreements to be
delivered in connection herewith or therewith by any Corning Party constitute
their respective legal, valid and binding obligations, enforceable against
each of them (to the extent they are a party thereto) in accordance with
their respective terms, subject to laws of general application relating to
the rights of creditors generally.
(d) No Default. No Corning Party is in default under or in violation of any
provision of its Charter or By-laws, each as amended to date, nor is any
Corning Party in default under or in violation of any provision of any
restriction, lien, encumbrance, indenture, contract, lease, loan agreement,
note or other obligation or liability to which it is a party or by which it
is bound. Neither the execution and delivery of this Agreement or any other
agreement or instrument to be delivered to the Sellers in connection
herewith, nor the consummation of the transactions contemplated hereby or
thereby, by any Corning Party, shall (i) result in the acceleration of, or
the creation in any party of the right to accelerate, terminate, modify or
cancel, or cause a payment obligation to arise under, any indenture,
contract, lease, sublease, loan agreement, note or other obligation or
liability to which it is a party or by which it is bound, or (ii) conflict
with or result in a breach of or constitute a violation or default under (A)
any
<PAGE>
provision of the Charter or By-laws, each as amended to date, of such Corning
Party, or (B) any restriction, lien, encumbrance, license, permit, indenture,
contract, lease, loan agreement, note or other obligation or liability to
which it is a party or by which it is bound, or (C) any order, writ,
injunction, decree, law, statute, rule or regulation, license or permit
applicable to such Corning Party.
(e) Financial Statements. Corning's annual report on Form 10-K for the
fiscal year ended January 2, 1994 (the "Corning 1993 10-K"), and its
quarterly reports on Form 10-Q for the periods ended March 27, 1994 and June
19, 1994 (the "Corning 1994 10-Qs"), and all 8-K's filed by Corning since
January 2, 1994 (the "Corning 1994 8-Ks") and its 1994 Annual Proxy
Statement, copies of which have been furnished to the Sellers were each, on
the date of their respective filings with the Securities and Exchange
Commission, accurate in all material respects and did not include any untrue
statement of material fact or omit to state a material fact necessary to make
the statements therein not misleading. The financial statements included in
the Corning 1993 10-K and the Corning 1994 10-Qs present fairly the financial
position of Corning and its subsidiaries at such dates and the results of
their operations and cash flows for the periods then ended, in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods covered by such statements, except as set forth in the
report of independent accountants relating to the financial statements
included in the Corning 1993 10-K.
(f) Litigation. Except as disclosed in the Corning 1993 10-K and the
Corning 1994 10-Qs and 8-Ks, there are no suits, actions or legal,
administrative, arbitration or other proceedings or governmental
investigations or other controversies pending, or to the knowledge of Corning
threatened, or as to which Corning has received any notice, claim or
assertion, which involves a potential cost or liability to Corning which
would singly or in the aggregate, materially and adversely affect the
financial condition, result of operations, business or prospects of Corning
and its consolidated subsidiaries considered as a whole. Corning is not in
default with respect to any order, writ, injunction or decree of any court or
before any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
affecting or relating to it which is material to the financial condition,
results of operations or business of Corning and its consolidated
subsidiaries considered as a whole.
(g) No Misrepresentations. No representation or warranty by Corning, nor
any written statement or certificate furnished to the Sellers pursuant
hereto, contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained herein and therein
not misleading.
(h) No Material Adverse Change. Since January 2, 1994, other than as
disclosed in Corning's 1994 10-Qs and 8-Ks, there has been no material
adverse change in the assets, business, operations or financial condition of
Corning and its subsidiaries considered as a whole or any other event,
condition or state of facts of any character peculiar to Corning or any of
its subsidiaries or to their operations which materially and adversely
affects, or threatens to materially and adversely affect, the assets,
business, operations or financial condition of Corning and its subsidiaries
considered as a whole.
ARTICLE III
COVENANTS
3.01 Covenants of Sellers.
(a) Sellers jointly and severally covenant and agree with Corning and NuCor
that from the date hereof up to and including the date of Closing, Sellers
will:
(i) Cause the Company to carry on its business in a good and diligent
manner in the usual and ordinary course of business, and use their best
efforts to preserve its business and Customer relations intact;
(ii) Promptly correct and supplement any information furnished to the
Corning Parties hereunder so that such information shall be correct and
complete in all material respects at all times, and include all facts
necessary to make such information correct and complete in all material
respects, until the Closing hereof;
(iii) Use their best efforts to expeditiously obtain such approval or
consent of any third parties which Sellers are required to obtain in order to
permit and complete the consummation of the transactions contemplated herein;
<PAGE>
(iv) Not: (A) permit the Company to engage in any transaction, enter any
agreement or make any commitment to acquire any assets or spend other than in
the ordinary course of its business as heretofore conducted, or (B) take any
actions which will cause the representations and warranties contained herein
not to be true and correct as of the Closing, including without limitation
those set forth in Section 2.01(h);
(v) Maintain existing insurance policies regarding the Company,
including, without limitation, those policies pertaining to the Assets, at a
level no less than existing levels. Risk of loss, damage, or destruction to
the Assets subject to this Agreement shall remain with Sellers until Closing;
(vi) Not obligate the Company to sell or otherwise dispose of or pledge
or otherwise encumber, any of the Assets, except in the ordinary course of
business, or incur any indebtedness on behalf of the Company;
(vii) Not grant trade credit on terms and conditions inconsistent with
past practice;
(viii) Not lend, extend credit, or otherwise advance money to any
employee, shareholder or principal of the Company;
(ix) Consult with Corning regarding all significant developments,
transactions and proposals relating to the business or operations or any of
the assets or liabilities of the Company;
(x) Not increase the employee salaries and benefits set forth in Schedule
2.01U or enter into any employment agreements or severance arrangements; and
(xi) Allow Corning, or Corning's agents or representatives from and after
the date of execution of this Agreement, to have reasonable access during
normal business hours and upon reasonable notice, to inspect, examine and
photocopy any documents, correspondence, files, records, and books and any
other written materials of a similar nature of the Company which relate to
the Business, and the Company will furnish or cause to be furnished to
Corning and its authorized representatives all information with respect to
the business and affairs of the Company as Corning and its authorized
representatives may request.
3.02 Covenants of the Corning Parties.
(a) Listing of Corning Common Stock. Corning shall use its best efforts to
obtain, prior to the Closing, approval for the listing on the New York Stock
Exchange, Inc., subject to official notice of issuance, of the shares of
Corning Common Stock to be issued pursuant to this Agreement.
(b) Adjustments of Corning Stock. If Corning shall effect a split,
consolidation, reclassification of Corning Common Stock outstanding or make
any other distribution of Corning Common Stock or of any security convertible
into Corning Common Stock to the holders of Corning Common Stock, generally,
after the date hereof and on or before the Closing Date, the Company shall
have the right to receive hereunder at Closing such number of shares of
Corning Common Stock as it would have been entitled to receive upon such
split, consolidation, reclassification or distribution.
3.03 Undertaking to Register Certain Shares Under the Securities Act of 1933.
Corning agrees that if at any time within two (2) years after the Closing it
shall determine to file a registration statement on Form S-3 under the
Securities Act of 1933, as amended (the "Act") in connection with a public
offering for cash of shares of Corning Common Stock (excluding any public
offering that includes any securities to be issued by Corning or any debt
securities, convertible preferred stock or other securities other than
Corning Common Stock and excluding any "rights" offering to Corning's
stockholders or any public offering of securities pursuant to a stock option
or other employee benefit plan), Corning will notify each of the Sellers in
writing of such determination as soon as practicable prior to the proposed
date of filing and, if any Seller shall within ten (10) days of such notice
(or one (1) business day in the case of the registration statement being
filed on behalf of former owners of Moran Research Labs) furnish Corning with
a written request to register any or all of the Corning Common Stock then
owned by him, Corning will afford such Seller an opportunity to include such
shares in the registration statement which Corning will prepare and file at
its own expense; provided, however, that (i) Corning shall not be obligated
to include such shares in the registration statement if, in the opinion of
the primary underwriters for such offering, the sale of such shares would
adversely affect the offering, and (ii) each Seller shall pay all
underwriting discounts and commissions of underwriters and fees and expenses
of any separate legal counsel used by such Seller in connection with the
offering of the shares to be offered by him, and the registration fee for
such shares.
<PAGE>
In the case of any offering by the Seller of Corning Common Stock registered
under the Act pursuant to this Section 3.03, Corning agrees that it will use
its best efforts to register or qualify such shares for sale under the
securities laws of such states as the Seller may designate, to the extent
that such registration or qualification shall be required; provided, however,
that (a) Corning shall not be required to undertake such registration or
qualification in any jurisdiction where it shall be necessary for Corning to
execute a general consent to service or to qualify to do business by virtue
of such registration and qualification and (b) the respective selling Sellers
shall pay all of the costs and expenses of registering and qualifying such
shares under the securities laws of any state other than the states in which
Corning proposes to offer the shares to be sold by it pursuant to such
registration statement. Corning confirms to the Sellers that it is currently
qualified to do business in the state of New York.
Corning's obligations under this Section 3.03 with respect to such
registration are subject to the condition that each Seller requesting
registration agrees (a) to complete the sale or other disposition of his
shares covered by the registration statement within ninety (90) days after
the date on which such shares have been effectively registered under the Act
or, failing the sale or other disposition of any of such shares within such
ninety (90) day period, to permit Corning promptly after the expiration of
such period to deregister any of such shares not sold or otherwise disposed
of within such period and (b) to effect the sale or distribution of his
shares covered by the registration statement in such manner (which may, at
the discretion of Corning, include a requirement that the sale or
distribution be made through an underwriter or underwriters acceptable to
Corning as will assure an orderly distribution of said shares. In the event
that the Sellers do not complete the sale or distribution of their Corning
Common Stock through the first registration statement pursuant to this
Section 3.03, Corning shall afford the Sellers the opportunity to participate
in the subsequent registration statements complying with the conditions of
this Section 3.03 of this Agreement.
In connection with the preparation of any registration statement, any related
prospectus, or any amendment of or supplement to either thereof, each Seller
whose shares of Corning Common Stock are to be registered shall furnish
Corning with such information concerning him and the manner of distribution
of his shares as may be required for inclusion therein and shall provide all
information and releases and take all such actions, including without
limitation execution of an underwriting agreement and a registration
statement, as may be reasonably requested by Corning to permit Corning to
comply with all applicable requirements of the SEC and to obtain acceleration
of the effective date of the registration statement.
It shall be a condition of Corning's obligation to register shares pursuant
to this Section 3.03 that each Seller whose shares of Corning Common Stock
are to be registered shall agree to indemnify and hold harmless Corning and
its officers and directors and controlling persons (if any), against all
losses, claims, damages and liabilities to which Corning or any of them may
be subject under the Act, or otherwise, insofar as any losses, claims,
damages or liabilities (or actions in respect thereof) arise out of, or are
based upon, an untrue statement or an alleged untrue statement of any
material fact contained in the registration statement, in any related
prospectus or in any amendment of, or supplement to, either thereof, or arise
out of, or are based upon, an omission or an alleged omission to state in any
thereof a material fact required to be stated therein in order 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 so made in reliance upon information
furnished by a Seller to Corning or an underwriter in connection with the
preparation of such registration statement, and to reimburse Corning and any
such officer or director or controlling person for any legal or other expense
reasonably incurred by any of them in connection with investigating or
defending against any such losses, claims, damages, liabilities or actions.
In the event of any registration of shares pursuant to this Section 3.03,
Corning agrees to indemnify and hold harmless each Seller whose shares of
Corning Common Stock are registered against all losses, claims, damages and
liabilities to which he may be subject under the Act, or otherwise, insofar
as any losses, claims, damages or liabilities (or actions in respect thereof)
arise out of, or are based upon, an untrue statement or an alleged untrue
statement of any material fact contained in the registration statement, and
any related prospectus or any amendment of, or supplement to, either thereof,
or arise out of, or are based upon, an omission or an alleged omission to
state in any thereof a material fact required to be stated therein in order
to make the statements therein not misleading; provided, however, that the
indemnity contained in this paragraph shall not apply to any such losses,
claims, damages or liabilities arising out of or based upon any such alleged
untrue statement or omission made in reliance upon information furnished in
writing to Corning by or on behalf of any Seller, or any underwriter in
connection with the preparation of such registration statement. Each selling
Seller shall agree that as soon as practicable
<PAGE>
after the receipt of notice of any claim or action against him, in respect of
which indemnity may be sought from Corning hereunder, to notify Corning
thereof in writing and Corning shall assume the defense of such claim or
action (including the employment of counsel and the payment of expenses)
insofar as the claim or action shall relate to any alleged liability in
respect of which such selling Seller may be entitled to indemnity from
Corning under this paragraph. In no event shall Corning be responsible for
payment of any settlement of a claim or action where such settlement is made
without Corning's consent.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
4.01 Conditions Precedent to the Corning Parties' Obligations. The
obligations of the Corning Parties to perform their obligations at the
Closing will be subject to the following deliveries and other conditions:
(a) copies of the Articles of Incorporation of each Seller that is a
corporation as amended to the Closing Date, certified by its Secretary and
the Montana Secretary of State;
(b) copies of the By-laws of each Seller that is a corporation as amended
to the Closing Date, certified by its Secretary;
(c) a certificate of existence as to each Seller that is a corporation from
the Secretary of State of Montana, dated no earlier than thirty (30) days
prior to the Closing Date;
(d) certified copies of the resolutions of the Board of Directors, and
stockholders, if necessary, of each Seller that is a corporation authorizing
the sale of the Assets being transferred by the Company, the execution and
delivery of this Agreement and all other documents delivered in connection
herewith by officers of such Seller and the performance by such Seller of all
of its obligations hereunder and thereunder and a certificate of the
Secretary of such Seller dated as of the Closing Date confirming that such
resolutions have not been revoked, modified or amended, that such resolutions
remain in full force and effect as of the Closing Date and confirming the
authority of the officers signing this Agreement and such other documents on
such Seller's behalf together with the true signatures of such officers;
(e) the representations and warranties of the Shareholders herein contained
shall be true and correct in all material respects at the Closing Date with
the same effect as though made at such time, the Shareholders shall each have
performed in all material respects all obligations and complied in all
material respects with all covenants and conditions required by this
Agreement to be performed or complied with by them at or prior to the Closing
Date; and the Secretary of the Company shall have delivered to Corning a
certificate in form and substance satisfactory to Corning, dated the Closing
Date to the knowledge of such individual after due inquiry, to all such
effects, and, if required to make such Schedules accurate as of the Closing
Date, amended Schedules dated as of the Closing Date, initialed by such
individual.
(f) such duly executed bills of sale, assignments and other instruments of
transfer as Corning and NuCor reasonably determine are necessary or
appropriate in order to convey, transfer, assign to and vest in NuCor full,
good and marketable ownership, right, title and interest in and to the
Assets;
(g) the consents of third parties to the assignment by the Company to NuCor
of all of the Assigned Agreements requiring such consents;
(h) a favorable opinion of counsel for the Sellers, dated as of the Closing
Date in the same form and substance as the form of opinion letter attached
hereto as Exhibit A;
(i) proof of insurance evidencing Prior Acts Coverage for the Business,
including but not limited to medical professional liability and comprehensive
general liability, with coverage and limits acceptable to Corning;
(j) proof of medical professional liability and comprehensive general
liability insurance of Pathology Consultants, P.C.
(k) the Employment Agreement executed by Scott Steinfeldt in the form
attached hereto as Exhibit C (the "Employment Agreement"); and
(l) the Pathology Services Agreement executed by Pathology Consultants in
the form attached hereto as Exhibit D (the "Pathology Services Agreement").
<PAGE>
(m) the payment and lease extension relating to Murray Clinic Building
Corporation referred to in Section 7.11.
4.02 Conditions Precedent to the Sellers' Obligations. The obligations of the
Sellers to perform their obligations at the Closing will be subject to the
following deliveries and other conditions:
(a) certified copies of the resolutions of the Executive Committee of the
Board of Directors of Corning and of the Board of Directors of NuCor
authorizing the purchase of the Assets pursuant hereto, the execution and
delivery of this Agreement and all other documents delivered in connection
herewith by officers of Corning and NuCor and the performance by Corning and
NuCor of all of their respective obligations hereunder and thereunder in
accordance with the terms of this Agreement and a certificate of the
Secretary of each Corning Party dated as of the Closing Date confirming that
such resolutions have not been revoked, modified or amended, that such
resolutions remain in full force and effect as of the Closing Date and
confirming the authority of the officers signing this Agreement and such
other documents on behalf of each Corning Party, together with the true
signatures of such officers;
(b) a favorable opinion dated as of the Closing Date, of William Ughetta,
Esq., counsel for Corning and NuCor, in the form of Exhibit E attached
hereto;
(c) the shares certificates of Corning Common Stock required by Section
1.03(a);
(d) such duly executed instruments of assignment and assumption as Sellers
reasonably deem necessary to effect the assumption of certain Company
liabilities required of NuCor hereunder;
(e) the representations and warranties of Corning and NuCor herein
contained shall be true and correct in all material respects at the Closing
Date with the same effect as though made at such time. Corning and NuCor
shall have performed in all material respects all obligations and complied in
all material respects with all covenants and conditions required by this
Agreement to be performed or complied with by them at or prior to the Closing
Date; and Corning shall have delivered to the Company a certificate of
Corning in form and substance satisfactory to the Company, dated the Closing
Date and signed by its President or one of its Vice Presidents to the
knowledge of such officer after due inquiry, to all such effects;
(f) the New York Stock Exchange, Inc. shall have approved for listing,
subject to official notice of issuance, the shares of Corning Common Stock to
be issued at the Closing;
(g) the Employment Agreement executed by NuCor; and
(h) the Pathology Services Agreement executed by NuCor.
ARTICLE V
TERMINATION
5.01 Termination of Agreement and Abandonment of Transactions. Anything
herein to the contrary notwithstanding, this Agreement and the transactions
contemplated hereby may be terminated prior to the Closing having occurred,
as follows:
(a) Either the Company or Corning may terminate this Agreement upon written
notice if the Closing shall not occur by December 31, 1994;
(b) Either Company or Corning may terminate this Agreement upon written
notice and delivered prior to the Closing if all of the conditions precedent,
as set forth in Article IV, to the performance of its respective Closing
obligations are not satisfied, or cannot be satisfied, as of the Closing
Date;
(c) The Company may terminate this Agreement upon written notice delivered
prior to the Closing if the number of shares of Corning Common Stock to be
delivered to the Company at the Closing is less than 203,636; and
(d) Corning may terminate this Agreement upon written notice delivered
prior to the Closing Date if the number of shares of Corning Common Stock to
be delivered to the Company at the Closing is greater than 230,500.
5.02 Effect of Termination. If this Agreement shall be terminated pursuant to
Section 5.01, then all obligations of the parties hereunder shall terminate
and there shall be no liability of any party to another, except by reason of
a default hereunder which has not been waived.
<PAGE>
ARTICLE VI
SELLER'S NON-COMPETITION AGREEMENTS
6.01 Seller's Agreement Not to Compete.
(a) For a period of five (5) years from the Closing Date, each Seller
agrees that neither it nor any of its affiliates will, directly or
indirectly, (i) engage or become interested in, as employee, owner, partner,
through stock ownership (other than a less-than-1%-interest in a corporation
having securities which are listed for trading on a national securities
exchange), investment of capital, lending of money or property, rendering of
services or otherwise, either alone or in association with others, the
operation of any business, other than that of Corning or its affiliates, that
offers clinical laboratory services, including pathology services, to any
person located within the Territory, (ii) induce or attempt to induce any
customer for clinical laboratory services, including pathology services, of
Corning or its affiliates in the Territory to reduce such customer's
purchases from Corning or its affiliates, (iii) use for its or his own
benefit or disclose the name and/or requirements of any such customer of
Corning or its affiliates to any other person or persons, natural or
corporate, (iv) solicit and or hire any of the employees or consultants of
Corning or its affiliates in the Territory to leave the employ thereof or
employ or negotiate for employment of any person employed by or under
contract with Corning or its affiliates in the Territory, or (v) disclose to
or use for the benefit of any one other than Corning or its affiliates, any
and all client and customer lists, trade secrets or other information
pertaining to the financial condition, business, client plans or prospects of
Corning or its affiliates. For purposes of this Section 6.01(a) a Seller will
without limitation be deemed to have an interest in the operation of a
clinical laboratory business, including pathology services, if such an
interest is held by Seller's spouse, child or parent, or by any other person
or entity if it is held for the benefit of such Seller in whole or in part.
(b) Notwithstanding Section 6.01(a) SVHHC and its affiliates will not be
restricted hereunder from performing clinical laboratory testing, including
pathology services, for (i) SVHHC hospital patients and patients of clinics
owned by, or partly owned by SVHHC; (ii) physicians employed by SVHHC within
the scope of their employment; and (iii) Yellowstone Community Health Plan
("YCHP") as long as YCHP remains solely as a duly licensed health maintenance
organization controlled by SVHHC or its affiliates.
(c) Notwithstanding Section 6.01(a) Drs. Holley, Setzer and affiliates of
either of them will not be restricted hereunder,
(i) at any time, from providing laboratory medical direction or
consulting or anatomical pathology and cytology services in the Territory,
other than for a non-hospital entity that engages in the "commercial clinical
laboratory business" in the Territory. The quoted terms shall refer to an
entity that seeks to provide clinical laboratory services to the general
medical community, e.g., physicians, clinics, hospitals, nursing homes,
managed care organizations, businesses, or non- profit or government health
care agencies; and
(ii) from providing laboratory medical direction or consulting for anyone
in the Territory or engaging in the commercial clinical laboratory business
in the Territory, following the later of two (2) years after the Closing or
one (1) year after any of Drs. Holley, Setzer and affiliates of either of
them, have ceased to provide medical direction for Corning or an affiliate of
Corning at Corning's or such affiliate's central testing laboratory in
Montana. The restrictions contained in Section 6.01(a) will, in any event,
expire no later than five (5) years after the Closing.
(d) Nothing herein will prevent Virgil Minden from engaging in the
commercial clinical laboratory business at any time after two (2) years
following the Closing.
6.02 Liquidated Damages Provision For SVHHC. If SVHHC or any of its
affiliates acquire and/or employ any of the Customers, or if any of the
Customers becomes a participant in YCHP, and SVHHC or an affiliate thereafter
desires to perform clinical laboratory testing, including pathology services,
for such Customers, as permitted in Section 6.01(b), then SVHHC will promptly
so notify NuCor or its successor and pay to NuCor or its successor an amount
described immediately below. The Liquidated Damages Amount for each Customer
is the amount determined by multiplying the annual revenues of the Company
generated by such Customer, as shown on Schedule 1.02A, times a fraction, the
numerator of which is $7,000,000.00 plus the Adjustment Amount and the
denominator of which is $5,000,000 (the aggregate revenues of the Company,
net of contractual adjustments and bad debt, during the twelve (12) months
<PAGE>
ended December 31, 1993). The amount to be paid to NuCor or its successor by
SVHHC will be the following percentages of the Liquidated Damages Amount:
100% for each Customer acquired or employed by SVHHC or an affiliate, or
participating in YCHP, up to one (1) year following the Closing; 80% if after
one (1) year and up to two (2) years following the Closing; 60% if after two
(2) years and up to three (3) years following the Closing; 40% if after three
(3) years and up to four (4) years following the Closing; and 20% if after
four (4) years and up to five (5) years after the Closing.
6.03 Additional Non-Competition Agreements Related to Remedies.
(a) Sellers acknowledge and agree that the provisions of this Article VI
are necessary to protect all of the assets of the Business being purchased by
Corning and NuCor, and in no way impose a significant hardship or prevent any
Seller from earning a future livelihood.
(b) In the event that this Agreement or any portion hereof shall be
determined by any court of competent jurisdiction to be unenforceable by
reason of its extending for too great a period of time or over too great a
geographic area or range of activities, it shall be interpreted to extend
only over the maximum period of time, geographic area or range of activities
as to which it may be enforceable.
(c) Each Seller recognizes and acknowledges that in the event of Seller's
failure to comply with any of the covenants contained in this Agreement, it
may be impossible to measure in money the damages to NuCor or its successor
and that in the event of such failure, NuCor or its successor may not have an
adequate remedy at law, other than as set forth in Section 6.02. It is
therefore agreed that NuCor or its successor, in addition to any other rights
or remedies which it may have, shall be entitled to immediate injunctive
relief to enforce such covenants, other than as set forth in Section 6.02,
and that if any action or proceeding is brought in equity to enforce the
same, no Seller will urge, as a defense, that there is an adequate remedy at
law, except to the extent specifically provided in Section 6.02.
ARTICLE VII
POST-CLOSING MATTERS
7.01 Adjustment Relating to Book Value of Certain Assets; Arbitration.
(a) Corning will within thirty (30) days after Closing calculate and notify
the Company of its determination regarding the Company's compliance with
Section 2.01(aa), and will deduct from the Adjustment Amount to be paid
pursuant to Section 1.03(b) any amount by which the book value of the
applicable assets is less than $600,000.
(b) The Company shall permit and shall cause its accountants to permit
Corning's representatives to have access to the work papers, schedules,
memoranda, and other documents of the Company and its accountants as may
reasonably be requested in order to calculate the Adjustment Amount and the
amount of any deficiency described in Section 7.01(a).
(c) All disputes arising under Section 7.01(a) and in connection with
Corning's calculation of the Adjustment Amount and in connection with
Corning's calculation of the Adjustment Amount which are not resolved by
means of direct negotiations between the parties shall be finally settled by
arbitration in accordance with this Section 7.01(c). The arbitration shall be
held in or around Billings, Montana and shall be conducted in accordance with
the commercial arbitration rules of the American Arbitration Association
(AAA) by one arbitrator, appointed by consent of Corning and the Company
which consent shall not be unreasonably withheld or delayed. If the parties
cannot agree upon an arbitrator, either may apply to the AAA to appoint one,
with preference to be given by the AAA in making such selection to any one of
the so-called Big Six accounting firms, other than a firm that has provided
services to any of the parties in the last two (2) years, that may be
agreeable to such selection. The arbitrator shall resolve the dispute within
sixty (60) days after the dispute is submitted to him. Any decision by the
arbitrator shall be binding upon the parties and may be entered as a final
judgment in any court having jurisdictionn. The cost of any arbitration
proceeding shall be borne by the parties as the arbitrator shall determine if
the parties have not otherwise agreed. The arbitrator shall render his final
decision in writing to the parties, which decision shall explain the reasons
therefor.
7.02 Discharge of Liabilities. On and after the Closing Date, the Company
shall, and the Shareholders shall cause the Company (and/or such Seller as
may be liable therefor) to, pay and discharge when due, all of the debts,
liabilities and obligations of every kind, nature and description, known or
unknown, accrued
<PAGE>
or unaccrued, liquidated or unliquidated in amount, fixed or contingent, due
or to become due, existing or inchoate, arising in connection with the Assets
or the Business, whether or not the claim with respect thereto has been
asserted on or prior to the Closing Date, other than the Assumed Liabilities.
7.03 Additional Actions. The Company shall, and the Shareholders shall cause
the Company to, at any time and from time to time after the Closing, without
further consideration, execute whatever minutes of meetings or other
instruments and take whatever action Corning or NuCor may deem reasonably
necessary or desirable to effect, perfect or confirm of record or otherwise
in NuCor full right, title and interest in and to the Assets and the Assigned
Agreements or to carry out the intent and purposes of the transactions
contemplated hereby.
7.04 Collection of Receivables. NuCor shall have the right at any time on or
after the Closing Date to endorse, deposit and/or cash any checks received in
full or partial payment of any of the Assigned Receivables or any accounts
receivable of NuCor or its successor for services rendered on or after the
Closing Date, whether such checks are payable to the order of Company, NuCor
or otherwise, and the Company hereby irrevocably grants to NuCor or its
successor a power of attorney for the purpose of endorsing any such checks or
other funds payable to the order of Company. The Company shall, and the
Shareholders shall cause the Company to, deliver to NuCor any checks received
by the Company or any of the Shareholders after the Closing Date in full or
partial payment of the Assigned Receivables.
7.05 Taxes. All sales taxes and transfer taxes incurred in connection with
the transfer of the Assets shall be borne by the Company.
7.06 Use of Trade Name, Etc. Within thirty (30) days following the Closing,
the Shareholders shall cause the Company to cease doing business under the
name Medical Reference Laboratories, or any other trade name transferred to
NuCor pursuant to this Agreement and cease using the logo set forth on
Schedule 1.02D.
7.07 Records. For a period of five (5) years following the Closing, NuCor or
its successor will make available to any Seller access to records of the
Company as may reasonably be requested for reasonable business purposes.
7.08 No Referral Obligations. The parties acknowledge that SVHHC has
heretofore been a Cus- tomer of the Company. Nothing herein will require
SVHHC or any other Seller to refer, or to recom- mend to or arrange for any
other person or entity to refer, clinical laboratory testing business to
NuCor or its successors.
7.09 Distribution of Corning Common Stock. Not less than five (5) days after
the receipt of the Adjustment Amount, the Company will distribute to the
Shareholders their pro rata share of the Corning Common Stock received at the
Closing Date. Each of the Company and the Shareholders agrees that it will
not sell, transfer or otherwise distribute the Corning Common Stock received
by it as contemplated by this Agreement except pursuant to an effective
registration statement or a transaction that is exempt from registration. The
certificates to be issued to the Shareholders upon distribution to them by
the Company of the Corning Common Stock will bear the legend set forth in
Section 1.03(a).
7.10 Tax Treatment. The parties agree that Corning and NuCor will have no
responsibility for failure of the transactions contemplated hereby to qualify
as a reorganization as defined in Section 368(a)(1)(C) of the Code, provided
that Corning and NuCor shall not take any position inconsistent therewith on
their tax returns, and they hereby agree that they shall not do so.
7.11 Murray Clinic Building Corporation Stock. The Company will use its best
efforts promptly to sell its sixty (60) shares of the Murray Clinic Building
Corporation to such Corporation or one or more of such Corporation's other
shareholders. In lieu of transferring these shares or any proceeds thereof to
NuCor, the Company will pay to NuCor $75,000 on or before the date of the
Adjustment Amount payment described in Section 1.03(b), which amount will not
be deemed to be cash or receivables of the Company for purposes of
calculating the Adjustment Amount or for determining the ceiling on current
liabilities being assumed by NuCor. The $75,000 shall, however, be included
as other Assets used to calculate whether the Company has transferred
$600,000 worth of such Assets to NuCor, as required by Section 2.01(aa). The
Company will also obtain at the time of Closing the Murray Clinic Building
Corporation's consent to assignment of the Company's lease to an affiliate of
NuCor, as well as a three (3) year extension thereof on terms satisfactory to
NuCor.
<PAGE>
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
8.01 Survival of Representations and Warranties. Every representation,
warranty and agreement of the parties set forth in this Agreement and every
one of the rights and remedies of the non-breaching party for any one or more
breaches of this Agreement by the other party shall survive the Closing and
shall be effective regardless of any investigation that may have been made at
any time by or on behalf of the non- breaching party by its directors,
officers, employees or agents.
8.02 Indemnification of the Corning Parties. Sellers jointly and severally
agree to indemnify the Corning Parties, their affiliates and their directors,
officers, agents, representatives and employees (collectively ("Buyers") and
hold Buyers harmless from and against any and all claims, liabilities,
obligations, losses, deficiencies, damages, costs and expenses (including
without limitation interest, penalties and reasonable fees and disbursements
of counsel) of any kind, nature, and description (collectively "Claims")
which arise out of or result from (a) the inaccuracy of any representation or
breach of any warranty, covenant or agreement made by any Seller in this
Agreement, including exhibits and schedules, or in any certificate, document
or other instrument delivered in connection herewith, including any
allegation by a third party which if true would constitute such an inaccuracy
or breach; (b) the failure of Sellers to comply with any bulk transfer or
similar law of any jurisdiction in connection with the transactions
contemplated by this Agreement; (c) any obligation or liability of any Seller
not included in the Assumed Liabilities hereunder; (d) any and all claims,
demands, liabilities, penalties, actions, lawsuits or proceedings arising out
of the business of operations of the Company or the Shareholders prior to the
Closing, except to the extent any of the same relate to Assumed Liabilities
hereunder; (e) any and all taxes and charges claimed to be due or collected
by any federal, state, or local taxing authorities with respect to the
Company for any business or activity of the Company prior to the Closing; (f)
efforts of any Buyer to enforce this Section 8.02; or (g) any claim for a
finder's fee, brokerage or other commission arising by reason of any services
alleged to have been rendered to or at the instance of any Seller with
respect to the transactions contemplated hereby.
8.03 Indemnification by Corning Parties. The Corning Parties hereby jointly
and severally agree to indemnify and hold harmless Sellers and their
directors, officers, agents, representatives and employees (collectively
"Selling Parties") from and against any and all Claims which arise out of or
result from (a) the inaccuracy of any representation or breach of any
warranty, covenant or agreement made by the any Corning Party in this
Agreement, including exhibits and schedules, or in any certificate, document
or other instruments delivered in connection herewith, including any
allegation by a third party which if true would constitute such an inaccuracy
or breach, (b) any obligation or liability specifically assumed by NuCor
hereunder (c) any and all claims, demands, liabilities, penalties, actions,
lawsuits, or proceedings brought against any Seller to the extent that they
relate to actions taken or omitted to be taken by a Corning Party after the
Closing in connection with the business or operations purchased by NuCor,
except to the extent that any such matters are the responsibility of Sellers
under Section 8.02, (d) efforts of any Selling Parties to enforce this
Section 8.04, or (e) any claim for a finder's fee, brokerage or other
commission arising by reason of any services alleged to have been rendered to
or at the instance of any Seller with respect to the transactions
contemplated hereby.
ARTICLE IX
MISCELLANEOUS
9.01 Notices. Any notices, requests and other communications hereunder shall
be in writing and shall be deemed given if personally delivered, or three (3)
days after sent by registered or certified United States mail, postage
prepaid and return receipt requested, or one (1) day after deposited with a
nationally recognized express overnight courier service, addressed as
follows:
Name Address
To Corning or NuCor Corning Incorporated
One Riverfront Plaza
Corning, NY 14830
Attn: General
Counsel
<PAGE>
Name Address
With a Copy To: Corning Life Sciences, Inc.
One Malcolm Avenue
Teterboro, NJ 07608
Attn: General Counsel
To the Company or
any Shareholder at the addresses previously listed
With a Copy To: Veeder Law Firm
400 North Broadway
Billings, MT
except that any of the foregoing may from time to time by written notice to
the others designate another address which shall thereupon become its
effective address for the purposes of this section.
9.02 No Broker. Each of the Sellers, and the Corning Parties represent and
warrant each to the other that no agent, broker, person or firm acting on any
party's behalf is or shall be entitled to a commission, finder's fee or other
payment of like nature in connection with the transactions contemplated
hereby. No party has nor shall have any liability for any such payments
resulting from retention of any of the above persons by any other party.
9.03 Sole Agreement. This Agreement constitutes the only agreement by and
among the parties hereto with respect to the subject matter hereof and
supersedes any prior understandings or written or oral agreements between the
parties with respect to the subject matter of this Agreement.
9.04 Expenses. Each party shall pay its own expenses incident to the
preparation and carrying out of this Agreement, whether or not the
transactions contemplated by this Agreement are consummated.
9.05 Full Agreement. This Agreement sets forth all rights, obligations and
liabilities of the parties, and no terms and provisions hereof or thereof,
including without limitation the terms and provisions contained in this
sentence, shall be waived, modified or altered so as to impose any additional
obligations or liability or grant any additional right or remedy and no
custom, payment, act, knowledge, extension of time, favor or indulgence,
gratuitous or otherwise, or words or silence at any time, shall impose any
additional obligation or liability or grant any additional right or remedy or
be deemed a waiver or release of any obligation, liability, right or remedy
except as set forth in a written instrument properly executed and delivered
by the party sought to be charged, expressly stating that it is, and the
extent to which it is, intended to be so effective. No assent, express or
implied, by any party, or waiver by any party, to or of any breach of any
term or provision of this Agreement shall be deemed to be an assent or waiver
to or of such or any succeeding breach of the same or any other such term or
provision.
9.06 Partial Invalidity. If any term or provision of this Agreement or the
application thereof to any person, property or circumstances shall to any
extent be invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision to persons, property or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term and provision of this Agreement shall be
valid and enforced to the fullest extent permitted by law.
9.07 Publicity. No Seller shall make or issue, or cause to be made or issued,
any announcement or written statement concerning this Agreement or the
transactions contemplated hereby for dissemination to the general public
without the prior written consent of Corning. This provision shall not apply,
however, to any announcement or written statement which in the opinion of
counsel to such party is required to be made by law or the regulations of any
federal or state governmental agency or any stock exchange.
9.08 Successors; Benefit. This Agreement shall inure to the benefit of and be
binding upon the heirs, executors, legal representatives, successors and
assigns of the parties hereto. The parties do not intend to confer any
benefit under this Agreement on anyone other than a party hereto or its
successors in interest and nothing contained herein shall be deemed to confer
any such benefit on any such person. Without limiting the foregoing, the
Sellers acknowledge that following the Closing NuCor will merge with or
contribute the Assets to one or more Corning affiliates and that such
affiliate(s) shall have the same rights and obligations hereunder as if they
were original parties hereto in lieu of NuCor, provided that no such merger
or contribution will relieve Corning or NuCor of its obligations hereunder.
Notwithstanding the foregoing no Shareholder may transfer any interest in or
encumber any Company shares or assign any rights hereunder prior to the
Closing.
<PAGE>
9.09 Governing Law. This Agreement and the transactions contemplated hereby
shall be construed and enforced in accordance with the laws of Montana
without regard to the conflict of law provisions thereof.
9.10 Headings. The various section headings in this Agreement are inserted
for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement or any provisions hereof.
9.11 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
9.12 Affiliates. The term "affiliates" as used in this Agreement shall mean a
person or entity controlling, controlled by or controlled in common with
another person or entity. The term "control" shall mean the ability to direct
the actions of the controlled entity by contract or by direct or indirect
ownership of 50% or more of the equity or voting power of an entity.
Notwithstanding the foregoing, Pathology Consultants, P.C. (or any entity
succeeding to its business) shall be deemed to be an affiliate of Dr. Setzer
or Dr. Holley, as the case may be, so long as such person remains a
shareholder of Pathology Consultants, P.C. (or such successor entity).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
ATTEST:
CORNING INCORPORATED
By:
Name:
Title:
ATTEST:
MRL NUCOR, INC.
By:
Name:
Title:
MEDICAL REFERENCE LABORATORIES, INC.
By:
Name:
Title:
[Shareholder]
[Shareholder]
[Shareholder]
[Shareholder]
EXHIBIT 3.05
CORNING INCORPORATED
CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF INCORPORATION
Under Section 805 of the Business Corporation Law
October 5, 1994
<PAGE>
CERTIFICATE OF AMENDMENT OF
THE CERTIFICATE OF INCORPORATION
OF
CORNING INCORPORATED
Under Section 805 of the Business Corporation Law
We, JAMES R. HOUGHTON and A. JOHN PECK, JR., being, respectively, the
Chairman and the Secretary of Corning Incorporated, a corporation organized
under the laws of the State of New York, DO HEREBY CERTIFY as follows:
FIRST: The name of the Corporation is Corning Incorporated. The Corporation
was formed under the name Corning Glass Works.
SECOND: The Certificate of Incorporation of the Corporation (being the
Preliminary Certificate of Consolidation Forming the Corporation) was filed
in the office of the Secretary of State of New York on December 24, 1936.
THIRD: The said Certificate of Incorporation, as heretofore amended and
restated, is hereby amended pursuant to Section 801(b) of the Business
Corporation Law to increase by 946,210 the number of shares designated as the
Series C 6% Cumulative Convertible Preferred Stock of the Corporation. This
Amendment does not change the number of authorized shares of the Corporation
but only increases the number of shares of Series C 6% Cumulative Convertible
Preferred Stock by designating additional shares of such from the Preferred
Shares which the Corporation is already authorized to issue.
FOURTH: The text of the first sentence of Subparagraph (A) of Section 1 of
Paragraph 4C of the Certificate of Incorporation of the Corporation, as
heretofore amended and restated, which sets forth the number of shares of
Series C 6% Cumulative Convertible Preferred Stock, is hereby amended to read
as follows:
"(A) The shares of this series of Preferred Stock shall be designated as
"Series C 6% Cumu lative Convertible Preferred Stock" (the "Series C
Preferred Stock") and the number of shares con stituting such series shall
be 4,683,710 with a par value of $100 per share."
FIFTH: This Amendment of the Certificate of Incorporation of the Corporation
was authorized by resolutions duly adopted by the Board of Directors of the
Corporation at a meeting duly called and held on October 5, 1994, at which a
quorum was present and acting throughout.
IN WITNESS WHEREOF, we have signed this certificate this 24th day of October,
1994.
/s/ James R. Houghton
JAMES R. HOUGHTON
Chairman
/s/ A. John Peck, Jr.
A. JOHN PECK, JR.
Secretary
<PAGE>
STATE OF NEW YORK)
COUNTY OF STEUBEN) ss.:
JAMES R. HOUGHTON and A. JOHN PECK, JR., being severally duly sworn, say, and
each for himself says, that the said James R. Houghton is the Chairman and
the said A. John Peck, Jr. is the Secretary of Corning Incorporated, which is
a corporation organized under the laws of the State of New York and is the
corporation described in the foregoing Certificate; that they have read the
said Certificate and know the contents thereof and that the same is true to
their own knowledge.
/s/ James R. Houghton
JAMES R. HOUGHTON
Chairman
/s/ A. John Peck, Jr.
A. JOHN PECK, JR.
Secretary
Subscribed and sworn to before
me this 24th day of October, 1994.
SHERRY L. SMITH
Sherry L. Smith
Notary Public, State of New York
Steuben County, No. 5009667
Commission Expires March 15, 1995
[NOTARIAL SEAL]
Exhibit 23.02
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.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
1177 Avenue of the Americas
New York, New York
December 13, 1994
Exhibit 23.03
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 Current Report on 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.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Boston, Massachusetts
December 12, 1994
Exhibit 23.04
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 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.
/s/ Leverone & Company
Leverone & Company
Billerica, Massachusetts
December 12, 1994
<PAGE>
December 14, 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 a Registration Statement on Form S-3 (the
"Registration Statement") being filed today with the Securities and Exchange
Commission with respect to 5,960,970 shares of the Company's Common Stock,
$.50 par value (the "Common Stock"), issued in October, 1994 to the
shareholders of Moran Research Labs, a Massachusetts business trust doing
business as Bioran Medical Laboratory ("Bioran"), pursuant to the terms of
the Acquisition Agreement and Plan of Reorganization dated as September 8,
1994 between the Company, Bioran, S. A. Fennell Limited Partnership and the
shareholders of Bioran and 227,181 shares of the Common Stock issued in
December, 1994 to the shareholders of Medical Reference Laboratories, Inc., a
Montana corporation ("MRL"), pursuant to the terms of the Acquisition
Agreement dated as of December 1, 1994 between the Company, MRL NuCor, Inc.,
MRL and the shareholders of MRL (such agreements collectively referred to as
the "Agreements").
In this capacity, I have examined signed copies of the Registration Statement
to be filed with the Commission today. 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 execution and delivery on behalf of the Company of the Agreements
has been duly authorized by all proper corporate proceedings of the Company
and the Agreements constitute legal, valid and binding instruments of the
Company; and
3. The 6,188,151 shares of Common Stock of the Company issued pursuant to
the terms of the Agreements are validly issued, fully paid and nonassessable.
I hereby consent to the use of this opinion as an exhibit to the Registration
Statement and to the use of my name in "Legal Opinions" in the related
prospectus.
Very truly yours,
/s/ William C. Ughetta
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one 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 December, 1994.
/s/ Roger G. Ackerman
ROGER G. ACKERMAN
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one 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 December, 1994.
/s/ Mary L. Bundy
MARY L. BUNDY
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 2nd
day of December, 1994.
/s/ Van C. Campbell
VAN C. CAMPBELL
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 30th
day of November, 1994.
/s/ David A. Duke
DAVID A. DUKE
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 2nd
day of December, 1994.
/s/ John H. Foster
JOHN H. FOSTER
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 2nd
day of December, 1994.
/s/ Gordon Gund
GORDON GUND
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one 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 December, 1994.
/s/ James R. Houghton
JAMES R. HOUGHTON
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one 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 December, 1994.
/s/ Vernon E. Jordan, Jr.
VERNON E. JORDAN, JR.
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one 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 December, 1994.
/s/ James W. Kinnear
JAMES W. KINNEAR
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one 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 December, 1994.
/s/ James J. O'Connor
JAMES J. O'CONNOR
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one 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 December, 1994.
/s/ Catherine A. Rein
CATHERINE A. REIN
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one 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 December, 1994.
/s/ Henry Rosovsky
HENRY ROSOVSKY
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 5th
day of December, 1994.
/s/ William D. Smithburg
WILLIAM D. SMITHBURG
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one 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 December, 1994.
/s/ Robert G. Stone, Jr.
ROBERT G. STONE, JR.
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 2nd
day of December, 1994.
/s/ Robert Barker
ROBERT BARKER
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 6th
day of December, 1994.
/s/ Barber B. Conable, Jr.
BARBER B. CONABLE, JR.
<PAGE>
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, or
either 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 up to
6,325,000 shares of its Common Stock offered, issued, exchanged or sold by
Corning Incorporated in connection with its acquisition of the outstanding
shares of beneficial interest of Moran Research Labs, a Massachusetts
business trust doing business as Bioran Medical Laboratory, and in connection
with its acquisition of the capital stock of Beral Enterprise, Inc., a
California corporation, 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 or such other form as
may be appropriate to be filed with the Securities and Exchange Commission in
respect of said shares of Common Stock, 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 said attorneys and agents, or any one of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 5th
day of December, 1994.
/s/ John M. Hennessy
JOHN M. HENNESSY
