<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 22, 1999
REGISTRATION NO.
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- --------------------------------------------------------------------------------
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)
<TABLE>
<S> <C>
NEW YORK 16-0393470
(State of Incorporation) (I.R.S. Employer Identification Number)
</TABLE>
ONE RIVERFRONT PLAZA
CORNING, NEW YORK 14831
(607) 974-9000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
CORNING FINANCE B.V.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
THE NETHERLANDS NOT APPLICABLE
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
</TABLE>
LANGE VOORHOUT 7
2514 EA THE HAGUE
THE NETHERLANDS
31.70.310.83.08
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
WILLIAM D. EGGERS
SENIOR VICE PRESIDENT AND
GENERAL COUNSEL
CORNING INCORPORATED
ONE RIVERFRONT PLAZA
CORNING, NEW YORK 14831
(607) 974-9000
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
----------------------------------
COPIES TO:
DONALD C. WALKOVIK
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
----------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: from time
to time after the effectiveness of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
(CALCULATION TABLE ON NEXT PAGE.)
----------------------------------
THIS REGISTRATION STATEMENT, WHICH IS A NEW REGISTRATION STATEMENT, ALSO
CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO.
33-56887, WHICH WAS DECLARED EFFECTIVE ON JANUARY 19, 1995. SUCH POST-EFFECTIVE
AMENDMENT SHALL HEREAFTER BECOME EFFECTIVE CONCURRENTLY WITH THE EFFECTIVENESS
OF THIS REGISTRATION STATEMENT AND IN ACCORDANCE WITH SECTION 8(C) OF THE
SECURITIES ACT OF 1933. PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933,
THE PROSPECTUS FILED AS PART OF THIS REGISTRATION STATEMENT ALSO CONSTITUTES A
PROSPECTUS FOR REGISTRATION STATEMENT NO. 33-56887; THE $75,000,000 OF DEBT
SECURITIES REMAINING UNSOLD FROM REGISTRATION STATEMENT NO. 33-56887 WILL BE
COMBINED WITH THE $2,000,000,000 AGGREGATE AMOUNT OF DEBT SECURITIES, DEBT
WARRANTS, EQUITY WARRANTS, PREFERRED STOCK, DEPOSITARY SHARES, COMMON STOCK AND
GUARANTEES, TO BE REGISTERED PURSUANT TO THIS REGISTRATION STATEMENT TO ENABLE
THE REGISTRANTS TO OFFER AN AGGREGATE AMOUNT OF $2,075,000,000 OF SECURITIES
PURSUANT TO THE COMBINED PROSPECTUS.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AGGREGATE AGGREGATE AMOUNT OF
TITLE OF SHARES AMOUNT TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) UNIT(2) PRICE(2) FEE(3)
<S> <C> <C> <C> <C>
Debt Securities, Debt Warrants, Equity Warrants,
Preferred Stock, Depositary Shares and Common
Stock.......................................... $2,000,000(4)(5) 100% $2,000,000,000 $556,000
Guarantees....................................... (6) (6) (6) (6)
</TABLE>
(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currencies at the dates of
issuance.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended.
(3) Pursuant to Rule 429 promulgated under the Securities Act of 1933, the
amount of registration fees does not include $25,862 previously paid to the
Commission relating to $75,000,000 of Debt Securities, previously registered
pursuant to Registration Statement No. 33-56887, which remain unissued at
the close of business on June 22, 1999.
(4) Such amount represents the offering price of any Preferred Stock, Depositary
Shares and Common Stock, the principal amount of any Debt Securities issued
at their principal face amount, the issue price rather than the principal
amount of any Debt Securities issued at an original issue discount, the
issue price of any Debt Warrants and the exercise price of any Debt
Securities issuable upon the exercise of Debt Warrants, the issue price of
any Equity Warrants and the exercise price of any Preferred Stock or Common
Stock issuable upon the exercise of Equity Warrants. Debt Warrants may be
sold separately or with Debt Securities or other Debt Warrants. Equity
Warrants may be sold separately or with any Preferred Stock or Common Stock
or other Equity Warrants. It is not practicable to determine the number of
Debt Warrants or Equity Warrants and the proposed maximum offering prices
thereof at this time.
(5) As described in note (3) and the paragraph immediately following these notes
below, this registration statement relates to $2,000,000,000 aggregate
principal amount of securities being registered hereby and an additional
$75,000,000 of Debt Securities of Corning Incorporated previously
registered. In no event will the aggregate offering price of all securities
issued from time to time pursuant to this registration statement exceed
$2,075,000,000 or the equivalent thereof in any other currency, currency
unit or units or composite currency or currencies.
(6) No separate consideration will be received for the Guarantees.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED - , 1999
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
PROSPECTUS
[LOGO]
CORNING INCORPORATED
AND
CORNING FINANCE B.V.
By this prospectus, we may offer from time to time up to $2,075,000,000 of:
- DEBT SECURITIES OF CORNING INCORPORATED;
- GUARANTEED DEBT SECURITIES OF CORNING FINANCE B.V.;
- WARRANTS (DEBT AND EQUITY) OF CORNING INCORPORATED;
- PREFERRED STOCK OF CORNING INCORPORATED;
- DEPOSITARY SHARES OF CORNING INCORPORATED; AND
- COMMON STOCK OF CORNING INCORPORATED.
------------------------
When we offer securities, we will provide you with a prospectus supplement
describing the terms of the specific issue of securities including the offering
price of the securities. You should read this prospectus and the accompanying
prospectus supplement carefully before you invest.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus is dated , 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
Corning Incorporated............................ 2
Corning Finance B.V............................. 2
Use of Proceeds................................. 2
Ratio of Earnings To Fixed Charges and
Ratio Earnings to Combined
Fixed Charges Including Preferred
Stock Dividends............................... 3
Securities We May Issue......................... 3
Description of Securities and Guarantees........ 3
<CAPTION>
PAGE
---------
<S> <C>
Description of Warrants......................... 21
Description of Preferred Stock.................. 25
Description of Depositary Shares................ 29
Description of Common Stock..................... 32
Plan of Distribution............................ 35
Validity of Securities.......................... 35
Experts......................................... 35
Where You Can Find More Information............. 36
</TABLE>
CORNING INCORPORATED
We trace our origins to a glass business established in 1851. The present
corporation was incorporated in the State of New York in December 1936, and our
name was changed from Corning Glass Works to Corning Incorporated on April 28,
1989.
We are a global, technology-based corporation that operates in three broadly
based operating business segments:
- Telecommunications
- Advanced Materials
- Information Display
The Telecommunications Segment produces optical fiber and cable, optical
hardware and equipment and photonic components for the worldwide
telecommunications industry. The Advanced Materials Segment manufactures
specialized products with unique properties for customer applications utilizing
glass, glass ceramic and polymer technologies. Businesses within this segment
include environmental products, science products, semiconductor materials and
optical and lighting products. The Information Display Segment manufactures
glass panels and funnels for televisions and computer displays, projection video
lens assemblies and liquid-crystal display glass for flat panel displays.
Our principal office is located at One Riverfront Plaza, Corning, New York
14831. Our telephone number is (607) 974-9000.
CORNING FINANCE B.V.
Corning Finance B.V. is an indirect wholly owned subsidiary of Corning
Incorporated, incorporated under the laws of The Netherlands solely for the
purpose of raising capital to meet the financing needs of Corning Incorporated
and its subsidiaries. Corning Finance B.V. has no independent operations. Its
principal executive offices are located at Lange Voorhout 7, 2514EA The Hague;
telephone: 31.70.310.83.08.
USE OF PROCEEDS
Except as may be set forth in the prospectus supplement, we will use the net
proceeds from the sale of the securities offered under this prospectus and the
prospectus supplement for general corporate purposes. Our general corporate
purposes may include:
- the repayment or reduction of indebtedness;
- working capital requirements; and
- the funding of a portion of our normal, ongoing capital spending program.
Corning Finance B.V. will lend the net proceeds from the sale of any debt
securities offered by it to Corning Incorporated or its subsidiaries to be used
for similar purposes. We will determine any specific allocation of the net
proceeds of an offering of securities to a specific purpose at the time of the
offering and will describe the allocation in the related prospectus supplement.
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RATIOS OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
INCLUDING PREFERRED STOCK DIVIDENDS
The following table sets forth (i) our historical ratios of earnings to
fixed charges and (ii) our consolidated ratio of earnings to combined fixed
charges including preferred stock dividends for the periods indicated:
<TABLE>
<CAPTION>
FIRST QUARTER ENDED
YEAR ENDED
------------------------ -------------------------------------
MAR. 31, MAR. 31, DEC. 31, DEC. 31, DEC. 31,
1999 1998 1998 1997 1996
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges...................... 3.7x 2.9x 4.3x 5.3x 5.5x
Ratio of earnings to combined fixed charges and
preferred dividends................................... 3.5x 2.6x 3.8x 4.7x 4.7x
<CAPTION>
DEC. 31, JAN. 1,
1995 1995
----------- -----------
<S> <C> <C>
Ratio of earnings to fixed charges...................... 6.2x 3.5x
Ratio of earnings to combined fixed charges and
preferred dividends................................... 5.0x 3.2x
</TABLE>
- ------------------------
(1) For purposes of computing the ratio of earnings to fixed charges, earnings
consist of:
- income from continuing operations before taxes on income, before equity
in earnings and minority interest;
- Corning's share of pre-tax earnings of fifty-percent owned companies;
- Corning's share of pre-tax earnings of greater than fifty-percent owned
unconsolidated subsidiaries;
- dividends received from less than fifty-percent owned companies and
Corning's share of losses of such companies, if any, if any debt of
such companies is guaranteed by Corning;
- previously capitalized interest amortized during the period; and
- fixed charges net of capitalized interest.
(2) Fixed charges consist of:
- interest on indebtedness;
- amortization of debt issuance costs;
- a portion of rental expenses which represents an appropriate interest
rate factor;
- Corning's share of the fixed charges of fifty-percent owned companies;
and
- fixed charges of greater than fifty-percent owned and unconsolidated
subsidiaries.
(3) Preferred dividends consist of preferred dividends paid on:
- Corning's 6% Convertible Monthly Income Preferred Securities (all of
which were redeemed as of March 23, 1999 and none of which are
currently outstanding); and
- Corning's 8% Series B Convertible Preferred Stock.
SECURITIES WE MAY ISSUE
We may use this prospectus to offer up to $2,075,000,000 of:
- debt securities issued by Corning Incorporated;
- debt securities issued by Corning Finance B.V. and guaranteed by Corning
Incorporated;
- warrants (debt and equity) issued by Corning Incorporated;
- preferred stock issued by Corning Incorporated;
- depositary shares relating to preferred stock; and
- common stock issued by Corning Incorporated.
A prospectus supplement will describe the specific types, amounts, prices,
and detailed terms of any of these securities.
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
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PLEASE NOTE THAT IN THIS SECTION ENTITLED "DESCRIPTION OF DEBT SECURITIES
AND GUARANTEES", REFERENCES TO HOLDERS MEAN THOSE WHO OWN DEBT SECURITIES
REGISTERED IN THEIR OWN NAMES, ON THE BOOKS THAT WE OR THE TRUSTEE MAINTAIN
FOR THIS PURPOSE, AND NOT THOSE WHO OWN BENEFICIAL INTERESTS IN DEBT
SECURITIES REGISTERED IN STREET NAME OR IN DEBT SECURITIES ISSUED IN
BOOK-ENTRY FORM THROUGH THE DEPOSITARY TRUST COMPANY. OWNERS OF BENEFICIAL
INTERESTS IN THE DEBT SECURITIES SHOULD READ THE SUBSECTION ENTITLED "--
LEGAL OWNERSHIP OF DEBT SECURITIES".
- --------------------------------------------------------------------------------
3
<PAGE>
GENERAL
THE DEBT SECURITIES WILL BE ISSUED UNDER AN INDENTURE
As required by U.S. federal law for all bonds and notes of companies that
are publicly offered, the debt securities are governed by a document called the
indenture. In the case of debt securities issued by Corning Incorporated, the
applicable indenture is a contract between Corning Incorporated and The Chase
Manhattan Bank, which acts as trustee. In the case of debt securities issued by
Corning Finance B.V., the applicable indenture is a contract among Corning
Finance B.V., Corning Incorporated, which acts as guarantor, and The Chase
Manhattan Bank, which acts as trustee. The trustee has two main roles:
- First, the trustee can enforce your rights against us if we default. There
are limitations on the extent to which the trustee acts on your behalf,
which we describe later under "--Default, Remedies and Waiver of Default";
and
- Second, the trustee performs administrative duties for us, such as sending
you interest payments and notices.
We may issue as many distinct series of debt securities under each indenture
as we wish. This section summarizes terms of the debt securities that are common
to all series. Most of the financial terms and other specific terms of your
series are described in the prospectus supplement attached to the front of this
prospectus. Those terms may vary from the terms described here. The prospectus
supplement may also describe special Federal income tax consequences of the debt
securities.
THIS SECTION IS ONLY A SUMMARY
Each indenture and its associated documents, including your debt security,
contain the full text of the matters described in this section and your
prospectus supplement. Each indenture and the debt securities are governed by
New York law. A copy of each indenture has been filed with the SEC as part of
our registration statement. See "Where You Can Find More Information" below for
information on how to obtain a copy.
This section and your prospectus supplement summarize all the material terms
of each indenture and your debt security. They do not, however, describe every
aspect of each indenture and your debt security. For example, in this section
and your prospectus supplement, we use terms that have been given special
meaning in each indenture, but we describe the meaning of only the more
important of those items.
LEGAL OWNERSHIP OF DEBT SECURITIES
We refer to those who have debt securities registered in their own names, on
the books that we or the trustee maintain for this purpose, as the "holders" of
those debt securities. These persons are the legal holders of the debt
securities. We refer to those who, indirectly through others, own beneficial
interests in debt securities that are not registered in their own names as
indirect holders of those debt securities. As we discuss below, indirect holders
are not legal holders, and investors in debt securities issued in book-entry
form or in street name will be indirect holders.
BOOK-ENTRY HOLDERS
We will issue debt securities in book-entry form only, unless we specify
otherwise in the applicable prospectus supplement. This means debt securities
will be represented by one or more global securities registered in the name of a
financial institution that holds them as depositary on behalf of other financial
institutions that participate in the depositary's book-entry system. These
participating institutions, in turn, hold beneficial interests in the debt
securities on behalf of themselves or their customers.
Under each indenture, only the person in whose name a debt security is
registered is recognized as the holder of that debt security. Consequently, for
debt securities issued in global form, we will recognize only the depositary as
the holder of the debt securities and we will
4
<PAGE>
make all payments on the debt securities to the depositary. The depositary
passes along the payments it receives to its participants, which in turn pass
the payments along to their customers who are the beneficial owners. The
depositary and its participants do so under agreements they have made with one
another or with their customers; they are not obligated to do so under the terms
of the debt securities.
As a result, investors will not own debt securities directly. Instead, they
will own beneficial interests in a global security, through a bank, broker or
other financial institution that participates in the depositary's book-entry
system or holds an interest through a participant. As long as the debt
securities are issued in global form, investors will be indirect holders, and
not holders, of the debt securities.
STREET NAME HOLDERS
In the future we may terminate a global security or issue debt securities
initially in non-global form. In these cases, investors may choose to hold their
debt securities in their own names or in "street name". Debt securities held by
an investor in street name would be registered in the name of a bank, broker or
other financial institution that the investor chooses, and the investor would
hold only a beneficial interest in those debt securities through an account he
or she maintains at that institution.
For debt securities held in street name, we will recognize only the
intermediary banks, brokers and other financial institutions in whose names the
debt securities are registered as the holders of those debt securities and we
will make all payments on those debt securities to them. These institutions pass
along the payments they receive to their customers who are the beneficial
owners, but only because they agree to do so in their customer agreements or
because they are legally required to do so. Investors who hold debt securities
in street name will be indirect holders, not holders, of those debt securities.
LEGAL HOLDERS
Our obligations, as well as the obligations of the trustee and those of any
third parties employed by us or the trustee, run only to the legal holders of
the debt securities. We do not have obligations to investors who hold beneficial
interests in global securities, in street name or by any other indirect means.
This will be the case whether an investor chooses to be an indirect holder of a
debt security or has no choice because we are issuing the debt securities only
in global form.
For example, once we make a payment or give a notice to the holder, we have
no further responsibility for the payment or notice even if that holder is
required, under agreements with depositary participants or customers or by law,
to pass it along to the indirect holders but does not do so. Similarly, if we
want to obtain the approval of the holders for any purpose--E.G., to amend the
applicable indenture or to relieve us of the consequences of a default or of our
obligation to comply with a particular provision of the applicable indenture--we
would seek the approval only from the holders, and not the indirect holders, of
the debt securities. Whether and how the holders contact the indirect holders is
up to the holders.
When we refer to you, we mean those who invest in the debt securities being
offered by this prospectus, whether they are the holders or only indirect
holders of those debt securities. When we refer to your debt securities, we mean
the debt securities in which you hold a direct or indirect interest.
SPECIAL CONSIDERATIONS FOR INDIRECT HOLDERS
If you hold debt securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you should check with
your own institution to find out:
- how it handles securities payments and notices;
- whether it imposes fees or charges;
- how it would handle a request for the holders' consent, if ever required;
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- whether and how you can instruct it to send you debt securities registered
in your own name so you can be a holder, if that is permitted in the
future;
- how it would exercise rights under the debt securities if there were a
default or other event triggering the need for holders to act to protect
their interests; and
- if the debt securities are in book-entry form, how the depositary's rules
and procedures will affect these matters.
WHAT IS A GLOBAL SECURITY?
We will issue each debt security in book-entry form only, unless we specify
otherwise in the applicable prospectus supplement. A global security represents
one or any other number of individual debt securities. Generally, all debt
securities represented by the same global securities will have the same terms.
We may, however, issue a global security that represents multiple debt
securities that have different terms and are issued at different times. We call
this kind of global security a master global security.
Each debt security issued in book-entry form will be represented by a global
security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we
select for this purpose is called the depositary. Unless we specify otherwise in
the applicable prospectus supplement, The Depository Trust Company, New York,
New York, known as DTC, will be the depositary for all debt securities issued in
book-entry form.
A global security may not be transferred to or registered in the name of
anyone other than the depositary or its nominee, unless special termination
situations arise. We describe those situations below under "--Special Situations
When a Global Security Will Be Terminated". As a result of these arrangements,
the depositary, or its nominee, will be the sole registered owner and holder of
all debt securities represented by a global security, and investors will be
permitted to own only beneficial interests in a global security. Beneficial
interests must be held by means of an account with a broker, bank or other
financial institution that in turn has an account with the depositary or with
another institution that does. Thus, an investor whose security is represented
by a global security will not be a holder of the debt security, but only an
indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular debt security indicates that
the debt security will be issued in global form only, then the debt security
will be represented by a global security at all times unless and until the
global security is terminated. We describe the situations in which this can
occur below under "--Special Situations When a Global Security Will Be
Terminated". The global security may be a master global security, although your
prospectus supplement will not indicate whether it is a master global security.
If termination occurs, we may issue the debt securities through another
book-entry clearing system or decide that the debt securities may no longer be
held through any book-entry clearing system.
SPECIAL CONSIDERATIONS FOR GLOBAL SECURITIES
As an indirect holder, an investor's rights relating to a global security
will be governed by the account rules of the investor's financial institution
and of the depositary, as well as general laws relating to securities transfers.
We do not recognize this type of investor as a holder of debt securities and
instead deal only with the depositary that holds the global security.
If debt securities are issued only in the form of a global security, an
investor should be aware of the following:
- An investor cannot cause the debt securities to be registered in his or
her name, and cannot obtain non-global certificates for his or her
interest in the debt securities, except in the special situations we
describe below;
- An investor will be an indirect holder and must look to his or her own
bank or broker for payments on the debt securities and protection of his
or her
6
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legal rights relating to the debt securities, as we describe under
"--Legal Ownership of Debt Securities" above;
- An investor may not be able to sell interests in the debt securities to
some insurance companies and to other institutions that are required by
law to own their securities in non-book-entry form;
- An investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the debt
securities must be delivered to the lender or other beneficiary of the
pledge in order for the pledge to be effective;
- The depositary's policies, which may change from time to time, will govern
payments, transfers, exchanges and other matters relating to an investor's
interest in a global security. We and the trustee have no responsibility
for any aspect of the depositary's actions or for its records of ownership
interests in a global security. We and the trustee also do not supervise
the depositary in any way;
- The depositary will require that those who purchase and sell interests in
a global security within its book-entry system use immediately available
funds and your broker or bank may require you to do so as well; and
- Financial institutions that participate in the depositary's book-entry
system, and through which an investor holds its interest in the global
securities, may also have their own policies affecting payments, notices
and other matters relating to the debt securities. There may be more than
one financial intermediary in the chain of ownership for an investor. We
do not monitor and are not responsible for the actions of any of those
intermediaries.
SPECIAL SITUATIONS WHEN A GLOBAL SECURITY WILL BE TERMINATED
In a few special situations described below, a global security will be
terminated and interests in it will be exchanged for certificates in non-global
form representing the debt securities it represented. After that exchange, the
choice of whether to hold the debt securities directly or in street name will be
up to the investor. Investors must consult their own banks or brokers to find
out how to have their interests in a global security transferred on termination
to their own names, so that they will be holders. We have described the rights
of holders and street name investors above under "--Legal Owner of Debt
Securities".
The special situations for termination of a global security are as follows:
- if the depositary notifies us that it is unwilling, unable or no longer
qualified to continue as depositary for that global security and we do not
appoint another institution to act as depositary within 60 days;
- if we notify the trustee that we wish to terminate that global security;
or
- if an event of default has occurred with regard to debt securities
represented by that global security and has not been cured or waived; we
discuss defaults later under "--Default, Remedies and Waiver of Default".
If a global security is terminated, only the depositary, and not we or the
trustee, is responsible for deciding the names of the institutions in whose
names the debt securities represented by the global security will be registered
and, therefore, who will be the holders of those debt securities.
GUARANTEE OF DEBT SECURITIES OF CORNING FINANCE B.V.
All debt securities issued by Corning Finance B.V. will be fully and
unconditionally guaranteed under a guarantee of Corning Incorporated of the
payment of principal of and any premium, interest and certain "additional
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<PAGE>
amounts" (as explained below under "--Payment of Additional Amounts with Respect
to Guaranteed Debt Securities") on these debt securities when due, whether at
maturity or otherwise. Under the terms of the guarantee, holders of the
guaranteed debt securities will not be required to exercise their remedies
against Corning Finance B.V. before they proceed directly against Corning
Incorporated.
PAYMENT OF ADDITIONAL AMOUNTS WITH RESPECT TO GUARANTEED DEBT SECURITIES
Unless otherwise indicated in your prospectus supplement, all amounts of
principal of and any premium, and interest, on any guaranteed debt securities
will be paid by Corning Finance B.V. without deduction or withholding for any
taxes, assessments or other charges imposed by the government of The Netherlands
(or the government of a jurisdiction in which a successor to Corning Finance
B.V. is organized). If deduction or withholding of any of these charges is
required by The Netherlands (or by a jurisdiction in which a successor to
Corning Finance B.V. is organized), Corning Finance B.V. will pay as additional
interest any additional amounts necessary to make the net amount paid to the
affected holders equal the amount the holders would have received in the absence
of the deduction or withholding. However, these "additional amounts" do not
include:
- the amount of any tax, assessment or other governmental charge imposed by
any unit of the United States;
- the amount of any tax, assessment or other governmental charge which is
only payable because either:
-- a certain type of connection exists between the holder and The
Netherlands; or
-- the holder presented the debt security for payment more than 30 days
after the date on which the relevant payment became due or was
provided for, whichever is later;
- the amount of any tax, assessment or other governmental charge which is
payable other than by deduction or withholding from a payment on the debt
securities;
- the amount of any tax, assessment or other governmental charge that is
imposed or withheld due to the beneficial owner of the debt security
failing to comply with a request from us to either provide information
concerning the beneficial owner's nationality, residence or identity or
make any claim to satisfy any information or reporting requirement, if the
completion of either would have provided an exemption from the applicable
governmental charge; or
- any combination of the taxes, assessments or other governmental charges
described above.
The prospectus supplement will describe any additional circumstances under which
additional amounts will not be paid with respect to debt securities.
REDEMPTION AND REPAYMENT
Unless otherwise indicated in your prospectus supplement, your debt security
will not be entitled to the benefit of any sinking fund--that is, we will not
deposit money on a regular basis into any separate custodial account to repay
your debt securities. In addition, we will not be entitled to redeem your debt
security before its stated maturity unless your prospectus supplement specifies
a redemption commencement date. You will not be entitled to require us to buy
your debt security from you, before its stated maturity, unless your prospectus
supplement specifies one or more repayment dates.
If your prospectus supplement specifies a redemption commencement date or a
repayment date, it will also specify one or more redemption prices or repayment
prices, which will be expressed as a percentage of the principal amount of your
debt security. It may also specify one or more redemption periods during which
the redemption prices relating to a redemption of debt securities during those
periods will apply.
If your prospectus supplement specifies a redemption commencement date, your
debt
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security will be redeemable at our option at any time on or after that date. If
we redeem your debt security, we will do so at the specified redemption price,
together with interest accrued to the redemption date. If different prices are
specified for different redemption periods, the price we pay will be the price
that applies to the redemption period during which your debt security is
redeemed.
If your prospectus supplement specifies a repayment date, your debt security
will be repayable at your option on the specified repayment date at the
specified repayment price, together with interest accrued to the repayment date.
In the event that we exercise an option to redeem any debt security, we will
give to the trustee and the holder written notice of the principal amount of the
debt security to be redeemed, not less than 30 days nor more than 60 days before
the applicable redemption date. We will give the notice in the manner described
below in "--Notices".
If a debt security represented by a global security is subject to repayment
at the holder's option, the depositary or its nominee, as the holder, will be
the only person that can exercise the right to repayment. Any indirect holders
who own beneficial interests in the global security and wish to exercise a
repayment right must give proper and timely instructions to their banks or
brokers through which they hold their interests, requesting that they notify the
depositary to exercise the repayment right on their behalf. Different firms have
different deadlines for accepting instructions from their customers, and you
should take care to act promptly enough to ensure that your request is given
effect by the depositary before the applicable deadline for exercise.
STREET NAME AND OTHER INDIRECT HOLDERS SHOULD CONTACT THEIR BANKS OR BROKERS FOR
INFORMATION ABOUT HOW TO EXERCISE A REPAYMENT RIGHT IN A TIMELY MANNER.
In the event that the option of the holder to elect repayment as described
above is deemed to be a "tender offer" within the meaning of Rule 14e-1 under
the Securities Exchange Act of 1934, we will comply with Rule 14e-1 as then in
effect to the extent it is applicable to us and the transaction.
We or our affiliates may purchase debt securities from investors who are
willing to sell from time to time, either in the open market at prevailing
prices or in private transactions at negotiated prices. Debt securities that we
or they purchase may, at our discretion, be held, resold or canceled.
OPTIONAL TAX REDEMPTION
Unless otherwise indicated in your prospectus supplement, each series of
debt securities of Corning Finance B.V. may be redeemed at the option of Corning
Finance B.V., in whole but not in part at any time (except in the case of debt
securities that have a variable rate of interest, which may be redeemed on any
interest payment date) at a redemption price equal to the principal amount plus
accrued interest to the date of redemption (except in the case of outstanding
original issue discount debt securities which may be redeemed at the redemption
price specified by the terms of that series of debt securities) if:
- Corning Finance B.V. would be required to pay additional amounts (as
explained above under "--Payment of Additional Amounts With Respect to
Guaranteed Debt Securities") as a result of any change in the tax laws of
The Netherlands which becomes effective on or after the date of issuance
of that series, or
- as a result of any change in any treaty affecting taxation to which The
Netherlands (or a jurisdiction in which a successor to Corning Finance
B.V. is organized) is a party which becomes effective on or after a date
on which Corning Incorporated borrows money from Corning Finance B.V.,
Corning Incorporated would be required to deduct or withhold tax on any
payment to Corning Finance B.V. to enable it to make any payment of
principal, premium, if any, or interest.
In both of these cases, however, we will not be permitted to redeem a series
of debt securities if we can avoid either the payment of additional amounts, or
deductions or withholding, as the case may be, by using reasonable measures
available to us.
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CONVERSION
Your debt securities may be convertible into or exchangeable for common
stock or other securities of Corning Incorporated if your prospectus supplement
so provides. If your debt securities are convertible or exchangeable, your
prospectus supplement will include provisions as to whether conversion or
exchange is mandatory, at your option or at our option. Your prospectus
supplement would also include provisions regarding the adjustment of the number
of shares of common stock or other securities of Corning Incorporated to be
received by you upon conversion or exchange.
MERGERS AND SIMILAR TRANSACTIONS
We are generally permitted to merge or consolidate with another firm. We are
also permitted to sell substantially all our assets to another firm. We may not
take any of these actions, however, unless all the following conditions are met:
- Where we merge out of existence or sell our assets, the successor firm
must agree to be legally responsible for the debt securities and must be
organized as a corporation, partnership, trust, limited liability company
or similar entity. In the case of a merger or consolidation of Corning
Incorporated, the successor firm may not be organized under a foreign
country's laws (that is, it must be organized under the laws of a State or
the District of Columbia or under federal law). In the case of a merger or
consolidation of Corning Finance B.V., the successor firm may be organized
under the laws of any jurisdiction.
- The merger, sale of assets or other transaction must not cause a default
on the debt securities, and we must not already be in default (unless the
merger or other transaction would cure the default). For purposes of this
no-default test, a default would include an event of default that has
occurred and not been cured, as described below under "Event of Default".
A default for this purpose would also include any event that would be an
event of default if the requirements for giving us default notice or our
default having to exist for a specific period of time were disregarded.
- It is possible that the merger, sale of assets or other transaction would
cause some of our property to become subject to a mortgage or other legal
mechanism giving lenders preferential rights in that property over other
lenders or over our general creditors if we fail to pay them back. We have
promised to limit these preferential rights on our property, called
"liens." This limitation is discussed below under "Restrictive Covenant
and Defeasance--Restrictions on Liens". If a merger or other transaction
would create any liens on our property, we must comply with that
restrictive covenant. We would do this either by deciding that the liens
were permitted, or by following the requirements of the restrictive
covenant to grant an equivalent or higher-ranking lien on the same
property to you and the other direct holders of the debt securities.
- In the case of guaranteed debt securities, the successor to Corning
Finance B.V., if not organized in the United States, must agree to pay the
holder of each guaranteed debt security any "additional amounts" (as
explained above under "--Payment of Additional Amounts with Respect to
Guaranteed Debt Securities") or other expenses imposed on the holder as a
result of the merger, consolidation or sale.
RESTRICTIVE COVENANTS AND DEFEASANCE
RESTRICTIONS ON LIENS
In each indenture, Corning Incorporated promises that it will not become
obligated on any new debt that is secured by a lien on any of its principal
domestic manufacturing properties, or on any shares of stock or debt of any of
its domestic subsidiaries, unless it grants an equivalent or higher-ranking lien
on the same property to you and the other direct holders of
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the debt securities and, if applicable, the guarantees.
Corning Incorporated does not need to comply with this restriction if the
amount of all debt that is secured by liens on its principal domestic
manufacturing properties is less than 10% of its consolidated net tangible
assets. In performing this calculation, debt secured would include the new debt
and the securities which it would secure as described in the previous paragraph.
This restriction on liens does not apply to debt secured by certain types of
liens, and Corning Incorporated can disregard this debt when we calculate the
limits imposed by this restriction. These types of liens are:
- liens on the property of any domestic subsidiaries of Corning
Incorporated, or on their shares of stock or debt, if those liens existed
at the time the corporation became a domestic subsidiary of Corning
Incorporated or as of the date that debt securities are first issued under
the applicable indenture;
- liens in favor of Corning Incorporated or its domestic subsidiaries;
- certain mechanics' liens, tax liens, liens in favor of, and to secure
payments or the acquisition of property from any governmental body by law
or because of a contract Corning Incorporated has entered into, and other
liens incidental to construction, conduct of business or ownership of its
property or of any domestic subsidiary;
- liens on property that existed at the time Corning Incorporated acquired
the property (including property it may acquire through a merger or
similar transaction) or that it granted in order to purchase, alter or
construct the property (sometimes called "purchase money mortgages"); and
- liens arising from any judgment, decree or order of a court so long as
proceedings to review these judgments have not been terminated or the
period in which to initiate proceedings has not expired.
Corning Incorporated can also disregard debt secured by liens that extend, renew
or replace any of these types of liens.
Corning Incorporated and its subsidiaries are permitted to have as much
unsecured debt as they may choose, and neither indenture restricts liens of any
of the shares of stock of Corning Incorporated of less than 80%-owned
subsidiaries.
RESTRICTIONS ON SALES AND LEASEBACKS
In each indenture, Corning Incorporated promises that neither it nor any of
its domestic subsidiaries will enter into any sale and leaseback transaction
involving a principal domestic manufacturing property, unless it complies with
this restrictive covenant. A "sale and leaseback transaction" generally is an
arrangement between Corning Incorporated or a domestic subsidiary and a bank,
insurance company or other lender or investor where Corning Incorporated or the
domestic subsidiary lease a principal domestic manufacturing property which was
or will be sold by Corning Incorporated or the domestic subsidiary to that
lender or investor more than 180 days after the completion of construction of
the property and the beginning of its full operation.
Corning Incorporated does not need to comply with this restriction if the
amount of attributable debt is less than 10% of its consolidated net tangible
assets. Corning Incorporated can comply with this restrictive covenant if it
retires an amount of funded debt, within 180 days of the transaction, equal to
at least the net proceeds of the sale of the principal domestic manufacturing
property that it leases in the transaction or the fair value of that property
(subject to credits for certain voluntary retirements of debt securities and
funded debt we may make), whichever is greater.
This restriction on sales and leasebacks does not apply to any sale and
leaseback transaction that is between Corning Incorporated and one of its
domestic subsidiaries or between domestic
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subsidiaries, or that involves a lease for a period of three years or less.
CERTAIN DEFINITIONS RELATING TO OUR RESTRICTIVE COVENANTS
Following are the meanings of the terms that are important in understanding
the restrictive covenants previously described.
- "attributable debt" means the total net amount of rent (discounted at a
rate of 15% per annum compounded semi-annually) that is required to be
paid during the remaining term of any lease.
- "consolidated net tangible assets" is the total amount of assets (less
reserves and certain other permitted deductible items), after subtracting
all current liabilities and all goodwill, trade names, trademarks,
patents, unamortized debt discounts and expenses and similar intangible
assets, as such amounts appear on the most recent consolidated balance
sheet of Corning Incorporated and computed in accordance with generally
accepted accounting principles.
- A "domestic subsidiary" means any subsidiary of Corning Incorporated
except one which does not transact a substantial portion of its business
in the United States or does not regularly keep a substantial portion of
its assets (other than intangible assets) in the United States, or one
that is used primarily to finance the operations of Corning Incorporated
outside of the United States. A "subsidiary" is a corporation in which
Corning Incorporated and/or one or more of its other subsidiaries owns at
least 80% of the voting stock, which is a kind of stock that ordinarily
permits its owners to vote for the election of directors.
- "funded debt" means all debt for borrowed money that either has a maturity
of 12 months or more from the date on which the calculation of funded debt
is made or has a maturity of less than 12 months from that date but is by
its terms renewable or extendible beyond 12 months from that date at the
option of the borrower.
- A "principal domestic manufacturing property" is any building or other
structure or facility, and the land on which it sits and its associated
fixtures, that Corning Incorporated uses primarily for manufacturing or
processing that has a gross book value in excess of 3% of consolidated net
tangible assets and that is located in the United States, other than a
building, structure or other facility that is financed by industrial
revenue bonds or that the board of directors of Corning Incorporated has
determined is not of material importance to the total business that
Corning Incorporated and its subsidiaries conduct.
DEFEASANCE AND COVENANT DEFEASANCE
Unless we say otherwise in the applicable prospectus supplement, the
provisions for full defeasance and covenant defeasance described below apply to
each debt securities as indicated in the applicable prospectus supplement. In
general, we expect these provisions to apply to each debt security that is not a
floating rate or indexed debt security and to each debt security that has a
specified currency of U.S. dollars.
FULL DEFEASANCE. If there is a change in U.S. federal tax law, as described
below, we can legally release ourselves from all payment and other obligations
on your debt securities. This is called full defeasance. To do so, each of the
following must occur:
- We must deposit in trust for the benefit of all holders a combination of
money and U.S. government or U.S. government agency notes or bonds that
will generate enough cash to make interest, principal and any other
payments on your debt securities on their various due dates;
- There must be a change in current U.S. federal tax law or an Internal
Revenue Service ruling that lets us make the above deposit without causing
you to be taxed on your debt security any differently than if we did not
make the deposit and just
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repaid the debt security ourselves. Under current federal tax law, the
deposit and our legal release from the debt security would be treated as
though we took back your debt security and gave you your share of the cash
and debt security or bonds deposited in trust. In that event, you could
recognize gain or loss on your debt security; and
- We must deliver to the trustee a legal opinion of our counsel confirming
the tax law change described above.
If we ever fully defease your debt security, you will have to rely solely on
the trust deposit for payments on your debt security. You could not look to us
for payment in the event of any shortfall.
COVENANT DEFEASANCE. Under current U.S. federal tax law, we can make the
same type of deposit described above and be released from certain restrictive
covenants relating to your debt security. This is called covenant defeasance. In
that event, you would lose the protection of those restrictive covenants. In
order to achieve covenant defeasance, we must do both of the following:
- We must deposit in trust for the benefit of the holders a combination of
money and government or U.S. government notes or bonds that will generate
enough cash to make interest, principal and other payments on your debt
security on their various due dates.
- We must deliver to the trustee a legal opinion of our counsel confirming
that under current U.S. federal income tax law we may make the above
deposit without causing you to be taxed on your debt security any
differently than if we did not make the deposit and just repaid the debt
security ourselves.
If we accomplish covenant defeasance with regard to your debt security, the
following provisions of the indenture and the debt securities would no longer
apply:
- The condition regarding the treatment of liens when we merge or engage in
similar transactions, as described above under "--Restriction on Liens"
and any other covenants that your prospectus supplement may state are
applicable to your debt security.
- The events of default resulting from a breach of covenants, described
below in the fourth item under "--Default, Remedies and Waiver of
Default--Events of Default".
If we accomplish covenant defeasance, you can still look to us for repayment
of your debt security in the event of any shortfall in the trust deposit. You
should note, however, that if one of the remaining events of default occurred,
such as our bankruptcy, and your debt security became immediately due and
payable, there may be a shortfall. Depending on the event causing the default,
you may not be able to obtain payment of the shortfall.
DEFAULT, REMEDIES AND WAIVER OF DEFAULT
You will have special rights if an event of default with respect to your
debt security occurs and is not cured, as described in this subsection.
EVENTS OF DEFAULT
With respect to your debt security, when we refer to an event of default, we
mean any of the following:
- We do not pay interest on a debt security within 30 days of its due date.
- We do not pay the principal or any premium on a debt security on its due
date.
- We do not deposit any sinking fund payment on its due date.
- We remain in breach of our covenant described under "--Restrictive
Covenant and Defeasance--Restrictions on Liens" above, or any other
covenant we make in the indenture for 60 days after we receive a notice of
default stating we are in breach. The notice must be sent by either the
trustee or holders of 25% of the principal amount of debt security of the
affected series.
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- We file for bankruptcy or certain other events in bankruptcy, insolvency
or reorganization occur.
- Any other event of default described in the prospectus supplement occurs.
REMEDIES IF AN EVENT OF DEFAULT OCCURS
If an event of default has occurred and has not been cured or waived, the
trustee or the holders of 25% or more in principal amount of all debt securities
of the affected series may declare the entire principal amount of all the debt
securities to be due immediately. If an event of default occurs because of
events in bankruptcy, insolvency or reorganization relating to Corning
Incorporated, the entire principal amount of all the debt securities will be
automatically accelerated, without any action by the trustee or any holder.
Each of the situations described above is called an acceleration of the
maturity of the affected debt securities. If the maturity of any debt securities
is accelerated and a judgment for payment has not yet been obtained, the holders
of a majority in principal amount of the debt securities affected by the
acceleration may cancel the acceleration for all the affected debt securities.
If an event of default occurs, the trustee will have special duties. In that
situation, the trustee will be obligated to use those of its rights and powers
under the applicable indenture, and to use the same degree of care and skill in
doing so, that a prudent person would use in that situation in conducting his or
her own affairs.
Except as described in the prior paragraph, the trustee is not required to
take any action under the applicable indenture at the request of any holders
unless the holders offer the trustee reasonable protection from expenses and
liability. This is called an indemnity. If the trustee is provided with an
indemnity reasonably satisfactory to it, the holders of a majority in principal
amount of the relevant series of debt securities may direct from time to time,
method and place of conducting any lawsuit or other formal legal action seeking
any remedy available to the trustee. These majority holders may also direct the
trustee in performing any other action under the applicable indenture with
respect to the relevant series of debt securities.
Before you bypass the trustee and bring your own lawsuit or other formal
legal action or take other steps to enforce your rights or protect your
interests relating to the debt securities, the following must occur:
- The holder of your debt security must give the trustee written notice that
an event of default has occurred, and the event of default must not have
been cured or waived.
- The holders of 25% or more in principal amount of all of the relevant debt
securities must make a written request that the trustee take action
because of the default, and they or other holders must offer to the
trustee indemnity reasonably satisfactory to the trustee against the cost
and other liabilities of taking that action.
- The trustee must not have taken action for 60 days after the above steps
have been taken. During those 60 days, the holders of a majority in
principal amount of the related series of debt securities must not have
given the trustee directions that are inconsistent with the written
request of the holders of not less than 25% in principal amount of all the
relevant series of debt securities.
You are, however, entitled at any time to bring a lawsuit for the payment of
money due on your debt securities on or after its due date.
WAIVER OF DEFAULT
The holders of a majority in principal amount of the relevant series of debt
securities may waive a default for all of the relevant series of debt
securities. If this happens, the default will be treated as if it has not
occurred. No one can waive a payment default on your debt security, however,
without the approval of the particular holder of that debt security.
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WE WILL GIVE THE TRUSTEE INFORMATION ABOUT DEFAULTS ANNUALLY
We will furnish to the trustee every year a written statement of two of our
officers certifying that to their knowledge we are in compliance with the
indenture and the debt securities, or else specifying any default.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR BROKERS FOR
INFORMATION ON HOW TO GIVE NOTICE OR DIRECTION TO OR MAKE A REQUEST OF THE
TRUSTEE AND HOW TO DECLARE OR CANCEL AN ACCELERATION.
MODIFICATION AND WAIVER OF COVENANTS
There are three types of changes we can make to the indenture and the debt
securities.
CHANGES REQUIRING EACH HOLDER'S APPROVAL
First, there are changes that we or the trustee cannot make without the
approval of each holder of debt security affected by the change. We cannot:
- change the stated maturity for any principal or interest payment on a debt
security;
- reduce the principal amount, the amount payable on acceleration of the
maturity after a default, the interest rate or the redemption price for a
debt security;
- in the case of guaranteed debt securities, change any obligation to pay
additional amounts, as explained above under "--Payment of Additional
Amounts With Respect to Guaranteed Debt Securities";
- permit redemption of a debt security if not previously permitted;
- impair any right a holder may have to require repayment of its debt
security;
- change the currency of any payment on a debt security other than as
permitted by the debt security;
- change the place of payment on a debt security, if it is in non-global
form;
- impair a holder's right to sue for payment of any amount due on its debt
security;
- in the case of guaranteed debt securities, change any obligation to pay
additional amounts, as explained above;
- reduce the percentage in principal amount of the debt securities and any
other affected series of debt securities, taken together, the approval of
whose holders is needed to change the indenture or the debt securities;
- reduce the percentage in principal amount of the debt securities and any
other affected series of debt securities, taken separately or together, as
the case may be, the consent of whose holders is needed to waive our
compliance with the applicable indenture or to waive defaults; and
- change the provisions of the applicable indenture dealing with
modification and waiver in any other respect, except to increase any
required percentage referred to above or to add to the provisions that
cannot be changed or waived without approval.
CHANGES NOT REQUIRING APPROVAL
The second type of change does not require any approval by holders of the
debt securities. This type is limited to clarifications and changes that would
not adversely affect the debt securities in any material respect. Nor do we need
any approval to make any change that affects only debt securities to be issued
under each indenture after the changes take effect.
We may also make changes or obtain waivers that do not adversely affect a
particular debt security, even if they affect other debt securities. In those
cases, we do not need to obtain the approval of the holder of that debt
security; we need only obtain any required approvals from the holders of the
affected debt securities or other debt securities.
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CHANGES REQUIRING MAJORITY APPROVAL
Any other change to each indenture and the debt securities would require the
following approval:
- If the change affects only one series of debt securities, it must be
approved by the holders of a majority in principal amount of the relevant
series of debt securities.
- If the change affects more than one series of debt securities issued under
each indenture, it must be approved by the holders of a majority in
principal amount of the series affected by the change, with all affected
series voting together as one class for this purpose.
In each case, the required approval must be given by written consent.
The same majority approval would be required for us to obtain a waiver of
any of our covenants in each indenture. Our covenants include the promises we
make about merging and putting liens on our interests, which we describe above
under "--Mergers and Similar Transactions" and "--Restrictive Covenants and
Defeasance". If the holders agree to waive a covenant, we will not have to
comply with it.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR BROKERS FOR
INFORMATION ON HOW APPROVAL MAY BE GRANTED OR DENIED IF WE SEEK TO CHANGE THE
APPLICABLE INDENTURE OR THE DEBT SECURITIES OR REQUEST A WAIVER.
FORM, EXCHANGE AND TRANSFER
If the debt securities cease to be issued in global form, they will be
issued:
- only in full registered form;
- without interest coupons; and
- unless we indicate otherwise in your prospectus supplement, in
denominations of $1,000 and that are multiples of $1,000;
Holders may exchange their debt securities for debt securities of smaller
denominations or combined into fewer debt securities of larger denominations, as
long as the total principal amount is not changed.
Holders may exchange or transfer their debt securities at the office of the
trustee. We have appointed the trustee to act as our agent for registering debt
securities in the names of holders transferring debt securities. We may appoint
another entity to perform these functions or perform them ourselves.
Holders will not be required to pay a service charge to transfer or exchange
their debt securities, but they may be required to pay for any tax or other
governmental charge associated with the exchange or transfer. The transfer or
exchange will be made only if our transfer agent is satisfied with the holder's
proof of legal ownership.
If we have designated additional transfer agents for your debt security,
they will be named in your prospectus supplement. We may appoint additional
transfer agents or cancel the appointment of any particular transfer agent. We
may also approve a change in the office through which any transfer agent acts.
If any debt securities are redeemable and we redeem less than all those debt
securities, we may block the transfer or exchange of those debt securities
during the period beginning 15 days before the day we mail the notice of
redemption and ending on the day of that mailing, in order to list the holders
to prepare the mailing. We may also refuse to register transfers of or exchange
any debt securities for redemption, except that we will continue to permit
transfers and exchanges of the unredeemed portion of any debt security being
partially redeemed.
If a debt security is issued as a global security, only the depositary will
be entitled to transfer and exchange the debt security as described in this
subsection, since it will be the sole holder of the debt security.
PAYMENT MECHANICS
WHO RECEIVES PAYMENT?
If interest is due on a debt security on an interest payment date, we will
pay the interest to the person or entity in whose name the debt
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security is registered at the close of business on the regular record date (see
below) relating to the interest payment date. If interest is due at maturity but
on a day that is not an interest payment date, we will pay the interest to the
person or entity entitled to receive the principal of the debt security. If
principal or another amount besides interest is due on a debt security at
maturity, we will pay the amount to the holder of the debt security against
surrender of the debt security at a proper place of payment (or, in the case of
a global security, in accordance with the applicable policies of the
depositary).
HOW WE WILL MAKE PAYMENTS DUE IN U.S. DOLLARS
We will follow the practice described in this subsection when paying amounts
due in U.S. dollars. Payments of amounts due in other currencies will be made as
described in the next subsection.
PAYMENTS ON GLOBAL SECURITIES. We will make payments on a global security
in accordance with the applicable policies of the depositary as in effect from
time to time. Under those policies, we will pay directly to the depositary, or
its nominee, and not to any indirect holders who own beneficial interests in the
global security. An indirect holder's right to those payments will be governed
by the rules and practices of the depositary and its participants, as described
under "--What Is a Global Security?".
PAYMENTS ON NON-GLOBAL SECURITIES. We will make payments on a debt security
in non-global form as follows. We will pay interest that is due on an interest
payment date by check mailed on the interest payment date to the holder at his
or her address shown on the trustee's records as of the close of business on the
record date. We will make all other payments by check at the paying agent
described below, against surrender of the debt security. All payments by check
will be made in next-day funds--I.E.,funds that become available on the day
after the check is cashed.
Alternatively, if a non-global security has a face amount of at least
$1,000,000 and the holder asks us to do so, we will pay any amount that becomes
due on the debt security by wire transfer of immediately available funds to an
account at a bank in New York City, on the due date. To request wire payment,
the holder must give the paying agent appropriate transfer instructions at least
five business days before the requested wire payment is due. In the case of any
interest payment due on an interest payment date, the instructions must be given
by the person who is the holder on the relevant regular record date. In the case
of any other payment, payment will be made only after the debt security is
surrendered to the paying agent. Any wire instructions, once properly given,
will remain in effect unless and until new instructions are given in the manner
described above.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR BROKERS FOR
INFORMATION ON HOW THEY WILL RECEIVE PAYMENTS ON THEIR DEBT SECURITIES.
HOW WE WILL MAKE PAYMENTS DUE IN OTHER CURRENCIES
We will follow the practice described in this subsection when paying amounts
that are due in a specified currency other than U.S. dollars.
PAYMENTS ON GLOBAL SECURITIES. We will make payments on a global security
in accordance with the applicable policies of the depositary as in effect from
time to time. We understand that these policies, as currently in effect at DTC,
are as follows.
Unless otherwise indicated in your prospectus supplement, if you are an
indirect holder of global notes denominated in a specified currency other than
U.S. dollars and if you elect to receive payments in that other currency, you
must notify the participant through which your interest in the global security
is held of your election:
- on or before the applicable regular record date, in the case of a payment
of interest, or
- on or before the 16th day prior to stated maturity, or any redemption or
repayment date, in the case of payment of principal or any premium.
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You may elect to receive all or only a portion of any interest, principal or
premium payment in a specified currency other than U.S. dollars.
Your participant must, in turn, notify DTC of your election on or before the
third DTC business day after that regular record date, in the case of a payment
of interest, and on or before the 12th DTC business day prior to stated
maturity, or on the redemption or repayment date if your debt security is
redeemed or repaid earlier, in the case of a payment of principal or any
premium.
DTC, in turn, will notify the paying agent of your election in accordance
with DTC's procedures.
If complete instructions are received by the participant and forwarded by
the participant to DTC, and by DTC to the paying agent, on or before the dates
noted above, the paying agent, in accordance with DTC's instructions, will make
the payments to you or your participant by wire transfer of immediately
available funds to an account maintained by the payee with a bank located in the
country issuing the specified currency or in another jurisdiction acceptable to
us and the paying agent.
If the foregoing steps are not properly completed, we expect DTC to inform
the paying agent that payment is to be made in U.S. dollars. In that case, we or
our agent will convert the payment to U.S. dollars in the manner described below
under "--Conversion to U.S. Dollars". We expect that we or our agent will then
make the payment in U.S. dollars to DTC, and that DTC in turn will pass it along
to its participants.
INDIRECT HOLDERS OF A GLOBAL SECURITY DENOMINATED IN A CURRENCY OTHER THAN U.S.
DOLLARS SHOULD CONSULT THEIR BANKS OR BROKERS FOR INFORMATION ON HOW TO REQUEST
PAYMENT IN THE SPECIFIED CURRENCY.
PAYMENTS ON NON-GLOBAL SECURITIES. Except as described in the last
paragraph under this heading, we will make payments on debt securities in
non-global form in the applicable specified currency. We will make these
payments by wire transfer of immediately available funds to any account that is
maintained in the applicable specified currency at a bank designated by the
holder and acceptable to us and the trustee. To designate an account for wire
payment, the holder must give the paying agent appropriate wire instructions at
least five business days before the requested wire payment is due. In the case
of any interest payment due on an interest payment date, the instructions must
be given by the person or entity who is the holder on the regular record date.
In the case of any other payment, the payment will be made only after the debt
security is surrendered to the paying agent. Any instructions, once properly
given, will remain in effect unless and until new instructions are properly
given in the manner described above.
If a holder fails to give instructions as described above, we will notify
the holder at the address in the trustee's records and will make the payment
within five business days after the holder provides appropriate instructions.
Any late payment made in these circumstances will be treated under the indenture
as if made on the due date, and no interest will accrue on the late payment from
the due date to the date paid.
Although a payment on a debt security in non-global form may be due in a
specified currency other than U.S. dollars, we will make the payment in U.S.
dollars if the holder asks us to do so. To request U.S. dollar payment, the
holder must provide appropriate written notice to the trustee at least five
business days before the next due date for which payment in U.S. dollars is
requested. In the case of any interest payment due on an interest payment date,
the request must be made by the person or entity who is the holder on the
regular record date. Any request, once properly made, will remain in effect
unless and until revoked by notice properly given in the manner described above.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS OF A DEBT SECURITY WITH A SPECIFIED
CURRENCY OTHER THAN U.S. DOLLARS SHOULD CONTACT THEIR BANKS OR BROKERS FOR
INFORMATION ABOUT HOW TO RECEIVE PAYMENTS IN THE SPECIFIED CURRENCY OR IN U.S.
DOLLARS.
CONVERSION TO U.S. DOLLARS. When we are asked by a holder to make payments
in U.S. dollars of an amount due in another currency, either on a global
security or a non-global
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security as described above, we will determine the U.S. dollar amount the holder
receives as follows. The exchange rate agent described below will request
currency bid quotations expressed in U.S. dollars from three or, if three are
not available, then two, recognized foreign exchange dealers in New York City,
any of which may be the exchange rate agent, as of 11:00 A.M., New York City
time, on the second business day before the payment date. Currency bid
quotations will be requested on an aggregate basis, for all holders of debt
securities, if any, requesting U.S. dollar payments of amounts due on the same
date in the same specified currency. The U.S. dollar amount the holder receives
will be based on the highest acceptable currency bid quotation received by the
exchange rate agent. If the exchange rate agent determines that at least two
acceptable currency bid quotations are not available on that second business
day, the payment will be made in the specified currency.
To be acceptable, a quotation must be given as of 11:00 A.M., New York City
time, on the second business day before the due date and the quoting dealer must
commit to execute a contract at the quotation.
A holder that requests payment in U.S. dollars will bear all associated
currency exchange costs, which will be deducted from the payment.
WHEN THE SPECIFIED CURRENCY IS NOT AVAILABLE. If we are obligated to make
any payment in a specified currency other than U.S. dollars, and the specified
currency is not available to us due to circumstances beyond our control--such as
the imposition of exchange controls or a disruption in the currency markets--we
will be entitled to satisfy our obligation to make the payment in that specified
currency by making the payment in U.S. dollars, on the basis of the most
recently available exchange rate.
For a specified currency other than U.S. dollars, the exchange rate will be
the noon buying rate for cable transfers of the specified currency in New York
City as quoted by the Federal Reserve Bank of New York on the then-most recent
day to which that Bank has quoted that rate.
The foregoing will apply to any debt security, whether in global or
non-global form, and to any payment, including a payment at maturity. Any
payment made under the circumstances and in a manner described above will not
result in a default under any of the indenture.
THE EURO. The euro may be a specified currency for some debt securities. On
January 1, 1999, the euro became the legal currency for the 11 member states
participating in the European Economic and Monetary Union. During a transition
period from January 1, 1999 to December 31, 2001 and for a maximum of six months
thereafter, the former national currencies of these 11 member states will
continue to be legal tender in their country of issue, at rates irrevocably
fixed on December 31, 1998.
EXCHANGE RATE AGENT. If we issue a debt security in a specified currency
other than U.S. dollars, we will appoint a financial institution to act as the
exchange rate agent and will name the institution initially appointed when the
debt security is originally issued in the applicable prospectus supplement. We
may change the exchange rate agent from time to time after the original issue
date of the debt security without your consent and without notifying you of the
change.
All determinations made by the exchange rate agent will be at its sole
discretion unless we state in the applicable prospectus supplement that any
determination is subject to our approval. In the absence of manifest error,
those determinations will be conclusive for all purposes and binding on you and
us, without any liability on the part of the exchange rate agent.
PAYMENT WHEN OFFICES ARE CLOSED
If any payment is due on a debt security on a day that is not a business
day, we will make the payment on the next day that is a business day. Payments
postponed to the next business day in this situation will be treated under the
indenture as if they were made on the original due date. Postponement of this
kind will not result in a default under any debt security or the indenture, and
no interest will accrue on the
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postponed amount from the original due date to the next day that is a business
day.
PAYING AGENT
We may appoint one or more financial institutions to act as our paying
agents, at whose designated offices debt securities in non-global entry form may
be surrendered for payment at their maturity. We call each of those offices a
paying agent. We may add, replace or terminate paying agents from time to time.
We may also choose to act as our own paying agent. Initially, we have appointed
the trustee, at its corporate trust office in New York City, as the paying
agent. We must notify you of changes in the paying agents.
UNCLAIMED PAYMENTS
Regardless of who acts as paying agent, all money paid by us to a paying
agent that remains unclaimed at the end of two years after the amount is due to
a holder will be repaid to us. After that two-year period, the holder may look
only to us for payment and not to the trustee, any other paying agent or anyone
else.
NOTICES
Notices to be given to holders of a global debt security will be given only
to the depositary, in accordance with its applicable policies as in effect from
time to time. Notices to be given to holders of debt securities not in global
form will be sent by mail to the respective addresses of the holders as they
appear in the trustee's records, and will be deemed given when mailed. Neither
the failure to give any notice to a particular holder, nor any defect in a
notice given to a particular holder, will affect the sufficiency of any notice
given to another holder.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR BROKERS FOR
INFORMATION ON HOW THEY WILL RECEIVE NOTICES.
OUR RELATIONSHIP WITH THE TRUSTEE
The Chase Manhattan Bank is initially serving as the trustee for the debt
securities and all other series of debt securities to be issued under the
indenture. The Chase Manhattan Bank acts as the trustee of our investment plans
and has provided commercial banking and other services for us and our related
companies in the past and may do so in the future.
SERVICE OF PROCESS
Corning Finance B.V. has appointed CT Corporation System acting through its
office at 1633 Broadway, New York, New York as its authorized agent for service
of process in any legal action or proceeding relating to the indenture to which
it is a party, the guaranteed debt securities or the guarantee brought in any
federal or state court in New York City and has submitted to the non-exclusive
jurisdiction of those courts.
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DESCRIPTION OF WARRANTS
Corning Incorporated may issue warrants to purchase its debt securities, as
well as warrants to purchase its preferred or common stock. Warrants may be
issued independently or together with any securities and may be attached to or
separate from those securities. The warrants will be issued under warrant
agreements to be entered into between Corning Incorporated and a bank or trust
company, as warrant agent, all as will be set forth in the related prospectus
supplement.
DEBT WARRANTS
The following briefly summarizes the material terms of the debt warrant
agreement, other than pricing and related terms disclosed in the accompanying
prospectus supplement. You should read the particular terms of any debt warrants
that are offered by us and the applicable debt warrant agreement which will be
described in more detail in a prospectus supplement. The prospectus supplement
will also state whether any of the generalized provisions summarized below do
not apply to the debt warrants being offered.
GENERAL
Corning Incorporated may issue warrants for the purchase of its debt
securities. As explained below, each debt warrant will entitle its holder to
purchase debt securities at an exercise price set forth in, or to be
determinable as set forth in, the related prospectus supplement. Debt warrants
may be issued separately or together with debt securities.
The debt warrants are to be issued under debt warrant agreements to be
entered into between Corning Incorporated and one or more banks or trust
companies, as debt warrant agent, all as will be set forth in the prospectus
supplement relating to the debt warrants being offered by the prospectus
supplement. A form of debt warrant agreement, including a form of debt warrant
certificate representing the debt warrants, reflecting the alternative
provisions that may be included in the debt warrant agreements to be entered
into with respect to particular offerings of debt warrants, is included as an
exhibit to the registration statement of which this prospectus forms a part. See
"Where You Can Find More Information" below for information on how to obtain a
copy of the form of debt warrant agreement.
TERMS OF THE DEBT WARRANTS TO BE DESCRIBED IN THE PROSPECTUS SUPPLEMENT
The particular terms of each issue of debt warrants, the debt warrant
agreement relating to the debt warrants and the debt warrant certificates
representing debt warrants will be described in the applicable prospectus
supplement. This description will include:
- the initial offering price;
- the currency or currency unit in which the price for the debt warrants is
payable;
- the title, aggregate principal amount and terms of the debt securities
purchasable upon exercise of the debt warrants;
- the title and terms of any related debt securities with which the debt
warrants are issued and the number of the debt warrants issued with each
debt security;
- the date, if any, on and after which the debt warrants and the related
debt securities will be separately transferable;
- the principal amount of debt securities purchasable upon exercise of each
debt warrant and the price at which that principal amount of debt
securities may be purchased upon exercise of each debt warrant;
- the date on which the right to exercise the debt warrants will commence
and the date on which this right will expire;
- if applicable, a discussion of United States federal income tax,
accounting or other considerations applicable to the debt warrants;
- whether the debt warrants represented by the debt warrant certificates
will be issued in registered or bearer form, and, if
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registered, where they may be transferred and registered; and
- any other terms of the debt warrants.
Debt warrant certificates will be exchangeable for new debt warrant
certificates of different denominations and, if in registered form, may be
presented for registration of transfer and debt warrants may be exercised at the
corporate trust office of the debt warrant agent or any other office indicated
in the related prospectus supplement. Before the exercise of debt warrants,
holders of debt warrants will not be entitled to payments of principal, premium,
if any, or interest, if any, on the debt securities purchasable upon exercise of
the debt warrants, or to enforce any of the covenants in the indenture.
EXERCISE OF DEBT WARRANTS
Unless otherwise provided in the related prospectus supplement, each debt
warrant will entitle the holder of debt warrants to purchase for cash the
principal amount of debt securities at the exercise price that will in each case
be set forth in, or be determinable as set forth in, the related prospectus
supplement. Debt warrants may be exercised at any time up to the close of
business on the expiration date specified in the prospectus supplement relating
to the debt warrants. After the close of business on the expiration date or any
later date to which the expiration date may be extended by us, unexercised debt
warrants will become void.
Debt warrants may be exercised as set forth in the prospectus supplement
relating to the debt warrants. Upon receipt of payment and the debt warrant
certificate properly completed and duly executed at the corporate trust office
of the debt warrant agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the debt securities
purchasable upon exercise of the debt warrants to the person entitled to them.
If fewer than all of the debt warrants represented by the debt warrant
certificate are exercised, a new debt warrant certificate will be issued for the
remaining amount of debt warrants.
If you hold your interest in a debt warrant indirectly, you should check
with the institution through which you hold your interest in the debt warrant to
determine how these provisions will apply to you.
MODIFICATIONS
The debt warrant agreement may be amended by Corning Incorporated and the
debt warrant agent, without the consent of the holder of any debt warrant
certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained in the debt warrant
agreement, or making any provisions in regard to matters or questions arising
under the debt warrant agreement that Corning Incorporated may deem necessary or
desirable; PROVIDED that the amendment may not adversely affect the interest of
the holders of debt warrant certificates in any material respect. Corning
Incorporated and the debt warrant agent also may modify or amend the debt
warrant agreement and the terms of the debt warrants, with the consent of the
owners of not less than a majority in number of the then outstanding unexercised
debt warrants affected. However, any modification or amendment that increases
the exercise price, shortens the period of time during which the debt warrants
may be exercised or otherwise materially and adversely affects the exercise
rights of the owners of the debt warrants or reduces the number of debt warrants
the consent of whose owners is required for modification or amendment of the
debt warrant agreement or the terms of the debt warrants may be made only with
the consent of the owners affected by the modification or amendment.
MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITIONS
Under the debt warrant agreement, Corning Incorporated may, to the extent
permitted in the indenture, consolidate with, or sell or convey all or
substantially all of its assets to, or merge with or into, any other
corporation. If at any time there is a merger, consolidation, sale, transfer,
conveyance or other disposition of substantially all of the assets of Corning
Incorporated, the successor or assuming corporation will succeed to and be
substituted for Corning Incorporated,
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with the same effect as if it had been named in the debt warrant agreement and
in the debt warrants as Corning Incorporated. Corning Incorporated will then be
relieved of any further obligation under the debt warrant agreement or under the
debt warrants.
ENFORCEABILITY OF RIGHTS, GOVERNING LAW
The debt warrant agent will act solely as the agent of Corning Incorporated
in connection with the issuance and exercise of debt warrants and will not
assume any obligation or relationship of agency or trust for or with any holder
of a debt warrant certificate or any owner of a beneficial interest in debt
warrants. The holders of debt warrant certificates, without the consent of the
debt warrant agent, the trustee, the holder of any debt securities issued upon
exercise of debt warrants or the holder of any other debt warrant certificates,
may, on their own behalf and for their own benefit, enforce, and may institute
and maintain any suit, action or proceeding against Corning Incorporated
suitable to enforce, or otherwise in respect of, their rights to exercise debt
warrants evidenced by their debt warrant certificates. Except as may otherwise
be provided in the related prospectus supplement, each issue of debt warrants
and the applicable debt warrant agreement will be governed by the laws of the
State of New York.
EQUITY WARRANTS
The following briefly summarizes the material terms and provisions of the
equity warrants, other than pricing and related terms disclosed in the
accompanying prospectus supplement. You should read the particular terms of the
equity warrants that are offered by Corning Incorporated, which will be
described in more detail in a prospectus supplement. The prospectus supplement
will also state whether any of the general provisions summarized below do not
apply to the equity warrants being offered.
GENERAL
Corning Incorporated may issue warrants for the purchase of its equity
securities (I.E., preferred stock or common stock). As explained below, each
equity warrant will entitle its holder to purchase equity securities at an
exercise price set forth in, or to be determinable as set forth in, the related
prospectus supplement. Equity warrants may be issued separately or together with
equity securities.
The equity warrants are to be issued under equity warrant agreements to be
entered into between Corning Incorporated and one or more banks or trust
companies, as equity warrant agent, all as will be set forth in the prospectus
supplement relating to the equity warrants being offered by the prospectus
supplement. A form of equity warrant agreement, including a form of equity
warrant certificate representing the equity warrants, reflecting the alternative
provisions that may be included in the equity warrant agreements to be entered
into with respect to particular offerings of equity warrants, is included as an
exhibit to the registration statement of which this prospectus forms a part. See
"Where You Can Find More Information" below for information on how to obtain a
copy of the form of equity warrant agreement.
TERMS OF THE EQUITY WARRANTS TO BE DESCRIBED IN THE PROSPECTUS SUPPLEMENT
The particular terms of each issue of equity warrants, the equity warrant
agreement relating to the equity warrants and the equity warrant certificates
representing equity warrants will be described in the applicable prospectus
supplement. This description will include:
- the title of the equity warrants;
- the securities (I.E., preferred stock or common stock) for which the
equity warrants are exercisable;
- the price or prices at which the equity warrants will be issued;
- if applicable, the designation and terms of the preferred stock or common
stock with which the equity warrants are issued, and the number of equity
warrants issued with each share of preferred stock or common stock;
- if applicable, the date on and after which the equity warrants and the
related
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preferred stock or common stock will be separately transferable;
- if applicable, a discussion of any material federal income tax
considerations; and
- any other terms of the equity warrants, including terms, procedures and
limitations relating to the exchange and exercise of the equity warrants.
Holders of equity warrants will not be entitled, solely by virtue of being
holders, to vote, to consent, to receive dividends, to receive notice as
shareholders with respect to any meeting of shareholders for the election of our
directors or any other matter, or to exercise any rights whatsoever as
shareholders of Corning Incorporated.
The exercise price payable and the number of shares of common stock or
preferred stock purchasable upon the exercise of each equity warrant will be
subject to adjustment in certain events, including the issuance of a stock
dividend to holders of common stock or preferred stock or a stock split, reverse
stock split, combination, subdivision or reclassification of common stock or
preferred stock. Instead of adjusting the number of shares of common stock or
preferred stock purchasable upon exercise of each equity warrant, Corning
Incorporated may elect to adjust the number of equity warrants. No adjustments
in the number of shares purchasable upon exercise of the equity warrants will be
required until cumulative adjustments require an adjustment of at least 1% of
those shares. Corning Incorporated may, at its option, reduce the exercise price
at any time. Corning Incorporated will not issue fractional shares upon exercise
of equity warrants, but Corning Incorporated will pay the cash value of any
fractional shares otherwise issuable.
Notwithstanding the previous paragraph, if there is a consolidation, merger,
or sale or conveyance of substantially all of the property of Corning
Incorporated, the holder of each outstanding equity warrant will have the right
to the kind and amount of shares of stock and other securities and property
(including cash) receivable by a holder of the number of shares of common stock
or preferred stock into which that equity warrant was exercisable immediately
prior to the consolidation, merger, sale or conveyance.
EXERCISE OF EQUITY WARRANTS
Unless otherwise provided in the related prospectus supplement, each equity
warrant will entitle the holder of equity warrants to purchase for cash the
principal amount of equity securities at the exercise price that will in each
case be set forth in, or be determinable as set forth in, the related prospectus
supplement. Equity warrants may be exercised at any time up to the close of
business on the expiration date specified in the prospectus supplement relating
to the equity warrants. After the close of business on the expiration date or
any later date to which the expiration date may be extended by Corning
Incorporated, unexercised equity warrants will become void.
Equity warrants may be exercised as set forth in the prospectus supplement
relating to the equity warrants. Upon receipt of payment and the equity warrant
certificate properly completed and duly executed at the corporate trust office
of the equity warrant agent or any other office indicated in the prospectus
supplement, Corning Incorporated will, as soon as practicable, forward the
equity securities purchasable upon exercise of the equity warrants to the person
entitled to them. If fewer than all of the equity warrants represented by the
equity warrant certificate are exercised, a new equity warrant certificate will
be issued for the remaining amount of equity warrants.
If you hold your interest in an equity warrant indirectly, you should check
with the institution through which you hold your interest in the equity warrant
to determine how these provisions will apply to you.
MODIFICATIONS
The equity warrant agreement may be amended by Corning Incorporated and the
equity warrant agent, without the consent of the holder of any equity warrant
certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained in the equity warrant
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agreement, or making any provisions in regard to matters or questions arising
under the equity warrant agreement that Corning Incorporated may deem necessary
or desirable; PROVIDED that the amendment may not adversely affect the interest
of the holders of equity warrant certificates in any material respect. Corning
Incorporated and the equity warrant agent also may modify or amend the equity
warrant agreement and the terms of the equity warrants, with the consent of the
owners of not less than a majority in number of the then outstanding unexercised
equity warrants affected. However, any modification or amendment that increases
the exercise price, shortens the period of time during which the equity warrants
may be exercised or otherwise materially and adversely affects the exercise
rights of the owners of the equity warrants or reduces the number of equity
warrants the consent of whose owners is required for modification or amendment
of the equity warrant agreement or the terms of the equity warrants may be made
only with the consent of the owners affected by the modification or amendment.
MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITIONS
Under the equity warrant agreement, Corning Incorporated may, to the extent
permitted in the indenture, consolidate with, or sell or convey all or
substantially all of its assets to, or merge with or into, any other
corporation. If at any time there is a merger, consolidation, sale, transfer,
conveyance or other disposition of substantially all of the assets of Corning
Incorporated, the successor or assuming corporation will succeed to and be
substituted for Corning Incorporated, with the same effect as if it had been
named in the equity warrant agreement and in the equity warrants as Corning
Incorporated. Corning Incorporated will then be relieved of any further
obligation under the equity warrant agreement or under the equity warrants.
ENFORCEABILITY OF RIGHTS, GOVERNING LAW
The equity warrant agent will act solely as the agent of Corning
Incorporated in connection with the issuance and exercise of equity warrants and
will not assume any obligation or relationship of agency or trust for or with
any holder of an equity warrant certificate or any owner of a beneficial
interest in equity warrants. The holders of equity warrant certificates, without
the consent of the equity warrant agent, the holder of any equity securities
issued upon exercise of equity warrants or the holder of any other equity
warrant certificates, may, on their own behalf and for their own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
Corning Incorporated suitable to enforce, or otherwise in respect of, their
rights to exercise equity warrants evidenced by their equity warrant
certificates. Except as may otherwise be provided in the related prospectus
supplement, each issue of equity warrants and the applicable equity warrant
agreement will be governed by the laws of the State of New York.
DESCRIPTION OF PREFERRED STOCK
The following briefly summarizes the material terms of the preferred stock
of Corning Incorporated, other than pricing and related terms disclosed in the
accompanying prospectus supplement. You should read the particular terms of any
series of preferred stock offered by Corning Incorporated which will be
described in more detail in any prospectus supplement relating to such series.
The prospectus supplement will also state whether any of the terms summarized
below do not apply to the series of preferred stock being offered.
GENERAL
Corning Incorporated is authorized to issue up to 10,000,000 shares of
preferred stock, par value $100 per share. Under the certificate of
incorporation of Corning Incorporated, the board of directors is authorized to
issue shares of preferred stock in one or more series, and to establish from
time to time a series of preferred stock with the following terms specified:
- the number of shares to be included in the series;
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- the designation, powers, preferences and rights of the shares of the
series; and
- the qualifications, limitations or restrictions of such series, except as
otherwise stated in the certificate of incorporation.
Prior to the issuance of any series of preferred stock, the board of
directors will adopt resolutions creating and designating the series as a series
of preferred stock and Corning Incorporated will file an amendment to the
certificate of incorporation setting forth the terms of the series.
Corning Incorporated has authorized the issuance of:
- 2,400,000 shares of Series A junior participating preferred stock, par
value $100 per share, upon exercise of preferred share purchase rights
associated with each share of common stock outstanding. See "Description
of Common Stock--Rights Agreement";
- 316,822 shares of Series B cumulative convertible preferred stock, par
value $100 per share; and
- 4,683,710 shares of Series C cumulative convertible preferred stock, par
value $100 per share, issuable only upon exchange of our 6% convertible
subordinated debentures due July 21, 2024, all of which were redeemed as
of March 23, 1999 and none of which are currently outstanding.
In addition, as described under "Description of Depositary Shares", Corning
Incorporated, at its option, instead of offering full shares of any series of
preferred stock, may offer depositary shares evidenced by depositary receipts,
each representing a fraction of a share of the particular series of preferred
stock issued and deposited with a depositary. The fraction of a share of
preferred stock which each depositary share represents will be set forth in the
prospectus supplement relating to the depositary shares.
The rights of holders of the preferred stock offered may be adversely
affected by the rights of holders of any shares of preferred stock that may be
issued in the future. The board of directors may cause shares of preferred stock
to be issued in public or private transactions for any proper corporate purpose.
Examples of proper corporate purposes include issuances to obtain additional
financing in connection with acquisitions, and issuances to officers, directors
and employees pursuant to benefit plans. Shares of preferred stock issued by
Corning Incorporated may have the effect of rendering more difficult or
discouraging an acquisition of Corning Incorporated deemed undesirable by the
board of directors.
The preferred stock will be, when issued, fully paid and nonassessable.
Holders of preferred stock will not have any preemptive or subscription rights
to acquire more stock of Corning Incorporated.
The transfer agent, registrar, dividend disbursing agent and redemption
agent for shares of each series of preferred stock will be named in the
prospectus supplement relating to such series.
RANK
Unless otherwise specified in the prospectus supplement relating to the
shares of any series of preferred stock, shares of one series will rank on an
equal basis with each other series of preferred stock and prior to the common
stock as to dividends and distributions of assets.
DIVIDENDS
Holders of each series of preferred stock will be entitled to receive cash
dividends when, as and if declared by the board of directors out of funds
legally available for dividends. The rates and dates of payment of dividends
will be set forth in the prospectus supplement relating to each series of
preferred stock. Dividends will be payable to holders of record of preferred
stock as they appear on the books of Corning Incorporated on the record dates
fixed by the board of directors. Dividends on any series of preferred stock may
be cumulative or noncumulative.
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Corning Incorporated may not declare, pay or set apart for payment dividends
on the preferred stock unless full dividends on any other series of preferred
stock that ranks on an equal or senior basis have been paid or sufficient funds
have been set apart for payment for either of the following:
- all prior dividend periods of the other series of preferred stock that pay
dividends on a cumulative basis; or
- the immediately preceding dividend period of the other series of preferred
stock that pay dividends on a noncumulative basis.
Partial dividends declared on shares of preferred stock and any other series
of preferred stock ranking on an equal basis as to dividends will be declared
pro rata. A pro rata declaration means that the ratio of dividends declared per
share to accrued dividends per share will be the same for both series of
preferred stock.
Similarly, Corning Incorporated may not declare, pay or set apart for
payment non-stock dividends or make other payments on the common stock or any of
its other stock ranking junior to the preferred stock until full dividends on
the preferred stock have been paid or set apart for payments for:
- all prior dividend periods if the other series of preferred stock pays
dividends on a cumulative basis; or
- the immediately preceding dividend period if the preferred stock pays
dividends on a noncumulative basis.
CONVERSION AND EXCHANGE
The prospectus supplement for any series of preferred stock will state the
terms, if any, on which shares of that series are convertible into or
exchangeable for shares of common stock of Corning Incorporated.
REDEMPTION
If so specified in the applicable prospectus supplement, a series of
preferred stock may be redeemable at any time, in whole or in part, at our
option or the holder thereof and may be mandatorily redeemed.
Any partial redemptions of preferred stock will be made in a way that the
board of directors of Corning Incorporated decides is equitable.
Unless Corning Incorporated defaults in the payment of the redemption price,
dividends will cease to accrue after the redemption date on shares of preferred
stock called for redemption and all rights of holders of such shares will
terminate except for the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
Corning, holders of each series of preferred stock will be entitled to receive
distributions upon liquidation in the amount set forth in the prospectus
supplement relating to such series of preferred stock, plus an amount equal to
any accrued and unpaid dividends. Such distributions will be made before any
distribution is made on any securities ranking junior relating to liquidation,
including common stock.
If the liquidation amounts payable relating to the preferred stock of any
series and any other securities ranking on a parity regarding liquidation rights
are not paid in full, the holders of the preferred stock of such series and such
other securities will share in any such distribution of available assets of
Corning Incorporated on a ratable basis in proportion to the full liquidation
preferences. Holders of such series of preferred stock will not be entitled to
any other amounts from us after they have received their full liquidation
preference.
VOTING RIGHTS
The holders of shares of preferred stock will have no voting rights, except:
- as otherwise stated in the prospectus supplement;
- as otherwise stated in the certificate of designation establishing such
series; or
- as required by applicable law.
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OUTSTANDING PREFERRED STOCK
At April 30, 1999, there were 156,946 shares of Series B preferred stock
outstanding.
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 Incorporated has
regularly paid dividends on the Series B preferred stock. No dividends may be
paid or declared on the Series A preferred stock or the common stock unless all
dividends for all prior dividend periods have been paid or declared on the
Series B preferred stock.
Holders of Series B preferred stock are entitled to vote, voting together
with the common stock and not as a separate class, on all matters submitted to
holders of the 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 Incorporated, holders of
Series B preferred stock would be entitled to receive a distribution in the
amount of $100 per share, plus accrued and unpaid dividends, before any
distribution on the common stock or Series A preferred stock.
The Series B preferred stock is redeemable, in whole or in part, at the
election of Corning Incorporated, at any time, at $100 per share.
The Series B preferred stock is subject to redemption, at the option of the
holder, at any time upon five business day's notice, at a redemption price equal
to $100 plus accrued and unpaid dividends, if the proceeds are necessary:
- to make a distribution pursuant to an investment election made under one
of the investment plans of Corning Incorporated; or
- to satisfy any indebtedness to which the investment plans of Corning
Incorporated are subject, provided that such payment is necessary to
remedy or prevent a default under such indebtedness.
Corning Incorporated, at its option, may make payment of the redemption
price required upon redemption of shares of Series B preferred stock in cash or
in shares of 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 common stock at a conversion price of $20.89 per share of 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 4.79 shares of
common stock for each share of Series B preferred stock so converted, subject to
certain adjustments to prevent dilution.
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DESCRIPTION OF DEPOSITARY SHARES
The following briefly summarizes the material provisions of the deposit
agreement and of the depositary shares and depositary receipts, other than
pricing and related terms disclosed in the accompanying prospectus supplement.
You should read the particular terms of any depositary shares and any depositary
receipts that are offered by us and any deposit agreement relating to a
particular series of preferred stock which will be described in more detail in a
prospectus supplement. The prospectus supplement will also state whether any of
the generalized provisions summarized below do not apply to the depositary
shares or depositary receipts being offered. A form of deposit agreement,
including the form of depositary receipt, is included as an exhibit to the
registration statement of which this prospectus forms a part. See "Where You Can
Find More Information" below for information on how to obtain a copy of the form
of deposit agreement.
GENERAL
Corning Incorporated may, at its option, elect to offer fractional shares of
preferred stock, rather than full shares of preferred stock. In such event,
Corning Incorporated will issue receipts for depositary shares, each of which
will represent a fraction of a share of a particular series of preferred stock.
The shares of any series of preferred stock represented by depositary shares
will be deposited under a deposit agreement between Corning Incorporated and a
bank or trust company selected by Corning Incorporated having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000, as preferred stock depositary. Each owner of a depositary
share will be entitled to all the rights and preferences of the underlying
preferred stock, including dividend, voting, redemption, conversion and
liquidation rights, in proportion to the applicable fraction of a share of
preferred stock represented by such depositary share.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement. Depositary receipts will be distributed to
those persons purchasing the fractional shares of preferred stock in accordance
with the terms of the applicable prospectus supplement.
DIVIDENDS AND OTHER DISTRIBUTIONS
The preferred stock depositary will distribute all cash dividends or other
cash distributions received in respect of the deposited preferred stock to the
record holders of depositary shares relating to such preferred stock in
proportion to the number of such depositary shares owned by such holders.
The preferred stock depositary will distribute any property received by it
other than cash to the record holders of depositary shares entitled thereto. If
the preferred stock depositary determines that it is not feasible to make a
distribution, it may, with the approval of Corning Incorporated, sell the
property and distribute the net proceeds from such sale to such holders.
REDEMPTION OF PREFERRED STOCK
If Corning Incorporated is to redeem a series of preferred stock represented
by depositary shares, the depositary shares will be redeemed from the proceeds
received by the preferred stock depositary resulting from the redemption, in
whole or in part, of such series of preferred stock. The depositary shares will
be redeemed by the preferred stock depositary at a price per depositary share
equal to the applicable fraction of the redemption price per share payable in
respect of the shares of preferred stock so redeemed.
Whenever Corning Incorporated redeems shares of preferred stock held by the
preferred stock depositary, the preferred stock depositary will redeem as of the
same date the number of depositary shares representing shares of preferred stock
so redeemed. If fewer than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by the preferred stock
depositary by lot or ratably or by any other equitable method as the preferred
stock depositary decides.
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WITHDRAWAL OF PREFERRED STOCK
Unless the related depositary shares have previously been called for
redemption, any holder of depositary shares may receive the number of whole
shares of the related series of preferred stock and any money or other property
represented by those depositary receipts after surrendering the depositary
receipts at the corporate trust office of the preferred stock depositary.
Holders of depositary shares making these withdrawals will be entitled to
receive whole shares of preferred stock on the basis set forth in the related
prospectus supplement for that series of preferred stock.
However, holders of whole shares of preferred stock will not be entitled to
deposit that preferred stock under the deposit agreement or to receive
depositary receipts for that preferred stock after withdrawal. If the depositary
shares surrendered by the holder in connection with withdrawal exceed the number
of depositary shares that represent the number of whole shares of preferred
stock to be withdrawn, the preferred stock depositary will deliver to that
holder at the same time a new depositary receipt evidencing the excess number of
depositary shares.
VOTING DEPOSITED PREFERRED STOCK
When the preferred stock depository receives notice of any meeting at which
the holders of any series of deposited preferred stock are entitled to vote, the
preferred stock depositary will mail the information contained in the notice to
the record holders of the depositary shares relating to the applicable series of
preferred stock. Each record holder of the depositary shares on the record date
will be entitled to instruct the preferred stock depositary to vote the amount
of the preferred stock represented by the holder's depositary shares. To the
extent possible, the preferred stock depositary will vote the amount of the
series of preferred stock represented by depositary shares in accordance with
the instructions it receives.
Corning Incorporated will agree to take all reasonable actions that the
preferred stock depositary determines are necessary to enable the preferred
stock depositary to vote as instructed. The preferred stock depositary will vote
all shares of any series of preferred stock held by it proportionately with
instructions received if it does not receive specific instructions from the
holders of depositary shares representing that series of preferred stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may at any time be amended by agreement
between Corning Incorporated and the preferred stock depositary. However, any
amendment that imposes additional charges or materially and adversely alters any
substantial existing right of the holders of depositary shares will not be
effective unless the amendment has been approved by the holders of at least a
majority of the affected depositary shares then outstanding. Holders who retain
their depositary receipts after the amendment becomes effective will be deemed
to agree to the amendment and will be bound by the amended deposit agreement.
The deposit agreement automatically terminates if:
- all outstanding depositary shares have been redeemed;
- each share of preferred stock has been converted into or exchanged for
common stock; or
- a final distribution in respect of the preferred stock has been made to
the holders of depositary shares in connection with any liquidation,
dissolution or winding up of Corning Incorporated.
Corning Incorporated may terminate the deposit agreement at any time and the
preferred stock depositary will give notice of that termination to the record
holders of all outstanding depositary receipts not less than 30 days prior to
the termination date. In that event, the preferred stock depositary will deliver
or make available for delivery to holders of depositary shares, upon surrender
of the depositary shares, the number of whole or fractional shares of the
related series of
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preferred stock as are represented by those depositary shares.
CHARGES OF PREFERRED STOCK DEPOSITARY; TAXES AND OTHER GOVERNMENTAL CHARGES
No fees, charges and expenses of the preferred stock depositary or any agent
of the preferred stock depositary or of any registrar will be payable by any
person other than Corning Incorporated, except for any taxes and other
governmental charges and except as provided in the deposit agreement. If the
preferred stock depositary incurs fees, charges or expenses for which it is not
otherwise liable at the election of a holder of a depositary receipt or other
person, that holder or other person will be liable for those fees, charges and
expenses.
RESIGNATION AND REMOVAL OF DEPOSITARY
The preferred stock depositary may resign at any time by delivering to
Corning Incorporated notice of its intent to do so, and Corning Incorporated may
at any time remove the preferred stock depositary. Any resignation or removal
will take effect upon the appointment of a successor preferred stock depositary
and its acceptance of such appointment. A successor preferred stock depositary
must be appointed within 60 days after delivery of the notice of resignation or
removal and must be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000.
MISCELLANEOUS
The preferred stock depositary will forward all reports and communications
from Corning Incorporated which are delivered to the preferred stock depositary
and which Corning Incorporated is required to furnish to the holders of the
deposited preferred stock.
Neither the preferred stock depositary nor Corning Incorporated will be
liable if it is prevented or delayed by law or any circumstances beyond its
control in performing its obligations under the deposit agreement. The
obligations of Corning Incorporated and the preferred stock depositary under the
deposit agreement will be limited to performance with honest intentions of their
duties under the agreement and they will not be obligated to prosecute or defend
any legal proceeding in respect of any depositary shares, depositary receipts or
shares of preferred stock unless satisfactory indemnity is furnished. Corning
Incorporated and the preferred stock depositary may rely upon written advice of
counsel or accountants, or upon information provided by holders of depositary
receipts or other persons believed to be competent and on documents believed to
be genuine.
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DESCRIPTION OF COMMON STOCK
Corning Incorporated has authorized the issuance of 500,000,000 shares of
common stock, par value $.50 per share. As of April 30, 1999, Corning
Incorporated had 244,056,733 shares outstanding. Each holder of common stock is
entitled to one vote per share for all matters to be voted on by shareholders of
Corning Incorporated. Holders of common stock may not cumulate their votes in
the election of directors, and are entitled to share equally in the dividends
that may be declared by the board of directors, but only after payment of
dividends required to be paid on outstanding shares of preferred stock. The
current quarterly cash dividend of Corning Incorporated is $.18 per share of
common stock. The continued declaration of dividends by the board of directors
is subject to the current and prospective earnings, financial condition and
capital requirements of Corning Incorporated and any other factors that the
board of directors deems relevant.
Upon voluntary or involuntary liquidation, dissolution or winding up of
Corning Incorporated, the holders of the common stock share ratably in the
assets remaining after payments to creditors and provision for the preference of
any preferred stock. There are no preemptive or other subscription rights,
conversion rights or redemption or scheduled installment payment provisions
relating to shares of common stock. All of the outstanding shares of common
stock are fully paid and nonassessable. The transfer agent and registrar for the
common stock is Harris Trust and Savings Bank. The common stock is listed on The
New York Stock Exchange, Inc.
RIGHTS AGREEMENT
Attached to each share of common stock is one preferred share purchase
right. Each right entitles the registered holder to purchase from Corning
Incorporated one one-hundredth of a share of Series A preferred stock at a price
of $125.00 per one one-hundredth of a share of Series A preferred stock, subject
to adjustment. The rights expire on July 15, 2006, unless the final expiration
date is extended or unless the rights are earlier redeemed by Corning
Incorporated.
The rights represented by the certificates for common stock are not
exercisable, and are not transferable apart from the common stock, until the
earlier of:
- ten days after a person or group, called an "acquiring person", acquires
beneficial ownership of 20% or more of the common stock of Corning
Incorporated; or
- ten business days (or a later date determined by the board of directors)
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 outstanding common stock of Corning Incorporated.
The earlier of these two dates is called the "distribution date". Separate
certificates for the rights will be mailed to holders of record of the common
stock as of the determination date. The rights could then begin trading
separately from the 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 entitle
the holder to receive, upon exercise of the right, common stock having a value
equal to two times the exercise price of the right. In the event that Corning
Incorporated is acquired in a merger, consolidation, or other business
combination transaction or more than 50% of its assets, cash flow or earning
power is sold or transferred, each right, other than the rights owned by an
acquiring person, will entitle the holder 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.
At any time after the acquisition by the acquiring person of beneficial
ownership of 20% or more of the outstanding shares of the common stock of
Corning Incorporated and before the acquisition by the acquiring person of
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50% or more of the voting power of the outstanding shares of the common stock of
Corning Incorporated, the board of directors may exchange the rights (other than
rights owned by the acquiring person, which would have become void), in whole or
in part, at an exchange ratio of one share of our common stock per right,
subject to adjustment.
The rights are redeemable in whole, but not in part, at $.01 per right until
any person or group becomes an acquiring person. The ability to exercise the
rights terminates at the time that the board of directors elects to redeem the
rights. Notice of redemption will be given by mail 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 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:
- in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the shares of Series A preferred stock;
- 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
- 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 one-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, the 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 the exercise price.
Upon the exercise of the rights, no fractional shares of Series A preferred
stock will be issued (other than fractions which are integral multiples of one
one-hundredth of a share, which may, at the election of Corning Incorporated, be
evidenced by depository receipts) and instead 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 us on terms
not approved by the board of directors of Corning Incorporated, except in the
case of 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 board of directors since the rights may be redeemed by us at
$.01 per right at any time prior to the acquisition by a person or group of
beneficial ownership of 20% or more of the common stock (subject to certain
exceptions). The redemption of the rights may be made effective at any time, on
any basis, and with any conditions that the board of directors in its sole
discretion may establish.
The shares of Series A preferred stock purchasable upon exercise of the
right will rank junior to all other series of preferred stock of Corning
Incorporated (including the Series B preferred stock) or any similar stock that
specifically provides that it ranks 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 $1.00 per share, but will be entitled to an aggregate dividend of
100 times the dividend declared per share of 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
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payment of $100 per share, but will be entitled to an aggregate payment of 100
times the payment made per share of common stock. Each share of Series A
preferred stock will have 100 votes, voting together with the common stock. In
the event of any merger, consolidation or other transaction in which 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
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 common stock.
The description of the rights contained in this section does not describe
every aspect of the rights. The rights agreement, datefd as of June 5, 1996,
between Corning Incorporated and the rights agent contains the full legal text
of the matters described in this section. A copy of the rights agreement has
been incorporated by reference in the Registration Statement of which this
prospectus forms a part. See "Where You Can Find More Information" below for
information on how to obtain a copy.
FAIR PRICE AMENDMENT
In 1985, shareholders of Corning Incorporated adopted a "fair price
amendment" to the certificate of incorporation of Corning Incorporated that, in
general, requires the approval by the holders of at least 80% of the voting
power of the outstanding capital stock of Corning Incorporated entitled to vote
generally in the election of directors as a condition for mergers and certain
other business combinations with any beneficial owner of more than 10% of such
voting power unless:
- the transaction is approved by at least a majority of the "continuing
directors" (as defined in the certificate of incorporation); or
- certain minimum price, form of consideration and procedural requirements
are met.
Amendment or repeal of this provision or the adoption of any inconsistent
provision requires the affirmative vote of at least 80% of the voting stock
unless the proposed amendment or repeal or the adoption of the inconsistent
provisions were approved by two-thirds of the entire board of directors and a
majority of the continuing directors.
CERTAIN OTHER PROVISIONS OF THE CERTIFICATE OF INCORPORATION AND BY-LAWS
In addition to the preferred share purchase rights and the fair price
amendment, the certificate of incorporation and by-laws of Corning Incorporated
contain other provisions that may discourage a third party from seeking to
acquire Corning Incorporated or to commence a proxy contest or other takeover-
related action. Corning Incorporated has classified its board of directors such
that one-third of the board is elected each year to three-year terms of office.
In addition, holders of 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 common stock outstanding. These provisions, together with
provisions concerning the size of the board and requiring that premature
vacancies on the board be filled only by a majority of the entire board, may not
be amended, altered or repealed, nor may we adopt any inconsistent provisions
without the affirmative vote of at least 80% of the voting stock of Corning
Incorporated or the approval of two-thirds of the entire board of directors.
The by-laws of Corning Incorporated contain certain procedural requirements
with respect to the nomination of directors by shareholders that require, among
other things, delivery of notice by nominating shareholders to its Secretary not
later than 90 days nor more than 120 days prior to the date of the shareholders
meeting at which the nomination is to be considered. The by-laws do not provide
that a meeting of the board of directors may be called by shareholders.
The certificate of incorporation of Corning Incorporated provides that no
director will be
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liable to Corning Incorporated or its shareholders for a breach of duty as a
director except as provided by the New York Business Corporation Law.
The effect of these provisions may be to deter attempts either to obtain
control of Corning Incorporated or to acquire a substantial amount of its stock,
even if a proposed acquisition transaction were at a significant premium over
the then-prevailing market value of the common stock, or to deter attempts to
remove the board of directors and management of Corning Incorporated, even
though some or a majority of the holders of common stock may believe such
actions to be beneficial.
PLAN OF DISTRIBUTION
We may sell securities to or through underwriters, and also may sell
securities directly to other purchasers or through agents. Unless otherwise set
forth in the prospectus supplement, the obligations of any underwriters to
purchase the securities will be subject to certain conditions precedent and such
underwriters will be obligated to purchase all the securities if any are
purchased.
The distribution of the securities may be effected from time to time in one
or more transactions at a fixed price or prices which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. The applicable prospectus supplement will
describe the method of distribution of the securities.
In connection with the sale of securities, underwriters may receive
compensation from us or from purchasers of securities for whom they may act as
agents, in the form of discounts, concessions or commissions. Underwriters,
dealers and agents that participate in the distribution of securities may be
deemed to be underwriters, and any discounts or commissions received by them and
any profit on the resale of securities by them may be deemed to be underwriting
discounts and commissions, under the Securities Act of 1933. Any such
underwriter, dealer or agent will be identified, and any such compensation will
be described, in the prospectus supplement.
Under agreements which may be entered into by us, underwriters, dealers and
agents who participate in the distribution of securities may be entitled to
indemnification by us against certain liabilities, including liabilities under
the Act, or to contribution with respect to payments which the underwriters,
dealers or agents may be required to make in respect thereof.
If so indicated in the prospectus supplement, we will authorize dealers or
other persons acting as our agent to solicit offers by certain institutions to
purchase securities from us pursuant to contracts providing for payment and
delivery on a future date. Institutions with which such contracts may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others.
VALIDITY OF SECURITIES
The validity of the securities is being passed on for us by William D.
Eggers, Esq., Senior Vice President and General Counsel of Corning Incorporated,
and for any underwriters, dealers or agents by Sullivan & Cromwell, 125 Broad
Street, New York, New York. Mr. Eggers owns substantially less than 1% of the
outstanding shares of Corning Incorporated common stock.
EXPERTS
The consolidated financial statements of Corning Incorporated incorporated
in this prospectus by reference to Corning Incorporated's 1998 Annual Report on
Form 10-K for the year ended December 31, 1998, have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of that firm as experts in auditing and accounting.
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WHERE YOU CAN FIND MORE INFORMATION
As required by the Securities Act of 1933, we filed a registration statement
(No. - ) relating to the securities offered by this prospectus with the
Securities and Exchange Commission. This prospectus is a part of that
registration statement, which includes additional information.
Corning Incorporated files annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy this
information at the SEC's public reference rooms in Washington, D.C., New York,
New York and Chicago, Illinois. You can also request copies of the documents,
upon payment of a duplicating fee, by writing the Public Reference Section of
the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. These SEC filings are also available to the public from
the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file with
the SEC. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be part of this prospectus.
Information that we file later with the SEC will automatically update
information in this prospectus. In all cases, you should rely on the later
information over different information included in this prospectus or the
prospectus supplement.
This prospectus includes by reference the documents listed below that
Corning Incorporated has previously filed with the SEC and that are not included
in or delivered with the documents. They contain important information about our
company and its financial condition.
- Annual Report on Form 10-K for the year ended December 31, 1998.
- Quarterly report on Form 10-Q for the quarter ended March 31, 1999.
- Current reports on Form 8-K dated January 19, 1999; January 25, 1999;
February 4, 1999; March 1, 1999; March 3, 1999 and April 14, 1999.
- Current report on Form 8-K/A dated January 26, 1999.
- Registration Statement on Form 8-A containing a description of our
preferred share rights plan filed on July 11, 1996.
We incorporate by reference additional documents that we may file with the
SEC after the date of this prospectus and before the completion of this
offering. The documents include periodic reports, such as Annual Reports on Form
10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as
proxy statements.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Corning Incorporated
One Riverfront Plaza
Corning, New York 14831
Attention: Secretary
(607) 974-9000
You should rely only on the information provided in this prospectus and the
prospectus supplement, as well as the information incorporated by reference. We
have not authorized anyone to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus, the
prospectus supplement or any documents incorporated by reference is accurate as
of any date other than the date on the front of the applicable document.
36
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses payable by Corning Incorporated
(the "Company") in connection with the issuance and distribution of the
securities, other than underwriting discounts and commissions. The Company will
bear all of such expenses. All the amounts shown are estimates, except the
registration fee.
<TABLE>
<S> <C>
Registration Fee................................................ $ 556,000
Fees and expenses of accountants................................ $ 20,000
Legal Fees...................................................... $ 200,000
Fees and expenses of trustee and counsel........................ $ 18,000
Printing and engraving.......................................... $ 100,000
Blue Sky fees and expenses (including counsel).................. $ 10,000
Rating agency fees.............................................. $ 300,000
Miscellaneous................................................... $ 50,000
Total........................................................... $1,254,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
CORNING INCORPORATED
Sections 722 and 723 of the Business Corporation Law of the State of New
York (the "BCL") provide that a corporation may indemnify its current and former
directors and officers under certain circumstances. Article VIII of the
Company's By-Laws provides that the Company shall indemnify each director and
officer against all costs and expenses actually and reasonably incurred by him
in connection with the defense of any claim, action, suit or proceeding against
him by reason of his being or having been a director or officer of the Company
to the full extent permitted by, and consistent with, the BCL.
Section 402(b) of the BCL provides that a corporation may include a
provision in its certificate of incorporation limiting the liability of its
directors to the corporation or its shareholders for damages for the breach of
any duty, except for a breach involving intentional misconduct, bad faith, a
knowing violation of law or receipt of an improper personal benefit or for
certain illegal dividends, loans or stock repurchases. Paragraph 7 of the
Company's Restated Certificate of Incorporation contains such a provision.
CORNING FINANCE B.V.
In general, Dutch law provides that a B.V. should idemnify its Managing
Director in the event that he is liable to a third party for damages caused in
his capacity as Managing Director, unless the liability results from his gross
negligence or intentional misconduct. Under certain circumstances, this
provision does not apply, and the B.V. and the Managing Director may agree that
the B.V. will indemnify the Managing Director in such circumstances.
Besides the general concept of tort liability, Netherlands law contains
various specific statutory provisions on the personal civil law liability of the
Managing Directors of a B.V. corporation, both towards the B.V. itself in case
of improper performance, requiring the Managing Director to be seriously at
fault, and towards third parties. Third party liability may inter alia (but not
limitative) result from (i) acquisition of the B.V.'s shares by the B.V. itself
or by any of its subsidiaries contrary to the statutory provisions relating
thereto, (ii) misleading information and, more particularly, misleading annual
accounts or interim of the B.V., (iii) unpaid social security premiums and
certain taxes and
II-1
<PAGE>
(iv) in the event of the B.V.'s bankruptcy, improper performance if such
performance is the cause of the bankruptcy, or non-compliance with other
specific statutory provisions.
The Articles of Association of the Corning Finance B.V. do not contain any
provisions on the indemnification by the Corning Finance B.V. of its Managing
Directors. Under Netherlands law obtaining insurance on Managing Directors is
permitted except that such insurance cannot be applied to any liability
resulting from gross negligence or intentional misconduct.
Reference is made to the forms of Underwriting Agreement incorporated by
reference as Exhibits 1.01 through 1.05 hereto for a description of
indemnification arrangements for offerings of securities pursuant thereto.
For the undertaking in relation to indemnification, please see Item 17
below.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
- ----------- ---------------------------------------------------------------------------------------------------------
<C> <S>
1.01 Form of Underwriting Agreement relating to debt securities and debt warrants of Corning Incorporated.
1.02 Form of Underwriting Agreement relating to equity warrants (to be filed as an exhibit to a Current Report
on Form 8-K and incorporated herein by reference).
1.03 Form of Underwriting Agreement relating to preferred stock and depositary shares (to be filed as an
exhibit to a Current Report on Form 8-K and incorporated herein by reference).
1.04 Form of Underwriting Agreement relating to common stock (to be filed as an exhibit to a Current Report on
Form 8-K and incorporated herein by reference).
1.05 Form of Underwriting Agreement relating to debt securities of Corning Finance B.V. (to be filed as an
exhibit to a Current Report on Form 8-K and incorporated herein by reference).
4.01 Indenture, dated June , 1999, by and between the Company and The Chase Manhattan Bank, as trustee.
4.02 Indenture, dated June , 1999, by and among the Company, Corning Finance B.V. and The Chase Manhattan
Bank, as trustee.
4.03 Form of Debt Warrant Agreement, including a form of debt warrant certificate (to be filed as an exhibit
to a Current Report on Form 8-K and incorporated herein by reference).
4.04 Form of Equity Warrant Agreement, including form of equity warrant certificate (to be filed as an exhibit
to a Current Report on Form 8-K and incorporated herein by reference).
4.05 Form of Deposit Agreement, including form of depositary receipt (to be filed as an exhibit to a Current
Report on Form 8-K and incorporated herein by reference).
4.06 Form of certificate for shares of the common stock (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)).
4.07 Rights Agreement, dated as of June 5, 1996, between the Company and Harris Trust and Savings Bank, as
rights agent (incorporated by reference to Exhibit 1 of the Company's Current Report on Form 8-K dated
July 10, 1996).
5.01 Opinion of William D. Eggers, Esq.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
- ----------- ---------------------------------------------------------------------------------------------------------
<C> <S>
12.01 Calculation of ratio of income to fixed charges and calculation of ratio of income to combined fixed
charges including preferred stock dividends.
23.01 Consent of PricewaterhouseCoopers LLP, independent accountants.
23.02 Consent of William D. Eggers, Esq. (included in Exhibit 5.01).
24.01 Power of Attorney of certain directors.
25.01 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, of
The Chase Manhattan Bank, as Trustee.
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrants hereby undertake
(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;
(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. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective 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 (i) and (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 (the "Exchange Act") that are incorporated
by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act, 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; and
(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.
(b) The undersigned registrants undertake that, for purposes of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein,
II-3
<PAGE>
and the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of a
registrant pursuant to the foregoing provisions, or otherwise, the registrants
have 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 against a registrant for
indemnification against such liabilities (other than the payment by a registrant
of expenses incurred or paid by a director, officer or controlling person of
such registrant 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 herein, such registrant 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Corning, State of New York, on June 22, 1999.
<TABLE>
<S> <C> <C>
CORNING INCORPORATED
-------------------------------------
(Registrant)
By: /s/ WILLIAM D. EGGERS
---------------------------------
William D. Eggers
Senior Vice President
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on June 22,
1999, in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- ------------------------------ ---------------------------
<C> <S>
/s/ ROGER G. ACKERMAN Chairman of the Board,
- ------------------------------ Principal Executive Officer
(Roger G. Ackerman) and Director
/s/ JAMES B. FLAWS Senior Vice President,
- ------------------------------ Treasurer and Principal
(James B. Flaws) Financial Officer
/s/ KATHERINE A. ASBECK Vice President, Controller
- ------------------------------ and Principal Accounting
(Katherine A. Asbeck) Officer
* Director
- ------------------------------
(Robert Barker)
* Director
- ------------------------------
(John Seely Brown)
* Director
- ------------------------------
(John H. Foster)
* Director
- ------------------------------
(Norman E. Garrity)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- ------------------------------ ---------------------------
<C> <S>
* Director
- ------------------------------
(Gordon Gund)
* Director
- ------------------------------
(John M. Hennessy)
* Director
- ------------------------------
(James R. Houghton)
* Director
- ------------------------------
(James W. Kinnear)
* Director
- ------------------------------
(John W. Loose)
* Director
- ------------------------------
(James J. O'Connor)
* Director
- ------------------------------
(Catherine A. Rein)
* Director
- ------------------------------
(H. Onno Ruding)
* Director
- ------------------------------
(William D. Smithburg)
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ WILLIAM D. EGGERS
-------------------------
(William D. Eggers,
Attorney-in-Fact)
</TABLE>
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Corning, state of New York, on June 22, 1999.
<TABLE>
<S> <C> <C>
CORNING FINANCE B.V.
-------------------------------------
(Registrant)
By: /s/ KIM L. FROCK
---------------------------------
Kim L. Frock
Vice President--Finance
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on June 22,
1999, in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- ------------------------------ ---------------------------
<C> <S>
/s/ JAMES B. FLAWS President and Chief
- ------------------------------ Executive Officer
(James B. Flaws)
Vice President--Finance,
/s/ KIM L. FROCK Chief Financial Officer,
- ------------------------------ Chief Accounting Officer
(Kim L. Frock) and Director
* Director
- ------------------------------
(A. John Peck, Jr.)
* Director
- ------------------------------
(Mark S. Rogus)
Director
- ------------------------------
(ABN AMRO Trust Company
(Nederland) B.V.)
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ KIM L. FROCK
-------------------------
(Kim L. Frock,
Attorney-in-Fact)
</TABLE>
II-7
<PAGE>
Exhibit 1.01
CORNING INCORPORATED
DEBT SECURITIES AND DEBT WARRANTS
UNDERWRITING AGREEMENT
_________________, 1999
[LIST UNDERWRITERS]
Dear Sirs:
From time to time Corning Incorporated, a New York corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) (i) certain of its debt securities (the "Debt Securities")
and/or (ii) warrants to purchase Debt Securities ("Debt Warrants" and the Debt
Securities issuable upon exercise of Debt Warrants, "Warrant Securities")
(collectively, the "Securities") specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "Firm Securities" and
together with any Optional Securities, as defined below, the "Designated
Securities"), less the principal amount of Designated Securities covered by
Delayed Delivery Contracts, if any, as provided in Section 3 hereof and as may
be specified in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, any Designated Securities to be covered by Delayed Delivery
Contracts being herein sometimes referred to as "Contract Securities" and the
Designated Securities to be purchased by the Underwriters (after giving effect
to the deduction, if any, for Contract Securities) being herein sometimes
referred to as "Underwriters' Securities").
The Debt Securities will be issued under an Indenture, dated as of
______________, 1999 (the "Indenture"), between the Company and The Chase
Manhattan Bank, as Trustee, and the Debt Warrants will be issued under a warrant
agreement (the "Warrant Agreement") between the Company and
_________________________, as warrant agent, (the "Warrant Agent"). The
particular terms of any issuance of Securities will be determined at the time of
offering. Debt Securities and Debt Warrants may be offered together or
separately, and if offered together, the Debt Warrants may detach from the Debt
Securities after the time of offering.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
<PAGE>
Exhibit 1.01
Pricing Agreement with respect to Designated Securities shall be substantially
in the form attached hereto as Annex I and shall specify the names of the
Underwriters of such Designated Securities, the names of the Representatives, if
any, of such Underwriters, the principal amount of Firm Securities and the
principal amount of Optional Securities, if any, to be purchased by each
Underwriter and the commission, if any, payable to the Underwriter with respect
thereto, whether any of such Designated Securities shall be covered by Delayed
Delivery Contracts (as defined in Section 3 hereof), the purchase price to the
Underwriters of such Designated Securities, the nature of the funds to be
delivered by the Underwriters, the initial public offering price or the manner
of determining such price, if any, including, interest rates, if any, maturity,
whether such Securities will be convertible at the option of the holder thereof,
any conversion rates or price(s), whether Warrants shall be attached to Debt
Securities, any redemption provisions and any sinking fund requirements. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts, and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted). The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) One or more registration statements on Form S-3, including a
prospectus for use in connection with the Designated Securities pursuant
to Rule 429 under the Securities Act of 1933, as amended (the "Act"), in
respect of the Securities have been filed with the Securities and Exchange
Commission (the "Commission"); such registration statements and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to the Representatives for each of the other Underwriters
and, excluding exhibits to such registration statements, but including all
documents incorporated by reference in the prospectuses contained therein,
have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Act, which became effective upon filing, no other document with
respect to such registration statements or document incorporated by
reference therein has heretofore been filed or transmitted for filing with
the Commission; such prospectus included for use in connection with the
Securities pursuant to Rule 429 under the Act meets the requirements of
the Act and the rules and regulations thereunder for use of such
prospectus in connection with the Securities; and no stop order suspending
the effectiveness of any of such registration statements, any
post-effective amendment thereto, or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission. Any preliminary prospectus
included in either of such registration statements or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act, is hereinafter called a "Preliminary
Prospectus;" the various parts of such registration statements and the
Rule 462(b) Registration Statement, if any, including all exhibits thereto
and the documents incorporated by reference in the prospectuses contained
in such registration statements and the Rule 462(b) Registration
Statement, if any, at the time such part of such registration statements
or such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective but excluding Form T-1, each as amended at the
time such part of the registration statements or such part of the Rule
462(b) Registration Statement, if any, became effective and at the time
each incorporated document was filed with the Commission is hereinafter
called the "Registration Statement;" the prospectus relating to the
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, is hereinafter called the "Prospectus;" any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus
2
<PAGE>
Exhibit 1.01
or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of
the date of such filing;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any change
3
<PAGE>
Exhibit 1.01
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
nonassessable;
(g) The Firm Securities and any Optional Securities have been duly
and validly authorized, and, when the Firm Securities are issued and
delivered pursuant to this Agreement, and the Pricing Agreement with
respect to such Designated Securities and, in the case of any Contract
Securities, pursuant to Delayed Delivery Contracts (as defined in Section
3 hereof) with respect to such Contract Securities, and in the case of any
Optional Securities pursuant to Over-allotment Options (as defined in
Section 3 hereof) with respect to such Securities, such Designated
Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture and the Warrant
Agreement, as applicable, both of which will be substantially in the form
filed as an exhibit to the Registration Statement; each of the Indenture
and the Warrant Agreement has been duly authorized and, at the Time of
Delivery for such Designated Securities (as defined in Section 4 hereof),
each of the Indenture and the Warrant Agreement will constitute a valid
and legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and each of the Indenture and the
Warrant Agreement conforms, and the Designated Securities will conform, to
the descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, the
Warrant Agreement, each of the Delayed Delivery Contracts, this Agreement
and any Pricing Agreement and each Over-allotment Option, if any, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of Incorporation
or the By-Laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or any
Over-allotment Option, or the Warrant Agreement or the Indenture or any
Delayed Delivery Contract except such as have been, or will have been
prior to the Time of Delivery, obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as
4
<PAGE>
Exhibit 1.01
may be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters;
(i) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and "Description of Debt Warrants",
insofar as they purport to constitute a summary of the terms of the
Securities and under the caption "Plan of Distribution" insofar as they
purport to describe the provisions of the documents referred to therein,
are accurate, complete and fair;
(j) Neither the Company nor any of its subsidiaries is in violation
of its Restated Certificate of Incorporation or By-laws or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or its properties may be bound, excepting violations
or defaults which do not have, or are reasonably likely not to have, an
effect which is materially adverse to the assets, business, operations,
income or condition (financial or otherwise) of the Company and its
subsidiaries taken as a whole;
(k) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(l) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) The statements under the heading "Year 2000 Readiness
Disclosure" under Item 7 - Management's Discussion and Analysis of
Financial Condition and Results of Operations in the Company's Annual
Report on Form 10-K for the year ended December 31, 1998, filed with the
Commission under the Exchange Act, which report is incorporated by
reference in the Registration Statement, when such report was filed with
the Commission, conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder. Since the date on which the Company's most recent Quarterly
Report on Form 10-Q was filed with the Commission, there has not been any
material change relating to the Company's year 2000 compliance that would
be required to be disclosed in subsequent filings with the Commission
under the Exchange Act and incorporated by reference in the Registration
Statement;
(n) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes; and
(o) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and, when executed and delivered by
the Company and the purchaser named therein, will constitute a valid and
legally binding agreement of the Company enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating
5
<PAGE>
Exhibit 1.01
to or affecting creditors' rights and to general equity principles; and
any Delayed Delivery Contracts conform to the description thereof in the
Prospectus.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Firm Securities, the several Underwriters propose to offer such Firm
Securities for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Securities that the Company thereby grants to the Underwriters the
right (an "Over-allotment Option") to purchase at their election up to the
aggregate principal amount of Securities (the "Optional Securities') set forth
in such Pricing Agreement, at the terms set forth in the paragraph above, for
the sole purpose of covering over-allotments in the sale of the Firm Securities.
Any such election to purchase Optional Securities may be exercised only by
written notice from the Representatives to the Company, given within a period
specified in the Pricing Agreement, setting forth the aggregate principal amount
of Optional Securities to be purchased and the date on which such Optional
Securities are to be delivered, as determined by the Representatives but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless the Representatives and the Company otherwise agree in writing,
earlier than or later than the respective number of business days after the date
of such notice set forth in such Pricing Agreement.
The aggregate principal amount of Optional Securities to be added to the
number of Firm Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the aggregate principal amount of Optional Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the
aggregate principal amount of Optional Securities to be so added shall be, in
each case, that proportion of Optional Securities which the aggregate principal
amount of Firm Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the aggregate principal amount of Firm Securities. The total
aggregate principal amount of Designated Securities to be purchased by all the
Underwriters pursuant to such Pricing Agreement shall be the aggregate principal
amount of Firm Securities set forth in Schedule I to such Pricing Agreement plus
the aggregate number of the Optional Securities which the Underwriters elect to
purchase.
The Company may specify in Schedule II to the Pricing Agreement applicable
to any Designated Securities that the Underwriters are authorized to solicit
offers to purchase Designated Securities from the Company pursuant to delayed
delivery contracts (herein called "Delayed Delivery Contracts"), substantially
in the form of Annex III attached hereto but with such changes therein as the
Representatives and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Representatives, for the accounts of the
Underwriters, at the Time of Delivery (as defined in Section 4 hereof), such
commission, if any, as may be set forth in such Pricing Agreement. Delayed
Delivery Contracts, if any, are to be with investors of the types described in
the Prospectus and subject to other conditions therein set forth. The
Underwriters will not have any responsibility with respect to the validity or
performance of any Delayed Delivery Contracts.
The aggregate principal amount of Contract Securities to be deducted from
the aggregate principal amount of Designated Securities to be purchased by each
Underwriter as set forth in Schedule I to the Pricing Agreement applicable to
such Designated Securities shall be, in each case, the aggregate principal
amount of Contract Securities which the Company has been advised by the
Representatives have been attributed to such Underwriter, provided that, if the
Company has not been so advised, the amount of
6
<PAGE>
Exhibit 1.01
Contract Securities to be so deducted shall be, in each case, that proportion of
Contract Securities which the aggregate principal amount of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate principal amount of the Designated Securities (rounded as
the Representatives may determine). The aggregate principal amount of
Underwriters' Securities to be purchased by all the Underwriters pursuant to
such Pricing Agreement shall be the aggregate principal amount of Designated
Securities set forth in Schedule I to such Pricing Agreement less the principal
amount of the Contract Securities. The Company will deliver to the
Representatives not later than 3:30 p.m., New York City time, on the third
business day preceding the Time of Delivery specified in the applicable Pricing
Agreement (or such other time and date as the Representatives and the Company
may agree upon in writing) a written notice setting forth the aggregate
principal amount of Contract Securities.
4. Certificates for the Firm Securities and the Optional Securities, if
any, to be purchased by each Underwriter pursuant to the Pricing Agreement
relating thereto, in definitive form to the extent practicable, and in such
authorized denominations and registered in such names as the Representatives may
request upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by the method specified in such Pricing Agreement, (i)
with respect to the Firm Securities, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "First Time of Delivery" and (ii) with respect to
the Optional Securities, if any, on the time and date specified by the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Securities, or at such other
time and date as the Representatives and the Company may agree upon in writing,
such time and date, if not the First Time of Delivery, herein called the "Second
Time of Delivery." Each such time and date for delivery is herein called a "Time
of Delivery." "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday, and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters funds payable to the order of the party designated, and in the
method specified, in the Pricing Agreement relating to such Securities in the
amount of any compensation payable by the Company to the Underwriters in respect
of any Delayed Delivery Contracts as provided in Section 3 hereof and the
Pricing Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of
business on the second business day following the execution and delivery
of the Pricing Agreement relating to the applicable Designated Securities
or, if applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration Statement
or Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to the Time of Delivery
for such Securities which amendment or supplement shall be disapproved by
the Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the Representatives
with copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section
7
<PAGE>
Exhibit 1.01
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery
of a prospectus is required in connection with the offering or sale of
such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed with the Commission, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158 under the Act);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose of
any securities of the Company which are substantially similar to the
Designated Securities and which mature more than one year after the
related Time of Delivery, without your prior written consent; and
8
<PAGE>
Exhibit 1.01
(f) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Warrant Agreement, any Delayed Delivery Contracts, and Blue Sky and Legal
Investment Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the fees and expenses of any Trustee,
any Warrant Agent, any Registrar, any Transfer Agent, Dividend Disbursing Agent,
or any Calculation Agent and any agent of any Trustee, Warrant Agent, Registrar,
Transfer Agent, Dividend Disbursing Agent, or Calculation Agent and the fees and
disbursements of counsel for any such persons in connection with any Indenture,
any Warrant Agent Agreement, any Calculation Agent Agreement and the Securities;
and (viii) all other costs and expenses incident to the performance of the
Company's obligations hereunder and under any Over-allotment Options and under
any Delayed Delivery Contracts which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
Section, Section 8 and Section 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of each Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed in all material respects all of its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
9
<PAGE>
Exhibit 1.01
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated each Time
of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Indenture, the
Designated Securities, the Delayed Delivery Contracts, if any, the
Registration Statement, the Prospectus as amended or supplemented and
other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) William D. Eggers, Esq., General Counsel of the Company, shall
have furnished to the Representatives his written opinion, dated the Time
of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of New York, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) With such exceptions as are not material, the Company
has been duly qualified as a foreign corporation for the transaction
of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties so as to require
such qualification (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel, and,
as to matters of fact, upon certificates of officers of the Company,
provided that such counsel shall state that he believes that both
you and he are justified in relying upon such opinions and
certificates);
(iv) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is the subject (other than as set forth in the
Prospectus and other than litigation incident to the kind of
business conducted by the Company and its subsidiaries, none of
which litigation is material to the Company and its subsidiaries
considered as a whole) which, if determined adversely to the Company
or any of its subsidiaries, as the case may be, would individually
or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and to the best of
such counsel's knowledge no such proceedings are threatened by
governmental authorities or by others; and such counsel has not
received notice that any such proceedings are contemplated by
governmental authorities;
(v) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(vi) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Indenture; the Warrant Securities have been
duly authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Warrant Agreement; and the
Designated Securities and the
10
<PAGE>
Exhibit 1.01
Indenture and the Warrant Agreement conform as to legal matters to
the descriptions thereof in the Prospectus as amended or
supplemented;
(vii) Each of the Indenture and the Warrant Agreement has been
duly authorized, executed and delivered by the parties thereto and
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture has been duly qualified
under the Trust Indenture Act;
The Contract Securities when authenticated, executed, issued
and delivered pursuant to the Indenture and the Delayed Delivery
Contracts and paid for in accordance with the Delayed Delivery
Contracts will constitute valid and binding obligations of the
Company entitled to the benefits provided by each of the Indenture
and the Warrant Agreement and enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity.
(viii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, the Warrant Agreement, each of
the Delayed Delivery Contracts, if any, any Over-allotment Options,
this Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the transactions
herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is
subject, nor will such actions result in any violation of the
provisions of the Restated Certificate of Incorporation or the
By-Laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its
properties;
(ix) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Securities
or the consummation by the Company of the transactions contemplated
by this Agreement or such Pricing Agreement or the Indenture or the
Warrant Agreement or any of such Delayed Delivery Contracts or any
Over-allotment Options, except such as have been obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the
Underwriters;
(x) The statements set forth in the Prospectus under the
captions "Description of Debentures", "Description of Debt
Securities" and "Description of Debt Warrants", insofar as they
purport to constitute a summary of the terms of the Securities and
the Designated Securities, and under the captions "Plan of
Distribution" and "Underwriting", insofar as they purport to
describe the provisions of the documents referred to therein, are
accurate, complete and fair;
(xi) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined
in the Investment Company Act;
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such
11
<PAGE>
Exhibit 1.01
counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; and such counsel has no reason to believe
that any of such documents, when they became effective or were so
filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement
of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were filed
under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents
were so filed, not misleading;
(xiii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; and
(xiv) In the event any of the Designated Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of such
Delayed Delivery Contracts has been duly authorized, executed and
delivered by the Company and, assuming such Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
purchaser named therein, constitutes a valid and binding obligation
of the Company enforceable against the Company in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity;
and any Delayed Delivery Contracts conform in all material respects
to the description thereof in the Registration Statement and
Prospectus as amended or supplemented.
In addition, such counsel shall state that he has no reason to
believe that, as of the effective date of the Registration
Statement, either the Registration Statement or the Prospectus (or,
as of its date, any further amendment or supplement thereto made by
the Company prior to the Time of Delivery) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, that the Prospectus as of its date and as of
the date of any amendment or supplement thereto, did not contain any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that,
as of the Time of Delivery, either the Registration Statement or the
Prospectus (or any such further amendment or supplement thereto)
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and such counsel does not know of
any contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required;
(d) On the date of the Pricing Agreement for such Designated
Securities and at each Time of Delivery for such Designated Securities,
PricewaterhouseCoopers LLP shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the date
of the most recent report filed with the Commission containing financial
statements and incorporated by reference
12
<PAGE>
Exhibit 1.01
in the Registration Statement, if the date of such report is later than
such effective date, and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex II hereto, and with respect
to such letter dated such Time of Delivery, as to such other matters as
the Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or government action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended
or supplemented, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented there
shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, the
effect of which, in any such case described in Clause (i) or (ii), is in
the judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities or preferred stock;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a suspension or material limitation
in trading in the Company's securities on the New York Stock Exchange;
(iii) a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities, or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iv) in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented relating to the Designated Securities; and
(h) The Company shall have furnished or caused to be furnished to
the Representatives at each Time of Delivery for the Designated Securities
a certificate or certificates of officers of the Company satisfactory to
the Representatives as to the accuracy of the representations and
warranties of the Company herein at and as of each Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to each Time of Delivery, as to the matters set
forth in subsections (a) and (e) of this Section and as to such other
matters as the Representatives may reasonably request.
13
<PAGE>
Exhibit 1.01
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities; and provided,
further, that the Company shall not be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus to the extent that the Company demonstrates that any such loss,
claim, damage or liability of such Underwriter results from the fact such
Underwriter sold Securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the Prospectus as then
amended or supplemented (excluding documents incorporated by reference) in any
case where such delivery is required by the Act if the Company has previously
furnished copies thereof to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus (excluding documents
incorporated by reference) which was corrected in the Prospectus (or the
Prospectus as amended or supplemented (excluding documents incorporated by
reference)).
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
14
<PAGE>
Exhibit 1.01
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
15
<PAGE>
Exhibit 1.01
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Securities or Optional Securities which it has agreed to purchase under the
Pricing Agreement relating to such Firm Securities or Optional Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Underwriters' Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Securities or Optional Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Firm
Securities or Optional Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Firm Securities or Optional
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Firm Securities or Optional Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Firm Securities or Optional Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like effect as if such
person had originally been a party to the Pricing Agreement with respect to
such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of such Firm Securities
or Optional Securities, as the case may be, which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Firm Securities or
Optional Securities, as the case may be, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the principal amount of
Firm Securities or Optional Securities, as the case may be, which such
Underwriter agreed to purchase under the Pricing Agreement relating to such
Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the aggregate principal
amount of Firm Securities or Optional Securities, as the case may be, which such
Underwriter agreed to purchase under such Pricing Agreement) of the Firm
Securities or Optional Securities, as the case may be, of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
16
<PAGE>
Exhibit 1.01
(c) If, after giving effect to any arrangements for the purchase of the
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of Firm Securities or
Optional Securities, as the case may be, which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Firm Securities or
Optional Securities, as the case may be, as referred to in subsection (b) above,
or if the Company shall not exercise the right described in subsection (b) above
to require non-defaulting Underwriters to purchase Firm Securities or Optional
Securities, as the case may be, of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Securities shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter with respect to the Firm Securities or Optional Securities
covered by such Pricing Agreement except as provided in Section 6 and Section 8
hereof; but, if for any other reason Designated Securities are not delivered by
or on behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement; Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
17
<PAGE>
Exhibit 1.01
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence for each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18
<PAGE>
Exhibit 1.01
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
Corning Incorporated
By:
---------------------------------------
Name:
Title:
Accepted as of the date hereof:
[Name of Representative]
By: ________________________________
19
<PAGE>
Exhibit 1.01
ANNEX I
PRICING AGREEMENT
[Representatives]
As Representatives of the several
Underwriters named in Schedule I hereto
c/o [address]
--------------------------, -------
Dear Sirs:
Corning Incorporated, a New York corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated _________________, 1999 (the "Underwriting Agreement"), to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty that refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto, less the principal amount of Designated
Securities covered by Delayed Delivery Contracts, if any, as may be specified in
Schedule II.
<PAGE>
Exhibit 1.01
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
Corning Incorporated
By:........................................
Name:
Title:
Accepted as of the date hereof:
[Representatives]
By: [Representatives]
- ------------------------
on behalf of each of the Underwriters
2
<PAGE>
Exhibit 1.01
SCHEDULE I
PRINCIPAL
AMOUNT OF
FIRM
SECURITIES
TO BE
UNDERWRITER PURCHASED
------------- ----------------
Total..................................................... $
----------------
<PAGE>
Exhibit 1.01
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
AGGREGATE PRINCIPAL AMOUNT:
PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
INDENTURE:
MATURITY:
INTEREST RATE:
INTEREST PAYMENT DATES:
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
<PAGE>
Exhibit 1.01
DEFEASANCE PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION:
DELAYED DELIVERY:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
2
<PAGE>
Exhibit 1.01
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
named therein shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, prospective financial statements and/or pro forma financial
information examined) by them and included or incorporated by reference in
the Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the Act
or the Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act as it
applies to Form 10-Q and the related published rules and regulations
thereunder or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with the basis for the audited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
<PAGE>
Exhibit 1.01
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) above and
any unaudited income statement data and balance sheet items included
in the Prospectus and referred to in Clause (B) above were not
determined on a basis substantially consistent with the basis for
the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
net assets or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in Clause (E) above there were any
decreases in consolidated net revenues or any material decrease in
operating profit or any material decrease in the total or per share
amounts of consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(v) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which are
derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus
2
<PAGE>
Exhibit 1.01
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
3
<PAGE>
Exhibit 1.01
ANNEX III
DELAYED DELIVERY CONTRACT
Corning Incorporated
One Riverfront Plaza
Corning, New York 14831
Attention
, 199
Dear Sirs:
The undersigned hereby agrees to purchase from Corning Incorporated
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$
principal amount of the Company's debt securities (hereinafter called the
"Designated Securities"), offered by the Company's Prospectus dated __________,
____ , as amended or supplemented, receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount thereof, plus
accrued interest from the date from which interest accrues as set forth below,
and on the further terms and conditions set forth below, and on the further
terms and conditions set forth in this contract.
The undersigned will purchase the Designated Securities from the Company
on _______, ____ (the "Delivery Date") and interest on the Designated Securities
so purchased will accrue from ________, ____.
The undersigned will purchase the Designated Securities from the Company
on the delivery date or dates and in the principal amount or amounts set forth
below:
<TABLE>
<CAPTION>
PRINCIPAL DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
- ------------- --------- ----------------
<S> <C> <C>
- --------, ---- $ --------,----
- --------, ---- $ --------,----
</TABLE>
EACH SUCH DATE ON WHICH DESIGNATED SECURITIES ARE TO BE PURCHASED HEREUNDER IS
HEREINAFTER REFERRED TO AS A "DELIVERY DATE."
Payment for the Designated Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in Clearing House funds at the office of , or
by wire transfer to a bank account specified by the Company, on such Delivery
Date upon delivery to the undersigned of the Designated Securities then to be
purchased by the undersigned in definitive fully registered form and in such
denominations and registered in such names as
<PAGE>
Exhibit 1.01
the undersigned may designate by written, telex or facsimile communication
addressed to the Company not less than five full business days prior to such
Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on each Delivery Date shall be subject to the condition
that the purchase of Designated Securities to be made by the undersigned shall
not on such Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject. The obligation of the undersigned to take
delivery of and make payment for Designated Securities shall not be affected by
the failure of any purchaser to take delivery of and make payment for Designated
Securities pursuant to other contracts similar to this contract.
The undersigned understands that Underwriters (the "Underwriters") are
also purchasing Designated Securities from the Company, but that the obligations
of the Undersigned hereunder are not contingent on such purchases. Promptly
after completion of the sale to the Underwriters the Company will mail or
deliver to the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
A-2
<PAGE>
Exhibit 1.01
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Very truly yours,
-------------------------------------------
By:
----------------------------------------
(Authorized Signature)
Name:
Title:
-------------------------------------------
(Address)
Accepted: , 199
CORNING INCORPORATED
By:
--------------------------------
Name:
Title:
A-3
<PAGE>
Draft of June 18, 1999
Exhibit 4.01
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Corning Incorporated
TO
The Chase Manhattan Bank
TRUSTEE
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INDENTURE
DATED AS OF JUNE __, 1999
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<PAGE>
INDENTURE, dated as of June __, 1999, between Corning Incorporated, a
corporation duly organized and existing under the laws of the State of New York
(herein called the "Company"), having its principal office at One Riverfront
Plaza, Corning , New York 14831 and The Chase Manhattan Bank, a New York banking
corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture;
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(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(6) when used with respect to any Security, the words "convert",
"converted" and "conversion" are intended to refer to the right of the
Holder or the Company to convert or exchange such Security into or for
securities or other property in accordance with such terms, if any, as may
hereafter be specified for such Security as contemplated by Section 301,
and these words are not intended to refer to any right of the Holder or
the Company to exchange such Security for other Securities of the same
series and like tenor pursuant to Section 304, 305, 306, 906 or 1107 or
another similar provision of this Indenture, unless the context otherwise
requires; and references herein to the terms of any Security that may be
converted mean such terms as may be specified for such Security as
contemplated in Section 301.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" of a Depositary means, with respect to any matter
at any time, the policies and procedures of such Depositary, if any, that are
applicable to such matter at such time.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof, discounted from the
respective due date thereof to such date at a rate of 15% per annum compounded
semi-annually. The net amount of rent required to be paid under any such lease
for any such period shall be the amount of the rent payable by the lessee with
respect to such period, after excluding amounts required to be paid on account
of maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
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"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions or trust companies in that Place of Payment are authorized
or obligated by law or executive order to close; PROVIDED that, when used with
respect to any Security, "Business Day" may have such other meaning, if any, as
may be specified for such Security as contemplated by Section 301.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Controller, an Assistant Controller, its Secretary
or an Assistant Secretary or by any two other officers of the Company designated
in writing by or pursuant to authority of the Board of Directors and delivered
to the Trustee from time to time.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities (excluding any thereof constituting Funded
Debt by reason of being renewable or extendible) and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent balance sheet of the Company
and its consolidated subsidiaries and computed in accordance with generally
accepted accounting principles.
"Corporate Trust Office" means the principal office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which at the date hereof is located at 450 West 33rd
Street, 15th Floor, New York, New York 10001.
"corporation" means a corporation, association, company (including a
limited liability company), joint-stock company, business trust or other similar
entity.
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"Covenant Defeasance" has the meaning specified in Section 1303.
"Debt" has the meaning specified in Section 1008.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
that is designated to act as Depositary for such Securities as contemplated by
Section 301.
"Domestic Subsidiary" means a Subsidiary, except a Subsidiary (a) which
neither transacts any substantial portion of its business nor regularly
maintains any substantial portion of its fixed assets within the States of the
United States, or (b) which is engaged primarily in financing the operations of
the Company or its Subsidiaries, or both, outside the States of the United
States.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Funded Debt" means all indebtedness for money borrowed having a maturity
of more than 12 months from the date as of which the amount thereof is to be
determined or having a maturity of less than 12 months but by its terms being
renewable or extendible beyond 12 months from such date at the option of the
borrower.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
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"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" has the meaning specified in Section 1008.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President, a Sector President or a Vice
President, and by the Treasurer, an Assistant Treasurer, Controller, Assistant
Controller, the Secretary or an Assistant Secretary of the Company, or by any
two other officers of the Company designated in writing or pursuant to authority
of the Board of Directors and delivered to the Trustee from time to time. One of
the officers signing an Officers' Certificate given pursuant to Section 1004
shall be the principal executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, EXCEPT:
(1) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; PROVIDED that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302;
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(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(5) Securities as to which any property deliverable upon conversion
thereof has been delivered (or such delivery has been duly provided for),
or as to which any other particular conditions have been satisfied, in
each case as may be provided for such Securities as contemplated in
Section 301;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies, composite currencies or currency units which
shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security
described in Clause (A) or (B) above, of the amount determined as provided in
such Clause), and (D) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series
and subject to Section 1002, means the place or places where the principal of
and any premium and interest on the Securities of that series are payable as
specified as contemplated by Section 301.
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"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Domestic Manufacturing Property" means any building, structure
or other facility, together with the land upon which it is erected and fixtures
comprising a part thereof, used primarily for manufacturing or warehousing and
located in the United States, owned or leased by the Company or any Subsidiary
of the Company, the gross book value (without deduction of any depreciation
reserves) of which on the date as of which the determination is being made
exceeds 3% of Consolidated Net Tangible Assets, other than any such building,
structure or other facility or portion thereof (i) which is an air or water
pollution control facility or an industrial revenue project financed by
obligations issued by a State or local governmental unit pursuant to Section
103(b)(4)(F), 103(b)(4)(E) or 103(b)(6) of the Internal Revenue Code, or any
successor provision thereof, or (ii) which, in the opinion of the Board of
Directors of the Company, is not of material importance to the total business
conducted by the Company and its Subsidiaries as an entirety.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant treasurer, any trust officer or any other officer
of the Trustee, in each case, located in the Corporate Trust Office of the
Trustee, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
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"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a manufacturing corporation more than 80% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended and
as in force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condi tion or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of, or representation by, counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
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The fact and date of the execution by any Person of any such instrument or
writing may be proved in any manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, PROVIDED that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; PROVIDED that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; PROVIDED that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which
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a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Company in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; PROVIDED that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Capital
Market Fiduciary Services, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
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SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for Notice of any event to a Holder of a
Global Security, such notice shall be sufficiently given if given to the
Depositary for such Security (or its designee), pursuant to its Applicable
Procedures, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
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SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Maturity
of any Security, or any date on which a Holder has the right to convert his
Security, shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any), or conversion of such Security need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Maturity, or on such date
for conversion, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the
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officers executing such Securities, as evidenced by their execution thereof. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. FORM OF FACE OF SECURITY.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
Corning Incorporated
.........................................
No. ......... $ ........
Corning Incorporated, a corporation duly organized and existing under the
laws of the State of New York (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ...........................................,
or registered assigns, the principal sum of ....................................
Dollars on ............................................. [IF THE SECURITY IS TO
BEAR INTEREST PRIOR TO MATURITY, INSERT -- , and to pay interest thereon from
............. or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ..................... and
.............. in each year, commencing ........., and at the Maturity thereof,
at the rate of ....% per annum, until the principal hereof is paid or made
available for payment [IF APPLICABLE, INSERT -- , PROVIDEd that any principal
and premium, and any such instalment of interest, which is overdue shall bear
interest at the rate of ...% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be
payable on demand]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the ....... or ....... (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest so payable, but not punctually paid or duly provided for, on
any Interest Payment Date will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to
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<PAGE>
such Special Record Date, or be paid in any other lawful manner not inconsistent
with the requirements of any securities exchange on which this Security may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand.]
Payment of the principal of (and premium, if any) and [IF APPLICABLE,
INSERT -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in New York, New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, against surrender of this
Security in the case of any payment due at the Maturity of the principal thereof
(other than any payment of interest that first becomes payable on a day other
than an Interest Payment Date); PROVIDED, HOWEVER, that at the option of the
Company, payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register;
and PROVIDED, FURTHER, that if this Security is a Global Security, payment may
be made pursuant to the Applicable Procedures of the Depositary as permitted in
said Indenture.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Corning Incorporated
By:
----------------------------------
Name:
Title:
Attest:
.........................................
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of June __, 1999 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [IF APPLICABLE,
INSERT -- , limited in aggregate principal amount to $...........].
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' notice, at any
time [IF APPLICABLE, INSERT -- on or after .........., 20..], as a whole or in
part, at the election of the Company, at the following
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Redemption Prices (expressed as percentages of the principal amount): If
redeemed [IF APPLICABLE, INSERT -- on or before ..............., ...%, and if
redeemed] during the 12-month period beginning ............. of the years
indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest instalments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND, INSERT -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[IF APPLICABLE, INSERT -- The Indenture contains provisions for defeasance
at any time of the entire indebtedness of this Security or certain restrictive
covenants and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- INSERt FORMULA FOR DETERMINING THE
AMOUNT. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of
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the Holders of the Securities of each series to be affected under the Indenture
at any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of all
series to be affected (considered together as one class for this purpose). The
Indenture also contains provisions (i) permitting the Holders of a majority in
principal amount of the Securities at the time Outstanding of all series to be
affected under the Indenture (considered together as one class for this
purpose), on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and (ii)
permitting the Holders of a majority in principal amount of the Securities at
the time Outstanding of any series to be affected under the Indenture (with each
such series considered separately for this purpose), on behalf of the Holders of
all Securities of such series, to waive certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture, or for the appointment of a receiver or trustee, or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
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The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security is a Global Security and is subject to the provisions of the
Indenture relating to Global Securities, including the limitations in Section
305 thereof on transfers and exchanges of Global Securities.
This Security and the Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. FORM OF LEGEND FOR GLOBAL SECURITIES.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
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SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
Dated:
The Chase Manhattan Bank
AS TRUSTEE
By..................................
AUTHORIZED SIGNATORY
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
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(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable and the manner in
which any payment may be made;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
any Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any multiple thereof, the
denominations in which any Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies, composite currency, composite currencies or currency
units in which the principal of or any premium or interest on any Securities
of the series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any purpose,
including for the purposes of making payment in the currency of the United
States of America and applying the definition of "Outstanding" in Section
101;
(12) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies, composite currencies or currency units
other than that or those in which such Securities are stated to be payable,
the currency, currencies, composite currency, composite currencies or
currency units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the periods
within which and the terms and conditions upon which such election is to be
made and the amount so payable (or the manner in which such amount shall be
determined);
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(13) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section
502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity
(or, in any such case, the manner in which such amount deemed to be the
principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303
or both such Sections, any provisions to permit a pledge of obligations other
than U.S. Government Obligations (or the establishment of other arrangements)
to satisfy the requirements of Section 1304(1) for defeasance of such
Securities and, if other than by a Board Resolution, the manner in which any
election by the Company to defease such Securities shall be evidenced;
(16) if applicable, that any Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in
addition to or in lieu of that set forth in Section 204, any addition to,
elimination of or other change in the circumstances set forth in Clause (2)
of the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a
nominee thereof and any other provisions governing exchanges or transfers of
any such Global Security;
(17) any addition to, elimination of or other change in the Events of
Default which applies to any Securities of the series and any change in the
right of the Trustee or the requisite Holders of such Securities to declare
the principal amount thereof due and payable pursuant to Section 502;
(18) any addition to, elimination of or other change in the covenants
set forth in Article Ten which applies to Securities of the series;
(19) any provisions necessary to permit or facilitate the issuance,
payment or conversion of any Securities of the series that may be converted
into securities or other property other than Securities of the same series
and of like tenor, whether in addition to, or in lieu of, any payment of
principal or other amount and whether at the option of the Company or
otherwise; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
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All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, one of its Vice Chairmen of the Board, its President or one of its
Sector Presidents or Vice President, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
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under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
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SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggre gate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, and subject
to such applicable provisions, if any, as may be specified as contemplated by
Section 301, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such Depositary has
notified the Company that it (i) is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing
agency registered under the Exchange Act, (B) there shall have occurred and
be continuing an Event of Default with respect to such Global Security or (C)
the Company has executed and delivered to the Trustee a Company Order stating
that such Global Security shall be exchanged in whole for Securities that are
not Global Securities (in which case such exchange shall promptly be effected
by the Trustee). If the Company receives a notice of the kind specified in
Clause (A) above or has delivered a Company Order of the kind specified in
Clause (C) above, it may, in its sole discretion, designate a successor
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Depositary for such Global Security within 60 days after receiving such
notice or delivery of such order, as the case may be. If the Company
designates a successor Depositary as aforesaid, such Global Security shall
promptly be exchanged in whole for one or more other Global Securities
registered in the name of the successor Depositary, whereupon such designated
successor shall be the Depositary for such successor Global Security or
Global Securities and the provisions of Clauses (1), (2), (3) and (4) of this
Section shall continue to apply thereto.
(3) Subject to Clause (2) above and to such applicable provisions, if
any, as may be specified as contemplated by Section 301, any exchange of a
Global Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion thereof
shall be registered in such names as the Depositary for such Global Security
shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
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Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section 301 with respect
to any Securities of a series, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest (or, if no business is conducted by the Trustee at its
Corporate Trust Office on such date, at 5:00 P.M. New York City time on such
date).
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
payable on any Securities of a series to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each of such Securities and the date of
the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to each Holder
of such Securities in the manner set forth in Section 106, not less than
10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest
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shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Securities of a series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Except as may otherwise be provided in this Section 307 or as contemplated
in Section 301 with respect to any Securities of a series, the Person to whom
interest shall be payable on any Security that first becomes payable on a day
that is not an Interest Payment Date shall be the Holder of such Security on the
day such interest is paid.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable. Notwithstanding the
foregoing, the terms of any Security that may be converted may provide that the
provisions of this paragraph do not apply, or apply with such additions, changes
or omissions as may be provided thereby, to such Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use CUSIP numbers (if then
generally in use) and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders, PROVIDED that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities. Any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of conversion, registration of transfer or
exchange of any Security expressly provided for herein or in the terms of such
Security), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
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(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securi ties which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date
of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the
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Trustee. All moneys deposited with the Trustee pursuant to Section 401 (and
held by it or any Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or compo sition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or
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liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of that
series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, in the case of any Security of that series which specifies an amount
to be due and payable thereon upon acceleration of the Maturity thereof, such
amount as may be specified by the terms thereof) to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in Section 501(5) or 501(6) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of
that series (or, in the case of any Security of that series which specifies an
amount to be due and payable thereon upon acceleration of the Maturity thereof,
such amount as may be specified by the terms thereof) shall automatically, and
without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a major-
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ity in principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
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If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; PROVIDED, HOWEVER,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
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SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securi ties of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to it against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under
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this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date), and, if the
terms of such Security so provide, to convert such Security in accordance with
its terms, and to institute suit for the enforcement of any such payment and, if
applicable, any such right to convert, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised
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from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, PROVIDED that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any
Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including reasonable attorneys' fees and expenses, against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
PROVIDED that neither this Section nor the Trust Indenture Act shall be deemed
to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the
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Company or, if applicable, in any suit for the enforcement of the right to
convert any Security in accordance with its terms.
SECTION 515. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by Section 315 of the Trust Indenture Act;
PROVIDED, HOWEVER, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
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SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee does not assume any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Authenticating Agent, Security
Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee for, and
to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any
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claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
SECTION 608. CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in the Borough of Manhattan, The City of New York. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 60 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
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If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
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SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
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No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to
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be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
....................................,
AS TRUSTEE
By..................................,
AS AUTHENTICATING AGENT
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By...................................
AUTHORIZED OFFICER
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than January 15 and July 15 in each
year, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of Securities of each series as
of the immediately preceding December 31 or June 30, as the case may
be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
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SECTION 703. REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange and
of any delisting thereof.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; PROVIDED that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lese its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States,
any State thereof or the District of Columbia and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the part of
the Company to be performed or observed and, for each Security
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that by its terms provides for conversion, shall have provided for the right
to convert such Security in accordance with its terms;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as
a result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a pledge, lien or other similar encumbrance which would not
be permitted by this Indenture, the Company or such successor Person, as the
case may be, shall take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or prior to) all indebtedness
secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default
are to be for the benefit of less than all series of Securities, stating that
such additional Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the issuance
of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, PROVIDED that any such
addition, change or elimination (A) shall neither (i) apply to any Security
of any series created prior to the execution of such supplemental indenture
and entitled to the benefit of such provision nor (ii) modify the rights of
the Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section
801(3) or Section 1005 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611; or
(9) to add to or change any of the provisions of this Indenture with
respect to any Securities that by their terms may be converted into
securities or other property other than Securities of the same series and of
like tenor, in order to permit or facilitate the issuance, payment or
conversion of such Securities; or
(10) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, PROVIDED that
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such action pursuant to this Clause (9) shall not adversely affect the
interests of the Holders of Securities of any series in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture
(considered together as one class for this purpose), by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; PROVIDED, HOWEVER, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any instalment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or permit the Company to redeem any Security if, absent such
supplemental indenture, the Company would not be permitted to do so, or
change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) if any Security provides that the Holder may require the Company to
repurchase or convert such Security, impair such Holder's right to require
repurchase or conversion of such Security on the terms provided therein, or
(3) reduce the percentage in principal amount of the Outstanding
Securities of any one or more series (considered separately or together as
one class, as applicable), the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(4) modify any of the provisions of this Section, Section 513 or Section
1010, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; PROVIDED,
HOWEVER, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1010, or the deletion of this
proviso, in accordance with the requirements of Sections 611 and 901(8).
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A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities may be surrendered
for conversion and where notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
With respect to any Global Security, and except as otherwise may be
specified for such Global Security as contemplated by Section 301, the Corporate
Trust Office of the Trustee shall be the Place of Payment where such Global
Security may be presented or surrendered for payment or for registration of
transfer or exchange, or where successor Securities may be delivered in exchange
therefor, PROVIDED, HOWEVER, that any such payment, presentation, surrender or
delivery effected pursuant to the Applicable Procedures of the Depositary for
such Global Security shall be deemed to have been effected at the Place of
Payment for such Global Security in accordance with the provisions of this
Indenture.
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SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit (or, if the
Company has deposited any trust funds with a trustee pursuant to Section
1304(1), cause such trustee to deposit) with a Paying Agent a sum sufficient to
pay such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may, at the expense of the Company, cause
to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of New York, notice that such money remains
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unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof (which, as of the
date hereof, is December 31), an Officers' Certificate, stating whether or not
to the best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
SECTION 1005. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries
taken as a whole.
SECTION 1006. MAINTENANCE OF PRINCIPAL DOMESTIC MANUFACTURING PROPERTIES.
The Company will cause all Principal Domestic Manufacturing Properties to
be maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
PROVIDED, HOWEVER, that nothing in this Section shall prevent or restrict the
sale, abandonment or other disposition of any of such properties if such action
is, in the judgment of the Company, desirable in the conduct of its business of
the Company and its Subsidiaries taken as a whole.
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge
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or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1008. LIMITATION ON LIENS.
The Company will not itself, and will not permit any Domestic Subsidiary to,
incur, issue, assume or guarantee any notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed (notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed being hereinafter in this
article called "Debt"), secured by pledge of, or mortgage or other lien on, any
Principal Domestic Manufacturing Property of the Company or any Domestic
Subsidiary or any shares of stock or Debt of any Domestic Subsidiary (pledges,
mortgages and other liens being hereinafter in this article called "Mortgage" or
"Mortgages"), without effectively providing that the Securities (together with,
if the Company shall so determine, any other Debt of the Company or such
Domestic Subsidiary then existing or thereafter created which is not subordinate
to the Securities) shall be secured equally and ratably with (or prior to) such
secured Debt (for the purpose of providing such equal and ratable security the
principal amount of the Securities shall mean and shall not be less than that
principal amount which could be declared to be due and payable pursuant to
Section 502 on the date of the making of such effective provision and the extent
of such equal and ratable security shall be adjusted, to the extent permitted by
law, as and when said principal amount changes over time pursuant to Section 502
and any other provision hereof), so long as such secured Debt shall be so
secured, unless, after giving effect thereto, the aggregate amount of all such
secured Debt would not exceed 10% of Consolidated Net Tangible Assets; PROVIDED,
HOWEVER, that this Section shall not apply to, and there shall be excluded from
secured debt in any computation under this Section, Debt secured by:
(1) Mortgages on property of, or on any shares of stock or Debt of, any
corporation existing at the time such corporation becomes a Domestic
Subsidiary or as of the date of first issuance by the Company of Securities
pursuant to this Indenture;
(2) Mortgages in favor of the Company or any Domestic Subsidiary;
(3) mechanic's liens, tax liens, Mortgages in favor of any governmental
body to secure progress, advance or other payments or the acquisition of real
or personal property from such governmental body pursuant to any contract or
provision of any statute, and other Mortgages incidental to construction, to
the conduct of business or to the ownership of property of the Company or any
Domestic Subsidiary which were not incurred in connection with the borrowing
of money or the obtaining of advances or credits or the acquisition of
property and do not in the aggregate materially impair the use of any
Principal Domestic Manufacturing Property for the purposes for which it is
held or which are being contested in good faith by the Company or such
Domestic Subsidiary;
(4) Mortgages on property, shares of stock or Debt existing at the time of
acquisition thereof (including acquisition through merger or consolidation)
or to secure the cost of acquiring, substantially repairing or altering,
constructing, developing or substantially improving all or any part of such
property or to secure Debt incurred to provide funds for
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any such purpose or for reimbursement of funds previously expended for any
such purpose, provided the commitment of the creditor to extend the credit
secured by any such mortgage shall have been obtained not later than 180 days
after the later of (a) the completion of the acquisition, substantial repair
or alteration, construction, development or substantial improvement of such
property or (b) the placing in operation of such property or of such property
as so substantially repaired or altered, constructed, developed or
substantially improved;
(5) Mortgages arising by reason of any judgment, decree or order of any
court, so long as any appropriate legal proceedings which may have been
initiated for the review of such judgment, decree or order shall not have
been finally terminated or so long as the period within which such
proceedings may be initiated shall not have expired; any deposit or pledge
with any surety company or clerk of any court, or in escrow, as collateral in
connection with, or in lieu of, any bond on appeal from any judgment or
decree against the Company or any Domestic Subsidiary, or in connection with
other proceedings or actions at law or in equity by or against the Company or
any Subsidiary; and
(6) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgage referred to
in the foregoing clauses (1) to (5), inclusive; PROVIDED that (i) such
extension, renewal or replacement Mortgage shall be limited to all or a part
of the same property, shares of stock or Debt that secured the Mortgage
extended, renewed or replaced (plus improvements on such property) and (ii)
the Debt secured by such Mortgage at such time is not increased.
SECTION 1009. LIMITATION ON SALES AND LEASEBACKS.
(a) The Company will not itself, and it will not permit any Domestic Subsidiary
to, enter into any arrangement with any bank, insurance company or other lender
or investor (not including the Company or any Domestic Subsidiary) or to which
any such lender or investor is a party, providing for the leasing by the Company
or any such Domestic Subsidiary for a period, including renewals, in excess of
three years of any Principal Domestic Manufacturing Property which has been or
is to be sold or transferred (except for any lease of property acquired after
the date of the initial issuance of Securities pursuant to this Indenture if the
rent payable by the Company or such Domestic Subsidiary thereunder is to be
reimbursed under a contract with the government of the United States or any
instrumentality or agency thereof), more than 180 days after the completion of
construction and commencement of full operation thereof, by the Company or any
such Domestic Subsidiary to such lender or investor or to any Person to whom
funds have been or are to be advanced by such lender or investor on the security
of such Principal Domestic Manufacturing Property (herein referred to as a "sale
or leaseback transaction") unless the Company, within 180 days after the sale or
transfer shall have been made by the Company or by any such Domestic Subsidiary,
applies an amount equal to the greater of (i) the net proceeds of the sale of
the Principal Domestic Manufacturing Property sold and leased back pursuant to
such arrangement or (ii) the fair market value of the Principal Domestic
Manufacturing Property so sold and leased back at the time of entering into such
arrangement (as determined by any two of the following: the Chairman of the
Board or any
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Vice Chairman of the Company, its President, any Sector President or Vice
President of the Company, its Treasurer and its Controller) to the retirement of
Funded Debt of the Company; PROVIDED, that the amount to be applied to the
retirement of Funded Debt of the Company shall be reduced by (a) the principal
amount at Stated Maturity of any Securities delivered within 180 days after such
sale to the Trustee for retirement and cancellation, and (b) the principal
amount of Funded Debt, other than Securities, voluntarily retired by the Company
within 180 days after such sale. Notwithstanding the foregoing, no retirement
referred to in this clause (2) may be effected by payment at maturity or
pursuant to any mandatory sinking fund payment or any mandatory prepayment
provision.
(b) Notwithstanding the provisions of Section 1009(a), the Company or any
Domestic Subsidiary may enter into a sale and leaseback transaction which would
otherwise be subject to the restrictions set forth in the provisions of Section
1009(a) so as to create an aggregate amount of Attributable Debt which, together
with all Attributable Debt outstanding pursuant to this Section 1009(b), does
not exceed 10% of Consolidated Net Tangible Assets.
SECTION 1010. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 301 for
Securities of a specific series, the Company may, with respect to the Securities
of any one or more series, omit in any particular instance to comply with any
term, provision or condition set forth in any covenant provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such series
or in any of Sections 1006 to 1009 inclusive if, before the time for such
compliance, the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such waiver (considered together as one
class for this purpose) shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
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SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be established
in or pursuant to a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities. In case of any redemption at
the election of the Company of less than all the Securities of any series
(including any such redemption affecting only a single Security), the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, PROVIDED that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Securities selected for redemption as aforesaid and, in case
of any Securities selected for partial redemption as aforesaid, the principal
amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
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For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 days nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers, if any) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting
of more than a single Security are to be redeemed, the identification (and,
in the case of partial redemption of any such Securities, the principal
amounts) of the particular Securities to be redeemed and, if less than all
the Outstanding Securities of any series consisting of a single Security are
to be redeemed, the principal amount of the particular Security to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for
payment of the Redemption Price,
(6) for any Securities that by their terms may be converted, the terms of
conversion, the date on which the right to convert the Security to be
redeemed will terminate and the place or places where such Securities may be
surrendered for conversion, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and
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hold in trust as provided in Section 1003) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date, other than any Securities called for redemption on that date which
have been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 307 or in the terms of such Security) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that, unless otherwise specified as
contemplated by Section 301, instalments of interest whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities is herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided for by the terms of
such Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been converted in accordance with their terms or which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to any Securities of
such series required to be made pursuant to the terms of such Securities as and
to the extent provided for by the terms of such Securities; PROVIDED that the
Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by
the Trustee at the Redemption Price, as specified in the Securities so to be
redeemed (or at such other prices as may be specified for such Securities as
contemplated in Section 301), for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the
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manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released
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from its obligations under Section 801(3) and Sections 1006 through 1009,
inclusive, and any covenants provided pursuant to Section 301(18), 901(2) or
901(7) for the benefit of the Holders of such Securities and (2) the occurrence
of any event specified in Sections 501(4) (with respect to any of Section 801(3)
and Sections 1006 through 1009, inclusive , and any such covenants provided
pursuant to Section 301(18), 901(2) or 901(7)) and 501(7) shall be deemed not to
be or result in an Event of Default, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Section 501(4)), whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case may
be:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) such other obligations or arrangements as
may be specified as contemplated by Section 301 with respect to such
Securities, or (D) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium
and interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Securities. As used
herein, "U.S. Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or (ii)
an obligation of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not callable
or redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on
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any U.S. Government Obligation which is so specified and held, PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there has
been a change in the applicable Federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to
be effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge were not to
occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Sections 501(5) and (6), at
any time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment
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Company Act unless such trust shall be registered under the Investment
Company Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
SECTION 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; PROVIDED, HOWEVER, that if the Company makes
any payment of principal of or any premium or
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interest on any such Security following such reinstatement of its obligations,
the Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
CORNING INCORPORATED
By...................................
Attest:
...................................
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By...................................
Attest:
...................................
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of Corning Incorporated, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
.....................................
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of
................................., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
.....................................
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TABLE OF CONTENTS
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PARTIES................................................................... 1
RECITALS OF THE COMPANY................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS ............................................... 1
Act ....................................................... 2
Affiliate ................................................. 2
Applicable Procedures ..................................... 2
Attributable Debt ......................................... 2
Authenticating Agent ...................................... 2
Board of Directors......................................... 2
Board Resolution .......................................... 3
Business Day .............................................. 3
Commission ................................................ 3
Company ................................................... 3
Company Request" or "Company Order ........................ 3
Consolidated Net Tangible Assets .......................... 3
Corporate Trust Office .................................... 3
corporation ............................................... 3
Covenant Defeasance ....................................... 3
Debt ...................................................... 3
Defaulted Interest ........................................ 4
Defeasance ................................................ 4
Depositary ................................................ 4
Domestic Subsidiary ....................................... 4
Event of Default .......................................... 4
Exchange Act .............................................. 4
Expiration Date ........................................... 4
Funded Debt ............................................... 4
Global Security ........................................... 4
Holder .................................................... 4
Indenture ................................................. 4
interest .................................................. 4
Interest Payment Date ..................................... 4
Investment Company Act .................................... 5
Maturity .................................................. 5
Mortgage .................................................. 5
Notice of Default ......................................... 5
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Officers' Certificate ...................................... 5
Opinion of Counsel ......................................... 5
Original Issue Discount Security ........................... 5
Outstanding ................................................ 5
Paying Agent ............................................... 6
Person ..................................................... 6
Place of Payment ........................................... 6
Predecessor Security ....................................... 6
Principal Domestic Manufacturing Property .................. 7
Redemption Date ............................................ 7
Redemption Price ........................................... 7
Regular Record Date ........................................ 7
Responsible Officer ........................................ 7
Securities ................................................. 7
Securities Act ............................................. 7
Security Register" and "Security Registrar ................. 7
Special Record Date ........................................ 7
Stated Maturity ............................................ 7
Subsidiary ................................................. 8
Trust Indenture Act ........................................ 8
Trustee .................................................... 8
U.S. Government Obligation ................................. 8
Vice President ............................................. 8
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS ....................... 8
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE ..................... 9
SECTION 104. ACTS OF HOLDERS; RECORD DATES .............................. 9
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY ...................... 11
SECTION 106. NOTICE TO HOLDERS; WAIVER .................................. 12
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT .......................... 12
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS ................... 12
SECTION 109. SUCCESSORS AND ASSIGNS ..................................... 12
SECTION 110. SEPARABILITY CLAUSE ........................................ 13
SECTION 111. BENEFITS OF INDENTURE ...................................... 13
SECTION 112. GOVERNING LAW .............................................. 13
SECTION 113. LEGAL HOLIDAYS ............................................. 13
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY ............................................ 13
SECTION 202. FORM OF FACE OF SECURITY ................................... 14
SECTION 203. FORM OF REVERSE OF SECURITY ................................ 16
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SECTION 204. FORM OF LEGEND FOR GLOBAL SECURITIES ....................... 19
SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION ............ 20
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES ....................... 20
SECTION 302. DENOMINATIONS .............................................. 23
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING ............. 23
SECTION 304. TEMPORARY SECURITIES ....................................... 24
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE ........ 25
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES ........... 27
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED ............. 28
SECTION 308. PERSONS DEEMED OWNERS ...................................... 29
SECTION 309. CANCELLATION ............................................... 29
SECTION 310. COMPUTATION OF INTEREST .................................... 30
SECTION 311. CUSIP NUMBERS. ............................................. 30
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE .................... 30
SECTION 402. APPLICATION OF TRUST MONEY ................................. 31
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT .......................................... 31
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT ......... 33
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE ................................................... 34
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM ........................... 34
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES ................................................ 35
SECTION 506. APPLICATION OF MONEY COLLECTED ............................. 35
SECTION 507. LIMITATION ON SUITS ........................................ 35
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST AND TO CONVERT ............................... 36
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES ......................... 36
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE ............................. 37
SECTION 511. DELAY OR OMISSION NOT WAIVER ............................... 37
SECTION 512. CONTROL BY HOLDERS ......................................... 37
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SECTION 513. WAIVER OF PAST DEFAULTS .................................... 37
SECTION 514. UNDERTAKING FOR COSTS ...................................... 38
SECTION 515. WAIVER OF USURY, STAY OR EXTENSION LAWS .................... 38
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES ........................ 38
SECTION 602. NOTICE OF DEFAULTS ......................................... 39
SECTION 603. CERTAIN RIGHTS OF TRUSTEE .................................. 39
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES ..... 40
SECTION 605. MAY HOLD SECURITIES ........................................ 40
SECTION 606. MONEY HELD IN TRUST ........................................ 40
SECTION 607. COMPENSATION AND REIMBURSEMENT ............................. 40
SECTION 608. CONFLICTING INTERESTS ...................................... 41
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY .................... 41
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR .......... 42
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR ..................... 43
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS .................................................. 44
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY .......... 44
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT ........................ 44
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS .. 46
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS ..... 47
SECTION 703. REPORTS BY TRUSTEE ......................................... 47
SECTION 704. REPORTS BY COMPANY ......................................... 47
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS ....... 48
SECTION 802. SUCCESSOR SUBSTITUTED ...................................... 49
ARTICLE NINE
SUPPLEMENTAL INDENTURES
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SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS ......... 49
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS ............ 50
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES ....................... 51
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES .......................... 51
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT ........................ 52
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES ......... 52
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST ................ 52
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY ........................... 52
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST ......... 53
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT ....................... 54
SECTION 1005. EXISTENCE ................................................. 54
SECTION 1006. MAINTENANCE OF PRINCIPAL DOMESTIC MANUFACTURING
PROPERTIES ............................................... 54
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS ......................... 55
SECTION 1008. LIMITATION ON LIENS ....................................... 55
SECTION 1009. LIMITATION ON SALES AND LEASEBACKS ........................ 56
SECTION 1010. WAIVER OF CERTAIN COVENANTS ............................... 57
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE .................................. 58
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE ..................... 58
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED ......... 58
SECTION 1104. NOTICE OF REDEMPTION ...................................... 59
SECTION 1105. DEPOSIT OF REDEMPTION PRICE ............................... 60
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE ..................... 60
SECTION 1107. SECURITIES REDEEMED IN PART ............................... 61
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE .................................. 61
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES ..... 61
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND ................. 62
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE ............................................... 62
SECTION 1302. DEFEASANCE AND DISCHARGE .................................. 62
SECTION 1303. COVENANT DEFEASANCE ....................................... 63
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE ........... 63
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; MISCELLANEOUS PROVISIONS........................ 65
SECTION 1306. REINSTATEMENT 65
TESTIMONIUM............................................................... 67
SIGNATURES AND SEALS...................................................... 67
ACKNOWLEDGEMENTS.......................................................... 68
</TABLE>
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<PAGE>
EXHIBIT 4.02
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Corning Finance B.V.
ISSUER
and
Corning Incorporated
GUARANTOR
TO
The Chase Manhattan Bank
TRUSTEE
--------------
INDENTURE
DATED AS OF JUNE __, 1999
--------------
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- --------------------------------------------------------------------------------
<PAGE>
CORNING INCORPORATED
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------- -----------------
<S> <C>
Section 310(a) (1) ........................................ 609
(a) (2) ........................................ 609
(a) (3) ........................................ Not Applicable
(a) (4) ........................................ Not Applicable
(b)............................................. 608
610
Section 311(a)............................................. 613
(b)............................................. 613
Section 312(a)............................................. 701
702
(b)............................................. 702
(c)............................................. 702
Section 313(a)............................................. 703
(b)............................................. 703
(c)............................................. 703
(d)............................................. 703
Section 314(a)............................................. 704
(a) (4)......................................... 101
1004
(b)............................................. Not Applicable
(c) (1)......................................... 102
(c) (2)......................................... 102
(c) (3)......................................... Not Applicable
(d)............................................. Not Applicable
(e) ............................................ 102
Section 315(a)............................................. 601
(b)............................................. 602
(c)............................................. 601
(d)............................................. 601
(e)............................................. 514
Section 316(a)............................................. 101
(a) (1)(A) ..................................... 502
512
(a) (1)(B) ..................................... 513
(a) (2)......................................... Not Applicable
(b)............................................. 508
(c)............................................. 104
Section 317(a) (1)......................................... 503
(a) (2)......................................... 504
(b)............................................. 1003
Section 318(a)............................................. 107
- -------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
</TABLE>
<PAGE>
INDENTURE, dated as of June __, 1999, among Corning Finance B.V., a
corporation duly organized and existing under the laws of The Netherlands
(herein called the "Company"), having its principal office at [address], Corning
Incorporated, a corporation duly organized and existing under the laws of the
State of New York (herein called the "Guarantor"), having its principal office
at One Riverfront Plaza, Corning, New York 14831 and The Chase Manhattan Bank,
a New York banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the Guarantee of the Securities provided for herein.
All things necessary to make this Indenture a valid agreement of the
Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
<PAGE>
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture;
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(6) when used with respect to any Security, the words "convert",
"converted" and "conversion" are intended to refer to the right of the
Holder or the Company to convert or exchange such Security into or for
securities or other property in accordance with such terms, if any, as may
hereafter be specified for such Security as contemplated by Section 301,
and these words are not intended to refer to any right of the Holder or
the Company to exchange such Security for other Securities of the same
series and like tenor pursuant to Section 304, 305, 306, 906 or 1107 or
another similar provision of this Indenture, unless the context otherwise
requires; and references herein to the terms of any Security that may be
converted mean such terms as may be specified for such Security as
contemplated in Section 301.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" has the meaning specified in Section 1011.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" of a Depositary means, with respect to any matter
at any time, the policies and procedures of such Depositary, if any, that are
applicable to such matter at such time.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof, discounted from the
respective due date thereof to such date at a rate of 15% per annum compounded
semi-annually. The net amount of rent required to be paid under any such lease
for any such period shall be the amount of the rent payable by the lessee with
respect to such period, after excluding amounts required to be paid on account
of
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<PAGE>
maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Company,
or the Guarantor, as the case may be, or any duly authorized committee of that
board.
"Board Resolution" when used with reference to the Company or the
Guarantor means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or the Guarantor, as applicable, to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions or trust companies in that Place of Payment are authorized
or obligated by law or executive order to close; PROVIDED that, when used with
respect to any Security, "Business Day" may have such other meaning, if any, as
may be specified for such Security as contemplated by Section 301.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company, by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Controller, an Assistant Controller, its Secretary
or an Assistant Secretary or by any two other officers of the Company designated
in writing by or pursuant to authority of the Board of Directors and delivered
to the Trustee from time to time.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities (excluding any thereof constituting Funded
Debt by reason of being renewable or extendible) and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent balance sheet of the Guarantor
and its consolidated subsidiaries and computed in accordance with generally
accepted accounting principles.
-3-
<PAGE>
"Corporate Trust Office" means the principal office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which at the date hereof is located at 450 West 33rd
Street, 15th Floor, New York, New York 10001.
"corporation" means a corporation, association, company (including a
limited liability company), joint-stock company, business trust or other similar
entity.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Debt" has the meaning specified in Section 1008.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
that is designated to act as Depositary for such Securities as contemplated by
Section 301.
"Domestic Subsidiary" means a Subsidiary, except a Subsidiary (a) which
neither transacts any substantial portion of its business nor regularly
maintains any substantial portion of its fixed assets within the States of the
United States, or (b) which is engaged primarily in financing the operations of
the Guarantor or its Subsidiaries, or both, outside the States of the United
States.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Funded Debt" means all indebtedness for money borrowed having a maturity
of more than 12 months from the date as of which the amount thereof is to be
determined or having a maturity of less than 12 months but by its terms being
renewable or extendible beyond 12 months from such date at the option of the
borrower.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Guarantee" means the guarantee by the Guarantor of any Security of any
series authenticated and delivered pursuant to this Indenture either (i) if
specified, as contemplated by Section 301, to be applicable to Securities of
such series and not endorsed on such Securities pursuant to Article Fourteen
hereof, or (ii) in all other cases, endorsed on such Security.
-4-
<PAGE>
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Intercompany Debtor" has the meaning specified in Section 1108.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" has the meaning specified in Section 1008.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President, a Sector President or a Vice
President, and by the Treasurer, an Assistant Treasurer, Controller, Assistant
Controller, the Secretary or an Assistant Secretary of the Company or the
Guarantor, as applicable, or by any two other officers of the Company or the
Guarantor, as applicable, designated in writing or pursuant to authority of the
Board of Directors and delivered to the Trustee from time to time. One of the
officers signing an Officers' Certificate given pursuant to Section 1004 shall
be the principal executive, financial or accounting officer of the Company or
the Guarantor, as applicable.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or the Guarantor, and who shall be acceptable to the
Trustee.
-5-
<PAGE>
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, EXCEPT:
(1) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or the Guarantor) in trust or set
aside and segregated in trust by the Company or the Guarantor (if the
Company or the Guarantor shall act as its own Paying Agent) for the
Holders of such Securities; PROVIDED that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satis factory to the Trustee has been
made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302;
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(5) Securities as to which any property deliverable upon conversion
thereof has been delivered (or such delivery has been duly provided for),
or as to which any other particular conditions have been satisfied, in
each case as may be provided for such Securities as contemplated in
Section 301;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original
Issue Discount Security which shall be deemed to be Outstanding shall be the
amount of the principal thereof which would be due and payable as of such
date upon acceleration of the Maturity thereof to such date pursuant to
Section 502, (B) if, as of such date, the principal amount payable at the
Stated Maturity of a Security is not determinable, the principal amount of
such Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the principal
amount of a Security denominated in one or more foreign currencies, composite
currencies or currency units which shall be deemed to be Outstanding shall be
the U.S. dollar equivalent, determined as of such date in the manner provided
as contemplated by Section 301, of the principal amount of such Security (or,
in the case of a Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Securities owned by the
Company or the Guarantor or any other obligor upon the Securities or any
Affiliate of the Company or the Guarantor or of such other
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<PAGE>
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or the
Guarantor or any other obligor upon the Securities or any Affiliate of the
Company or the Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series
and subject to Section 1002, means the place or places where the principal of
and any premium and interest on the Securities of that series are payable as
specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Domestic Manufacturing Property" means any building, structure
or other facility, together with the land upon which it is erected and fixtures
comprising a part thereof, used primarily for manufacturing or warehousing and
located in the United States, owned or leased by the Guarantor or any Subsidiary
of the Guarantor, the gross book value (without deduction of any depreciation
reserves) of which on the date as of which the determination is being made
exceeds 3% of Consolidated Net Tangible Assets, other than any such building,
structure or other facility or portion thereof (i) which is an air or water
pollution control facility or an industrial revenue project financed by
obligations issued by a State or local governmental unit pursuant to Section
103(b)(4)(F), 103(b)(4)(E) or 103(b)(6) of the Internal Revenue Code, or any
successor provision thereof, or (ii) which, in the opinion of the Board of
Directors of the Guarantor, is not of material importance to the total business
conducted by the Guarantor and its Subsidiaries as an entirety.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
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<PAGE>
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant treasurer, any trust officer or any other officer
of the Trustee, in each case, located in the Corporate Trust Office of the
Trustee, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a manufacturing corporation more than 80% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
and as in force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company, the Guarantor or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
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<PAGE>
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company or
the Guarantor shall furnish to the Trustee such certificates and opinions as may
be required under the Trust Indenture Act. Each such certificate or opinion
shall be given in the form of an Officers' Certificate, if to be given by an
officer of the Company or the Guarantor, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such exami nation or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of, or
representation by, counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company or the Guarantor stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantor, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
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<PAGE>
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company and
the Guarantor. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee, the Company and the Guarantor, if made in the manner provided in
this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved in any manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company or
the Guarantor in reliance thereon, whether or not notation of such action is
made upon such Security.
The Company or the Guarantor may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture
to be given, made or taken by Holders of Securities of such series, PROVIDED
that the Company or the Guarantor may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; PROVIDED that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Company or the Guarantor from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and
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<PAGE>
nothing in this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding Securities of
the relevant series on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Company or the Guarantor, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; PROVIDED that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's or Guarantor's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company or the Guarantor
in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; PROVIDED that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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SECTION 105. NOTICES, ETC., TO TRUSTEE, COMPANY AND GUARANTOR.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Capital Market Fiduciary Services, or
(2) the Company or the Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Company or the Guarantor, as applicable, addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for Notice of any event to a Holder of a
Global Security, such notice shall be sufficiently given if given to the
Depositary for such Security (or its designee), pursuant to its Applicable
Procedures, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice.
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SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company or the
Guarantor shall bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities or any
Guarantee shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining pro visions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or any Guarantee, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Hold ers, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture, the Securities and the Guarantee shall be governed by and
construed in accordance with the law of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Maturity
of any Security, or any date on which a Holder has the right to convert his
Security, shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically
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states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any), or conversion of such Security need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Maturity,
or on such date for conversion, as the case may be.
SECTION 114. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF
PROCESS.
The Company hereby appoints [CT Corporation System acting through its
office at 1633 Broadway, New York, New York] as its authorized agent (the
"Authorized Agent") upon which process may be served in any legal action or
proceeding against it with respect to its obligations under this Indenture or
the Securities of any series, instituted in any federal or state court in the
Borough of Manhattan, The City of New York by the Holder of any Security and
agrees that service of process upon such authorized agent, together with written
notice of said service to the Company by the Person serving the same addressed
as provided in Section 105, shall be deemed in every respect effective service
of process upon the Company, in any such legal action or proceeding, and the
Company hereby irrevocably submits to the non-exclusive jurisdiction of any such
court in respect of any such legal action or proceeding and waives any objection
it may have to the laying of the venue of any such legal action or proceeding.
Such appointment shall be irrevocable until all amounts in respect of the
principal of and any premium and interest due and to become due on or in respect
of all the Securities issued under this Indenture have been paid by the Company
or the Guarantor, as the case may be, to the Trustee pursuant to the terms
hereof, the Securities and the Guarantee. Notwithstanding the foregoing, the
Company reserves the right to appoint another Person located or with an office
in the Borough of Manhattan, The City of New York, selected in its discretion,
as a successor Authorized Agent, and upon acceptance of such appointment by such
a successor the appointment of the prior Authorized Agent shall terminate. The
Company shall give notice to the Trustee and all Holders of the appointment by
it of a successor Authorized Agent. If for any reason [CT Corporation System]
ceases to be able to act as the Authorized Agent or to have an address in the
Borough of Manhattan, The City of New York, the Company will appoint a successor
Authorized Agent in accordance with the preceding sentence. The Company further
agrees to take any and all action, including the filing of any and all documents
and instruments as may be necessary to continue such designation and appointment
of such agent in full force and effect until this Indenture has been satisfied
and discharged in accordance with Article Four or Article Thirteen hereof.
Service of process upon the Authorized Agent addressed to it at the address set
forth above, as such address may be changed within the Borough of Manhattan, The
City of New York by notice given by the Authorized Agent to the Trustee,
together with written notice of such service mailed or delivered to the Company
shall be deemed, in every respect, effective service of process on the Company.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
If Article Fourteen is to be applicable to Securities of any series,
established as contemplated by Section 301, then Securities of each such series
shall bear a Guarantee in substantially the form set forth in Section 206. For
any other series of Securities, the Guarantee shall be endorsed on the
Securities and shall be substantially in the form established by or pursuant to
Board Resolutions of the Guarantor in accordance with Section 301 or one or more
indentures supplemental hereto. Notwithstanding the foregoing the Guarantee or
the Guarantees to be endorsed on the Securities of any series may have such
appropriate insertions, omissions, substitutions and other corrections from the
forms thereof referred to above as are required or permitted by this Indenture
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the
rules of any securities exchange or as may, consistently herewith, be determined
by the Directors or officers delivering the same, in each case as evidenced by
such delivery.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
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SECTION 202. FORM OF FACE OF SECURITY.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
Corning Finance B.V.
.....................................
No. ......... $ ........
Corning Finance B.V., a corporation duly organized and existing under the
laws of The Netherlands (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ..........................................,
or registered assigns, the principal sum of ...................................
Dollars on ........................................................ [IF THE
SECURITY IS TO BEAR INTEREST PRIOR TO MATURITY, INSERT -- , and to pay interest
thereon from ............. or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on ............
and ............ in each year, commencing ........., and at the Maturity
thereof, at the rate of ....% per annum, until the principal hereof is paid or
made available for payment [IF APPLICABLE, INSERT -- , PROVIDED that any
principal and premium, and any such instalment of interest, which is overdue
shall bear interest at the rate of ...% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the ....... or .......
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest so payable, but not punctually paid or
duly provided for, on any Interest Payment Date will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid in any other lawful manner not inconsistent
with the requirements of any securities exchange on which this Security may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand.]
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<PAGE>
Payment of the principal of (and premium, if any) and [IF APPLICABLE,
INSERT -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in New York, New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, against surrender of this
Security in the case of any payment due at the Maturity of the principal thereof
(other than any payment of interest that first becomes payable on a day other
than an Interest Payment Date); PROVIDED, HOWEVER, that at the option of the
Company, payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register;
and PROVIDED, FURTHER, that if this Security is a Global Security, payment may
be made pursuant to the Applicable Procedures of the Depositary as permitted in
said Indenture.
All payments of, or in respect of, principal of and any premium and
interest on this Security, shall be made without withholding or deduction for,
or on account of, any present or future taxes, duties, assessments or
governmental charges of whatever nature imposed or levied by or on behalf of The
Netherlands or any political subdivision or taxing authority thereof or therein,
unless such taxes, duties, assessments or governmental charges are required by
The Netherlands or any such subdivision or authority to be withheld or deducted.
In that event, the Company will pay such Additional Amounts as will result
(after deduction of such taxes, duties, assessments or governmental charges and
any additional taxes, duties, assessments or governmental charges payable in
respect of such) in the payment to the Holder of this Security of the amounts
which would have been payable in respect of this Security had no such
withholding or deduction been required, subject to certain exceptions as set
forth in Article Ten of the Indenture.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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<PAGE>
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Corning Finance B.V.
By:
----------------------------------
Name:
Title:
Attest:
...................................
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of June __, 1999 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), among the Company, the Guarantor and The Chase Manhattan Bank, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Guarantor, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [IF APPLICABLE, INSERT -- , limited in aggregate principal
amount to $...........].
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' notice, at any
time [IF APPLICABLE, INSERT -- on or after .........., 20..], as a whole or in
part, at the election of the Company, at the following
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Redemption Prices (expressed as percentages of the principal amount): If
redeemed [IF APPLICABLE, INSERT -- on or before ..............., ...%, and if
redeemed] during the 12-month period beginning ............. of the years
indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest instalments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[IF APPLICABLE, INSERT -- This Security may be redeemed by the Company on
the terms set forth, and as more fully described, in the Indenture, in certain
circumstances where the Guarantor would be required to pay Additional Amounts in
respect hereof as a result of a change or amendment of any law, regulation or
published tax ruling of The Netherlands or of the applicable jurisdiction of any
Successor Person pursuant to Article Eight of the Indenture, or any political
subdivision or taxing authority thereof or therein, affecting taxation, or
change in the official administration, interpretation or application thereof, in
each case occurring after the issue date hereof or which change in such official
administration, interpretation or application shall not have been available to
the public prior to the issue date hereof, which change shall require the
Guarantor to pay Additional Amounts.]
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND, INSERT -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[IF APPLICABLE, INSERT -- The Indenture contains provisions for defeasance
at any time of the entire indebtedness of this Security or certain restrictive
covenants and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
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[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- INSERT FORMULA FOR DETERMINING THE
AMOUNT. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of all series to be
affected (considered together as one class for this purpose). The Indenture also
contains provisions (i) permitting the Holders of a majority in principal amount
of the Securities at the time Outstanding of all series to be affected under the
Indenture (considered together as one class for this purpose), on behalf of the
Holders of all Securities of such series, to waive compliance by the Company or
the Guarantor, or both, with certain provisions of the Indenture and (ii)
permitting the Holders of a majority in principal amount of the Securities at
the time Outstanding of any series to be affected under the Indenture (with each
such series considered separately for this purpose), on behalf of the Holders of
all Securities of such series, to waive certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture (including the Guarantee), or for the appointment of a
receiver or trustee, or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities of this series, the Holders of not less
than 25% in principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee indemnity reasonably satisfactory to it, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities of
this series at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and
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unconditional, to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company or the Guarantor, as the case may be, may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company, the Guarantor or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Security is a Global Security and is subject to the provisions of the
Indenture relating to Global Securities, including the limitations in Section
305 thereof on transfers and exchanges of Global Securities.
This Security, the Guarantee and the Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
All terms used in this Security and the Guarantee which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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SECTION 204. FORM OF LEGEND FOR GLOBAL SECURITIES.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
Dated:
The Chase Manhattan Bank
AS TRUSTEE
By.............................
AUTHORIZED SIGNATORY
SECTION 206. FORM OF GUARANTEE.
Corning Incorporated, a corporation duly organized and existing under the
laws of the State of New York (herein called the "Guarantor", which term
includes any successor Person under the Indenture (the "Indenture") referred to
in the Security on which this Guarantee is endorsed), has unconditionally
guaranteed, pursuant to the terms of the Guarantee contained in Article Fourteen
of the Indenture, the due and punctual payment of the principal of and any
premium and interest on such Security, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption or otherwise, in accordance with the terms of such Security and
the Indenture.
All payments pursuant to this Guarantee shall be made without withholding
or deduction for, or on account of, any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed or levied by or
on behalf of The Netherlands or the jurisdiction of organization of the
Successor Guarantor or any political
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<PAGE>
subdivision or taxing authority thereof or therein, unless such taxes, duties,
assessments or governmental charges are required by The Netherlands or such
other jurisdiction or any such subdivision or authority to be withheld or
deducted. In that event, the Guarantor will pay such Additional Amounts as will
result (after deduction of such taxes, duties, assessments or governmental
charges and any additional taxes, duties, assessments or governmental charges
payable in respect of such) in the payment to the Holder of the Security on
which this Guarantee is endorsed of the amounts which would have been payable in
respect of the Guarantee thereof had no such withholding or deduction been
required, subject to certain exceptions as set forth in Article 10 of the
Indenture.
Subject to certain limitations in the Indenture, at any time when the
Guarantor is not subject to Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), nor exempt from reporting requirements
pursuant to Rule 12g3-2(b) under the Exchange Act, upon the request of a Holder
of a Security or of a beneficial owner of an interest in a Global Security, the
Guarantor will promptly furnish or cause to be furnished Rule 144A Information
(as defined below) to such Holder or beneficial owner, or to a prospective
purchaser of a Security or a beneficial interest in a Global Security designated
by such Holder or beneficial owner of such interest in order to permit
compliance by such Holder or beneficial owner with Rule 144A under the
Securities Act of 1933 (the "Securities Act"). "Rule 144A Information" shall be
such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto).
The obligations of the Guarantor to the Holders of the Securities and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth
in Article Fourteen of the Indenture, and reference is hereby made to such
Article and Indenture for the precise terms of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Security upon which this Guarantee is
endorsed shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized signatories.
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly
executed under its corporate seal.
Dated:
CORNING INCORPORATED
By:_____________________________________
Name:
Title:
Attest:
...................................
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution of the Company and the
Guarantor and, subject to Section 303, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of
the series is payable;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest shall
be payable and the Regular Record Date for any such interest payable on
any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable and the manner
in which any payment may be made;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may
be redeemed, in whole or in part, at the option of the Company and, if
other than by a Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder
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thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any multiple thereof,
the denominations in which any Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(11) if other than the currency of the United States of America, the
currency, currencies, composite currency, composite currencies or currency
units in which the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of determining
the equivalent thereof in the currency of the United States of America for
any purpose, including for the purposes of making payment in the currency
of the United States of America and applying the definition of
"Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company,
the Guarantor or the Holder thereof, in one or more currencies, composite
currencies or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies, composite
currency, composite currencies or currency units in which the principal of
or any premium or interest on such Securities as to which such election is
made shall be payable, the periods within which and the terms and
conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion
of the principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date prior
to the Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(15) if the Securities will be entitled to the benefits of the
Guarantee afforded by Article Fourteen of the Indenture or, if not, the
form of the Guarantee to be endorsed on the Securities;
(16) if applicable, that the Securities of the series, in whole or
any specified part, shall be defeasible pursuant to Section 1302 or
Section 1303 or both such Sections, any
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provisions to permit a pledge of obligations other than U.S. Government
Obligations (or the establishment of other arrangements) to satisfy the
requirements of Section 1304(1) for defeasance of such Securities and, if
other than by a Board Resolution, the manner in which any election by the
Company to defease such Securities shall be evidenced;
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 204, any
addition to, elimination of or other change in the circumstances set forth
in Clause (2) of the last paragraph of Section 305 in which any such
Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof and any other
provisions governing exchanges or transfers of any such Global Security;
(18) any addition to, elimination of or other change in the Events
of Default which applies to any Securities of the series and any change in
the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to Section
502;
(19) any addition to, elimination of or other change in the
covenants set forth in Article Ten which applies to Securities of the
series;
(20) any provisions necessary to permit or facilitate the issuance,
payment or conversion of any Securities of the series that may be
converted into securities or other property other than Securities of the
same series and of like tenor, whether in addition to, or in lieu of, any
payment of principal or other amount and whether at the option of the
Company or otherwise; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
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SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any Guarantee to be endorsed on the Securities shall be
executed on behalf of the Company by its [name of officers] and on behalf of the
Guarantor by its Chairman of the Board, one of its Vice Chairmen of the Board,
its President or one of its Sector Presidents or Vice President, in either case
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities or any Guarantee, as the case may be, may be manual or facsimile. If
Article Fourteen is to be applicable to the Securities of any series,
established as contemplated by Section 301, then the Guarantee endorsed on the
Securities of such series shall be executed as provided in Section 1402.
Securities or any Guarantee bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company or the
Guarantor, as the case may be, shall bind the Company or the Guarantor, as the
case may be, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
Guarantee or did not hold such offices at the date of such Securities or the
Guarantee.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company bearing the Guarantee pursuant to Article Fourteen or having Guarantees
endorsed thereon, as applicable, in each case executed by the Guarantor, to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities or Guarantee has been established
by or pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities or Guarantees have been
established by or pursuant to Board Resolution as permitted by Section
301, that such terms have been established in conformity with the
provisions of this Indenture; and
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(3) that such Securities and the Guarantee(s) thereof, when such
Securities have been authenticated and delivered by the Trustee and issued
by the Company and the Guarantor in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company and the Guarantor,
respectively, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities, the Guarantees and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security or Guarantee shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security or Guarantee has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 309, for all purposes of this Indenture such Security and any Guarantee
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture (including, if
applicable, the Guarantee pursuant to Article Fourteen).
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute delivery of the Guarantee endorsed or noted
thereon on behalf of the Guarantor. The Guarantor by its execution of this
Indenture hereby authorizes the Company, in the name and on behalf of the
Guarantor, to confirm the applicable Guarantee to the Holder of each Security
authenticated and delivered hereunder by its execution and delivery of each such
Security, with such Guarantee noted or endorsed thereon, authenticated and
delivered by the Trustee. When delivered pursuant to the provisions of Section
303 hereof, only Guarantees endorsed or noted on the Securities shall bind the
Guarantor notwithstanding the fact that the Guarantee does not bear the
signature of the Guarantor.
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SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute and the Guarantor may execute, as applicable, the Guarantee
pursuant to Article Fourteen or the Guarantee endorsed on, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities or Guarantees or notations of the Guarantee pursuant to Article
Fourteen as applicable, may determine, as evidenced by their execution of such
Securities or Guarantees or notations, as the case may be.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute, and the Guarantor
shall execute, as applicable, the Guarantee pursuant to Article Fourteen or the
Guarantee endorsed on, and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of the same series, of any
authorized denominations and of like tenor and aggregate principal amount. Until
so exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Guarantor shall execute, as applicable, the
Guarantee pursuant to Article Fourteen or the Guarantee endorsed on, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount and with the
Guarantee pursuant to Article Fourteen or the Guarantee endorsed thereon.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate
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principal amount and with the Guarantee pursuant to Article Fourteen or the
Guarantee endorsed thereon, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Guarantor shall execute the Guarantee on, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities and the Guarantee shall be the valid obligations of the Company and
the Guarantor, respectively, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange and the Guarantee thereof.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Guarantor, as the case may be,
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 906 or
1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, and
subject to such applicable provisions, if any, as may be specified as
contemplated by Section 301, no Global Security may be exchanged in whole
or in part for Securities registered, and no transfer of a Global Security
in whole or in part may be registered, in the name of any Person other
than the Depositary for such Global Security or a nominee thereof unless
(A) such Depositary has notified the Company that it (i) is unwilling or
unable to continue as Depositary for such Global Security or (ii) has
ceased to be a clearing agency registered under the Exchange Act, (B)
there shall have occurred and be continuing an
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Event of Default with respect to such Global Security or (C) the Company
has executed and delivered to the Trustee a Company Order stating that
such Global Security shall be exchanged in whole for Securities that are
not Global Securities (in which case such exchange shall promptly be
effected by the Trustee). If the Company receives a notice of the kind
specified in Clause (A) above or has delivered a Company Order of the kind
specified in Clause (C) above, it may, in its sole discretion, designate a
successor Depositary for such Global Security within 60 days after
receiving such notice or delivery of such order, as the case may be. If
the Company designates a successor Depositary as aforesaid, such Global
Security shall promptly be exchanged in whole for one or more other Global
Securities registered in the name of the successor Depositary, whereupon
such designated successor shall be the Depositary for such successor
Global Security or Global Securities and the provisions of Clauses (1),
(2), (3) and (4) of this Section shall continue to apply thereto.
(3) Subject to Clause (2) above and to such applicable provisions,
if any, as may be specified as contemplated by Section 301, any exchange
of a Global Security for other Securities may be made in whole or in part,
and all Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906
or 1107 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a
nominee thereof.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Guarantor shall execute, as applicable, the Guarantee pursuant
to Article Fourteen or the Guarantee endorsed on, and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount, having the Guarantee pursuant to Article
Fourteen or the Guarantee endorsed thereon, as applicable, and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company, the Guarantor or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Guarantor
shall execute, as applicable, the Guarantee pursuant to Article Fourteen or the
Guarantee endorsed on, and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount, having the Guarantee pursuant to
Article Fourteen or the Guarantee endorsed thereon, as applicable, and bearing a
number not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security, and the Guarantee thereof, shall
constitute an original additional contractual obligation of the Company or the
Guarantor, as the case may be, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities and Guarantees of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section 301 with respect
to any Securities of a series, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest (or, if no business is conducted by the Trustee at its
Corporate Trust Office on such date, at 5:00 P.M. New York City time on such
date).
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company or the Guarantor, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company or the Guarantor may elect to make payment of any
Defaulted Interest payable on any Securities of a series to the Persons in
whose names such Securities (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company or the Guarantor shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each of such
Securities and the date of the proposed payment, and at the same time the
Company or the Guarantor shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon
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the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company or the Guarantor of
such Special Record Date and, in the name and at the expense of the
Company or the Guarantor, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be given
to each Holder of such Securities in the manner set forth in Section 106,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company or the Guarantor may make payment of any Defaulted
Interest on any Securities of a series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company or the Guarantor to
the Trustee of the proposed payment pursuant to this Clause, such manner
of payment shall be deemed practicable by the Trustee.
Except as may otherwise be provided in this Section 307 or as contemplated
in Section 301 with respect to any Securities of a series, the Person to whom
interest shall be payable on any Security that first becomes payable on a day
that is not an Interest Payment Date shall be the Holder of such Security on the
day such interest is paid.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable. Notwithstanding the
foregoing, the terms of any Security that may be converted may provide that the
provisions of this paragraph do not apply, or apply with such additions, changes
or omissions as may be provided thereby, to such Security.
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SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
and any premium and (subject to Section 307) any interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any agent of the Company,
the Guarantor or the Trustee shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly canceled by it. The Company or the
Guarantor may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company or the
Guarantor may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be dis posed of as directed by a Company Order.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use CUSIP numbers (if then
generally in use) and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders, PROVIDED that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities. Any such redemption shall not be affected by any defect in or
omission of such numbers.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of conversion, registration of transfer or
exchange of any Security expressly provided for herein or in the terms of such
Security), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company or the Guarantor and
thereafter repaid to the Company or the Guarantor, as the case may be, or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company or the Guarantor, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose money in an amount sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal
and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company or the Guarantor has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 607,
the obligations of the Company to any Authenticating Agent under Section 614,
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Trustee under Section
402, any rights to Additional Amounts pursuant to Section 1011 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company or the Guarantor acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such money has been deposited with the
Trustee. All moneys deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest (including any Additional
Amount) upon any Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of
Securities
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other than that series), or, as the case may require, the Guarantee, and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or the Guarantor in
an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company or the Guarantor a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or the Guarantor under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or the Guarantor or
of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(6) the commencement by the Company or the Guarantor of a voluntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it
to the entry of a decree or order for relief in respect of the Company or
the Guarantor in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company
or the Guarantor or of any substantial part of its property, or the making
by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or the Guarantor in
furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities
of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount of all the Securities
of that series (or, in the case of any Security of that series which specifies
an amount to be due and payable thereon upon acceleration of the Maturity
thereof, such amount as may be specified by the terms thereof) to be due and
payable immediately,
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by a notice in writing to the Company and the Guarantor (and to the Trustee if
given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable. If an Event of
Default specified in Section 501(5) or 501(6) with respect to Securities of any
series at the time Outstanding occurs, the principal amount of all the
Securities of that series (or, in the case of any Security of that series which
specifies an amount to be due and payable thereon upon acceleration of the
Maturity thereof, such amount as may be specified by the terms thereof) shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company, the
Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company and the Guarantor covenant that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company and the Guarantor will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of col-
lection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company or the
Guarantor (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such
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proceeding; PROVIDED, HOWEVER, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities or
the Guarantee may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the Guarantee thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security pursuant to the terms thereof or the Guarantee thereof
(and any Additional Amounts) on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date), and, if
the terms of such Security so provide, to convert such Security in accordance
with its terms, and to institute suit for the enforcement of any such payment
and, if applicable, any such right to convert, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy
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herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, PROVIDED that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture;
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but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including reasonable attorneys' fees and expenses, against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
PROVIDED that neither this Section nor the Trust Indenture Act shall be deemed
to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or, if applicable, in any suit
for the enforcement of the right to convert any Security in accordance with its
terms.
SECTION 515. WAIVER OF USURY, STAY OR EXTENSION LAWS.
Each of the Company and the Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
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SECTION 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by Section 315 of the Trust Indenture Act;
PROVIDED, HOWEVER, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the
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books, records and premises of the Company or the Guarantor, personally or
by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
or the Guarantor, and neither the Trustee nor any Authenticating Agent assume
any responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities or the
Guarantees. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Trustee, the Company or the Guarantor, in
its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the
Company and the Guarantor with the same rights it would have if it were not
Trustee, Paying Agent, Authenticating Agent, Security Registrar or such other
agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company or the Guarantor, as the case may be.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the
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Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
In the event the Company fails to make any such payments, the Guarantor
agrees to make such payments on its behalf which agreement shall survive the
resignation or removal of any Trustee and the satisfaction and discharge of this
Indenture.
SECTION 608. CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in the Borough of Manhattan, The City of New York. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
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The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company and the
Guarantor. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 60 days after
the giving of such notice of resignation, the resigning Trustee may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company and the Guarantor.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or the Guarantor or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company or the Guarantor by a Board Resolution
may remove the Trustee with respect to all Securities, or (B) subject to Section
514, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company and the
Guarantor, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of
Section 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the Guarantor and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed
by the Company and the Guarantor. If no successor Trustee with respect to the
Securities of any series shall have been so appointed
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by the Company and the Guarantor or the Holders and accepted appointment in
the manner required by Section 611, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and the Guarantor and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company, the Guarantor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with
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respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company, the Guarantor or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and the Guarantor
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company or
the Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company or the Guarantor (or any such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include
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authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and the Guarantor and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company and the Guarantor. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company and the
Guarantor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and the Guarantor and shall give notice of such appointment in the
manner provided in Section 106 to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
...............................,
AS TRUSTEE
By.............................,
AS AUTHENTICATING AGENT
By..............................
AUTHORIZED OFFICER
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY AND GUARANTOR TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company and the Guarantor will furnish or cause to be furnished to the
Trustee
(1) semi-annually, not later than January 15 and July 15 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as of the
immediately preceding December 31 or June 30, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company, or the Guarantor, as the
case may be, of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in
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its capacity as Security Registrar. The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities or the Guarantee, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company, the Guarantor and the Trustee that none of the Company, the
Guarantor, the Trustee, or any agent of either of them shall be held accountable
by reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange and
of any delisting thereof.
SECTION 704. REPORTS BY COMPANY AND GUARANTOR.
The Company and the Guarantor shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
PROVIDED that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY OR GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
Neither the Company nor the Guarantor shall consolidate with or merge into
any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and neither the Company nor the
Guarantor shall permit any Person to
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consolidate with or merge into the Company or the Guarantor or convey, transfer
or lease its properties and assets substantially as an entirety to the Company
or the Guarantor, unless:
(1) in case the Company or the Guarantor shall consolidate with or
merge into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed by
such consolidation or into which the Company or the Guarantor is merged or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company or the Guarantor substantially as an
entirety shall be a corporation, partnership or trust, shall be organized
and validly existing, in the case of the Guarantor, under the laws of the
United States, any State thereof or the District of Columbia and, in the
case of the Company, under the laws of any jurisdiction, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, in the case
of the Company, the due and punctual payment of the principal of and any
premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company
to be performed or observed, and, in the case of the Guarantor, the due
and punctual performance of the Guarantee (including any obligation to pay
any Additional Amounts) and the performance or observance of every
covenant of this Indenture on the part of the Guarantor to be performed or
observed, and, for each Security that by its terms provides for
conversion, shall have provided for the right to convert such Security in
accordance with its terms;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or the
Guarantor or any Subsidiary as a result of such transaction as having been
incurred by the Company or the Guarantor or such Subsidiary at the time of
such transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a pledge, lien or other similar encumbrance which would
not be permitted by this Indenture, the Company or such successor Person,
as the case may be, shall take such steps as shall be necessary effec-
tively to secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby;
(4) any Person formed by the consolidation with the Company or into
which the Company is merged or which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company, substantially
as an entirety and which is not organized and validly existing under the
laws of the United States, any State thereof or the District of Columbia
shall expressly agree, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, to
indemnify the Holder of each Security against (A) any Additional Amounts
imposed on such Holder or required to be withheld or deducted from any
payment to such Holder as a consequence of such consolidation, merger,
conveyance, transfer or lease, and (B) any costs or expenses of the act of
such consolidation, merger, conveyance, transfer or lease; and
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(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company or the Guarantor with, or merger of
the Company or the Guarantor into, any other Person or any conveyance, transfer
or lease of the properties and assets of the Company or the Guarantor
substantially as an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company or the Guarantor
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company or the Guarantor under this Indenture with the same effect as if such
successor Person had been named as the Company or the Guarantor herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities or the Guarantees, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Guarantor, when
authorized by a Board Resolution of the Company and the Guarantor, as
applicable, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company or
the Guarantor and the assumption by any such successor of the covenants of
the Company or the Guarantor herein and in the Securities and any
Guarantee; or
(2) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company or the Guarantor; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are expressly
being included solely for the benefit of such series); or
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(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, PROVIDED that
any such addition, change or elimination (A) shall neither (i) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the Holder of any such Security with respect to
such provision or (B) shall become effective only when there is no such
Security Outstanding; or
(6) to secure the Securities or the Guarantee pursuant to the
requirements of Section 801(3) or Section 1005 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611; or
(9) to add to or change any of the provisions of this Indenture with
respect to any Securities that by their terms may be converted into
securities or other property other than Securities of the same series and
of like tenor, in order to permit or facilitate the issuance, payment or
conversion of such Securities; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, PROVIDED that such action pursuant
to this Clause (10) shall not adversely affect the interests of the
Holders of Securities of any series in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture
(considered together as one class for this purpose), by Act of said Holders
delivered to the Company, the Guarantor and the Trustee, the Company and the
Guarantor, when authorized by a Board Resolution of the Company and the
Guarantor, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; PROVIDED, HOWEVER, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
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(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or change any obligation of the
Company or the Guarantor to pay any Additional Amounts or reduce the
amount of the principal of an Original Issue Discount Security or any
other Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or permit
the Company to redeem any Security if, absent such supplemental indenture,
the Company would not be permitted to do so, or change any Place of
Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) if any Security provides that the Holder may require the Company
to repurchase or convert such Security, impair such Holder's right to
require repurchase or conversion of such Security on the terms provided
therein, or
(3) reduce the percentage in principal amount of the Outstanding
Securities of any one or more series (considered separately or together as
one class, as applicable), the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; PROVIDED, HOWEVER, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1010, or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(8), or
(5) change in any manner adverse to the interests of the Holders of
Securities of any series the terms and conditions of the obligations of
the Guarantor in respect of the due and punctual payment of the principal
thereof and any premium and interest thereon (and any Additional Amounts
in respect thereof) or any sinking fund payments provided in respect
thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company and the
Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company and the Guarantor, to any
such supplemental indenture may be prepared and executed by the Company, the
Guarantees endorsed thereon may be prepared and executed by the Guarantor and
such Securities may be authenticated and delivered by the Trustee in exchange
for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
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The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities may be surrendered
for conversion and where notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Guarantor will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment pursuant to any Guarantee and where notices and
demands to or upon the Guarantor in respect of any Guarantee and this Indenture
may be served. The Guarantor will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Guarantor shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Guarantor hereby appoints the Trustee as
its agent to receive all such presentations, surrenders and demands.
The Guarantor may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for such purpose or where such notices or demands may be served
and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Guarantor of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Guarantor will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
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With respect to any Global Security, and except as otherwise may be
specified for such Global Security as contemplated by Section 301, the Corporate
Trust Office of the Trustee shall be the Place of Payment where such Global
Security may be presented or surrendered for payment or for registration of
transfer or exchange, or where successor Securities may be delivered in exchange
therefor, PROVIDED, HOWEVER, that any such payment, presentation, surrender or
delivery effected pursuant to the Applicable Procedures of the Depositary for
such Global Security shall be deemed to have been effected at the Place of
Payment for such Global Security in accordance with the provisions of this
Indenture.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company or the Guarantor shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due
date of the principal of or any premium or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit (or, if the
Company has deposited any trust funds with a trustee pursuant to Section
1304(1), cause such trustee to deposit) with a Paying Agent a sum sufficient to
pay such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company or the Guarantor (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities or any Guarantee of that series, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company or the Guarantor, in trust for the payment of the principal of or
any premium or interest on any Security of any series and remaining unclaimed
for two years after such
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principal, premium, interest or Additional Amounts has become due and payable
shall be paid to the Company or the Guarantor on Company Request, or (if then
held by the Company or the Guarantor) shall be discharged from such trust; and
the Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company or the Guarantor for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee or such Paying Agent, before being required to make
any such repayment, may, at the expense of the Company or the Guarantor, cause
to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company or the Guarantor.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
Each of the Company and the Guarantor will deliver to the Trustee, within
120 days after the end of each fiscal year of the Guarantor ending after the
date hereof (which, as of the date hereof, is December 31), an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company or the Guarantor, as the case may be, is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company or the Guarantor shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
SECTION 1005. EXISTENCE.
Subject to Article Eight, each of the Company and the Guarantor will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; PROVIDED,
HOWEVER, that neither the Company nor the Guarantor shall be required to
preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Guarantor and its Subsidiaries taken as a whole, or of the
Company, as the case may be.
SECTION 1006. MAINTENANCE OF PRINCIPAL DOMESTIC MANUFACTURING PROPERTIES.
The Guarantor each will cause all Principal Domestic Manufacturing
Properties to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Guarantor, as the case may be, may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that nothing in this
Section shall prevent or restrict the sale, abandonment or other disposition of
any of such properties if such action is, in the judgment of the Guarantor,
desirable in the conduct of its business.
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SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company and the Guarantor each will pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Guarantor or the
Company or any Subsidiary or upon the income, profits or property of the
Guarantor or the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; PROVIDED, HOWEVER, that the Company
or the Guarantor, as the case may be, shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1008. LIMITATION ON LIENS.
The Guarantor will not itself, and will not permit any Domestic Subsidiary
to, incur, issue, assume or guarantee any notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed (notes, bonds, debentures
or other similar evidences of indebtedness for money borrowed being hereinafter
in this article called "Debt"), secured by pledge of, or mortgage or other lien
on, any Principal Domestic Manufacturing Property of the Guarantor or any
Domestic Subsidiary or any shares of stock or Debt of any Domestic Subsidiary
(pledges, mortgages and other liens being hereinafter in this article called
"Mortgage" or "Mortgages"), without effectively providing that the Securities
(together with, if the Guarantor shall so determine, any other Debt of the
Guarantor or such Domestic Subsidiary then existing or thereafter created which
is not subordinate to the Securities) shall be secured equally and ratably with
(or prior to) such secured Debt (for the purpose of providing such equal and
ratable security the principal amount of the Securities shall mean and shall not
be less than that principal amount which could be declared to be due and payable
pursuant to Section 502 on the date of the making of such effective provision
and the extent of such equal and ratable security shall be adjusted, to the
extent permitted by law, as and when said principal amount changes over time
pursuant to Section 502 and any other provision hereof), so long as such secured
Debt shall be so secured, unless, after giving effect thereto, the aggregate
amount of all such secured Debt would not exceed 10% of Consolidated Net
Tangible Assets; PROVIDED, HOWEVER, that this Section shall not apply to, and
there shall be excluded from secured debt in any computation under this Section,
Debt secured by:
(1) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a Domestic
Subsidiary or as of the date of first issuance by the Guarantor of
Securities pursuant to this Indenture;
(2) Mortgages in favor of the Guarantor or any Domestic Subsidiary;
(3) mechanic's liens, tax liens, Mortgages in favor of any
governmental body to secure progress, advance or other payments or the
acquisition of real or personal property from such governmental body
pursuant to any contract or provision of any statute, and other Mortgages
incidental to construction, to the conduct of business or to the ownership
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of property of the Guarantor or any Domestic Subsidiary which were not
incurred in connection with the borrowing of money or the obtaining of
advances or credits or the acquisition of property and do not in the
aggregate materially impair the use of any Principal Domestic
Manufacturing Property for the purposes for which it is held or which are
being contested in good faith by the Guarantor or such Domestic
Subsidiary;
(4) Mortgages on property, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the cost of acquiring, substantially repairing
or altering, constructing, developing or substantially improving all or
any part of such property or to secure Debt incurred to provide funds for
any such purpose or for reimbursement of funds previously expended for any
such purpose, provided the commitment of the creditor to extend the credit
secured by any such mortgage shall have been obtained not later than 180
days after the later of (a) the completion of the acquisition, substantial
repair or alteration, construction, development or substantial improvement
of such property or (b) the placing in operation of such property or of
such property as so substantially repaired or altered, constructed,
developed or substantially improved;
(5) Mortgages arising by reason of any judgment, decree or order of
any court, so long as any appropriate legal proceedings which may have
been initiated for the review of such judgment, decree or order shall not
have been finally terminated or so long as the period within which such
proceedings may be initiated shall not have expired; any deposit or pledge
with any surety company or clerk of any court, or in escrow, as collateral
in connection with, or in lieu of, any bond on appeal from any judgment or
decree against the Guarantor or any Domestic Subsidiary, or in connection
with other proceedings or actions at law or in equity by or against the
Guarantor or any Subsidiary; and
(6) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgage referred
to in the foregoing clauses (1) to (5), inclusive; PROVIDED that (i) such
extension, renewal or replacement Mortgage shall be limited to all or a
part of the same property, shares of stock or Debt that secured the
Mortgage extended, renewed or replaced (plus improvements on such
property) and (ii) the Debt secured by such Mortgage at such time is not
increased.
SECTION 1009. LIMITATION ON SALES AND LEASEBACKS.
(a) The Guarantor will not itself, and it will not permit any Domestic
Subsidiary to, enter into any arrangement with any bank, insurance company or
other lender or investor (not including the Guarantor or any Domestic
Subsidiary) or to which any such lender or investor is a party, providing for
the leasing by the Guarantor or any such Domestic Subsidiary for a period,
including renewals, in excess of three years of any Principal Domestic
Manufacturing Property which has been or is to be sold or transferred (except
for any lease of property acquired after the date of the initial issuance of
Securities pursuant to this Indenture if the rent payable by the Guarantor or
such Domestic Subsidiary thereunder is to be reimbursed under a contract with
the government of the United States or any instrumentality or agency thereof),
more than 180 days after the completion of construction and commencement of full
operation thereof, by the Guarantor or any such Domestic Subsidiary to such
lender or investor or to any Person to whom funds have been or are to be
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advanced by such lender or investor on the security of such Principal Domestic
Manufacturing Property (herein referred to as a "sale or leaseback transaction")
unless the Guarantor, within 180 days after the sale or transfer shall have been
made by the Guarantor or by any such Domestic Subsidiary, applies an amount
equal to the greater of (i) the net proceeds of the sale of the Principal
Domestic Manufacturing Property sold and leased back pursuant to such
arrangement or (ii) the fair market value of the Principal Domestic
Manufacturing Property so sold and leased back at the time of entering into such
arrangement (as determined by any two of the following: the Chairman of the
Board or any Vice Chairman of the Company, its President, any Sector President
or Vice President of the Company, its Treasurer and its Controller) to the
retirement of Funded Debt of the Guarantor; PROVIDED, that the amount to be
applied to the retirement of Funded Debt of the Guarantor shall be reduced by
(a) the principal amount at Stated Maturity of any Securities delivered within
180 days after such sale to the Trustee for retirement and cancellation, and (b)
the principal amount of Funded Debt, other than Securities, voluntarily retired
by the Guarantor within 180 days after such sale. Notwithstanding the foregoing,
no retirement referred to in this clause (2) may be effected by payment at
maturity or pursuant to any mandatory sinking fund payment or any mandatory
prepayment provision.
(b) Notwithstanding the provisions of Section 1009(a), the Guarantor or any
Domestic Subsidiary may enter into a sale and leaseback transaction which would
otherwise be subject to the restrictions set forth in the provisions of Section
1009(a) so as to create an aggregate amount of Attributable Debt which, together
with all Attributable Debt outstanding pursuant to this Section 1009(b), does
not exceed 10% of Consolidated Net Tangible Assets.
SECTION 1010. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 301 for
Securities of a specific series, the Company and the Guarantor may, with respect
to the Securities of any one or more series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided
pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the Holders of
such series or in any of Sections 1006 to 1009 inclusive if, before the time for
such compliance, the Holders of a majority in principal amount of the
Outstanding Securities of all series affected by such waiver (considered
together as one class for this purpose) shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
Guarantor and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
SECTION 1011. ADDITIONAL AMOUNTS
All payments of, or in respect of, principal of and any premium and
interest on the Securities, and all payments pursuant to any Guarantee, shall be
made without withholding or deduction for, or on account of, any present or
future taxes, duties, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of The Netherlands or any political
subdivision or taxing authority thereof or therein, unless such taxes, duties,
assessments or governmental charges are required by The Netherlands or any such
subdivision or authority to be withheld or deducted. In that event, the Company
or the
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Guarantor, as applicable, will pay such additional amounts of, or in respect of,
principal and any premium and interest ("Additional Amounts") as will result
(after deduction of such taxes, duties, assessments or governmental charges and
any additional taxes, duties, assessments or governmental charges payable in
respect of such) in the payment to each Holder of a Security of the amounts
which would have been payable in respect of such Security or the Guarantee
thereof, as the case may be, had no such withholding or deduction been required,
except that no Additional Amounts shall be so payable for or on account of:
(1) any tax, duty, assessment or other governmental charge imposed
by the United States or any political subdivision or taxing authority
thereof or therein;
(2) any tax, duty, assessment or other governmental charge which
would not have been imposed but for (A) the existence of any present or
former connection between such Holder (or between a fiduciary, settlor,
beneficiary, member, shareholder or possessor of a power over such Holder,
if such Holder is an estate, trust, partnership or corporation) and The
Netherlands, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder or possessor) being
or having been a citizen, national or resident thereof, or being or having
been engaged in business or present therein or having or having had a
permanent establishment therein, but not including the mere holding or
ownership of a debt security, or the collection of principal of and
interest on, or the enforcement of, a debt security, or (B) the
presentation of such Security or the Guarantee thereof for payment more
than 30 days after the date on which such payment became due or was
provided for, whichever is later;
(3) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge or any other tax,
assessment or other governmental charge which is payable otherwise than by
withholding or deduction from payments of (or in respect of) principal of
or any premium or interest on the Securities or the Guarantee(s) thereof;
(4) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder or the
beneficial owner of a Security with a request of the Company or the
Guarantor addressed to the Holder (A) to provide information concerning
the nationality, residence or identity of the Holder or such beneficial
owner or (B) to make any declaration or other similar claim or satisfy any
information or reporting requirement, which, in the case of (A) or (B), is
required or imposed by statute, treaty, regulation or administrative
practice of the taxing jurisdiction as a precondition to exemption from
all or part of such tax, assessment or other governmental charge; or
(5) any combination of items (1), (2), (3) and (4).
Additionally, Additional Amounts shall not be paid with respect to any
payment in respect of any Security to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent such payment would be required by the laws of The Netherlands (or any
political subdivision or taxing authority thereof or therein) to be included in
the income for tax purposes of a beneficiary or settlor with respect to such
fiduciary or a member of such partnership or a beneficial owner who would not
have been entitled to such additional amounts had it been the Holder of such
Security.
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Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of or any premium or interest on, or in respect of, any
Security of any series (or any payments pursuant to the Guarantee thereof) such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for in this Section to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to the
provisions of this Section and express mention of the payment of Additional
Amounts in any provisions hereof shall not be construed as excluding Additional
Amounts in those provisions hereof where such express mention is not made.
The provisions of this Section 1011 shall apply mutatis mutandis to any
withholding or deduction for or on account of any present or future taxes,
assessments or governmental charges of whatever nature of any jurisdiction in
which any successor Person to the Company is organized, or any political
subdivision or taxing authority thereof or therein.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be established
in or pursuant to a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities. In case of any redemption at
the election of the Company of less than all the Securities of any series
(including any such redemption affecting only a single Security), the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities
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of such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of a portion of the principal amount of any Security of such
series, PROVIDED that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Securities selected for redemption as aforesaid and, in case
of any Securities selected for partial redemption as aforesaid, the principal
amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 days nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers, if any) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to
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be redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount
of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price,
(6) for any Securities that by their terms may be converted, the
terms of conversion, the date on which the right to convert the Security
to be redeemed will terminate and the place or places where such
Securities may be surrendered for conversion, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date, other than any Securities called for
redemption on that date which have been converted prior to the date of such
deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 307 or in the terms of such Security) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that, unless otherwise specified as
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contemplated by Section 301, instalments of interest whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, the Guarantor shall
execute the Guarantee pursuant to Article Fourteen or the Guarantee endorsed on,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 1108. OPTIONAL REDEMPTION DUE TO CHANGES IN TAX TREATMENT.
Each series of Securities may be redeemed at the option of the Company or
the Guarantor (or their successors) in whole but not in part at any time (except
in the case of Securities that have a variable rate of interest, which may be
redeemed on any Interest Payment Date) at a Redemption Price equal to the
principal amount thereof plus accrued interest to the date fixed for redemption
(except in the case of Outstanding Original Issue Discount Securities which may
be redeemed at the Redemption Price specified by the terms of such series of
Securities) if, (i) the Company is or would be required to pay Additional
Amounts as a result of any change in or amendment to the laws or any regulations
or rulings promulgated thereunder of The Netherlands (or in the case of a
successor Person to the Company, of the jurisdiction in which such successor
Person is organized or any political subdivision or taxing authority thereof or
therein) or any change in the official application or interpretation of such
laws, regulations or rulings, or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties
affecting taxation to which The Netherlands (or such other jurisdiction or
political subdivision or taxing authority) is a party,
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which change, execution or amendment becomes effective on or after the date of
issuance of such series pursuant to Section 301(7) (or in the case of a
successor Person to the Company, the date on which such successor Person became
such or in the case of an assumption by the Guarantor or its Subsidiaries of
obligations of the Company under the Securities, the date of such assumption),
or (ii) as a result of any change in the official application or interpretation
of, or any execution of or amendment to, any treaty or treaties affecting
taxation to which The Netherlands (or in the case of a successor Person to the
Company, to which the jurisdiction in which such successor Person is organized
or any political subdivision or taxing authority thereof or therein) is a party,
which change, execution or amendment becomes effective on or afer a date on
which the Guarantor or any of its Subsidiaries (an "Intercompany Debtor")
borrows money from the Company, the Intercompany Debtor is or would be required
to deduct or withhold tax on any payment to the Company to enable the Company to
make any payment of principal, premium, if any, or interest, and the payment of
such Additional Amounts, in the case of clause (i) or such deductions or
withholding, in the case of clause (ii) cannot be avoided by the use of any
reasonable measures available to the Company, the Guarantor or the Intercompany
Debtor. Prior to the giving of notice of redemption of such Securities pursuant
to this Indenture, the Company will deliver to the Trustee an Officers'
Certificate, stating that the Company is entitled to effect such redemption and
setting forth in reasonable detail a statement of circumstances showing that the
conditions precedent to the right of the Company to redeem such Securities
pursuant to this Section have been satisfied.
Further, if, pursuant to Section 801(4) of this Indenture, a Person into
which the Company is merged or to whom the Company has conveyed, transferred or
leased its properties or assets has been or would be required to pay any
Additional Amounts as therein provided, each series of Securities may be
redeemed at the option of such Person in whole, but not in part, at any time
(except in the case of Securities that have a variable rate of interest, which
may be redeemed on any Interest Payment Date), at a redemption price equal to
the principal amount thereof plus accrued interest to the date fixed for
redemption (except in the case of Outstanding Original Issue Discount Securities
which may be redeemed at the Redemption Price specified by the terms of such
series of Securities). Prior to the giving of notice of redemption of such
Securities pursuant to this Indenture, such Person shall deliver to the Trustee
an Officers' Certificate, stating that such Person is entitled to effect such
redemption and setting forth in reasonable detail a statement of circumstances
showing that the conditions precedent to the right of such Person to redeem such
Securities pursuant to this Section have been satisfied.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities is herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided for by the terms of
such Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
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SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been converted in accordance with their terms or which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to any Securities of
such series required to be made pursuant to the terms of such Securities as and
to the extent provided for by the terms of such Securities; PROVIDED that the
Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by
the Trustee at the Redemption Price, as specified in the Securities so to be
redeemed (or at such other prices as may be specified for such Securities as
contemplated in Section 301), for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company and the Guarantor may elect, at their option at any time, to
have Section 1302 or Section 1303 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 301 as being
defeasible pursuant to such Section 1302 or 1303, in accordance with any
applicable requirements provided pursuant to Section 301 and upon compliance
with the conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities.
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SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the exercise of their option (if any) to have this Section applied to
any Securities or any series of Securities, as the case may be, the Company and
the Guarantor shall be deemed to have been discharged from their respective
obligations with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Company and the Guarantor shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of such Securities to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments
in respect of the principal of and any premium and interest on such Securities
when payments are due, (2) the Company's and the Guarantor's obligations with
respect to such Securities under Sections 304, 305, 306, 1002, 1003 and 1011 (to
the extent then unknown), (3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (4) this Article. Subject to compliance with this
Article, the Company or the Guarantor may exercise its option (if any) to have
this Section applied to any Securities notwithstanding the prior exercise of its
option (if any) to have Section 1303 applied to such Securities.
SECTION 1303. COVENANT DEFEASANCE.
Upon the exercise of the option (if any) of the Company and the Guarantor
to have this Section applied to any Securities or any series of Securities, as
the case may be, (1) the Company and the Guarantor shall be released from their
respective obligations under Section 801(3) and Sections 1006 through 1009,
inclusive, and any covenants provided pursuant to Section 301(18), 901(2) or
901(7) for the benefit of the Holders of such Securities and (2) the occurrence
of any event specified in Section 501(4) (with respect to any of Section 801(3)
and Sections 1006 through 1009, inclusive , and any such covenants provided
pursuant to Section 301(18), 901(2) or 901(7)) and 501(7) shall be deemed not to
be or result in an Event of Default, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Section 501(4)), whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
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SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case may
be:
(1) The Company or the Guarantor shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Article applicable to it) as trust
funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefits of the Holders of such Securities, (A) money in an amount, or (B)
U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (C) such other obligations or arrangements as may
be specified as contemplated by Section 301 with respect to such
Securities, or (D) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and any
premium and interest (and any Additional Amounts then known) on such
Securities and any Additional Amounts then known thereon on the respective
Stated Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means (x) any
security which is (i) a direct obligation of the United States of America
for the payment of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which,
in either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified in Clause (x)
above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal
of or interest on any U.S. Government Obligation which is so specified and
held, PROVIDED that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company or the Guarantor has received from, or there
has been published by, the Internal Revenue Service a ruling or (B) since
the date of this instrument, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the effect that, and
based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes
as a result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be the
case if such deposit, Defeasance and discharge were not to occur.
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(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company or the Guarantor shall have delivered to the Trustee
an Officers' Certificate to the effect that neither such Securities nor
any other Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(5) and
(6), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning
of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company or the Guarantor is a party or by which
it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under the Investment Company Act or exempt from registration
thereunder.
(9) The Company or the Guarantor shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company or the
Guarantor
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acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
The Company or the Guarantor, as the case may be, shall pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against
the U.S. Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company or the Guarantor, as the case may be, from
time to time upon Company Request any money or U.S. Government Obligations held
by it as provided in Section 1304 with respect to any Securities which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.
SECTION 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company and the Guarantor, have
been discharged or released pursuant to Section 1302 or 1303 shall be revived
and reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with respect
to such Securities in accordance with this Article; PROVIDED, HOWEVER, that if
the Company or the Guarantor makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its obligations,
the Company or the Guarantor shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in
trust.
ARTICLE FOURTEEN
GUARANTEE OF SECURITIES
SECTION 1401. GUARANTEE
This Section 1401 and Section 1402 applies to the Securities of any series
to the extent that the form of the Guarantee to be endorsed on such Securities
is not otherwise established as contemplated by Section 301.
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The Guarantor hereby unconditionally guarantees to each Holder of a
Security of each series authenticated and delivered by the Trustee the due and
punctual payment of the principal (including any amount due in respect of
original issue discount) of and any premium and interest on such Security, and
the due and punctual payment of any sinking fund payments provided for pursuant
to the terms of such Security, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption or otherwise, in accordance with the terms of such Security and
of this Indenture. The Guarantor hereby agrees that its obligations hereunder
shall be as if it were a principal debtor and not merely a surety, and shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any Security of any series or
this Indenture, any failure to enforce the provisions of any Security of any
series or this Indenture, any waiver, modification or indulgence granted to the
Company with respect thereto, by the Holder of any Security of any series or the
Trustee, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or guarantor; PROVIDED, HOWEVER, that,
notwithstanding the foregoing, no such waiver, modification or indulgence shall,
without the consent of the Guarantor, increase the principal amount of a
Security or the interest rate thereon or increase any premium payable upon
redemption thereof. The Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a proceeding first against the Company, the
benefit of discussion, protest or notice with respect to any Security or the
indebtedness evidenced thereby or with respect of any sinking fund payment
required pursuant to the terms of a Security issued under this Indenture and all
demands whatsoever, and covenants that this Guarantee will not be discharged
with respect to any Security except by payment in full of the principal thereof
and any premium and interest thereon or as provided in Article Four, Section 802
or Article Thirteen. The Guarantor further agrees that, as between the
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
the Maturity of the obligations guaranteed hereby may be accelerated as provided
in Article Five hereof for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby.
The Guarantor shall be subrogated to all rights of each Holder of
Securities against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; PROVIDED, HOWEVER,
that the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of
and any premium and interest on all the Securities of the same series and of
like tenor shall have been paid in full.
No past, present or future stockholder, officer, director, employee or
incorporator of the Guarantor shall have any personal liability under the
Guarantee set forth in this Section 1401 by reason of his or its status as such
stockholder, officer, director, employee or incorporator.
The Guarantee set forth in this Section 1401 shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by or on behalf of the
Trustee.
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SECTION 1402. EXECUTION OF GUARANTEE
To evidence its guarantee to the Holders specified in Section 1401, the
Guarantor hereby agrees to execute the Guarantee in substantially the form set
forth in Section 206 to be endorsed on each Security authenticated and delivered
by the Trustee. The Guarantor hereby agrees that its Guarantee set forth in
Section 1401 shall remain in full force and effect notwithstanding any failure
to endorse on each Security such Guarantee. Each such Guarantee shall be signed
on behalf of the Guarantor, by its Chairman of the Board, one of its Vice
Chairmen of the Board, its President or one of its Sector Presidents or Vice
Presidents, prior to the authentication of the Security on which it is endorsed,
and the delivery of such Security by the Trustee, after the due authentication
thereof by the Trustee hereunder, shall constitute due delivery of the Guarantee
on behalf of the Guarantor. Such signatures upon the Guarantee may be manual or
facsimile signatures of any present, past or future such officers and may be
imprinted or otherwise reproduced below the Guarantee, and in case any such
officer who shall have signed the Guarantee shall cease to hold such offices
before the Security on which such Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed the Guarantee had not ceased to hold such office of
the Guarantor.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
CORNING FINANCE B.V.
By...................................
Attest:
...................................
CORNING INCORPORATED
By ____________________________
Attest:
...................................
THE CHASE MANHATTAN BANK
By...................................
Attest:
...................................
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of Corning Finance B.V, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
.............................
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of Corning Incorporated, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
.............................
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of The Chase Manhattan Bank, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
.............................
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TABLE OF CONTENTS
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PARTIES ............................................................... 1
RECITALS OF THE COMPANY................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions........................................... 1
Act ............................................. 2
Additional Amounts.................................... 2
Affiliate............................................. 2
Applicable Procedures................................. 2
Attributable Debt..................................... 2
Authenticating Agent.................................. 3
Board of Directors.................................... 3
Board Resolution...................................... 3
Business Day.......................................... 3
Commission............................................ 3
Company ............................................. 3
Company Request or Company Order...................... 3
Consolidated Net Tangible Assets...................... 3
Corporate Trust Office................................ 4
corporation........................................... 4
Covenant Defeasance................................... 4
Debt ............................................. 4
Defaulted Interest.................................... 4
Defeasance............................................ 4
Depositary............................................ 4
Domestic Subsidiary................................... 4
Event of Default...................................... 4
Exchange Act.......................................... 4
Expiration Date....................................... 4
Funded Debt........................................... 4
Global Security....................................... 4
Guarantee............................................. 4
Guarantor............................................. 5
Holder ............................................. 5
Indenture............................................. 5
Intercompany Debtor................................... 5
interest ............................................. 5
Interest Payment Date................................. 5
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Investment Company Act................................ 5
Maturity ............................................. 5
Mortgage ............................................. 5
Notice of Default..................................... 5
Officers' Certificate................................. 5
Opinion of Counsel.................................... 5
Original Issue Discount Security...................... 6
Outstanding........................................... 6
Paying Agent.......................................... 7
Person ............................................. 7
Place of Payment...................................... 7
Predecessor Security.................................. 7
Principal Domestic Manufacturing Property............. 7
Redemption Date....................................... 7
Redemption Price...................................... 7
Regular Record Date................................... 8
Responsible Officer................................... 8
Securities............................................ 8
Securities Act........................................ 8
Security Register" and "Security Registrar............ 8
Special Record Date................................... 8
Stated Maturity....................................... 8
Subsidiary............................................ 8
Trust Indenture Act................................... 8
Trustee ............................................. 8
U.S. Government Obligation............................ 8
Vice President........................................ 8
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.................. 9
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE................ 9
SECTION 104. ACTS OF HOLDERS; RECORD DATES......................... 10
SECTION 105. NOTICES, ETC., TO TRUSTEE, COMPANY AND GUARANTOR...... 12
SECTION 106. NOTICE TO HOLDERS; WAIVER............................. 12
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT..................... 13
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.............. 13
SECTION 109. SUCCESSORS AND ASSIGNS................................ 13
SECTION 110. SEPARABILITY CLAUSE................................... 13
SECTION 111. BENEFITS OF INDENTURE................................. 13
SECTION 112. GOVERNING LAW......................................... 13
SECTION 113. LEGAL HOLIDAYS........................................ 13
SECTION 114. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT
FOR SERVICE OF PROCESS................................ 14
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY....................................... 15
SECTION 202. FORM OF FACE OF SECURITY.............................. 16
SECTION 203. FORM OF REVERSE OF SECURITY........................... 18
SECTION 204. FORM OF LEGEND FOR GLOBAL SECURITIES.................. 22
SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION....... 22
SECTION 206. FORM OF GUARANTEE..................................... 22
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.................. 24
SECTION 302. DENOMINATIONS......................................... 27
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING........ 27
SECTION 304. TEMPORARY SECURITIES.................................. 29
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE... 29
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES...... 31
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED........ 32
SECTION 308. PERSONS DEEMED OWNERS................................. 34
SECTION 309. CANCELLATION.......................................... 34
SECTION 310. COMPUTATION OF INTEREST............................... 34
SECTION 311. CUSIP NUMBERS......................................... 34
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE............... 35
SECTION 402. APPLICATION OF TRUST MONEY............................ 36
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT..................................... 36
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.... 37
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE........................................... 39
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM...................... 39
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES........................................... 40
SECTION 506. APPLICATION OF MONEY COLLECTED........................ 40
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SECTION 507. LIMITATION ON SUITS................................... 40
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST AND TO CONVERT................... 41
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.................... 41
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE........................ 41
SECTION 511. DELAY OR OMISSION NOT WAIVER.......................... 42
SECTION 512. CONTROL BY HOLDERS.................................... 42
SECTION 513. WAIVER OF PAST DEFAULTS............................... 42
SECTION 514. UNDERTAKING FOR COSTS................................. 43
SECTION 515. WAIVER OF USURY, STAY OR EXTENSION LAWS............... 43
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES................... 43
SECTION 602. NOTICE OF DEFAULTS.................................... 44
SECTION 603. CERTAIN RIGHTS OF TRUSTEE............................. 44
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES .......................................... 45
SECTION 605. MAY HOLD SECURITIES................................... 45
SECTION 606. MONEY HELD IN TRUST................................... 45
SECTION 607. COMPENSATION AND REIMBURSEMENT........................ 45
SECTION 608. CONFLICTING INTERESTS................................. 46
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY............... 46
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..... 47
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................ 48
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS............................................. 49
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..... 49
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT................... 50
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY AND GUARANTOR TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS ............................... 51
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.............................................. 52
SECTION 703. REPORTS BY TRUSTEE.................................... 52
SECTION 704. REPORTS BY COMPANY AND GUARANTOR...................... 52
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY OR GUARANTOR MAY CONSOLIDATE, ETC.,
ONLY ON CERTAIN TERMS................................. 53
SECTION 802. SUCCESSOR SUBSTITUTED................................. 54
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.... 54
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS....... 56
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.................. 57
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES..................... 57
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT................... 57
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.... 57
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST............ 58
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY....................... 58
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST..... 59
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT................... 60
SECTION 1005. EXISTENCE............................................. 60
SECTION 1006. MAINTENANCE OF PRINCIPAL DOMESTIC MANUFACTURING
PROPERTIES............................................ 61
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS...................... 61
SECTION 1008. LIMITATION ON LIENS.................................... 61
SECTION 1009. LIMITATION ON SALES AND LEASEBACKS..................... 63
SECTION 1010. WAIVER OF CERTAIN COVENANTS............................ 63
SECTION 1011. ADDITIONAL AMOUNTS..................................... 64
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE............................... 65
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.................. 65
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED...... 66
</TABLE>
-v-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 1104. NOTICE OF REDEMPTION................................... 67
SECTION 1105. DEPOSIT OF REDEMPTION PRICE............................ 67
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.................. 68
SECTION 1107. SECURITIES REDEEMED IN PART............................ 68
SECTION 1108. OPTIONAL REDEMPTION DUE TO CHANGES IN TAX TREATMENT.... 68
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE............................... 70
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.. 70
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.............. 70
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE............................................ 71
SECTION 1302. DEFEASANCE AND DISCHARGE............................... 71
SECTION 1303. COVENANT DEFEASANCE.................................... 72
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE........ 72
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; MISCELLANEOUS PROVISIONS............... 74
SECTION 1306. REINSTATEMENT.......................................... 74
ARTICLE FOURTEEN
GUARANTEE OF SECURITIES
SECTION 1401. GUARANTEE .............................................. 75
SECTION 1402. EXECUTION OF GUARANTEE.................................... 76
TESTIMONIUM ....................................................... 79
SIGNATURES AND SEALS..................................................... 79
ACKNOWLEDGEMENTS......................................................... 80
</TABLE>
-vi-
<PAGE>
Exhibit 5.01
Corning Incorporated William D. Eggers
One Riverfront Plaza Senior Vice President
Corning, New York 14831 and General Counsel
June 22, 1999
To the Board of Directors
Corning Incorporated
Ladies and Gentlemen:
As General Counsel of Corning Incorporated (the "Company"), I am furnishing
this opinion in connection with the Registration Statement (the "Registration
Statement") on Form S-3 being filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended, with respect
to the proposed offering from time to time of up to $2,000,000,000 aggregate
amount of (i) the Company's debt securities (the "Debt Securities"), (ii) shares
of the Company's Preferred Stock, par value $100 per share (the "Preferred
Shares"), which may be represented by depositary shares (the "Depositary
Shares"), (iii) shares of the Company's Common Stock, par value $.50 per
share (the "Common Shares"), (iv) warrants to purchase Debt Securities,
Preferred Shares or Common Shares (the "Warrants"), (v) the guaranteed debt
securities ("Guaranteed Debt Securities") of Corning Finance B.V., an
indirect wholly-owned subsidiary of the Company, and (vi) the guarantee by
the Company of any Guaranteed Debt Securities issued by Corning Finance B.V.
pursuant to a Guarantee Agreement to be executed by the Company (the
"Guarantees"). The Warrants, the Debt Securities, the Preferred Shares, the
Depositary Shares, the Common Shares and the Guarantees are collectively
referred to as the "Securities." Any Debt Securities and Preferred Shares may
be convertible into or exchangeable for Common Shares or other Securities.
The Debt Securities will be issued in one or more series pursuant to an
Indenture (the "Indenture") dated as of June , 1999 between the Company and
The Chase Manhattan Bank (the "Trustee"). The Guaranteed Debt Securities will
be issued in one or more series pursuant to an Indenture (the "B.V.
Indenture") dated as of June , 1999 among Corning Finance B.V., The Chase
Manhattan Bank (the "Trustee") and Corning Incorporated. The Warrants will be
issued under one or more warrant agreements (each, a "Warrant Agreement") to
be entered into between the Company and a financial institution identified
therein as warrant agent (each, a "Warrant Agent"). The Depositary Shares
will be issued under one or more deposit agreements (each, a "Deposit
Agreement") to be entered into between the Company and a financial
institution identified therein as depositary (each, a "Depositary").
I have examined the resolutions of the Board of Directors of the Company
(the "Resolutions") authorizing the issuance, offering and sale of the
Securities. I have also examined the originals, or copies identified to my
satisfaction, of such corporate records of the Company and Corning Finance
B.V., respectively; such other agreements and instruments, certificates of
public officials and officers of the Company and Corning Finance B.V. and
other persons; and such other documents as I have deemed necessary as a basis
for the opinions hereinafter expressed.
Based on the foregoing, and having regard for such legal considerations
as I have deemed relevant, I am of the opinion that:
1. The Indenture, when duly authorized, executed and delivered by the
Company, assuming due authorization, execution and delivery thereof by the
Trustee, will constitute a legally binding instrument of the Company
enforceable against the Company in accordance with its terms.
2. The B.V. Indenture, when duly authorized, executed and delivered by
Corning Finance B.V., assuming due authorization, execution and delivery
thereof by the Trustee, will constitute a legally
<PAGE>
-2-
binding instrument of Corning Finance B.V. enforceable against Corning
Finance B.V. in accordance with its terms.
3. The Debt Securities (including Debt Securities issuable upon
conversion of or exchange for any Security or upon exercise of any Warrant)
have been duly authorized and, when the final terms thereof have been duly
established and approved, when duly executed by the Company, in each case
pursuant to the authority granted in the Resolutions, when executed and
authenticated in accordance with the Indenture and when delivered and paid
for, will constitute legal, valid and binding obligations of the Company.
4. The Preferred Shares (including Preferred Shares issuable upon
conversion of or exchange for any Security), which may be represented by
Depositary Shares, have been duly authorized and, when the final terms
thereof have been duly established and approved, certificates representing
such Preferred Shares have been duly executed by the Company, in each case
pursuant to the authority granted in the Resolutions, and when such
certificates have been delivered and paid for, such shares will be legally
issued, fully paid and non-assessable.
5. The Deposit Agreements, when duly authorized and when executed and
delivered by the Company and assuming due authorization, execution and
delivery thereof by the applicable Depositary, will constitute legal, valid
and binding instruments of the Company enforceable against the Company in
accordance with their respective terms.
6. The Common Shares (including Common Shares issuable upon conversion
of or exchange for any Security) have been duly authorized and, when issued
and delivered pursuant to the authority granted in the Resolutions and paid
for, will be legally issued, fully paid and non-assessable.
7. The Warrant Agreements, when duly authorized and when executed and
delivered by the Company and assuming due authorization, execution and
delivery thereof by the applicable Warrant Agent, will constitute legally
binding instruments of the Company enforceable against the Company in
accordance with their respective terms.
8. The Warrants have been duly authorized and, when the final terms
thereof have been duly established and approved, certificates representing
such Warrants have been duly executed by the Company, in each case pursuant to
the authority granted in the Resolutions, and when executed, countersigned in
accordance with the applicable Warrant Agreement and when delivered and paid
for, will constitute legal, valid and binding obligations of the Company.
9. The Guaranteed Debt Securities, when duly executed and authenticated
in accordance with the B.V. Indenture and when delivered and paid for, will
have been duly authorized by, and will constitute legal, valid and binding
obligations of, Corning Finance B.V.
10. The Guarantees, when executed and delivered by the Company, will
have been duly authorized and will constitute legally binding instruments of
the Company enforceable against the Company in accordance with their respective
terms.
<PAGE>
-3-
The opinions set forth above are subject, as to enforcement, to (i)
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights generally, and
(ii) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of my name under the heading "Validity
of Securities" in the related prospectus.
Very truly yours,
/s/ William D. Eggers
<PAGE>
Exhibit 12.01
CORNING INCORPORATED AND SUBSIDIARY COMPANIES
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED DIVIDENDS
(Dollars in millions, except ratios)
<TABLE>
<CAPTION>
Quarter Ended Fiscal Year Ended
------------------------------- -----------------------------------------
March 31, March 31, Dec. 31, Dec. 31, Dec. 31, Dec. 31, Jan. 1,
1999 1998 1998 1997 1996 1995 1995
------- ------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Income before taxes on income Adjustments: ..... $ 111.2 $ 64.5 $ 439.6 $ 629.2 $ 455.9 $ 389.4 $ 286.3
Share of earnings (losses) before taxes
of 50% owned companies .................... 23.9 27.1 173.3 111.5 130.3 95.2 89.0
Gain (loss) before taxes of greater
than 50% owned unconsolidated
subsidiary ............................... 0.7 (3.1) (4.0)
Distributed income of less than 50%
owned companies and share of loss if
debt is guaranteed ........................ 0.0 0.1 2.1
Amortization of capitalized interest ........ 3.8 3.6 14.4 16.6 11.8 9.6 13.3
Fixed charges of net of capitalized
interest .................................. 32.9 34.5 126.8 141.9 105.9 82.6 128.8
------- ------- -------- -------- -------- -------- --------
Earnings before taxes and fixed charges
as adjusted .................................. 171.8 129.8 754.1 899.2 704.6 573.7 515.5
------- ------- -------- -------- -------- -------- --------
------- ------- -------- -------- -------- -------- --------
Fixed charges:
Interest incurred ........................... 29.3 27.3 103.5 96.7 73.6 65.4 64.9
Share of interest incurred of 50% owned
companies and interest on guaranteed
debt of less than 50% owned companies ..... 9.6 10.2 45.4 51.0 38.7 10.2 60.8
Interest incurred by greater than 50%
owned unconsolidated subsidiary ........... 0.0 0.0 0.0 0.0 0.0 0.7 0.8
Portion of rent expense which represents
interest factor .............................. 4.9 5.3 18.0 15.9 12.1 13.3 10.8
Share of portion of rent expense which
represents interest factor for 50% owned
companies ................................... 1.4 1.6 5.0 3.8 1.4 2.7 9.4
Portion of rent expense which represents
interest factor for greater than 50%
owned unconsolidated subsidiary ............. 0.1
Amortization of debt costs ..................... 0.7 0.7 2.9 1.6 2.2 (0.1) 0.6
------- ------- -------- -------- -------- -------- --------
Total fixed charges ............................ 45.9 45.1 174.8 169.0 128.0 92.2 147.4
Capitalized interest ........................... (13.0) (10.6) (48.0) (27.1) (22.1) (9.6) (18.6)
------- ------- -------- -------- -------- -------- --------
Total fixed charges net of capitalized
interest ..................................... 32.9 34.5 126.8 141.9 105.9 82.6 128.8
------- ------- -------- -------- -------- -------- --------
------- ------- -------- -------- -------- -------- --------
Preferred dividends:
Preferred dividend requirement .............. 2.6 3.8 15.3 15.3 15.7 15.7 8.2
Ratio of pre-tax income to income before
minority interest and equity earnings ..... 1.4 1.5 1.4 1.5 1.5 1.4 1.4
------- ------- -------- -------- -------- -------- --------
Pre-tax preferred dividend requirement ...... 3.6 5.7 21.4 23.0 23.6 22.0 11.5
Total fixed charges ............................ 45.9 45.1 174.8 169.0 128.0 92.2 147.4
------- ------- -------- -------- -------- -------- --------
Fixed charges and pre-tax preferred
dividend requirement ......................... 49.5 50.8 196.2 192.0 151.6 114.2 158.9
------- ------- -------- -------- -------- -------- --------
------- ------- -------- -------- -------- -------- --------
Ratio of earnings to combined fixed charges
and preferred dividends ...................... 3.5x 2.6x 3.8x 4.7x 4.7x 5.0x 3.2x
------- ------- -------- -------- -------- -------- --------
------- ------- -------- -------- -------- -------- --------
Ratio of earnings to fixed charges ............. 3.7x 2.9x 4.3x 5.3x 5.5x 6.2x 3.5x
------- ------- -------- -------- -------- -------- --------
------- ------- -------- -------- -------- -------- --------
</TABLE>
<PAGE>
Exhibit 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 25, 1999, except for Note 4
and Note 11, which are as of February 16, 1999, relating to the financial
statements and financial statement schedule, which appears in Corning
Incorporated's Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
New York, New York
June 18, 1999
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 25th
day of May, 1999.
/s/ NORMAN E. GARRITY
---------------------------
Norman E. Garrity
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 25th
day of May, 1999.
/s/ ROGER G. ACKERMAN
---------------------------
Roger G. Ackerman
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 25th
day of May, 1999.
/s/ ROBERT BARKER
---------------------------
Robert Barker
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 29th
day of May, 1999.
/s/ JOHN SEELY BROWN
---------------------------
John Seely Brown
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 28th
day of May, 1999.
/s/ JOHN H. FOSTER
---------------------------
John H. Foster
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 25th
day of May, 1999.
/s/ GORDON GUND
---------------------------
Gordon Gund
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 26th
day of May, 1999.
/s/ JOHN M. HENNESSY
---------------------------
John M. Hennessy
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 28th
day of May, 1999.
/s/ JAMES R. HOUGHTON
---------------------------
James R. Houghton
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 25th
day of May, 1999.
/s/ JAMES W. KINNEAR
---------------------------
James W. Kinnear
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 24th
day of May, 1999.
/s/ JOHN W. LOOSE
---------------------------
John W. Loose
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 26th
day of May, 1999.
/s/ JAMES J. O'CONNOR
---------------------------
James J. O'Connor
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 28th
day of May, 1999.
/s/ CATHERINE A. REIN
---------------------------
Catherine A. Rein
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 25th
day of May, 1999.
/s/ H. ONNO RUDING
---------------------------
H. Onno Ruding
<PAGE>
Exhibit 24.01
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
William D. Eggers, James B. Flaws and Katherine A. Asbeck, or any of them, his
true and lawful attorneys and agents, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorneys and agents, or any one of them, may deem
necessary or advisable to enable Corning Incorporated to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the registration under the Securities Act of 1933 of an issue or issues not
exceeding $2,000,000,000 principal amount of securities of the Corporation,
including without limitation, debentures, notes, shares of Common Stock and
shares of Preferred Stock of the Corporation, to be issued and sold by it in
1999 or thereafter, including specifically, but without limiting the generality
of the foregoing, the power and authority to sign the name of the undersigned in
his capacity as Director and/or Officer of Corning Incorporated to one or more
Registration Statements (on whatever form or forms may be determined to be
appropriate) to be filed with the Securities and Exchange Commission in respect
of the above-described securities, to any and all amendments to the said
Registration Statements, including Pre-Effective and Post-Effective Amendments,
and to any and all instruments and documents filed as a part of or in connection
with the said Registration Statements 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 25th
day of May, 1999.
/s/ WILLIAM D. SMITHBURG
---------------------------
William D. Smithburg
<PAGE>
Exhibit 24.01
------------------------
CORNING FINANCE B.V.
------------------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or
Officer of Corning Finance B.V., a corporation organized under the laws of the
Netherlands, hereby constitutes and appoints Kim L. Frock, Mark S. Rogus and A.
John Peck, Jr., or any 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 Finance B.V. to
comply with the Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Securities and Exchange Commission in respect thereof,
in connection with the registration under the Securities Act of 1933 of an issue
or issues not exceeding $2,000,000,000 principal amount of debt securities of
the Corporation to be issued and sold by it in 1999 or thereafter, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as Director
and/or Officer of Corning Finance B.V., to one or more Registration Statements
(on whatever form or forms may be determined to be appropriate) to be filed with
the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statements,
including Pre-Effective and Post-Effective Amendments, and to any and all
instruments and documents filed as a part of or in connection with the said
Registration Statements 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
16th day of June, 1999.
/s/ Kim L. Frock
------------------------
Kim L. Frock
<PAGE>
Exhibit 24.01
------------------------
CORNING FINANCE B.V.
------------------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or
Officer of Corning Finance B.V., a corporation organized under the laws of the
Netherlands, hereby constitutes and appoints Kim L. Frock, Mark S. Rogus and A.
John Peck, Jr., or any 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 Finance B.V. to
comply with the Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Securities and Exchange Commission in respect thereof,
in connection with the registration under the Securities Act of 1933 of an issue
or issues not exceeding $2,000,000,000 principal amount of debt securities of
the Corporation to be issued and sold by it in 1999 or thereafter, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as Director
and/or Officer of Corning Finance B.V., to one or more Registration Statements
(on whatever form or forms may be determined to be appropriate) to be filed with
the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statements,
including Pre-Effective and Post-Effective Amendments, and to any and all
instruments and documents filed as a part of or in connection with the said
Registration Statements 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
16th day of June, 1999.
/s/ A. John Peck, Jr.
------------------------------
A. John Peck, Jr.
<PAGE>
Exhibit 24.01
------------------------
CORNING FINANCE B.V.
------------------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Director and/or
Officer of Corning Finance B.V., a corporation organized under the laws of the
Netherlands, hereby constitutes and appoints Kim L. Frock, Mark S. Rogus and A.
John Peck, Jr., or any 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 Finance B.V. to
comply with the Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Securities and Exchange Commission in respect thereof,
in connection with the registration under the Securities Act of 1933 of an issue
or issues not exceeding $2,000,000,000 principal amount of debt securities of
the Corporation to be issued and sold by it in 1999 or thereafter, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as Director
and/or Officer of Corning Finance B.V., to one or more Registration Statements
(on whatever form or forms may be determined to be appropriate) to be filed with
the Securities and Exchange Commission in respect of the above-described
securities, to any and all amendments to the said Registration Statements,
including Pre-Effective and Post-Effective Amendments, and to any and all
instruments and documents filed as a part of or in connection with the said
Registration Statements 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
16th day of June, 1999.
/s/ Mark S. Rogus
-----------------------------
Mark S. Rogus
<PAGE>
Exhibit 25.01
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
CORNING INCORPORATED
(Exact name of obligor as specified in its charter)
NEW YORK 16-0393470
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE RIVERFRONT PLAZA
CORNING, NEW YORK 14831
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New
York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33
Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.,
20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ ROBERT S. PESCHLER
--------------------------------------------
Robert S. Peschler, Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Millions
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 13,915
Interest-bearing balances .................... 7,805
Securities:
Held to maturity securities ....................... 1,429
Available for sale securities ..................... 56,327
Federal funds sold and securities purchased under
agreements to resell ......................... 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income ..... $131,095
Less: Allowance for loan and lease losses .... 2,711
Less: Allocated transfer risk reserve ........ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 128,384
Trading Assets .................................... 48,949
Premises and fixed assets (including capitalized
leases) ...................................... 3,095
Other real estate owned ........................... 239
Investments in unconsolidated subsidiaries and
associated companies ......................... 199
Customers' liability to this bank on acceptances
outstanding .................................. 1,209
Intangible assets ................................. 2,081
Other assets ...................................... 11,352
--------
TOTAL ASSETS ...................................... $296,717
--------
--------
</TABLE>
- 4 -
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
LIABILITIES
Deposits
In domestic offices ............................................................... $105,879
Noninterest-bearing ............................................................... $ 39,175
Interest-bearing .................................................................. 66,704
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's ............................................................ 79,294
Noninterest-bearing .................................................................... $ 4,082
Interest-bearing .................................................................. 75,212
Federal funds purchased and securities sold under agreements to repurchase ............. 32,546
Demand notes issued to the U.S. Treasury ............................................... 629
Trading liabilities .................................................................... 36,807
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ..................................... 4,478
With a remaining maturity of more than one year
through three years ........................................................ 213
With a remaining maturity of more than three years ................................ 115
Bank's liability on acceptances executed and outstanding ............................... 1,209
Subordinated notes and debentures ...................................................... 5,408
Other liabilities ...................................................................... 10,855
TOTAL LIABILITIES ...................................................................... 277,433
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus .......................................... 0
Common stock ........................................................................... 1,211
Surplus (exclude all surplus related to preferred stock) .............................. 11,016
Undivided profits and capital reserves ................................................. 6,762
Net unrealized holding gains (losses)
on available-for-sale securities ....................................................... 279
Cumulative foreign currency translation adjustments .................................... 16
TOTAL EQUITY CAPITAL ................................................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ................................................... $296,717
--------
--------
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the
best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined
by us, and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true and
correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
CORNING FINANCE B.V.
(Exact name of obligor as specified in its charter)
THE NETHERLANDS N/A
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
LANGE VOORHOUT 7
2514 E A THE HAGUE
THE NETHERLANDS N/A
(Address of principal executive offices) (Zip Code)
------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
-------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New
York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33
Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.,
20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ Robert S. Peschler
--------------------------------------------
Robert S. Peschler, Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Millions
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 13,915
Interest-bearing balances .................... 7,805
Securities:
Held to maturity securities ....................... 1,429
Available for sale securities ..................... 56,327
Federal funds sold and securities purchased under
agreements to resell ......................... 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income ..... $131,095
Less: Allowance for loan and lease losses .... 2,711
Less: Allocated transfer risk reserve ........ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 128,384
Trading Assets .................................... 48,949
Premises and fixed assets (including capitalized
leases) ...................................... 3,095
Other real estate owned ........................... 239
Investments in unconsolidated subsidiaries and
associated companies ......................... 199
Customers' liability to this bank on acceptances
outstanding .................................. 1,209
Intangible assets ................................. 2,081
Other assets ...................................... 11,352
--------
TOTAL ASSETS ...................................... $296,717
--------
--------
</TABLE>
- 4 -
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
LIABILITIES
Deposits
In domestic offices ............................................................... $105,879
Noninterest-bearing ............................................................... $ 39,175
Interest-bearing .................................................................. 66,704
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's ............................................................ 79,294
Noninterest-bearing .................................................................... $ 4,082
Interest-bearing .................................................................. 75,212
Federal funds purchased and securities sold under agreements to repurchase ............. 32,546
Demand notes issued to the U.S. Treasury ............................................... 629
Trading liabilities .................................................................... 36,807
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ..................................... 4,478
With a remaining maturity of more than one year
through three years ........................................................ 213
With a remaining maturity of more than three years ................................ 115
Bank's liability on acceptances executed and outstanding ............................... 1,209
Subordinated notes and debentures ...................................................... 5,408
Other liabilities ...................................................................... 10,855
TOTAL LIABILITIES ...................................................................... 277,433
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus .......................................... 0
Common stock ........................................................................... 1,211
Surplus (exclude all surplus related to preferred stock) .............................. 11,016
Undivided profits and capital reserves ................................................. 6,762
Net unrealized holding gains (losses)
on available-for-sale securities ....................................................... 279
Cumulative foreign currency translation adjustments .................................... 16
TOTAL EQUITY CAPITAL ................................................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ................................................... $296,717
--------
--------
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the
best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined
by us, and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true and
correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
