<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 12, 1999
REGISTRATION NOS. 333-81299
333-81299-01
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
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 PRE-EFFECTIVE AMENDMENT TO A NEW REGISTRATION STATEMENT ALSO
CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 2 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.............................................. $2,000,000,000(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) This amount was previously paid with the initial filing of this Registration
Statement on June 22, 1999. 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 August 11, 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.;
- DEBT WARRANTS AND EQUITY WARRANTS 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.
The common stock of Corning Incorporated is quoted on the New York Stock
Exchange under the Symbol GLW. On , the closing price for the
common stock was $ .
------------------------
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 Debt Securities and Guarantees... 4
<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.
2
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
INCLUDING PREFERRED STOCK DIVIDENDS
The table below sets forth:
- our historical ratios of earnings to fixed charges; and
- our consolidated ratio of earnings to combined fixed charges including
preferred stock dividends for the periods indicated.
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 these companies, if any, if any debt of these
companies is guaranteed by Corning;
- previously capitalized interest amortized during the period; and
- fixed charges net of capitalized interest.
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.
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.
<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>
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 fully and
unconditionally guaranteed by Corning Incorporated;
- debt warrants and equity warrants 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.
3
<PAGE>
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
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, which include
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
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.
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.
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 make all payments on the debt
securities to the depositary. The depositary passes along the payments it
receives to its participants, which in
4
<PAGE>
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;
- 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
5
<PAGE>
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 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
6
<PAGE>
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.
RANKING
Each series of debt securities will not be secured by any property or assets
of Corning Incorporated or Corning Finance B.V., and will not be subordinated to
any other obligations of either Corning Incorporated or Corning Finance B.V., as
applicable.
FULL AND UNCONDITIONAL 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 "additional amounts" on,
these debt securities when due, whether at maturity or otherwise. For a
discussion of the payment of "additional amounts", please see "--Payment of
Additional Amounts with Respect
7
<PAGE>
to the Guaranteed Debt Securities". Under the terms of the full and
unconditional 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 THE 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 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 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
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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, except in the case
of debt securities that have a variable rate of interest, which may be redeemed
on any interest payment date, Corning Finance B.V. may redeem each series of
debt securities at its option in whole but not in part at any time. 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, the redemption price will be equal to the principal amount plus
accrued interest to the date of redemption, if:
- Corning Finance B.V. would be required to pay additional amounts, 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, as explained
above under "--Payment of Additional Amounts With Respect to the
Guaranteed Debt Securities", 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 the 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" or other
expenses imposed on the holder as a result of the merger, consolidation or
sale, as explained above under "--Payment of Additional Amounts with
Respect to the Guaranteed Debt Securities".
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
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property to you and the other direct holders of 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 the following
types of liens, and Corning Incorporated can disregard this debt when we
calculate the limits imposed by this restriction:
- 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;
- some 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 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.
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 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
these 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 some of the
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,
like 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 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 the guaranteed debt securities, change any obligation to
pay additional amounts, as explained above under "--Payment of Additional
Amounts With Respect to the 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 the 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.
You may elect to receive all or only a portion of any interest, principal or
premium
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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 security as described above, we will determine the U.S.
dollar amount the holder receives as
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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--which
may include 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 postponed amount from the original due date to
the next day that is a business day.
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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 to which it is a party relating to
the indenture, the guaranteed debt securities or the full and unconditional
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, modifications or amendments that result in any
of the following changes may be made only with the consent of the owners
affected by the modification or amendment:
- An increase in the exercise price of the debt warrants;
- A shortening of the period of time during which the debt warrants may be
exercised;
- Any material and adverse change that affects the exercise rights of the
owners of the debt warrants; or
- A reduction in the number of debt warrants whose owners must consent to
the modification or amendment of the debt warrant agreement or the terms
of the equity warrants.
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
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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 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 such as its 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 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
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each share of preferred stock or common stock;
- if applicable, the date on and after which the equity warrants and the
related 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 if Corning Incorporated issues a stock dividend to holders
of common stock or preferred stock, or if Corning Incorporated declares 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
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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 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,
modifications or amendments that result in any of the following changes may be
made only with the consent of the owners affected by the modification or
amendment:
- An increase in the exercise price of the equity warrants;
- A shortening of the period of time during which the equity warrants may be
exercised;
- Any material and adverse change that affects the exercise rights of the
owners of the equity warrants; or
- A reduction in the number of equity warrants whose owners must consent to
the modification or amendment of the equity warrant agreement or the terms
of the equity warrants.
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.
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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;
- the designation, powers, preferences and rights of the shares of the
series; and
- the qualifications, limitations or restrictions of the 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 will file an amendment to the certificate of
incorporation setting forth the terms of the series. Shareholders will not need
to approve this amendment.
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 these 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.
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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.
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's, and may be mandatorily redeemed.
Any restriction on the repurchase or redemption by Corning Incorporated of
its preferred stock while there is any arrearage in the payment of dividends
will be described in the relevant prospectus supplement.
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 these shares will
terminate except for the right to receive the redemption price.
ANTI-TAKEOVER PROVISIONS
See "Description of Common Stock--Fair Price Amendment" and "Description of
Common Stock--Other Anti-takeover Provisions of the Certificate of Incorporation
and By-Laws" for a discussion of provisions of the certificate of incorporation
and by-laws of Corning Incorporated that would have an effect of delaying,
deferring or preventing a change in control of Corning Incorporated.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
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Corning, holders of each series of preferred stock will be entitled to receive
distributions upon liquidation in the amount described in the prospectus
supplement relating to each series of preferred stock, plus an amount equal to
any accrued and unpaid dividends. These 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 these series and the
other securities will share in any distribution of available assets of Corning
Incorporated on a ratable basis in proportion to the full liquidation
preferences. Holders of these 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 the
series; or
- as required by applicable law.
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 this payment is necessary to
remedy or prevent a default under the applicable 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 shares of common stock 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 this 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
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. If it decides to do
so, 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 the 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 the underlying preferred stock
in proportion to the number of the depositary shares owned by the holders.
The preferred stock depositary will distribute any property received by it
other than cash to the record holders of depositary shares entitled to these
distributions. 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 the sale to
the holders of the depositary shares.
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 the applicable 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
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or ratably or by any other equitable method as the preferred stock depositary
decides.
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
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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 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 the 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 50%
or more of the voting power of the
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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
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 some 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 and instead an adjustment in cash will be made. However,
fractional shares of Series A preferred stock may be issued where these
fractions are integral multiples of one-hundredth of a share which may, at the
election of Corning Incorporated, be evidenced by depositary receipts.
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, subject to exceptions, 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. 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 payment of $100 per share, but
will be entitled
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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 dated 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 other
forms of business combinations with any beneficial owner of more than 10% of
this voting power unless:
- the transaction is approved by at least a majority of the "continuing
directors", as defined in the certificate of incorporation; or
- 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.
OTHER ANTI-TAKEOVER 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 so
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 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 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.
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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 these
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 conditions precedent and these
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 these 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 underwriter,
dealer or agent that will participate in the distribution of the securities will
be identified, and any compensation it will receive 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 some liabilities, including liabilities under the
Act, or to contribution with respect to payments which the underwriters, dealers
or agents may be required to make relating to these liabilities. Any agreement
in which we agree to idemnify underwriters, dealers and agents against civil
liabilities will be described in the relevant prospectus supplement.
If so indicated in the prospectus supplement, we will authorize dealers or
other persons acting as our agent to solicit offers by some institutions to
purchase securities from us pursuant to contracts providing for payment and
delivery on a future date. Institutions with which these 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
(Nos. 333-81299 and 333-81299-01) 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 reports on Form 10-Q for the quarters ended March 31, 1999 and
June 30, 1999.
- Current reports on Form 8-K dated January 19, 1999; January 25, 1999;
February 4, 1999; March 1, 1999; March 3, 1999, April 14, 1999, July 8,
1999 and July 19, 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, like 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
Information in this prospectus may add to, update or change information in a
previously filed document incorporated by reference in this prospectus. In that
case, you should rely on the information in this prospectus. Information in a
document filed after the date of this prospectus may add to, update or change
information in this prospectus or in a previously filed document incorporated by
reference in this prospectus. In that case, you should rely on the information
in the later filed 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.
1.04 Form of Underwriting Agreement relating to common stock.
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 August , 1999, by and between the Company and The Chase Manhattan Bank, as trustee.*
4.02 Indenture, dated August , 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>
- ------------------------
* previously filed.
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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of this chapter at the start of
any delayed offering or throughout a continuous offering. Financial
statements and information otherwise required by Section 10(a)(3) of the Act
need not be furnished, PROVIDED, that
II-3
<PAGE>
the registrant includes in the prospectus, by means of post-effective
amendment, financial statements required pursuant to this paragraph (a)(4)
and other information necessary to ensure that all other information in the
prospectus is at least as current as the date of those financial statements.
Notwithstanding the foregoing, with respect to a registration statement on
Form F-3, a post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Act or Rule
3-19 of this chapter if such financial statements and information are
contained in periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Form F-3.
(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, 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 amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Corning, State of New York, on August 12, 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 amendment
to the registration statement has been signed by the following persons on August
12, 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 amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Corning, state of New York, on August 12, 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 amendment
to the registration statement has been signed by the following persons on August
12, 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 1.03
CORNING INCORPORATED
PREFERRED STOCK AND/OR DEPOSITARY SHARES FOR PREFERRED STOCK
---------------------------
UNDERWRITING AGREEMENT
----------------------------
-----------------, ----
[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) certain shares (the "Shares") of its Preferred Stock, par
value $100 per share (the "Preferred Stock") which may be represented by
Depositary shares (the "Depositary Shares") deposited against delivery of
Depositary Receipts (the "Depositary Receipts") evidencing the Depositary Shares
which are to be issued by the Depositary specified in Schedule II to such
Pricing Agreement (the "Depositary") under a deposit agreement, dated the date
specified in Schedule II to such Pricing Agreement, among the Company, the
Depositary and the holders from time to time of the Depositary Receipts issued
thereunder (the "Deposit Agreement"). Each Depositary Share will represent
beneficial ownership of the fraction of a Share of such Preferred Stock, as
specified in Schedule II to such Pricing Agreement. The Shares and the
Depositary Shares are herein called the "Securities" and, with respect to a
particular Pricing Agreement, the Shares and Depositary Shares subject thereto
are herein called the "Firm Securities". Additionally, if specified in such
Pricing Agreement, the Company may grant the Underwriters the right to purchase
at their election an additional number of Shares of Preferred Stock or
Depositary Shares, as the case may be, specified as provided in such Pricing
Agreement and as provided in Section 3 hereof (the "Optional Securities"). The
Firm Securities and the Optional Securities, if any, which the Underwriters
elect to purchase pursuant to Section 3 hereof are herein collectively referred
to as the "Designated Securities".
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto.
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
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
<PAGE>
Exhibit 1.03
Representatives, if any, of such Underwriters, aggregate number of the Firm
Securities, the maximum number of Optional Securities, if any, the initial
public offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities and the number of such Designated
Securities to be purchased by each Underwriter and shall set forth the date,
time and manner of delivery of such Designated Securities. A Pricing Agreement
shall also specify (to the extent not set forth in the registration statement
and prospectus with respect thereto) the terms of such Designated Securities. 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 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
2
<PAGE>
Exhibit 1.03
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 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;
3
<PAGE>
Exhibit 1.03
(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 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 and validly authorized and issued and fully paid and
non-assessable. At the Time of Delivery for such Designated Securities (as
defined in Section 4 hereof), 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 Deposit
Agreement, this Agreement and any Pricing Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with
or result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the 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 will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters;
(i) The statements set forth in the Prospectus under the captions
"Description of Preferred Stock" and "Description of Depositary Shares",
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;
4
<PAGE>
Exhibit 1.03
(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; and
(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.
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
number of optional shares of Preferred Stock (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 number 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 number 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 number 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 number of
Optional Securities to be so added shall be, in each case, that proportion of
Optional Securities which the aggregate number of Firm Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Securities. The total number of Designated Securities
to be purchased by all the Underwriters pursuant to such Pricing Agreement shall
be the aggregate number 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.
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 the form specified in such Pricing
5
<PAGE>
Exhibit 1.03
Agreement, 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 as
provided in 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 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
6
<PAGE>
Exhibit 1.03
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 Second 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, without your prior written consent; and
(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 Deposit
Agreement, 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
7
<PAGE>
Exhibit 1.03
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 Depositary, any Registrar, any Transfer Agent or Dividend
Disbursing Agent and any agent of any Depositary, Registrar, Transfer Agent or
Dividend Disbursing Agent and the fees and disbursements of counsel for any such
persons in connection with any Deposit 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 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;
(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 Designated Securities,
the Registration Statement, the Prospectus as amended or supplemented and
other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) William 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
8
<PAGE>
Exhibit 1.03
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 and validly
authorized and issued and are fully paid and non-assessable; and the
Designated Securities conform as to legal matters to the descriptions
thereof in the Prospectus as amended or supplemented;
(vii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Deposit Agreement, 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;
(Viii) 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 Deposit Agreement, 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;
(ix) The statements set forth in the Prospectus under the
captions "Description of Preferred Stock" and "Description of Depositary
Shares", 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;
9
<PAGE>
Exhibit 1.03
(x) 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;
(xi) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and such counsel has no reason to believe
that any of such documents, when they became effective or were so filed,
as the case may be, contained, in the case of a registration statement
which became effective under the Act, an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the case
of other documents which were filed under the Act or the Exchange Act with
the Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading; and
(xii) 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.
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 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
10
<PAGE>
Exhibit 1.03
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.
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
11
<PAGE>
Exhibit 1.03
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
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
12
<PAGE>
Exhibit 1.03
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
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
13
<PAGE>
Exhibit 1.03
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 number of such Firm Securities or
Optional Securities, as the case may be, which remains unpurchased does not
exceed one-eleventh of the aggregate number 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 number 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.
(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 number of Firm Securities or Optional
Securities, as the case may be, which remains unpurchased exceeds one-eleventh
of the aggregate number 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.
14
<PAGE>
Exhibit 1.03
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.
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.
15
<PAGE>
Exhibit 1.03
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: ________________________________
16
<PAGE>
Exhibit 1.03
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 number of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
<PAGE>
Exhibit 1.03
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 1.03
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
FIRM
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ----------
<S> <C>
Total...................................................................... $
=====================
</TABLE>
<PAGE>
Exhibit 1.03
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
AGGREGATE NUMBER OF DESIGNATED SECURITIES:
PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
TIME OF DELIVERY:
DEPOSITARY:
DEPOSIT AGREEMENT:
DIVIDEND RATE:
DIVIDEND PAYMENT DATES:
SINKING FUND PROVISION OR MANDATORY REDEMPTION PROVISIONS:
<PAGE>
Exhibit 1.03
LIQUIDATION PREFERENCE:
CONVERSION PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
2
<PAGE>
Exhibit 1.03
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;
(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
<PAGE>
Exhibit 1.03
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 (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
2
<PAGE>
Exhibit 1.03
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 1.04
CORNING INCORPORATED
COMMON STOCK, PAR VALUE $0.50 PER SHARE
---------------------------
UNDERWRITING AGREEMENT
-----------------, ----
[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) certain shares (the "Securities") of its Common Stock, par
value $0.50 per share, and with respect to a particular Pricing Agreement, the
Securities subject thereto are herein called the "Firm Securities".
Additionally, if specified in such Pricing Agreement, the Company may grant the
Underwriters the right to purchase at their election an additional number of
Securities, specified as provided in such Pricing Agreement and as provided in
Section 3 hereof (the "Optional Securities"). The Firm Securities and the
Optional Securities, if any, which the Underwriters elect to purchase pursuant
to Section 3 hereof are herein collectively referred to as the "Designated
Securities".
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto.
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
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, aggregate number of the Firm Securities, the maximum
number of Optional Securities, if any, the initial public offering price of such
Designated Securities, the purchase price to the Underwriters of such Designated
Securities and the number of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities. A Pricing Agreement shall also specify (to the extent not
set forth in the registration statement and prospectus with respect thereto) the
terms of such Designated Securities. 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
- 1 -
<PAGE>
Exhibit 1.04
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 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;
- 2 -
<PAGE>
Exhibit 1.04
(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 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
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<PAGE>
Exhibit 1.04
Agreement with respect to such Designated 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 and validly authorized and issued and fully
paid and non-assessable. At the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), 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, this Agreement and
any Pricing Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is subject,
nor will such action result in any violation of the provisions of the
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 will have been prior to the Time of Delivery,
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(i) The statements set forth in the Prospectus under the captions
"Description of Common Stock", 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");
- 4 -
<PAGE>
Exhibit 1.04
(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; and
(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.
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
number of optional shares of Common Stock (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 number 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 number 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 number 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 number of
Optional Securities to be so added shall be, in each case, that proportion of
Optional Securities which the aggregate number of Firm Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Securities. The total number of Designated Securities
to be purchased by all the Underwriters pursuant to such Pricing Agreement shall
be the aggregate number 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.
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 the form specified in such Pricing Agreement, 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
- 5 -
<PAGE>
Exhibit 1.04
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 as
provided in 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 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;
- 6 -
<PAGE>
Exhibit 1.04
(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 shareholders 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 Second 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, without your prior written consent; and
(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, 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 Registrar,
any Transfer Agent or Dividend Disbursing Agent and any agent of any Registrar,
Transfer Agent or Dividend Disbursing Agent and the fees and disbursements of
counsel for any such persons in connection with the Securities; and (viii) all
other costs and expenses incident to the performance of the Company's
obligations
- 7 -
<PAGE>
Exhibit 1.04
hereunder and under any Over-allotment Options 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;
(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 Designated Securities,
the Registration Statement, the Prospectus as amended or supplemented and
other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) William 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);
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<PAGE>
Exhibit 1.04
(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 and validly
authorized and issued and are fully paid and non-assessable; and the
Designated Securities conform as to legal matters to the descriptions
thereof in the Prospectus as amended or supplemented;
(vii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, 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;
(viii) 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 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;
(ix) The statements set forth in the Prospectus under the
captions "Description of Common Stock", 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;
(x) 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;
(xi) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Act or the Exchange Act,
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<PAGE>
Exhibit 1.04
as applicable, and the rules and regulations of the Commission thereunder;
and such counsel has no reason to believe that any of such documents, when
they became effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective under the Act,
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or, in the case of other documents which were filed under
the Act or the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading; and
(xii) 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.
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 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'
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<PAGE>
Exhibit 1.04
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.
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
- 11 -
<PAGE>
Exhibit 1.04
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
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.
- 12 -
<PAGE>
Exhibit 1.04
(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
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
- 13 -
<PAGE>
Exhibit 1.04
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 number of such Firm Securities or
Optional Securities, as the case may be, which remains unpurchased does not
exceed one-eleventh of the aggregate number 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 number 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.
(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 number of Firm Securities or Optional
Securities, as the case may be, which remains unpurchased exceeds one-eleventh
of the aggregate number 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.
- 14 -
<PAGE>
Exhibit 1.04
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.
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.
- 15 -
<PAGE>
Exhibit 1.04
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:
--------------------------------
- 16 -
<PAGE>
Exhibit 1.04
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 number of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
- 1 -
<PAGE>
Exhibit 1.04
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 1.04
SCHEDULE I
NUMBER OF
FIRM
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
Total......................................... $
-----------
-----------
<PAGE>
Exhibit 1.04
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
AGGREGATE NUMBER OF DESIGNATED SECURITIES:
PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
<PAGE>
Exhibit 1.04
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;
(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
<PAGE>
Exhibit 1.04
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 (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
2
<PAGE>
Exhibit 1.04
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 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
August 11, 1999
