UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report: (Date of earliest event reported) June 21, 2005
CORNING INCORPORATED
(Exact name of registrant as specified in its charter)
New York 1-3247 16-0393470
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
One Riverfront Plaza, Corning, New York 14831
(Address of principal executive offices) (Zip Code)
(607) 974-9000
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c)) 1
Item 7.01. Regulation FD Disclosure
The Company's press release dated June 16, 2005 relating to the Notes is
furnished herewith as Exhibit 99.1.
Item 8.01. Other Events
On June 17, 2005, Corning Incorporated (the "Company") agreed to sell
$100,000,000 principal amount of its 6.050% Notes due 2015 (the "2015 Notes"),
all pursuant to an Underwriting Agreement and a Pricing Agreement each dated
June 16, 2005, among the Company and Citigroup Global Markets Inc., as
Underwriter. The Notes will be issued pursuant to that certain Indenture dated
as of November 8, 2000, as supplemented, between the Company and J.P. Morgan
Chase Bank, N.A., formerly The Chase Manhattan Bank, as Trustee (the
"Indenture"), and the Officers' Certificate of the Company dated June 21, 2005,
pursuant to Sections 201 and 301 of the Indenture. The Notes have been
registered under the Securities Act of 1933, as amended, pursuant to a
registration statement on Form S-3, file No. 333-57082.
Item 9.01. Financial Statements and Exhibits
(c) Exhibits
1.1 Underwriting Agreement dated June 16, 2005, among the Company and Citigroup
Global Markets Inc., as Underwriter (excluding exhibits thereto).
1.2 Pricing Agreement dated June 16, 2005, among the Company and Citigroup
Global Markets Inc., as Underwriter.
4.1 Officers' Certificate of the Company dated June 21, 2005, pursuant to
Sections 201 and 301 of the Indenture dated as of November 8, 2000, as
supplemented, between the Company and J.P. Morgan Chase Bank, N.A. formerly
The Chase Manhattan Bank, as Trustee (excluding exhibits thereto) relating
to the 2015 Notes.
4.2 Specimen 2015 Note.
5.1 Opinion of William D. Eggers, Senior Vice President and General Counsel of
the Company dated June 21, 2005, pursuant to Section 7(c) of the
Underwriting Agreement.
99.1 Press Release dated June 16, 2005, issued by the Company relating to the
2015 Notes.
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: June 21, 2005
CORNING INCORPORATED
By: /s/ WILLIAM D. EGGERS
-------------------------------
William D. Eggers
Senior Vice President and General Counsel
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INDEX TO EXHIBIT
Exhibit
(c) Exhibits
1.1 Underwriting Agreement dated June 16, 2005, among the Company and Citigroup
Global Markets Inc., as Underwriter (excluding exhibits thereto).
1.2 Pricing Agreement dated June 16, 2005, among the Company and Citigroup
Global Markets Inc., as Underwriter.
4.1 Officers' Certificate of the Company dated June 21, 2005, pursuant to
Sections 201 and 301 of the Indenture dated as of November 8, 2000, as
supplemented, between the Company and J.P. Morgan Chase Bank, N.A. formerly
The Chase Manhattan Bank, as Trustee (excluding exhibits thereto) relating
to the 2015 Notes.
4.2 Specimen 2015 Note.
5.1 Opinion of William D. Eggers, Senior Vice President and General Counsel of
the Company dated June 21, 2005, pursuant to Section 7(c) of the
Underwriting Agreement.
99.1 Press Release dated June 16, 2005, issued by the Company relating to the
2015 Notes.
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Exhibit 1.1
-----------
$100,000,000
Corning Incorporated
6.050% Notes due 2015
---------------------
---------------------------------
Underwriting Agreement
---------------------------------
June 16, 2005
Citigroup Global Markets Inc.
390 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
From time to time, Corning Incorporated, a New York corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Firm Securities" and, together with any Optional Securities, as
defined below, the "Designated Securities").
The Securities will be issued under an Indenture, dated as of November 8,
2000 (the "Indenture"), between the Company and JPMorgan Chase Bank, N.A.
(formerly The Chase Manhattan Bank), as Trustee. The particular terms of any
issuance of Securities will be determined at the time of offering.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the
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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, the
principal amount of the Firm Securities and the principal amount of Optional
Securities, if any, to be purchased by each Underwriter and the commission, if
any, payable to the Underwriter with respect thereto, the purchase price to the
Underwriters of such Designated Securities, the nature of the funds to be
delivered by the Underwriters, the initial public offering price or the manner
of determining such price, if any, including interest rates, if any, maturity,
whether such Securities will be convertible at the option of the holder thereof,
any conversion rates or price(s), any redemption provisions and any sinking fund
requirements. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts, and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted). The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) One or more registration statements on Form S-3, including a
prospectus for use in connection with the Designated Securities pursuant to
Rule 429 under the Securities Act of 1933, as amended (the "Act"), in
respect of the Securities have been filed with the Securities and Exchange
Commission (the "Commission"); such registration statements and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to the Representatives for each of the other Underwriters
and, excluding exhibits to such registration statements, but including all
documents incorporated by reference in the prospectuses contained therein,
have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Act, which became effective upon filing, no other document with respect
to such registration statements or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the
Commission; such prospectus included for use in connection with the
Securities pursuant to Rule 429 under the Act meets the requirements of the
Act and the rules and regulations thereunder for use of such prospectus in
connection with the Securities; and no stop order suspending the
effectiveness of any of such registration statements, any post effective
amendment thereto, or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or, to
the Company's knowledge, 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
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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;
(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;
(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 its date and as
of the Time of Delivery 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
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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 authorized and validly 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 executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company, enforceable against the Company
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles and entitled to the benefits
provided by the Indenture which will be substantially in the form filed as
an exhibit to the Registration Statement; the Indenture has been duly
authorized and, at the Time of Delivery for such Designated Securities (as
defined in Section 4 hereof), the Indenture will constitute a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture conforms, and
the Designated Securities will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to such
Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement and each Over-allotment Option, if any,
and the consummation of the transactions herein and therein
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contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any material
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 law,
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement or any
Pricing Agreement or any Over-allotment Option, or the Indenture except
such as have been, or will have been prior to the Time of Delivery,
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(i) The statements set forth in the Prospectus under the captions
"Description of Debt Securities and Guarantees" and "Description of the
Notes", insofar as they purport to constitute a summary of the terms of the
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 in all
material respects;
(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; and
(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").
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
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Underwriters propose to offer such Firm Securities for sale upon the terms and
conditions set forth in the Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Securities that the Company thereby grants to the Underwriters the
right (an "Over-allotment Option") to purchase at their election up to the
aggregate principal amount of Securities (the "Optional Securities") set forth
in such Pricing Agreement, at the terms set forth in the paragraph above, for
the sole purpose of covering over-allotments in the sale of the Firm Securities.
Any such election to purchase Optional Securities may be exercised only by
written notice from the Representatives to the Company, given within a period
specified in the Pricing Agreement, setting forth the aggregate principal amount
of Optional Securities to be purchased and the date on which such Optional
Securities are to be delivered, as determined by the Representatives but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless the Representatives and the Company otherwise agree in writing,
earlier than or later than the respective number of business days after the date
of such notice set forth in such Pricing Agreement.
The aggregate principal amount of Optional Securities to be added to the
aggregate principal amount of Firm Securities to be purchased by each
Underwriter as set forth in Schedule I to the Pricing Agreement applicable to
such Designated Securities shall be, in each case, the aggregate principal
amount of Optional Securities which the Company has been advised by the
Representatives have been attributed to such Underwriter, provided that, if the
Company has not been so advised, the aggregate principal amount of Optional
Securities to be so added shall be, in each case, that proportion of Optional
Securities which the aggregate principal amount of Firm Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate principal amount of Firm Securities. The total principal amount of
Designated Securities to be purchased by all the Underwriters pursuant to such
Pricing Agreement shall be the aggregate principal amount of Firm Securities set
forth in Schedule I to such Pricing Agreement plus the aggregate principal
amount 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 definitive form to the extent practicable and in such
authorized denominations and registered in such names as the Representatives may
request upon at least forty eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by the method specified in such Pricing Agreement, (i)
with respect to the Firm Securities, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "First Time of Delivery", and (ii) with respect to
the Optional Securities, if any, on the time and date specified by the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Securities, or at such other
time and date as the Representatives and the Company may agree upon in writing,
such time and date, if not the First
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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.
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 reasonably 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
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then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158 under the Act);
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities and (ii) the Time of Delivery for such Designated Securities not
to offer, sell, contract to sell or otherwise dispose of any securities of
the Company which are substantially similar to the Designated Securities
and which mature more than one year after the related Time of Delivery
without your prior written consent; and
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Warrant Agreement, any Delayed Delivery Contracts, and Blue Sky and Legal
Investment Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of
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preparing the Securities; (vii) the fees and expenses of any Trustee, any
Warrant Agent, any Registrar, any Transfer Agent, Dividend Disbursing Agent, or
any Calculation Agent and any agent of any Trustee, Warrant Agent, Registrar,
Transfer Agent, Dividend Disbursing Agent, or any Calculation Agent and the fees
and disbursements of counsel for any such persons in connection with any
Indenture, any Warrant Agent Agreement, any Calculation Agent Agreement and the
Securities; and (viii) all other costs and expenses incident to the performance
of the Company's obligations hereunder and under any Over-allotment Options
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 LLP, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated each Time
of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Indenture, the Designated
Securities, the 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;
9
(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 authorized and validly
issued and are fully paid and non-assessable;
(iii) With such exceptions as are not material, the Company has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties so as to require
such qualification (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel, and, as to
matters of fact, upon certificates of officers of the Company,
provided that such counsel shall state that he believes that both you
and he are justified in relying upon such opinions and certificates);
(iv) To the best of such counsel's knowledge and other than as
set forth in the Prospectus as amended or supplemented, 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 as amended or supplemented and other than litigation
incident to the kind of business conducted by the Company and its
subsidiaries, none of which litigation is material to the Company and
its subsidiaries considered as a whole) which, if determined adversely
to the Company or any of its subsidiaries, as the case may be, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and to the best of
such counsel's knowledge no such proceedings are threatened by
governmental authorities or by others; and such counsel has not
received notice that any such proceedings are contemplated by
governmental authorities;
(v) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
(vi) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company, enforceable against the
Company subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles and
entitled to the benefits provided by the Indenture; and the Designated
Securities and the Indenture conform as to legal matters to the
descriptions thereof in the Prospectus as amended or supplemented;
provided, however, that for the purposes of this paragraph (vi), such
counsel may state that he has assumed that the Trustee's certificates
of authentication of the Debt Securities have been manually signed by
one of the Trustee's authorized officers;
(vii) The Indenture has been duly authorized, executed and
delivered by the Company, and, assuming due authorization, execution
and delivery by the Trustee, constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of
10
general applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(viii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, any Over-allotment Options, this Agreement
and the Pricing Agreement with respect to the Designated Securities
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any material 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 law,
statute or any violation of any material order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its properties;
(ix) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture or any
Over-allotment Options, except such as have been obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the
Underwriters;
(x) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Debt Securities and
Guarantees" and "Description of the Notes", 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 in
all material respects;
(xi) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements,
related schedules and other accounting information contained or
incorporated by reference therein, or omitted therefrom, 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
11
became effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(xiii) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements, related schedules and
other accounting information contained or incorporated by reference
therein, or omitted therefrom, 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, contained any untrue statement of a
material fact or omitted 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
12
Prospectus as amended or supplemented any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or government action, order or
decree, otherwise than as set forth or contemplated in the Prospectus as amended
or supplemented, and (ii) since the respective dates as of which information is
given in the Prospectus as amended or supplemented there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities 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;
(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 a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, or (v) the
occurrence of any other material calamity or crises, if the effect of any such
event specified in clause (iv) or (v) 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 as of the date
hereof) 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
13
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities; and provided, further, that the
Company shall not be liable to any Underwriter under the indemnity agreement in
this subsection (a) with respect to any Preliminary Prospectus to the extent
that the Company demonstrates that any such loss, claim, damage or liability of
such Underwriter results from the fact such Underwriter sold Securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in any case where such delivery
is required by the Act if the Company has previously furnished copies thereof to
such Underwriter and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in the
Preliminary Prospectus (excluding documents incorporated by reference) which was
corrected in the Prospectus (or the Prospectus as amended or supplemented
(excluding documents incorporated by reference)).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will
14
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.
(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
15
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 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
16
for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of such Firm Securities
or Optional Securities, as the case may be, which remains unpurchased does not
exceed one eleventh of the aggregate principal amount of the Firm Securities or
Optional Securities, as the case may be, then the Company shall have the right
to require each non defaulting Underwriter to purchase the principal amount of
Firm Securities or Optional Securities, as the case may be, which such
Underwriter agreed to purchase under the Pricing Agreement relating to such
Designated Securities and, in addition, to require each non defaulting
Underwriter to purchase its pro rata share (based on the aggregate principal
amount of Firm Securities or Optional Securities, as the case may be, which such
Underwriter agreed to purchase under such Pricing Agreement) of the Firm
Securities or Optional Securities, as the case may be, of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of Firm Securities or
Optional Securities, as the case may be, which remains unpurchased exceeds one
eleventh of the aggregate principal amount of the Firm Securities or Optional
Securities, as the case may be, as referred to in subsection (b) above, or if
the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Securities or Optional
Securities, as the case may be, of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Securities shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
17
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 Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence 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.
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.
18
Very truly yours,
Corning Incorporated
By /s/ Mark S. Rogus
---------------------------------------------
Name: Mark S. Rogus
Title: Senior Vice President and Treasurer
Accepted as of the date hereof:
By: Citigroup Global Markets Inc.
By /s/ Brian D. Bednarski
Name: Brian D. Bednarski
Title: Director
19
ANNEX I
Pricing Agreement
[Date]
[Underwriters]
c/o [ ]
Ladies and Gentlemen:
Corning Incorporated, a New York corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated ? (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities" ). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty that refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
A-1
If the foregoing is in accordance with your understanding, please sign and
return to us [insert number] 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:
[Underwiter]
By: [Underwriter]
By
----------------------
Name:
Title:
A-2
SCHEDULE I
Principal Amount
of *% Notes due *
Underwriter to Be Purchased
----------- ------------------------
[ ].................................... $
[ ]....................................
[ ]....................................
-------------------------
Total...................................... $
=========================
I-1
SCHEDULE II
Title of Designated Securities..............
Aggregate Principal Amount..................
Price to Public.............................
Purchase Price by Underwriters..............
Specified Funds for Payment of Purchase
Price.......................................
Indenture...................................
Maturity....................................
Interest Rate...............................
Interest Payment Dates......................
Redemption Provisions.......................
Sinking Fund Provisions.....................
Defeasance Provisions.......................
Time of Delivery............................
Closing Location............................
Delayed Delivery............................
Names and Addresses of Representatives......
Designated Representatives..................
Address for Notices, etc....................
II-1
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
AII-1
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 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; and
(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 increases or decreases 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
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
AII-2
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
AII-3
Exhibit 1.2
PRICING AGREEMENT
June 16, 2005
Citigroup Global Markets Inc.
390 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Corning Incorporated, a New York corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated June 17, 2005 (the "Underwriting Agreement"), to issue and sell
to the Underwriter named in Schedule I hereto (the "Underwriter") 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 the Underwriter, and the Underwriter agrees to purchase from
the Company, at the time and place and at the purchase
1
price to the Underwriter set forth in Schedule II hereto, the principal amount
of Securities set forth opposite the name of such Underwriter in Schedule I
hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us three counterparts hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding agreement
between you and the Company.
Very truly yours,
Corning Incorporated
By /s/ Mark S. Rogus
--------------------------------------------
Name: Mark S. Rogus
Title: Senior Vice President and Treasurer
Accepted as of the date hereof:
Citigroup Global Markets Inc.
By /s/ Brian D. Bednarski
---------------------------------------------------
Name: Brian D. Bednarski
Title: Director
2
SCHEDULE I
Principal Amount
of Notes
Underwriter to be Purchased
----------- ------------------
Citigroup Global Markets Inc........................ $ 100,000,000
Total...................................... $100,000,000
=======================
I-1
SCHEDULE II
Title of Designated
Securities................ 6.050% Notes due 2015 (the "notes")
Aggregate
Principal Amount.......... $100,000,000
Price to Public........... 99.691%
Purchase Price by
Underwriters.............. 99.041%
Specified Funds for
Payment of Purchase Price. Federal (same-day) funds
Indenture................. Indenture, dated as of November 8, 2000, between
Corning Incorporated and JPMorgan Chase Bank, N.A.,
formerly The Chase Manhattan Bank, as Trustee
Maturity.................. June 15, 2015
Interest Rate............. 6.050%
Interest Payment Dates.... Each June 15 and December 15, commencing on December 15, 2005
Redemption Provisions..... Prior to June 15, 2010, the notes will be redeemable
in whole at any time or in part from time
to time, at the Company's option, at a redemption price
equal to the sum of the present values of the remaining
scheduled payments of principal and interest on the notes to
be redeemed (exclusive of interest accrued to the date of
redemption) discounted to the date of redemption on a
semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the then current Treasury Rate plus
30 basis points.
In addition, beginning on June 15, 2010, the notes will
be redeemable in whole or in part on any interest payment
date, at the Company's option, at a redemption price equal
to 100% of the principal amount of the notes to be redeemed.
In each case, the Company will pay accrued and unpaid
interest on the principal amount to be redeemed to the date
of redemption.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term
("Remaining Life") of the notes to be redeemed that would be
utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the
remaining term of such notes.
II-1
"Comparable Treasury Price" means, with respect to any
redemption date, (1) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding
the highest and lowest Reference Treasury Dealer Quotations,
or (2) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such
quotations.
"Independent Investment Banker" means one of the Reference
Treasury Dealers that the Company appoints to act as the
Independent Investment Banker from time to time. "Reference
Treasury Dealer" means Citigroup Global Markets Inc. and its
successors, and three other firms that are primary U.S.
Government securities dealers (each a "Primary Treasury
Dealer") which the Company will specify from time to time;
provided, however, that if any of them ceases to be a
Primary Treasury Dealer, the Company will substitute another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any redemption date,
the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at
5:00 p.m., New York City time, on the third business day
preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date,
the rate per year equal to: (1) the yield, under the heading
which represents the average for the immediately preceding
week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication
which is published weekly by the Board of Governors of the
Federal Reserve System and which establishes yields on
actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant
Maturities," for the maturity corresponding to the
Comparable Treasury Issue; provided that, if no maturity is
within three months before or after the Remaining Life of
the notes to be redeemed, yields for the two published
maturities most closely corresponding to the Comparable
Treasury Issue shall be determined and the Treasury Rate
shall be interpolated or extrapolated from those yields on a
straight-line basis, rounding to the nearest month; or (2)
if such release (or any successor release) is not published
during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the
semiannual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such
redemption date. The Treasury Rate shall be calculated on
the third business day preceding the redemption date.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each holder
of record of the notes to be redeemed at its registered
address. The notice of redemption for the notes will state,
among other things, the amount of notes to be redeemed, the
redemption date, the manner in which the redemption price
will be calculated and the place or places that payment will
be made upon presentation and surrender of notes to be
redeemed. Unless the Company defaults in the payment of the
redemption price, interest will cease to accrue on any notes
that have been called for redemption at the redemption date.
II-2
Sinking Fund
Provisions....................None
Defeasance Provisions........The notes are subject to the Company's ability
to choose "full defeasance" or "covenant
defeasance" as described in the base prospectus.
Time of Delivery..............10:00 a.m. (New York City time) on
June 21, 2005
Closing Location..............Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
Delayed Delivery..............n/a
Name and Address
OF Representatives............Citigroup Global Markets Inc.
390 Greenwich Street New York,
New York 10013
Designated Representatives...Citigroup Global Markets Inc.
390 Greenwich Street
New York, New York 10013
Address for Notices, etc......Citigroup Global Markets Inc.
390 Greenwich Street
New York, New York 10013
II-3
Exhibit 4.1
CORNING INCORPORATED
6.050 % Notes due 2015
Officers' Certificate
Pursuant to the Indenture, dated as of November 8, 2000 (the "Indenture"),
as supplemented, between Corning Incorporated (the "Company") and JPMorgan Chase
Bank, N.A., formerly The Chase Manhattan Bank, as Trustee (the "Trustee"), and
resolutions duly adopted by the Company's Board of Directors on February 7,
2001, at which a quorum was present in person or by teleconference and acting
throughout (the "Board Resolutions"), and minutes duly adopted by a majority of
the members of the Executive Committee of the Board of Directors of the Company
at a meeting duly called and held on June 16, 2005, at which a quorum was
present in person or by teleconference and acting throughout (the "approval"),
this Officers' Certificate is being delivered to the Trustee to establish the
terms of a series of Securities in accordance with Section 301 of the Indenture
and to establish the form of the Securities of such series in accordance with
Section 201 of the Indenture.
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to them in the Indenture.
A. Establishment of Series pursuant to Section 301 of Indenture.
There is hereby established pursuant to Section 301 of the Indenture a
series of Securities which shall have the following terms:
(1) The Securities shall bear the title "6.050% Notes due 2015" (the
"Notes").
(2) The aggregate principal amount of Notes to be issued pursuant to this
Officers' Certificate shall be limited to $100,000,000 (except for Notes
authenticated and delivered upon registration of, transfer of, or in exchange
for, or in lieu of, other Notes of each series pursuant to Section 304, 305,
306, 906 or 1107 of the Indenture and except for any Notes which, pursuant to
Section 303 of the Indenture, are deemed never to have been authenticated and
delivered thereunder).
(3) Interest will be payable to the Person in whose name a Note (or any
Predecessor Security) is registered at the close of business on the Regular
Record Date (as defined below) next preceding each Interest Payment Date (as
defined below); provided, however, that interest payable on the Maturity Date of
the Notes shall be payable to the Person to whom principal shall be payable.
1
(4) The date on which the principal of the Notes is due and payable shall
be June 15, 2015.
(5) The Notes shall bear interest at the rate of 6.050% per annum (based
upon a 360-day year consisting of twelve 30-day months), from and including June
21, 2005, or from and including the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
semiannually on June 15 and December 15 in each year, commencing on December 15,
2005, until the principal thereof is paid or made available for payment. Each
such June 15 or December 15 shall be an "Interest Payment Date" for the Notes,
and each June 1 or December 1 (whether or not a Business Day), as the case may
be, next preceding an Interest Payment Date shall be the "Regular Record Date"
for the interest payable on such Interest Payment Date.
(6) Principal of and interest on the Notes will be payable, and, except as
provided in Section 305 of the Indenture with respect to any Global Security (as
defined below), the transfer of the Notes will be registrable and Notes will be
exchangeable for Notes bearing identical terms and provisions at the corporate
trust office of JPMorgan Chase Bank, N.A. (the "Paying Agent"), in the Borough
of Manhattan, The City of New York.
(7) The Notes shall be redeemable as follows:
Prior to June 15, 2010, the Notes will be redeemable in whole at any time
or in part from time to time, at the option of the Company, at a redemption
price equal to the sum of the present values of the remaining scheduled payments
of principal and interest on the Notes to be redeemed (exclusive of interest
accrued to the date of redemption) discounted to the date of redemption on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the then current Treasury Rate plus 30 basis points. In addition, beginning on
June 15, 2010, the Notes will be redeemable in whole or in part on any Interest
Payment Date, at the Company's option, at a price equal to 100% of the principal
amount of the Notes to be redeemed.
In each case, the Company will pay accrued and unpaid interest on the
principal amount being redeemed to the date of redemption.
In connection with such optional redemption, the following defined terms
apply:
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term ("Remaining Life") of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any redemption date, (1)
the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
2
"Independent Investment Banker" means one of the Reference Treasury Dealers
that the Company appoints to act as the Independent Investment Banker from time
to time.
"Reference Treasury Dealer" means Citigroup Global Markets Inc. and its
successors, and three other firms that are primary U.S. Government securities
dealers (each a "Primary Treasury Dealer") which the Company will specify from
time to time; provided, however, that if any of them ceases to be a Primary
Treasury Dealer, the Company will substitute another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third business day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
year equal to: (1) the yield, under the heading which represents the average for
the immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant Maturities,"
for the maturity corresponding to the Comparable Treasury Issue; provided that,
if no maturity is within three months before or after the Remaining Life of the
Notes to be redeemed, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined and the
Treasury Rate shall be interpolated or extrapolated from those yields on a
straight line basis, rounding to the nearest month; or (2) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per year equal to the
semiannual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date. The Treasury Rate shall be calculated on the third
business day preceding the redemption date.
If the Company decides to redeem less than all of the outstanding Notes,
the Trustee will select the Notes to be redeemed:
- by lot,
- pro rata, or
- by any other method the Trustee considers fair and appropriate.
Notice of redemption will be mailed at least 30 but not more than 60 days
before the redemption date to each Holder of record of the Notes to be redeemed
at its registered address. The notice of redemption for the Notes will state,
among other things, the amount of Notes to be redeemed, the redemption date, the
manner in which the redemption price will be calculated and the place or places
that payment will be made upon presentation and surrender of Notes to be
3
redeemed. Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on any Notes that have been called for redemption
at the redemption date.
(8) The Company shall not be obligated to redeem or purchase any Notes
pursuant to any sinking fund or analogous provisions or at the option of any
Holder.
(9) Notes may be issued only in fully registered form and the authorized
denomination of the Notes shall be $1,000 and any integral multiple of $1,000 in
excess thereof.
(10) The amount of payments of principal of and any premium or interest on
the Notes will not be determined with reference to an index or pursuant to a
formula.
(11) The Notes shall be denominated, and payments of principal of and
interest on the Notes will be made, in United States dollars.
(12) The payments of principal of and interest on the Notes shall not be
payable at the election of the Company or Holder in one or more currencies,
composite currencies or currency units.
(13) The portion of the principal amount of the Notes which shall be
payable upon declaration of acceleration of maturity thereof shall not be other
than the principal amount thereof.
(14) The principal amount payable at the Stated Maturity of each Note shall
be determined as of a date or dates prior to the Stated Maturity.
(15) The defeasance provisions set forth in Sections 1302 and 1303 of the
Indenture shall apply to the Notes.
(16) The Notes will be represented by a global security (a "Global
Security") registered in the name of a nominee of the Depositary. The Depository
Trust Company will act as Depositary. Except as provided in Section 305 of the
Indenture, Notes will not be issuable in definitive form and will not be
exchangeable or transferable. So long as the Depositary or its nominee is the
registered holder of any Global Security, the Depositary or its nominee, as the
case may be, will be considered the sole Holder of the Notes represented by such
Global Security for all purposes under the Indenture and the Notes.
(17) The Notes shall be subject to the events of default specified in
Section 501, paragraphs (1) through (7), of the Indenture.
(18) The Notes shall be subject to the covenants set forth in Article Ten
of the Indenture.
(19) The Notes shall not be convertible into shares of Common Stock of the
Company or exchangeable for any other securities.
4
(20) The Notes shall have such other terms and provisions as are provided
in the form set forth in Exhibit A hereto.
B. Establishment of Note Form Pursuant to Section 201 of Indenture.
It is hereby established pursuant to Section 201 of the Indenture that the
Global Security representing the Notes shall be substantially in the form
attached hereto as Exhibit A.
C. Other Matters.
Attached as Exhibit B hereto are true and correct copies of the Board
Resolutions and approval; such Board Resolutions and approval have not been
further amended, modified or rescinded and remain in full force and effect; and
such Board Resolutions and approval (together with this Officers' Certificate)
are the only resolutions, approval or other action adopted by the Company's
Board of Directors or any committee thereof or by any Authorized Officers
relating to the offering and sale of the Notes.
The undersigned Mark S. Rogus and Denise A. Hauselt, respectively, being
Authorized Officers as defined in the Board Resolutions, each certifies that
he/she has approved the terms of the Notes as set forth in this Officers'
Certificate, all in accordance with the authority of such officer pursuant to
such Board Resolutions.
IN WITNESS WHEREOF, the undersigned have executed this Certificate this
21st day of June, 2005.
CORNING INCORPORATED
By: /s/ Mark S. Rogus
Name: Mark S. Rogus
Title: Senior Vice President
and Treasurer
By: /s/ Denise A. Hauselt
Name: Denise A. Hauselt
Title: Secretary
5
Exhibit 4.2
(FACE OF SECURITY)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE
"DEPOSITARY") AND ANY PAYMENT IS MADE TO CEDE & CO., OR SUCH OTHER NAME
REQUESTED BY THE DEPOSITARY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY.
1
6.050% Notes due 2015
CORNING INCORPORATED
Issue Date: June 21, 2005 Maturity: June 15, 2015
Principal Amount: $100,000,000 CUSIP No.: 219350 AQ 8
Registered: R-1 ISIN No.:US219350AQ85
Corning Incorporated, a corporation duly organized and existing under the
laws of the State of New York (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of One Hundred Million Dollars ($100,000,000) on June 15, 2015,
and to pay interest thereon from June 21, 2005 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on June 15 and December 15 in each year, commencing December 15, 2005, and at
the Maturity thereof, at the rate of 6.050% per annum, until the principal
hereof is paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or
2
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the June 1 or December 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest so payable, but not punctually paid or
duly provided for, on any Interest Payment Date will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid in any other lawful manner not inconsistent
with the requirements of any securities exchange on which this Security may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in New York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts, against surrender of this Security in the case of any payment due
at the Maturity of the principal thereof (other than any payment of interest
that first becomes payable on a day other than an Interest Payment Date);
provided, however, that at the option of the Company, payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register; and provided, further, that if
this Security is a Global Security, payment may be made pursuant to the
Applicable Procedures of the Depositary as permitted in said Indenture.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
3
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal. Dated: June 21, 2005
[SEAL] CORNING INCORPORATED
By:
------------------------------------------
Name: Mark S. Rogus
Title: Senior Vice President & Treasurer
Attest:
------------------------------------
Corporate Secretary
4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
Dated: June 21, 2005 JPMORGAN CHASE BANK, N.A.,
as Trustee
Authorized Signatory
5
(REVERSE OF SECURITY)
6.050% Notes due 2015
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of November 8, 2000 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), as supplemented, between the Company and JPMorgan Chase Bank, N.A.,
formerly The Chase Manhattan Bank, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in aggregate principal
amount to $100,000,000.
The Securities of this series are subject to redemption as follows:
Prior to June 15, 2010, the Securities will be redeemable in whole at any time
or in part from time to time, at the option of the Company, at a redemption
price equal to the sum of the present values of the remaining scheduled payments
of principal and interest on the Securities to be redeemed (exclusive of
interest accrued to the date of redemption) discounted to the date of redemption
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the then current Treasury Rate plus 30 basis points. In addition,
beginning on June 15, 2010, the Securities will be redeemable in whole or in
part on any Interest Payment Date, at the Company's option, at a price equal to
100% of the principal amount.
In each case, the Company will pay accrued and unpaid interest on the
principal
6
amount being redeemed to the date of redemption.
In connection with such optional redemption, the following defined terms
apply:
"Comparable Treasury Issue" means the United States Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term ("Remaining Life") of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date, (1) the
average of the Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest Reference Treasury Dealer Quotations, or
(2) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Independent Investment Banker" means one of the Reference Treasury Dealers that
the Company appoints to act as the Independent Investment Banker from time to
time.
"Reference Treasury Dealer" means Citigroup Global Markets Inc. and its
successors, and three other firms that are primary U.S. Government securities
dealers (each a "Primary Treasury Dealer") which the Company will specify from
time to time; provided, however, that if any of them ceases to be a Primary
Treasury Dealer, the Company will substitute another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its
7
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m., New York City time, on the third business day preceding
such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per year
equal to: (1) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue; provided that, if no
maturity is within three months before or after the Remaining Life of the
Securities to be redeemed, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined and the
Treasury Rate shall be interpolated or extrapolated from those yields on a
straight line basis, rounding to the nearest month; or (2) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per year equal to the
semiannual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date. The Treasury Rate shall be calculated on the third
business day preceding the redemption date.
If the Company decides to redeem less than all of the outstanding
Securities, the Trustee will select the Securities to be redeemed:
- by lot,
- pro rata, or
8
- by any other method the Trustee considers fair and appropriate.
Notice of redemption will be mailed at least 30 but not more than 60 days
before the redemption date to each Holder of record of the Securities to be
redeemed at its registered address. The notice of redemption for the Securities
will state, among other things, the amount of Securities to be redeemed, the
redemption date, the manner in which the redemption price will be calculated and
the place or places that payment will be made upon presentation and surrender of
Securities to be redeemed. Unless the Company defaults in the payment of the
redemption price, interest will cease to accrue on any Securities that have been
called for redemption at the redemption date.
In the event of redemption of this Security in part only, a new Security or
Securities of this Series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holders hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
No sinking fund is provided for the Securities.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of
9
the Securities at the time Outstanding of all series to be affected (considered
together as one class for this purpose). The Indenture also contains provisions
(i) permitting the Holders of a majority in principal amount of the Securities
at the time Outstanding of all series to be affected under the Indenture
(considered together as one class for this purpose), on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and (ii) permitting the Holders of a majority in
principal amount of the Securities at the time Outstanding of any series to be
affected under the Indenture (with each such series considered separately for
this purpose), on behalf of the Holders of all Securities of such series, to
waive certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture, or for the appointment of a receiver or trustee, or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days
10
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
11
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security is a Global Security and is subject to the provisions of the
Indenture relating to Global Securities, including the limitations in Section
305 thereof on transfers and exchanges of Global Securities.
This Security and the Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
12
[Corning Incorporated Letterhead]
Exhibit 5.1
June 21, 2005
Citigroup Global Markets Inc.
390 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of Corning Incorporated, a
New York corporation (the "Company"). I am familiar with the authorization,
execution and delivery of the Pricing Agreement, dated June 16, 2005 (the
"Pricing Agreement"), which, unless otherwise specified, incorporates by
reference all of the terms and conditions of the Underwriting Agreement, dated
June 16, 2005 (the "Underwriting Agreement") each between the Company and you
(the "Underwriter"). These agreements relate to the issuance and sale of
$100,000,000 aggregate principal amount of the Company's 6.050% Notes due 2015
(the "Notes"); and the preparation on Form S-3 under the Securities Act of 1933,
as amended (the "Act"), of the Registration Statement (File No. 333-57082)
relating to the Notes. This opinion is being furnished to you pursuant to
Section 7(c) of the Underwriting Agreement. All capitalized and undefined terms
used herein shall have the meanings assigned to them in the Underwriting
Agreement.
I have examined executed copies of the Underwriting Agreement, the Pricing
Agreement, the Indenture and the Registration Statement and all amendments
thereto and the originals or copies, certified or otherwise identified to my
satisfaction, of such documents and records of the Company and such public
documents and records as I have deemed necessary as a basis for the opinions
hereinafter expressed.
In rendering the opinions set forth below, I have assumed the authenticity
of all documents submitted to me as originals, the genuineness of all signatures
and the conformity to authentic originals of all documents submitted to me as
copies. For parties other than the Company, I have also assumed the legal
capacity of all natural persons and, that all parties to relevant agreements or
instruments had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties.
1
Based upon the foregoing and having regard for such legal considerations as
I have deemed relevant, it is my opinion that:
1. 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;
2. 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 authorized and validly issued and are fully
paid and non-assessable;
3. 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;
4. To the best of my 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 my knowledge no such
proceedings are threatened by governmental authorities or by others; and I have
not received notice that any such proceedings are contemplated by governmental
authorities;
5. The Underwriting Agreement and the Pricing Agreement with respect to the
Notes have been duly authorized, executed and delivered by the Company;
6. The Notes have been duly authorized and issued by the Company and
assuming due authentication by the Trustee and upon payment and delivery in
accordance with the Pricing Agreement and the Underwriting Agreement, will
constitute valid and binding obligations of the Company, enforceable against the
Company, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a proceeding in equity or at
law) and entitled to the benefits provided in the Indenture; and the Notes and
the Indenture conform as to legal matters to the descriptions in the Prospectus
as amended or supplemented;
7. The Indenture has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by the Trustee,
constitutes a valid and legally binding agreement of the Company enforceable
against the Company in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
2
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law); and the Indenture has
been duly qualified under the Trust Indenture Act.
8. The issue and sale of the Notes and the compliance by the Company with
all of the provisions of the Notes, the Indenture, the Underwriting Agreement
and the Pricing Agreement will not result in a breach of any of the terms of, or
constitute a default under, any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to me 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 law, statute or any violation of any material order, rule or
regulation known to me of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
9. 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 Notes or the consummation by the Company
of the transactions contemplated by the Underwriting Agreement or the Pricing
Agreement or the Indenture except such as have been obtained under the Act and
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Notes by
the Underwriter;
10. The statements set forth in the Prospectus under the caption
"Description of Debt Securities and Guarantees", and "Description of the Notes"
as a summary of the terms of the Notes, and under the captions "Plan of
Distribution" and "Underwriting", describing the provisions of the documents
referred to therein, are accurate, complete and fair in all material respects;
11. 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;
12. The documents incorporated by reference in the Prospectus as amended or
supplemented (other than the financial statements, related schedules and other
accounting information as to which I 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
13. The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements made by the Company
prior to the date for the Notes (other than the financial statements, related
schedules and other accounting information as to which I 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.
I have no reason to believe that, as of the effective date of the
Registration Statement, the Registration Statement (or, as of its date, any
further amendment or supplement thereto made by the Company prior to the date
hereof) (other than the financial statements, related schedules and
3
other accounting information as to which I express no opinion) 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 (other than the financial statements, related schedules and
other accounting information as to which I express no opinion) as of its date
and as of the date of any amendment or supplement thereto, contained an untrue
statement of a material fact or omitted 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 date hereof, either the Registration
Statement or the Prospectus (or any such further amendment or supplement
thereto) (other than the financial statements, related schedules and other
accounting information as to which I express no opinion) 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 I
have no reason to believe that any contracts or other documents incorporated by
reference in the Prospectus as amended or supplemented (other than the financial
statements, related schedules and other accounting information as to which I
express no opinion), when they became effective or were filed with the
Commission, 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 light of the
circumstances under which they were made when such documents were so filed, not
misleading; and I do 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.
This opinion is limited to the laws of the state of New York and to the
federal laws of the United States of America.
The foregoing opinion is being furnished to you solely for your benefit and
may not be relied upon by, nor may copies be delivered to, any other person
without my prior written consent.
Very truly yours,
/s/ William D. Eggers
4
Exhibit 99.1
FOR RELEASE -- JUNE 16, 2005
Media Relations Contact: Investor Relations Contact:
Daniel F. Collins Kenneth C. Sofio
(607) 974-4197 (607) 974-7705
collinsdf@corning.com sofiokc@corning.com
--------------------- -------------------
Corning Prices $100 Million of Senior Unsecured Notes
CORNING, N.Y. -- Corning Incorporated (NYSE:GLW) today announced that it has
priced $100 million aggregate principal amount of senior unsecured notes at 6.05
percent. The senior notes will mature on June 15, 2015 and are being issued
pursuant to Corning's existing $5 billion universal shelf registration
statement. Subject to customary closing conditions the transaction is expected
to close on June 21, 2005. Net proceeds of the offering will be used to reduce
debt costs and for general corporate purposes.
The company said that this new issue will replace the 7 percent debentures due
in 2007 that were redeemed on June 13, 2005. "This new capital will enable us to
reduce our interest expense and extend the duration of our debt portfolio," said
James B. Flaws, vice chairman and chief financial officer. "We had a goal to
drive our debt below $2 billion this year, and this transaction will not
preclude us from meeting that objective," he said.
Citigroup Global Markets Inc. served as underwriter for the offering. A written
prospectus meeting the requirements of Section 10 of the Securities Act may be
obtained by contacting Citigroup Global Markets Inc. at Brooklyn Army Terminal,
140 58th Street, 8th Floor, Brooklyn, New York 11220, 718-765-6732.
This news release shall not constitute an offer to sell, or the solicitation of
an offer to buy, nor shall there be any sale of these securities in any
jurisdiction in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such
jurisdiction.
About Corning Incorporated
Corning Incorporated (www.corning.com) is a diversified technology company that
concentrates its efforts on high-impact growth opportunities. Corning combines
its expertise in specialty glass, ceramic materials, polymers and the
manipulation of the properties of light, with strong process and manufacturing
capabilities to develop, engineer and commercialize significant innovative
products for the telecommunications, flat panel display, environmental,
semiconductor, and life sciences industries.
(more)
1
Corning Prices $100 Million of Senior Unsecured Notes
Page Two
Forward-Looking and Cautionary Statements
This press release contains forward-looking statements that involve a variety of
business risks and other uncertainties that could cause actual results to differ
materially. These risks and uncertainties include the possibility of changes or
fluctuations in global economic and political conditions; tariffs, import duties
and currency fluctuations; product demand and industry capacity; competitive
products and pricing; manufacturing efficiencies; cost reductions; availability
and costs of critical components and materials; new product development and
commercialization; order activity and demand from major customers; capital
spending by larger customers in the liquid crystal display industry and other
businesses; changes in the mix of sales between premium and non-premium
products; facility expansions and new plant start-up costs; possible disruption
in commercial activities due to terrorist activity, armed conflict, political
instability or major health concerns; ability to obtain financing and capital on
commercially reasonable terms; adequacy and availability of insurance; capital
resource and cash flow activities; capital spending; equity company activities;
interest costs; acquisition and divestiture activities; the level of excess or
obsolete inventory; the rate of technology change; the ability to enforce
patents; product and components performance issues; changes in key personnel;
stock price fluctuations; and adverse litigation or regulatory developments.
These and other risk factors are identified in Corning's filings with the
Securities and Exchange Commission. Forward-looking statements speak only as of
the day that they are made, and Corning undertakes no obligation to update them
in light of new information or future events.
2