UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
CityplaceWashington, StateDC PostalCode20549
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) July 27, 2006
CityplaceCORNING INCORPORATED
(Exact name of registrant as specified in its charter)
StateplaceNew 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
Press release of Corning Incorporated (the "Company") dated July 27, 2006
relating to the Notes is furnished herewith as Exhibit 99.1. The information in
the attached press release is furnished pursuant to Item 7.01 and shall not be
deemed to be "filed" for purposes of Section 18 of the Securities and Exchange
Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the
liabilities of that Section, and is not incorporated by reference in any filing
under the Securities Exchange Act of 1933, as amended, or the Exchange Act.
Item 8.01. Other Events
On July 27, 2005, the Company agreed to sell $250,000,000 principal amount of
its 7.250% Notes due 2036 (the "Notes"), all pursuant to an Underwriting
Agreement and a Pricing Agreement each dated July, 27, 2006, 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 August 1, 2006, 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
(d) Exhibits
1.1 Underwriting Agreement dated July 27, 2006, among the Company and Citigroup
Global Markets Inc., as Underwriter (excluding exhibits thereto).
1.2 Pricing Agreement dated July 27, 2006, among the Company and Citigroup
Global Markets Inc., as Underwriter.
4.1 Officers' Certificate of the Company dated August 1, 2006, 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 Notes.
4.2 Specimen Note.
5.1 Opinion of William D. Eggers, Senior Vice President and General Counsel of
the Company dated August 1, 2006, pursuant to Section 7(c) of the
Underwriting Agreement.
99.1 Press Release dated July 27, 2006, issued by the Company relating to the
Notes.
2
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: August 1, 2006
CORNING INCORPORATED
By: /S/ DENISE A. HAUSELT
--------------------------------
Denise A. Hauselt
Secretary
3
INDEX TO EXHIBIT
Exhibit
(d) Exhibits
1.1 Underwriting Agreement dated July 27, 2006, among the Company and Citigroup
Global Markets Inc., as Underwriter (excluding exhibits thereto).
1.2 Pricing Agreement dated July 27, 2006, among the Company and Citigroup
Global Markets Inc., as Underwriter.
4.1 Officers' Certificate of the Company dated August 1, 2006, 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 Notes.
4.2 Specimen Note.
5.1 Opinion of William D. Eggers, Senior Vice President and General Counsel of
the Company dated August 1, 2006, pursuant to Section 7(c) of the
Underwriting Agreement.
99.1 Press Release dated July 27, 2006, issued by the Company relating to the
Notes.
4
Exhibit 1.1
Corning Incorporated
$250,000,000 7.250% Notes Due 2036
---------------------------------
Underwriting Agreement
---------------------------------
July 27, 2006
Citigroup Global Markets Inc.
388 Greenwich St.
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 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
(the "Base 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 res.ect to such
registration statements or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission; the Base
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 supplement, including the Base
Prospectus contained in either of such registration statements, as filed with
the Commission pursuant to Rule 424(b) 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 Base Prospectus contained in such registration statements
and the Rule 462(b) Registration Statement, if any, at the time such part of
such registration statements or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective but
excluding Form T-1 and including any prospectus supplement relating to the
Securities that is filed with the Commission and deemed by virtue of Rule 430B
to be part of such registration statement, 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 are hereinafter called the "Registration
Statement;" the prospectus supplement relating to the Securities, in the form in
which it was first filed, or transmitted for filing, with the Commission
pursuant to Rule 424(b) after the Applicable Time, together with the Base
Prospectus, 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
post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Securities filed with the Commission pursuant to
424(b) and 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.
(b) No order preventing or suspending the use of any Preliminary Prospectus
or any "issuer free writing prospectus" as defined in Rule 433 under the Act
relating to the Securities (an "Issuer Free Writing Prospectus") has been issued
by the Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed 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 did 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, in the light of
the circumstances under which they were made, not misleading;
(c) (i) With respect to any issue of Securities to be sold pursuant to a
Pricing Agreement, the "Applicable Time" will be such time on the date of such
Pricing Agreement as is specified therein as the Applicable Time, and the
"Pricing Disclosure Package" will be the Base Prospectus as amended or
supplemented at the Applicable Time, together with (A)\ the information
referenced in Schedule III to such Pricing Agreement and (B) such other
documents, if any, as may be listed in Schedule III to such Pricing Agreement,
taken together; (ii) with respect to each such issue of Securities, the Pricing
Disclosure Package, as of the Applicable Time, will not include any 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 are made, not misleading; and (iii) with respect to each such issue
of Securities, each Issuer Free Writing Prospectus listed in Schedule III to the
applicable Pricing Agreement, if any, will not conflict with the information
contained in the Registration Statement, the Prospectus or the Prospectus as
amended or supplemented and, taken together with the Pricing Disclosure Package
as of the Applicable Time, will not include any 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 are made,
not misleading; provided, however, that the representations and warranties in
clauses (ii) and (iii) of this Section 2(c) shall not apply to statements or
omissions made in the Pricing Disclosure Package or Prospectus in reliance upon
and in conformity with information furnished in writing to the Company by any
Underwriter through the Representatives expressly for use therein;
(d) The documents incorporated by reference in the Pricing Disclosure
Package and the Prospectus as amended or supplemented, 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, in light of the circumstances under which they were made,
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, in light of the circumstances under which they were made,
not misleading;
(e) 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, 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 defined in Section 4 hereof) as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(f) 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, Pricing Disclosure Package, 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 Pricing Disclosure Package and the Prospectus;
(g) 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 Pricing Disclosure
Package and the Prospectus;
(h) The Company has an authorized capitalization as set forth in the
Pricing Disclosure Package and 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;
(i) 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,
executed and delivered which will be substantially in the form filed as an
exhibit to the Registration Statement; the Indenture, has been duly authorized,
executed and delivered, 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;
(j) 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 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;
(k) The statements set forth in the Pricing Disclosure Package under the
caption "Description of Debt Securities and Guarantees", insofar as they purport
to constitute a summary of the terms of the Securities and the Designated
Securities, and under the caption "Plan of Distribution", insofar as they
purport to describe the provisions of the documents referred to therein, are
accurate, complete and fair in all material respects, and 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;
(l) 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;
(m) Other than as set forth or contemplated in the Pricing Disclosure
Package and 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;
(n) The Company is not and, after giving effect to the offering and sale of
the Securities, will not be an "investment company" or an entity "controlled" by
an "investment company", as such terms are defined in the Investment Company Act
of 1940, as amended (the "Investment Company Act") ; and
(o) (i) (A) At the time of filing the Registration Statement, (B) at the
time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus) and (C) at the time the Company or any
person acting on its behalf (within the meaning, for this clause only, of Rule
163(c) under the Act) made any offer relating to the Securities in reliance on
the exemption of Rule 163 under the Act, the Company was a "well-known seasoned
issuer" as defined in Rule 405 under the Act; and (ii) at the earliest time
after the filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Act) of the Securities, and as of the date of the execution
and delivery of the Pricing Agreement the Company was not an "ineligible issuer"
as defined in Rule 405 under the 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 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 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 placeStateNew York are generally authorized or obligated by law or executive
order to close.
4A. (a) (i) The Company and each Underwriter agree that the Underwriters
may prepare and use one or more preliminary or final term sheets relating to the
Securities containing customary information; (ii) Each Underwriter represents
that, other than as permitted under subparagraph (a)(i) above, it has not made
and will not make any offer relating to the Securities that would constitute a
"free writing prospectus" as defined in Rule 405 under the Act required to be
filed by the Company without the prior consent of the Company and the
Representatives and that, with respect to any issue of Securities to be sold
pursuant to a Pricing Agreement, Schedule III to such Pricing Agreement will be
a complete list of any Issuer Free Writing Prospectuses for which the
Underwriters have received such consent; and (iii) The Company represents and
agrees that it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus without the
prior consent of the Representatives and that, with respect to any issue of
Securities to be sold pursuant to a Pricing Agreement, Schedule III to such
Pricing Agreement will be a complete list of any free writing prospectuses for
which the Company has received such consent;
(b) The Company has complied and will comply with the requirements of Rule
433 under the Act applicable to any Issuer Free Writing Prospectus, including
timely filing with the Commission or retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer
Free Writing Prospectus any event occurred or occurs as a result of which such
Issuer Free Writing Prospectus would conflict with the information in the
Registration Statement, the Preliminary Prospectus, the Prospectus as amended or
supplemented or 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 then prevailing, not misleading, the Company will
give prompt notice thereof to the Representatives and, if requested by the
Representatives, will prepare and furnish without charge to each Underwriter an
Issuer Free Writing Prospectus or other document which will correct such
conflict, statement or omission; provided, however, that this representation and
warranty shall not apply to any statements or omissions in an Issuer Free
Writing Prospectus made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus 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 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 subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) 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 Preliminary Prospectus, 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, the Preliminary Prospectus 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; with respect to any issue of Securities to be
sold pursuant to a Pricing Agreement, but only if requested by the
Representatives party to such Pricing Agreement prior to the Applicable Time, to
prepare a final term sheet relating to such Securities in the form set forth in
Schedule IV to such Pricing Agreement and to file such final term sheet pursuant
to Rule 433(d) under the Act within the time required by such rule; to file
promptly all material required to be filed by the Company with the Commission
pursuant to Rule 433(d) under the Act;
(b) If required by Rule 430B(h) under the Act, to prepare a form of
prospectus in a form approved by the Representatives and to file such form of
prospectus pursuant to Rule 424(b) under the Act no later than may be required
by Rule 424(b) under the Act; and to make no further amendment or supplement to
such form of prospectus which shall be disapproved by the Representatives after
reasonable notice thereof;
(c) 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;
(d) To furnish the Underwriters with copies of the Prospectus and any
amendment or supplement thereto in such quantities as the Representatives may
from time to time reasonably request, and, if the delivery of a prospectus (or
in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required at any time in connection with the offering or sale of the Securities
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) 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;
(e) 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);
(f) 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
(g) 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 any Issuer Free Writing Prospectus 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(c) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee, any Warrant Agent, any Registrar, any Transfer Agent,
Dividend Disbursing Agent, or any Calculation Agent and any agent of any
Trustee, Warrant Agent, Registrar, Transfer Agent, Dividend Disbursing Agent, or
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 true and correct, at and as of each Time of Delivery and Time of
Sale for such Designated Securities ("Time of Sale" shall mean, with respect to
any obligation of an Underwriter to purchase the Designated Securities, the time
when the related Pricing Agreement becomes effective or if there is no Pricing
Agreement, the time when the Underwriter becomes committed to purchase such
Designated Securities), 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) Preliminary Prospectus and Prospectus as amended or supplemented in
relation to the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) under the Act 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; the final term sheet contemplated by
Section 5(a) hereof and any other material required to be filed by the Company
pursuant to Rule 433(d) under the Act shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and no stop order suspending or preventing the use
of the Prospectus or any Issuer Free Writing Prospectus 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, the Pricing Disclosure Package, 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 and the Pricing Disclosure Package;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented and the Pricing Disclosure Package
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 supplemented or amended and the Pricing
Disclosure Package, 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 supplemented or amended and the
Pricing Disclosure Package 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 and the Pricing Disclosure Package; 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 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 caption "Description of Debt Securities and
Guarantees", insofar as they purport to constitute a summary of the terms
of the Securities and the Designated Securities, and under the caption
"Plan of Distribution", insofar as they purport to describe the provisions
of the documents referred to therein, are accurate, complete and fair in
all material respects, and 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 and the Pricing Disclosure Package (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 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, (i) each part of the Registration Statement, when such part became
effective, 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, (ii) the documents specified in a schedule to
such counsel's letter, consisting of those included in the Pricing Disclosure
Package, as of the
Applicable Time, 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, (iii) 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 (iv) as of the Time
of Delivery, either the documents specified in a schedule to such counsel's
letter, consisting of those included in the Pricing Disclosure Package, 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, in light of
the circumstances under which they were made, 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 date of the
Pricing Agreement, 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 Pricing Disclosure Package or the Prospectus as
amended or supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or government action, order or decree, otherwise than
as set forth or contemplated in the Pricing Disclosure Package and the
Prospectus and (ii) since the respective dates as of which information is given
in the Prospectus 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 Pricing Disclosure Package and the Prospectus, 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 Pricing
Disclosure Package and the Prospectus as amended or supplemented;
(f) On or after the Applicable Time (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 Applicable Time, 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, and at and as of the
applicable Time of Sale, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to each Time of Delivery, as
to the matters set forth in subsections (a) and (e) of this Section and as to
such other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Pricing Disclosure Package, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus or any "issuer information" filed
or required to be filed pursuant to Rule 433(d) under the Act, 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 the Pricing Disclosure Package, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or supplement
thereto, or any Issuer Free Writing Prospectus, 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.
(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 the Pricing Disclosure Package,
the Registration Statement, the Prospectus, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus, 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 the Pricing Disclosure Package, the Registration Statement,
the Prospectus, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any Issuer Free Writing Prospectus, or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters of the Designated Securities on the other from
the offering of the Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Securities or Optional Securities which it has agreed to purchase under the
Pricing Agreement relating to such Firm Securities or Optional Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Underwriters' Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Securities or Optional Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Firm
Securities or Optional Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Firm Securities or Optional
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Firm Securities or Optional Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Firm Securities or Optional Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of such Firm Securities
or Optional Securities, as the case may be, which remains unpurchased does not
exceed one eleventh of the aggregate principal amount of the Firm Securities or
Optional Securities, as the case may be, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the principal amount of
Firm Securities or Optional Securities, as the case may be, which such
Underwriter agreed to purchase under the Pricing Agreement relating to such
Designated Securities and, in addition, to require each non defaulting
Underwriter to purchase its pro rata share (based on the aggregate principal
amount of Firm Securities or Optional Securities, as the case may be, which such
Underwriter agreed to purchase under such Pricing Agreement) of the Firm
Securities or Optional Securities, as the case may be, of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of Firm Securities or
Optional Securities, as the case may be, which remains unpurchased exceeds one
eleventh of the aggregate principal amount of the Firm Securities or Optional
Securities, as the case may be, as referred to in subsection (b) above, or if
the Company shall not exercise the right described in subsection (b) above to
require non defaulting Underwriters to purchase Firm Securities or Optional
Securities, as the case may be, of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Securities shall
thereupon terminate, without liability on the part of any non defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter with respect to the Firm Securities or Optional Securities
covered by such Pricing Agreement except as provided in Section 6 and Section 8
hereof; but, if for any other reason Designated Securities are not delivered by
or on behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement; Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
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
placeCityWashington, StateD.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 placeStateNew York.
16. The Company hereby acknowledges that (a) the purchase and sale of the
Designated Securities pursuant to this Agreement is an arm's-length commercial
transaction between the Company, on the one hand, and the Underwriters and any
affiliate through which it may be acting, on the other, (b) the Underwriters are
acting as principal and not as an agent or fiduciary of the Company and (c) the
Company's engagement of the Underwriters in connection with the offering and the
process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company agrees that it is solely responsible
for making its own judgments in connection with the offering (irrespective of
whether any of the Underwriters has advised or is currently advising the Company
on related or other matters).
17. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
Corning Incorporated
By /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
Exhibit 1.2
PRICING AGREEMENT
July 27, 2006
Citigroup Global Markets Inc.
388 Greenwich St.
New York, New York Code10013
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 July 27, 2006 (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 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/ B.D. Bednarski
--------------------------------
Name: Brian D. Bednarski
Title: Director
SCHEDULE I
Principal Amount
of Notes
Underwriter to be Purchased
-----------
Citigroup Global Markets Inc................................ $250,000,000
Total.............................................. $250,000,000
SCHEDULE II
Title of Designated
Securities................ 7.250% Notes due 2036 (the "notes")
Aggregate
Principal Amount.......... $250,000,000
Price to Public........... 99.437%
Purchase Price by
Underwriters.............. 98.562%
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.................. August 15, 2036
Interest Rate............. 7.250%
Interest Payment Dates.... Each February 15 and August 15, commencing on February 15, 2007
Redemption Provisions..... Prior to August 15, 2026, 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 greater of (i) 100%
of the principal amount of the notes to be redeemed;
or (ii) 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 35 basis points.
In addition, beginning on August 15, 2026, 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 August
15, 2026 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 August 15, 2026.
"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 August 15, 2026, 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.
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.
Applicable Time........... 1:00 p.m. (placeCityNew York City time) on July 27, 2006
Time of Delivery.......... 10:00 a.m. (placeCityNew York City time) on August 1, 2006
Closing Location.......... Sullivan & Cromwell LLP
addressStreet125 Broad Street
CityNew York, StateNew York PostalCode10004
Delayed Delivery.......... n/a
Name and Address of
Representatives........... Citigroup Global Markets Inc. addressStreet390
Greenwich Street, 4th Floor placeCityNew York,
StateNY PostalCode10013
Designated Representatives
Citigroup Global Markets Inc.
addressStreet390 Greenwich Street, 4th Floor
placeCityNew York, StateNY PostalCode10013
Address for Notices, etc..
Citigroup Global Markets Inc.
addressStreet390 Greenwich Street, 4th Floor
placeCityNew York, StateNY PostalCode10013
SCHEDULE III
(a) Issuer Free Writing Prospectuses:
o Final term sheet in the form set forth in Schedule IV hereto, but only
if the Company is obligated to prepare and file such term sheet
pursuant to Section 5(a) of the Underwriting Agreement.
(b) Additional Information in Pricing Disclosure Package:
None.
(c) Additional Documents Incorporated by Reference:
None.
SCHEDULE IV
Filed Pursuant to Rule 433
Registration No. 333-57082
July 27, 2006
PRICING TERM SHEET
-------------------------------------- ----------------------------------------------------------------------
Issuer: Corning Incorporated
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Security: 7.250% Notes due 2036
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Size: $250,000,000
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Maturity Date: August 15, 2036
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Coupon: 7.250%
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Interest Payment Dates: February 15 and August 15, commencing February 15, 2007
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Price to Public: 99.437%
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Spread to Benchmark Treasury: + 212.5 bp
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Benchmark Treasury: 5.375% due February 15, 2031
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Benchmark Treasury Yield: 5.171%
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Optional Redemption: Prior to August 15, 2026, 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 greater of (i) 100% of the
principal amount of the notes to be redeemed; or (ii) 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 35 basis
points. In addition, beginning on August 15, 2026, 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.
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Call Notification Period At least 30, but not more than 60 calendar days
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Expected Settlement Date: August 1, 2006
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
CUSIP: 219350 AR 6
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
ISIN US219350AR68
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Anticipated Ratings: Baa2 by Moody's Investors Service, Inc.
BBB by Standard & Poor's Ratings Services
BBB by Fitch Ratings
-------------------------------------- ----------------------------------------------------------------------
-------------------------------------- ----------------------------------------------------------------------
Underwriter: Citigroup Global Markets Inc.
-------------------------------------- ----------------------------------------------------------------------
Note: A securities rating is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at
www.sec.gov. Alternatively, the issuer, the underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you
request it by calling Citigroup Global Markets Inc. toll free at 1-877-858-5407.
Exhibit 4.1
CORNING INCORPORATED
7.250% Notes due 2036
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 July 27, 2006, 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 "7.250% Notes due 2036"
(the "Notes").
(2) The aggregate principal amount of Notes to be issued pursuant
to this Officers' Certificate shall be limited to $250,000,000 (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.
(4) The date on which the principal of the Notes is due and
payable shall be August 15, 2036.
(5) The Notes shall bear interest at the rate of 7.250% per annum
(based upon a 360-day year consisting of twelve 30-day months), from
and including August 1, 2006, 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 February 15 and
August 15 in each year, commencing on February 15, 2007, until the
principal thereof is paid or made available for payment. Each such
February 15 or August 15 shall be an "Interest Payment Date" for the
Notes, and each February 1or August 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 August 15, 2026, 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 greater of (i) 100% of the principal amount of the notes to
be redeemed; or (ii) 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 35 basis points. In addition,
beginning on August 15, 2026, 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 August
15, 2026 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 August 15, 2026.
"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 August 15, 2026, 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:
o by lot,
o pro rata, or
o 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
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 placecountry-regionUnited
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.
(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.
D. 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 1st day
of August, 2006.
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
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.
7.250% Notes due 2036
CORNING INCORPORATED
---------------------------------------- --------------------------------------
Issue Date: August 1, 2006 Maturity: August 15, 2036
---------------------------------------- --------------------------------------
-------------------------------------------------------------------------------
Principal Amount: $250,000,000 CUSIP No.: 219350 AR 6
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Registered: R-1 ISIN No.:US219350AR68
-------------------------------------------------------------------------------
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 Two Hundred Fifty Million Dollars ($250,000,000) on August 15,
2036, and to pay interest thereon from August 1, 2006 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on February 15 and August 15 in each year, commencing February 15,
2007, and at the Maturity thereof, at the rate of 7.250% 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 more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the February 1 or
August 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.
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: August 1, 2006
[SEAL] CORNING INCORPORATED
By: /S/ MARK S. ROGUS
-----------------------------------------------
Name: Mark S. Rogus
Title: Senior Vice President and Treasurer
Attest: /S/ DENISE A. HAUSELT
------------------------------------
Corporate Secretary
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: August 1, 2006 JPMORGAN CHASE BANK, N.A.,
as Trustee
/S/ JOSEPH J. MORAND
---------------------------------------
Authorized Signatory
(REVERSE OF SECURITY)
7.250% Notes due 2036
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 $250,000,000.
The Securities of this series are subject to redemption as follows:
Prior to August 15, 2026, 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 greater of (i) 100% of the principal amount of the notes to
be redeemed; or (ii) 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 35 basis points. In
addition, beginning on August 15, 2026, 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 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 August
15, 2026, 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 August 15, 2026.
"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 August 15, 2026, 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:
o by lot,
o pro rata, or
o 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 the Securities at
the time Outstanding of all series to be affected (considered together as one
class for this purpose). The Indenture also contains provisions (i) permitting
the Holders of a majority in principal amount of the Securities at the time
Outstanding of all series to be affected under the Indenture (considered
together as one class for this purpose), on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and (ii) permitting the Holders of a majority in
principal amount of the Securities at the time Outstanding of any series to be
affected under the Indenture (with each such series considered separately for
this purpose), on behalf of the Holders of all Securities of such series, to
waive certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture, or for the appointment of a receiver or trustee, or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place
where the principal of and any premium and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security is a Global Security and is subject to the provisions of the
Indenture relating to Global Securities, including the limitations in Section
305 thereof on transfers and exchanges of Global Securities.
This Security and the Indenture shall be governed by and construed in
accordance with the laws of the State of placeStateNew York.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Exhibit 5.1
August 1, 2006
Citigroup Global Markets Inc.
390 Greenwich Street
New York, StateNew York PostalCode10013
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of Corning Incorporated, a
placeStateNew York corporation (the "Company"). I am familiar with the
authorization, execution and delivery of the Pricing Agreement, dated July 27,
2006 (the "Pricing Agreement"), which, unless otherwise specified, incorporates
by reference all of the terms and conditions of the Underwriting Agreement,
dated July 27, 2006 (the "Underwriting Agreement"), each between the Company and
you (the "Underwriter"). These agreements relate to the issuance and sale of
$250,000,000 aggregate principal amount of the Company's 7.250% Notes due 2036
(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 in my letter 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
expressed below.
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 these agreements or instruments, that these
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that these
agreements or instruments are the valid, binding and enforceable obligations of
such parties.
Based upon the foregoing and having regard for the 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 and
the Pricing Disclosure Package;
2. The Company has an authorized capitalization as set forth in the Prospectus
as amended or supplemented and the Pricing Disclosure Package 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
as amended or supplemented and the Pricing Disclosure Package, 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 the Pricing Disclosure Package
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. I note that on July 28, 2006, the
Company received notice of an action by the State of Illinois, through its
Attorney General, in the McHenry County Circuit Court seeking an injunction
pertaining to the site of a former facility in Crystal Lake, Illinois,
requiring the Company to provide an alternative method of supplying safe
drinking water to all affected and potentially affected residents and to
conduct an investigation of the impacted area to define the nature and
extent of the alleged contamination. I believe this action will not have a
material adverse effect on the Company's financial position or results of
operations, but note this matter was recently received and under
investigation.
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 executed, 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 their descriptions in the Prospectus as amended or
supplemented and the Pricing Disclosure Package;
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, 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 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 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 Base Prospectus, as amended or supplemented
at 1:00 p.m. on July 27, 2006, under the caption "Description of Debt
Securities and Guarantees", insofar as they purport to constitute a summary
of the terms of the Notes, and under the caption "Plan of Distribution",
insofar as they purport to describe the provisions of the documents
referred to therein, are accurate, complete and fair in all material
respects, and 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 Notes, 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;
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 and the Pricing Disclosure Package (other than the financial
statements, related schedules and other accounting information contained or
incorporated by reference therein, or omitted therefrom, 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 thereto made by the Company
prior to the date hereof (other than the financial statements, related
schedules and other accounting information contained or incorporated by
reference therein, or omitted therefrom, 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 (i) the Registration Statement (other than
the financial statements, related schedules and other accounting information,
contained or incorporated by reference therein, or omitted therefrom, as to
which I express no opinion), when it became effective (and each part thereto),
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, (ii) the documents specified in Schedule A hereto, as of 1:00
p.m. on July 27, 2006, 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, (iii) the
Prospectus (other than the financial statements, related schedules and other
accounting information, contained or incorporated by reference therein, or
omitted therefrom, 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 (iv) as of the date hereof, either document specified in
Schedule A hereto (or any such further amendment or supplement thereto)(other
than the financial statements, related schedules and other
accounting information, contained or incorporated by reference therein, or
omitted therefrom, 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 and the Pricing
Disclosure Package (other than the financial statements, related schedules and
other accounting information, contained or incorporated by reference therein, or
omitted therefrom, 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 StateNew York and to
the federal laws of the placecountry-regionUnited 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
Schedule A
Pricing Disclosure Package:
1. The Prospectus dated March 29, 2001.
2. Issuer Free Writing Prospectus:
Final term sheet in the form set forth in Schedule IV of the Pricing
Agreement.
Exhibit 99.1
FOR RELEASE -- JULY 27, 2006
Media Relations Contact: Investor Relations Contact:
M. Elizabeth Dann Kenneth C. Sofio
(607) 974-4989 (607) 974-7705
dannme@corning.com sofiokc@corning.com
Corning Prices $250 Million of Senior Unsecured Notes
CORNING, N.Y. -- Corning Incorporated (NYSE:GLW) today announced that it has
priced $250 million aggregate principal amount of senior unsecured notes at 7.25
percent. The senior notes will mature on August 15, 2036 and are being issued
pursuant to placeCityCorning's existing $5 billion universal shelf registration
statement. Subject to customary closing conditions, the transaction is expected
to close on August 1, 2006. Net proceeds of the offering will be used for
general corporate purposes.
"This issuance, in conjunction with recently completed debt retirements,
supports our strategy to minimize near-term maturities while maintaining cash in
excess of our debt," said James B. Flaws, vice chairman and chief financial
officer.
Citigroup Global Markets Inc. served as underwriter for the offering. The
offering is being made only by means of a prospectus and a related prospectus
supplement, copies of which may be obtained by contacting Citigroup Corporate
and Investment Banking at Brooklyn Army Terminal, 140 58th Street, 8th Floor,
Brooklyn, NY 11220, 718-765-6732, fax 718-765-6734.
A shelf registration statement relating to the senior notes was filed with the
Securities and Exchange Commission and declared effective.
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.
(more)
Corning Prices $250 Million of Senior Unsecured Notes
Page Two
About placeCityCorning 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.
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 in
global economic and political conditions; tariffs, import duties and currency
fluctuations; product demand and industry capacity; competition; manufacturing
efficiencies; cost reductions; availability and costs of critical components and
materials; new product development and commercialization; order activity and
demand from major customers; 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; adequacy and availability of
insurance; capital spending; equity company activities; 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; stock price fluctuations; and adverse litigation or
regulatory developments. Additional risk factors are identified in
placeCityCorning's filings with the Securities and Exchange Commission.
Forward-looking statements speak only as of the day that they are made, and
placeCityCorning undertakes no obligation to update them in light of new
information or future events.
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