Exhibit 1.1
Corning
Incorporated
$250,000,000 6.625% Notes Due
2019
$100,000,000 7.000% Notes Due
2024
Underwriting
Agreement
May 7, 2009
J.P. Morgan Securities
Inc.
383 Madison Avenue, Floor 39
New York, New York 10017
Deutsche Bank Securities Inc. 60
Wall Street
New York, New York 10005
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 The Bank of New
York Mellon Trust Company, N.A. (successor to J. P. Morgan
Chase & Co., formerly The Chase Manhattan Bank), as
Trustee. The particular terms of any issuance of Securities will be
determined at the time of offering, pursuant to the resolutions and
actions of the Board of Directors and the Executive Committee of
the Board of Directors of the Company and the related
Officers’ Certificate in accordance with Section 301 of
the Indenture.
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, and the
other terms of the Designated Securities 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) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form
S-3 (File No. 333-155803), including among the securities
registered thereunder debt securities such as the Securities, has
been filed with the Securities and Exchange Commission (the
“Commission”) not more than three years prior to the
date hereof; such registration statement, and any post-effective
amendment thereto, became effective on filing; and no stop order
suspending the effectiveness of such registration statement or any
part thereof has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission, and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company (the base
prospectus filed as part of such registration statement, in the
form in which it has most recently been filed with the Commission
on or prior to the date of this Agreement, is hereinafter called
the “Base Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the
Securities filed with the Commission
pursuant to Rule 424(b) under the Act is
hereinafter called a “Preliminary Prospectus”; the
various parts of such registration statement, including all
exhibits thereto 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 statement became effective, are hereinafter
collectively called the “Registration Statement”; the
Base Prospectus, as amended and supplemented with respect to the
Securities immediately prior to the Applicable Time (as defined in
Section 1(c) hereof), is hereinafter called the “Pricing
Prospectus”; the form of the final prospectus relating to the
Securities filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof is hereinafter
called the “Prospectus”; any reference herein to the
Base Prospectus, the Pricing Prospectus, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such
prospectus; any reference to any amendment or supplement to the
Base Prospectus, 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 Rule 424(b)
under the Act and any documents filed under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and
incorporated by reference therein, in each case after the date of
the Base Prospectus, such Preliminary Prospectus or the Prospectus,
as the case may be; and 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 with respect to such Securities as is specified
therein as the Applicable Time, and the “Pricing Disclosure
Package” will be the Pricing Prospectus, 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 with respect to such Securities, 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 Pricing Prospectus or the
Prospectus 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
Pricing Disclosure Package and 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 from any 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: (i) 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 business,
financial condition or results of operations of the Company and its
subsidiaries taken as a whole; and (ii) neither the Company
nor any of its subsidiaries has entered into any transaction or
agreement that is material to the Company and its subsidiaries
taken as a whole or incurred any liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries
taken as a whole, in each case 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, which will be
substantially in the form filed as an exhibit to the Registration
Statement, as supplemented by the form of Designated Securities;
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; this Agreement has been,
and the Pricing Agreement with respect to such Designated
Securities will be, duly authorized, executed and delivered by the
Company;
(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, filed with the New York Secretary of State on
January 22, 2001, as amended, or the By-Laws, as amended
through February 4, 2009, 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 and the Prospectus under the captions
“Description of Debt Securities” and “Description
of the Notes”, insofar as they purport to constitute a
summary of the terms of the Securities and the
Designated
Securities, are accurate, complete and fair in
all material respects, and the statements set forth in the Pricing
Disclosure Package and the Prospectus under the captions
“Plan of Distribution” and “Underwriting”,
insofar as they purport to describe certain 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 a material adverse effect on the business, financial
condition or results of operations 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, or are
reasonably likely to have, a material adverse effect on the
business, financial condition or results of operations of the
Company and its subsidiaries taken as a whole; 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
(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 the 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 global, book-entry form 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 through the facilities of DTC for the
respective accounts of the Underwriters, against payment by such
Underwriters or on their behalf of the purchase price therefor by
the method specified in such Pricing Agreement, (i) with
respect to the Firm Securities, all at the place and time and date
specified in such Pricing Agreement or at such other place and time
and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the “First
Time of Delivery”, and (ii) with respect to the Optional
Securities, if any, on the time and date specified by the
Representatives in the written notice given by the Representatives
of the Underwriters’ election to purchase such Optional
Securities, or at such other time and date as the Representatives
and the Company may agree upon in writing, such time and date, if
not the First Time of Delivery, herein called the “Second
Time of Delivery.” Each such time and date for delivery is
herein called a “Time of Delivery.” “New York
Business Day” shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by
law or executive order to close.
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, including a free
writing prospectus that describes the final terms of the
Designated
Securities or their offering and that is
included in the final term sheet of the Company contemplated in
Schedule IV to the Pricing Agreement or containing other
information that is not “issuer information” as defined
in Rule 433(h)(2); (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:
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
res
