As filed with the Securities and Exchange Commission May 6, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CORNING INCORPORATED
(Exact name of registrant as specified in its charter)
| New York | 16-0393470 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
One Riverfront Plaza
Corning, New York 14831
(Address of principal executive offices)
2019 EQUITY PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plan)
Linda E. Jolly
Vice President and Corporate Secretary
One Riverfront Plaza
Corning Incorporated
Corning, New York 14831
(607) 974-9000
jollyle@corning.com
(Name, address and telephone number of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
|
| ||||||||
| Title of Securities to be Registered |
Amount to be |
Proposed Maximum Offering Price Per Share |
Proposed Offering Price |
Amount of Registration Fee | ||||
| Common Stock, Par Value $.50 per share |
1,500,000 shares(1) | $31.88(2) | $47,820,000(2) | $5,795.78 | ||||
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| ||||||||
| (1) | Includes shares issuable as awards of restricted stock, rights to acquire stock and options to purchase stock. Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement will also cover any additional shares of common stock which become issuable under the 2019 Equity Plan for Non-Employee Directors by reason of any stock dividend, stock split, recapitalization or similar transaction. |
| (2) | Estimated solely to calculate the registration fee pursuant to Rule 457(h) of the Securities Act. The offering price per share and aggregate offering price are calculated based upon the average of the high and low prices of the common stock of Corning Incorporated (the “Registrant”) on May 3, 2019, as reported on the New York Stock Exchange. |
EXPLANATORY NOTE
This registration statement on Form S-8 (this “Registration Statement”) is filed for the purpose of registering 1,500,000 shares of common stock, par value $0.50 per share (“Common Stock”), of Corning Incorporated (the “Registrant”) issuable as awards of shares of Common Stock, rights to acquire Common Stock or options to purchase Common Stock issued to eligible non-employee directors under the Corning Incorporated 2019 Equity Plan for Non-Employee Directors.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be sent or given to participating non-employee directors as specified by the Securities and Exchange Commission (the “Commission”) in Rule 428(b)(1) of the Securities Act. Such documents need not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:
| 1. | Annual Report on Form 10-K for the fiscal year ended December 31, 2018, filed on February 10, 2019; |
| 2. | Quarterly Report on Form 10-Q for the quarter ended March 31, 2019 filed with the SEC on May 3, 2019; |
| 3. | Current Reports on Form 8-K filed on January 29, 2019, April 30, 2019 and May 3, 2019; and |
| 4. | the description of Common Stock contained in Registrant’s Registration Statement on Form S-3, No. 333-222158, filed with the Commission on December 19, 2017. |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in and to be a part of this Registration Statement from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this Registration Statement. For the purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not Applicable
Item 5. Interests of Named Experts and Counsel
Linda Jolly, who is issuing the opinion of counsel on the legality of the Registrant’s Common Stock offered hereby, is Vice President and Corporate Secretary of the Registrant. Ms. Jolly owns a de minimis number of shares of and other interests in the Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers
Sections 722 and 723 of the Business Corporation Law of the State of New York (the “BCL”) provide that a corporation may indemnify its current and former directors and officers under certain circumstances. Section 8.4 of the Registrant’s By-Laws provides that the Registrant shall indemnify each director and officer against all actual and reasonable costs and expenses incurred by him in connection with the defense of any claim, action, suit or proceeding against him by reason of his being or having been a director or officer of the Registrant to the full extent permitted by, and consistent with, the BCL. The Registrant maintains policies of insurance with respect to its indemnification obligations.
Section 402(b) of the BCL provides that a corporation may include a provision in its certificate of incorporation limiting the liability of its directors to the corporation or its shareholders for damages for any breach of duty, except for a breach involving intentional misconduct, bad faith, a knowing violation of law or receipt of an improper personal benefit or for certain illegal dividends, loans or stock repurchases. Paragraph 6 of the Registrant’s Restated Certificate of Incorporation contains such a provision.
For the undertaking in relation to indemnification, please see Item 9 below.
Item 7. Exemption From Registration Claimed
Not Applicable
Item 8. Exhibits
INDEX TO EXHIBITS
| * | Filed Herewith |
Item 9. Undertakings
| (a) | The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
| (i) | To include any prospectus required by section 10(a)(3) of the Securities Act; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; |
Provided however, that:
| A. | Paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference into this Registration Statement. |
| 2. | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| 3. | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (b) | The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (h) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Corning, State of New York, on May 6, 2019.
| CORNING INCORPORATED (Registrant) | ||
| By | /s/ R. Tony Tripeny | |
| R. Tony Tripeny, Executive Vice President and Chief Financial Officer | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints R. Tony Tripeny and Edward A. Schlesinger, each acting alone, as his or her true and lawful attorney-in-fact and agent, with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933 and any and all amendments (including post-effective amendments) to this Registration Statement and to any registration statement filed pursuant to Rule 462(b), and to file same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the foregoing, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities on May 6, 2019.
| Signature |
Capacity | |
| /s/ Wendell P. Weeks (Wendell P. Weeks) |
Chairman, Chief Executive Officer and President (Principal Executive Officer) | |
| /s/ R. Tony Tripeny (R. Tony Tripeny) |
Executive Vice President and Chief Financial Officer (Principal Financial Officer) | |
| /s/ Edward A. Schlesinger (Edward A. Schlesinger) |
Senior Vice President and Controller (Principal Accounting Officer) | |
| /s/ Donald W. Blair (Donald W. Blair) |
Director | |
| /s/ Leslie A. Brun (Leslie A. Brun) |
Director | |
| /s/ Stephanie A. Burns (Stephanie A. Burns) |
Director | |
| /s/ John A. Canning, Jr. (John A. Canning, Jr.) |
Director | |
| /s/ Richard T. Clark (Richard T. Clark) |
Director | |
| /s/ Robert F. Cummings, Jr. (Robert F. Cummings, Jr.) |
Director | |
| /s/ Deborah A. Henretta (Deborah A. Henretta) |
Director | |
| /s/ Daniel P. Huttenlocher (Daniel P. Huttenlocher) |
Director | |
| /s/ Kurt M. Landgraf (Kurt M. Landgraf) |
Director | |
| /s/ Kevin J. Martin (Kevin J. Martin) |
Director | |
| /s/ Deborah D. Rieman (Deborah D. Rieman) |
Director | |
| /s/ Hansel E. Tookes II (Hansel E. Tookes II) |
Director | |
| /s/ Mark S. Wrighton (Mark S. Wrighton) |
Director | |
Exhibit 4.1
CORNING INCORPORATED
2019 EQUITY PLAN FOR NON-EMPLOYEE DIRECTORS
| 1. | THE PLAN |
a. Purpose. This Corning Incorporated 2019 Equity Plan for Non-Employee Directors (as amended from time to time, the “Plan”) is intended to benefit the shareholders of Corning Incorporated (the “Corporation”) by providing a means to attract, retain and reward non-employee directors of the Corporation (“Directors”) who can and do contribute to the longer-term financial success of the Corporation and to increase their proprietary interest in the Corporation.
b. Effective Date. The Plan replaces the 2010 Equity Plan For Non-Employee Directors and will become effective upon its approval by the affirmative vote of a majority of the votes cast at the Corporation’s 2019 Annual Meeting of Shareholders and shall continue until it expires on the tenth (10th) anniversary of its effective date or is replaced by another plan.
| 2. | ADMINISTRATION |
a. Committee. The Plan shall be administered by the Compensation Committee (the “Committee”) of the Board of Directors of the Corporation (the “Board”), provided, however, that from time to time the Board may assume, at its sole discretion, administration of the Plan.
b. Awards. The Committee may grant awards (collectively, “Awards”) under the Plan of shares of the Corporation’s common stock, par value $0.50 per share, (“Shares”) or options to purchase Shares, in such type and magnitude, and subject to such terms and conditions (including vesting and forfeiture rules or pursuant to a deferred compensation plan), as it shall determine.
c. Powers and Authority. The Committee’s powers and authority under the Plan include, but are not limited to (i) permitting transferability of Awards to family members, trusts and partnerships for the benefit of participants and their family members, and as charitable donations; (ii) interpreting the Plan’s provisions; and (iii) administering the Plan in a manner that is consistent with its purpose. The Committee’s decisions in carrying out the Plan and its interpretation and construction of any provisions of the Plan or any Award, agreement or other instrument executed under the Plan shall be final and binding upon all persons. No members of the Committee shall be liable for any action or determination made in good faith in administering the Plan.
| 3. | ELIGIBILITY |
Only Directors of the Corporation who, at the time of grant of an Award, are not employees of the Corporation shall be eligible to receive Awards under the Plan.
| 4. | SHARES SUBJECT TO THE PLAN, ADJUSTMENTS AND AWARD LIMITS |
a. Maximum Shares Available for Delivery. Subject to adjustments under Section 4(b), the maximum number of Shares that may be delivered pursuant to Awards under the Plan, including pursuant to any deferred compensation plan for Directors shall be 1,500,000.
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b. Adjustments for Corporate Transactions.
(i) The Committee shall determine whether a corporate transaction has affected the price per Share or the number of Shares outstanding such that an adjustment or adjustments to outstanding Awards are required to preserve (or prevent enlargement of) the benefits or potential benefits intended to be made available under the Plan at the time of grant of an Award. For this purpose a corporate transaction will include, but is not limited to, any stock dividend, stock split, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination or exchange of shares, or other similar occurrence. In the event of such a corporate transaction, the Committee shall, in such manner as the Committee deems equitable, adjust (i) the number and kind of shares which may be delivered under the Plan pursuant to Section 4(a); (ii) the number and kind of shares subject to outstanding Awards; and (iii) the exercise price of outstanding Options.
(ii) In the event that the Corporation is not the surviving corporation of a merger, consolidation or amalgamation with another corporation, or in the event of a liquidation or reorganization of the Corporation, and in the absence of the surviving corporation’s assumption of outstanding Awards made under the Plan, the Committee may provide for appropriate adjustments and/or settlements of such Awards either at the time of grant or at a subsequent date. The Committee may also provide for adjustments and/or settlements of outstanding Awards as it deems appropriate and consistent with the Plan’s purpose in the event of any other change in control of the Corporation.
c. Annual Award Limits. The maximum number of Shares subject to Awards granted during a single fiscal year to any Director, taken together with any cash fees paid during the fiscal year to the Director in respect of the Director’s service as a member of the Board during such year (including service as a member or chair of any committees of the Board), shall not exceed $700,000 in total value (calculating the value of any such Awards based on the grant date fair value of such Awards for financial reporting purposes). The independent members of the Board may make exceptions to this limit for a non-executive chair of the Board, provided that the Director receiving such additional compensation may not participate in the decision to award such compensation.
| 5. | TYPES OF AWARDS |
a. General. The types of Awards that may be granted under the Plan include:
(i) Stock Option. A stock option (“Option”) represents a right to purchase a specified number of Shares during a specified period at a price per Share which is no less than one hundred percent (100%) of the closing price of a Share on the New York Stock Exchange as of the grant date, as determined by the Committee. No Option shall be “repriced” (i.e., by reducing the exercise price, cancelling the Option in exchange for another Option with a lower exercise price, or cancelling the Option for cash or another Award, other than in connection with a change in control or an equitable adjustment under Section 4(b) above) without shareholder approval. The Shares covered by an Option may be purchased by means of a cash payment of the exercise price or such other means as the Committee may from time to time permit, including, without limitation, one or more of: (i)
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tendering Shares valued using the market price at the time of exercise, (ii) authorizing a third party to sell Shares (or a sufficient portion thereof) acquired upon exercise of an Option and to remit to the Corporation a sufficient portion of the sale proceeds to pay the exercise price for all the Shares acquired through such exercise prior to the issuance of the Shares by the Corporation; or (iii) any combination of the above. All Options shall be non-qualified options.
No Option granted under the Plan will have an expiration date later than ten years after its grant date. Unless otherwise provided by the Committee, each Option will terminate in its entirety on the earliest of (1) the third anniversary of the date on which the grantee ceased to be a Director, (2) the date on which written notice of termination of the Option is given to the Director (or such later date as is specified in that notice), and (3) the Option’s expiration date.
(ii) Stock Award. A stock award is a grant of Shares or a right to receive Shares (or their cash equivalent or a combination of both) in the future (“Stock Award”), subject to such conditions, restrictions and contingencies as the Committee shall determine.
| 6. | STOCK AWARD SETTLEMENTS AND PAYMENTS |
a. Dividends and Dividend Equivalents. The Committee, in its discretion, will determine whether dividends or dividend equivalent payments will be paid or credited to a Director’s account, prior to the time that a Stock Award becomes vested.
b. Payments. Stock Awards may be settled through cash payments, the delivery of Shares, the granting of Awards or a combination thereof, as the Committee shall determine. Any Award settlement may be subject to such conditions, restrictions and contingencies as the Committee shall determine.
| 7. | PLAN AMENDMENT AND TERMINATION |
a. Amendments. Any Plan amendments will comply with the New York Stock Exchange listing requirements and any applicable legal requirements. The Board may amend this Plan as it deems necessary and appropriate to better achieve the Plan’s purpose, provided, however, that: (i) the Share limitation set forth in Section 4(a) cannot be increased and (ii) an Option cannot be “repriced” as set forth in Section 5 unless such an amendment is properly approved by the Corporation’s shareholders. Notwithstanding anything to the contrary in the Plan, the Board may amend the Plan in such manner as may be necessary to enable the Plan to achieve its stated purposes in any jurisdiction in a tax- efficient manner and in compliance with local rules and regulations.
b. Plan Suspension and Termination. The Board may suspend or terminate this Plan at any time. Any such suspension or termination shall not of itself materially impair any outstanding Award granted under the Plan or the applicable Director’s rights regarding such Award.
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| 8. | MISCELLANEOUS |
a. No Individual Rights. No person shall have any claim or right to be granted an Award under the Plan. Neither the Plan nor any action taken hereunder shall be construed as giving any Director the right to be re-nominated or to continue to serve the Corporation, any subsidiary or related entity, in such capacity.
b. Unfunded Plan. The Plan shall be unfunded and shall not create (or be construed to create) a trust or a separate fund or funds. The Plan shall not establish any fiduciary relationship between the Corporation and any Director or beneficiary of a Director. To the extent any person holds any obligation of the Corporation by virtue of an Award granted under the Plan, such obligation shall merely constitute a general unsecured liability of the Corporation and accordingly shall not confer upon such person any right, title or interest in any assets of the Corporation.
c. No Fractional Shares. No fractional Shares shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash shall be paid or transferred in lieu of any fractional Shares, or whether such fractional Shares or any rights thereto shall be canceled.
d. Governing Law. The validity, construction and effect of the Plan and any Award, agreement or other instrument issued under it shall be determined in accordance with the laws of the State of New York without reference to principles of conflict of law.
e. Section 409A. The Corporation intends that all Awards be structured to comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder (“Section 409A”), such that no adverse tax consequences, interest, or penalties under Section 409A apply. Notwithstanding anything in the Plan or any agreement evidencing the grant of an Award to the contrary, the Committee may, without a participant’s consent, amend this Plan or Awards, adopt policies and procedures, or take any other actions (including amendments, policies, procedures and retroactive actions) as are necessary or appropriate to preserve the intended tax treatment of Awards, including any such actions intended to (A) exempt this Plan or any Award from Section 409A, or (B) comply with Section 409A, including regulations, guidance, compliance programs and other interpretative authority that may be issued after an Award’s grant date. The Corporation makes no representations or warranties as to an Award’s tax treatment under Section 409A or otherwise. The Corporation will have no obligation under this Section 8(e) or otherwise to avoid the taxes, penalties or interest under Section 409A with respect to any Award and will have no liability to any participant or any other person if any Award, compensation or other benefits under the Plan are determined to constitute noncompliant “nonqualified deferred compensation” subject to taxes, penalties or interest under Section 409A.
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EXHIBIT 5.1
May 6, 2019
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
Ladies and Gentlemen:
I am Vice President and Corporate Secretary of Corning Incorporated (the “Company”) and am familiar with the preparation and filing of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended, with respect to an aggregate of 1,500,000 shares of Corning’s Common Stock, $.50 par value (“Common Stock”), subject to adjustment, to be offered by the Company pursuant to the 2019 Equity Plan for Non-Employee Directors (the “Plan”) described in the Registration Statement.
In this connection, I have examined the originals, or copies certified to my satisfaction, of such corporate records of the Company, certificates of public officials and officers of the Company, and other documents as I deemed pertinent as a basis for the opinions hereinafter expressed.
Based upon the foregoing, and having regard for such legal considerations as I have deemed relevant, I am of the opinion that:
1. The Company is a corporation duly incorporated and validly existing under the laws of the State of New York.
2. The shares of the Company’s Common Stock have been duly authorized and, upon issuance and delivery, and payment therefor, if any, pursuant to terms of the Plan and the awards issued pursuant to the Plan will be validly issued, fully paid and non-assessable.
My opinions expressed above are limited to the laws of the State of New York.
I hereby consent to the filing of this opinion as an Exhibit to the Registration Statement referred to above and further consent to the use of my name under the caption “Interests of Named Experts and Counsel” in the Registration Statement.
| Very truly yours, |
| /s/ Linda E. Jolly |
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Corning Incorporated of our report dated February 12, 2019 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in Corning Incorporated’s Annual Report on Form 10-K for the year ended December 31, 2018.
| /s/ PricewaterhouseCoopers LLP |
| New York, New York |
| May 3, 2019 |