Exhibit 1
__________,
1996
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Celfort Construction Materials Inc., a Canada corporation,
(hereinafter the "Selling Stockholder") proposes to sell
through you acting as broker for the Selling Stockholder, or
to sell through you acting as dealer, certain shares
(hereinafter called the "Shares") of Common Stock, $.10 par
value per share (hereinafter called the "Common Stock"), of
Xxxxx Corning, a Delaware corporation (hereinafter called
the "Company").
The Shares have been registered under the Securities Act of
1933, as amended (the "Act"), by a registration statement on
Form S-3 (File No. 33- ) in respect thereof filed by the
Company with the Securities and Exchange Commission ("SEC").
There have heretofore been furnished to you copies of such
registration statement, of any amendment thereto which has
heretofore been filed, and of the most recent prospectus
dated , 1996 that has been
filed with the SEC. Such registration statement, as amended
at the time it became effective on ,
1996, is hereinafter called the "Registration Statement",
and such most recent prospectus is hereinafter called the
"Prospectus" (it being understood that the terms
Registration Statement and Prospectus as used herein include
all the documents and information incorporated therein by
reference).
The Company and the Selling Stockholder will furnish to you
promptly additional copies of the Prospectus, or the
Prospectus as amended or supplemented, in such quantities as
you may from time to time reasonably request for your use in
connection with the sale of the Shares. The Company and the
Selling Stockholder will also advise you promptly after
receiving notice thereof of the filing with the SEC of any
further amendment or supplement to the Registration
Statement or the Prospectus and will furnish to you a copy
of each such amendment or supplement.
The Company agrees to indemnify you and hold you harmless
against any losses, claims, damages or liabilities, joint or
several, to which you may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue
statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will
reimburse you for any legal or other expenses reasonable
incurred by you 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 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 Registration Statement or the
Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to
the Company by you or the Selling Stockholder expressly for
use therein.
The Selling Stockholder will indemnify you and hold you
harmless against any losses, claims, damages or liabilities,
joint or several, to which you may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue
statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in any preliminary prospectus, the
Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by the
Selling Stockholder expressly for use therein; and will
reimburse you for any legal or other expenses reasonably
incurred by you in connection with investigating or
defending any such action or claim as such expenses are
incurred.
Promptly after receipt by you of notice of the commencement
of any action, you shall, if a claim in respect thereof is
to be made against the indemnifying party hereunder, 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
otherwise have to you. In case any such action shall be
brought against you and you 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 you (who shall not, except with
your consent, be counsel to the indemnifying party), and,
after notice from the indemnifying party to you of its
election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party for any
legal expenses of other counsel or any other expenses, in
each case subsequently incurred by you, in connection with
the defense thereof other than reasonable costs of
investigation. Any notice to you, the Company and the
Selling Stockholder under this paragraph shall be sufficient
in all respects if delivered or sent by registered mail to
you at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Registration Department, to the Company at Xxxxx
Corning World Headquarters, Toledo, Ohio 43659, Attention:
Treasurer, and to the Selling Stockholder at c/o Jannock
Limited, Suite 5202, Scotia Plaza, P. O. Box 1012, 00 Xxxx
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X 0X0, Attention: Xxxxxx
Xxxxxxx, or at such other address as you, the Company and
the Selling Stockholder shall have furnished in writing to
the other parties hereto for such purpose.
If the indemnification provided for herein is unavailable to
or insufficient to hold you harmless in respect of any
losses, claims, damages or liabilities (or actions in
respect thereof) referred to herein for any reason, then the
Company (and, in addition, if any loss, claim, damage, or
liability (or action in respect thereof) relates to
information provided to the Company by the Selling
Stockholder, the Selling Stockholder) shall contribute to
the amount paid or payable by you as a result of such
losses, claims, damages or liabilities (or actions in
respect thereof) in such proportions as is appropriate to
reflect not only (i) the relative benefits received by the
Selling Stockholder on the one hand and you on the other
from the sale of the Shares but also (ii) the relative fault
of the Company, the Selling Stockholder and you 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 Selling Stockholder on the one hand and you on the other
shall be deemed to be in the same proportion as the
aggregate sales proceeds from the sale of all Shares sold by
you as broker for the Selling Stockholder or sales of Shares
through you as dealer (before deducting expenses) received
by the Selling Stockholder bear to the total discounts and
commissions received by you. 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, the Selling
Stockholder or you and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company, the
Selling Stockholder and you agree that it would not be just
and equitable if contributions pursuant to this indemnity
agreement were determined by pro rata allocation or by any
other method of allocation which does not take account of
the equitable considerations referred to above in this
paragraph. The amount paid or payable by you as a result of
the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above shall be deemed to
include any legal or other expenses reasonably incurred by
you in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
paragraph, the Selling Stockholder shall not be required to
contribute any amount in excess of the amount by which the
total price at which the Shares were sold by the Selling
Stockholder exceeds the amount of any damages which the
Selling Stockholder is otherwise 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 Company and the Selling Stockholder
hereunder shall be in addition to any liability which the
Company and the Selling Stockholder may otherwise have and
shall extend, upon the same terms and conditions, to each
person, if any, who controls you within the meaning of the
Act.
You agree that you will not execute any orders given to you
by the Selling Stockholder for the sale of any of the Shares
or sell through you as dealer otherwise than in accordance
with the Registration Statement.
The Company and the Selling Stockholder agree that, until
the sale of the Shares has been completed or your
authorization to sell the Shares has been terminated, each
will comply with all applicable provisions of the Securities
Exchange Act of 1934 and the rules and regulations of the
SEC thereunder, including Rule 10b-6, and, without limiting
the foregoing, neither the Company nor the Selling
Stockholder will bid for or purchase, for any account in
which it has an interest, or attempt to induce any other
person to purchase, any shares of Common Stock of the
Company, and the Selling Stockholder will not offer or sell
any shares of Common Stock of the Company otherwise than
through you hereunder.
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding,
please sign and return to the undersigned the enclosed
counterpart hereof; and upon the acceptance hereof by you
this letter and such acceptance shall constitute a binding
agreement between you and the undersigned.
Very truly yours,
Celfort Construction
Materials Inc.
Name:
Title:
XXXXX CORNING
By:
Name:
Title:
Accepted:
(Xxxxxxx, Xxxxx & Co.)
