Letter of Understanding

Amendment to Letter

Amendment 2 to Letter

Amendment 3 to Letter

Severance Agreement (not available)

Amendment to Severance Agreement

Amendment 2 to Severance Agreement

Change in Control Agreement

Amendment to Change in Control

 

 

EX-10.42 10 dex1042.htm LETTER OF UNDERSTANDING

 

Letter of Understanding Between

Corning Incorporated and Wendell P. Weeks

Whereas, Wendell P. Weeks (“Executive”) and Corning Incorporated (“Corning” or the “Company”) are parties to a certain Employment Agreement (“Employment Agreement”) -originally entered into as of December 6, 2000 and as subsequently amended on February 28, 2001, May 15, 2001 and December 1, 2001;

Whereas, Executive and Corning now wish to terminate the Employment Agreement by making the Employment Agreement, as amended, null and void effective immediately;

Whereas, Executive and Corning now wish to enter into this Letter of Understanding (the “Letter”) as of April 23, 2002 to clarify certain general terms of Executive’s continued employment with the Company after the Employment Agreement;

NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants, terms and conditions set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed between the Company and the Executive as follows:

 

1.

Continued At-Will Employment. Executive will be an at-will employee of the Company. Executive will be eligible to receive cash and equity compensation and employee benefits as determined by the Company, including its chief executive officer and the Compensation Committee of the Board of Directors.

 

2.

Supplemental Retirement Plan Adjustment. In the event of a Change in Control (as defined in the separate Change In Control agreement between Executive and the Company), termination of the Executive’s employment without Cause (defined below), (individually a “SERP Adjustment Event” and collectively, the “SERP Adjustment Events”, the Executive shall be credited with additional credit under the Company’s Executive Supplemental Retirement Plan (“SERP”) for an additional five (5) years (in the event of a Change in Control) or three (3) years (in other events) age and service credit (the “5 Year Extension” or the “3 Year Extension” respectively), and (y) the Executive shall be credited as having received annual compensation during each year of the 5 Year Extension or 3 Year Extension period, as applicable, equal to the greater of (i) the sum of the Base Salary and Annual Bonus paid to the Executive in the immediately preceding year or (ii) the sum of the Base Salary and Annual Bonus (calculated at 100% of target) that would have been paid to the Executive during the full year in which the SERP Adjustment Event occurred, for purposes of determining the Executive’s final average compensation under the SERP.

 

3.

Termination of Employment. The employment of the Executive may be terminated as follows:

 

 

(a)

Termination by the Company for Cause. Executive may be terminated for “Cause” by the Company as provided below. As used herein, the term “Cause” shall mean (i) conviction of the Executive for a felony; (ii) the commission by the Executive of fraud or theft against, or embezzlement from, the Company, in each case that is materially and demonstrably damaging to the financial condition of the Company; and (iii) gross abdication in the performance of his duties (other than as a result of a disability or personal family problems) that has resulted in substantial and material damage to the Company, after a written demand for substantial performance is delivered to the Executive by the Board which specifically identifies the manner in which the Board believes he has not substantially performed his duties and he has been provided with reasonable opportunity to cure any alleged gross abdication. For purposes of this section, no act or failure to act on Executive’s part shall be considered to be reason for termination for Cause if done, or omitted to be done, by Executive in good faith and with the reasonable belief that the action or omission was in the best interests of the Company. Cause shall not exist unless and until there shall have been delivered to the Executive a copy of a resolution, duly adopted by the affirmative vote of not less than two thirds of the entire membership of the Board at a meeting of the Board held for the purpose (after ten (10) days’ prior written notice to the Executive of such meeting and the purpose thereof and an opportunity for him, together with his counsel, to be heard before the Board at such meeting), of finding that in the good faith opinion of the Board, the Executive was guilty of the conduct set forth above in this Section 3(a) and specifying the particulars thereof in detail. As set forth more fully in Section 3(f) hereof, the “Date of Termination” (which shall be no earlier than 30 days after delivery of the written notice to the Executive) shall be the date specified in the “Notice of Termination;” provided, however, that in the case of a termination for Cause under clauses 3(a)(i) and 3(a)(ii) above, the Date of Termination shall be the date of delivery of the Notice of Termination. Anything herein to the contrary notwithstanding, if, following a termination of the Executive’s employment by the Company for Cause based upon the conviction of the Executive for a felony, such conviction is overturned in a final determination on appeal, the Executive shall be entitled to the payments and the economic equivalent of the benefits the Executive would have received if his employment had been terminated by the Company without Cause.

 

189


 

(b)

Termination by the Company for Disability. At the sole discretion of the Board, the Executive may be terminated if the Executive is disabled as a result of his incapacity due to physical or mental illness and shall have been absent from his duties with the Company on a full-time basis for one hundred and eighty (180) consecutive days or one hundred and eighty (180) days in any twelve month period, and if within thirty (30) days after written Notice of Termination is given by the Company to the Executive, the Executive shall not have resumed the performance of his duties hereunder on a full-time basis. In this event, the Date of Termination shall be thirty (30) days after Notice of Termination is given by the Company (provided that the Executive shall not have returned to the full-time performance of his duties).

 

 

(c)

Death. The Executive’s employment shall terminate upon his death, and the date of his death shall be the Date of Termination for purposes of this Letter.

 

 

(d)

Other Terminations. If the Executive’s employment is terminated hereunder for any reason other than as set forth in Sections 3(a) through 3(c) hereof, the date on which a Notice of Termination is given or any later date (within 30 days) set forth in such Notice of Termination shall be the Date of Termination.

 

 

(e)

Notice of Termination. Any termination of the Executive’s employment hereunder by the Company or by the Executive shall be communicated by written Notice of Termination to the other party hereto. For purposes of this Letter, a “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Letter relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provisions so indicated and a date of termination.

 

4.

Compensation upon Termination or During Disability

 

 

(a)

Disability Period. During any period of employment that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness (“Disability Period”), the Executive shall continue to (i) receive his full Base Salary and Annual Bonus otherwise payable for that period of time allowable under the Company’s short-term disability plan, followed by (ii) those benefits for that period of time allowable under the Company’s long-term disability plans.

 

 

(b)

Death. If the Executive’s employment hereunder is terminated as a result of his death, then: (i) the Company shall pay the Executive’s estate or designated beneficiary, as soon as practicable after the Date of Termination, a lump sum payment equal to (1) any Base Salary installments due in the month of death and any reimbursable expenses accrued or owing the Executive hereunder as of the Date of Termination, (2) a pro rata portion of any Annual Bonus owed to the Executive for that portion of the Employment Term through to the Date of Termination and any earned and unpaid Annual Bonus relating to services performed by the Executive in the year preceding his death, and (3) all stock option grants awarded to Executive before April 25, 2002 shall immediately become fully vested as of the Date of Termination but continue to be subject to such exercise periods as shall be provided for under the terms of each grant. All other stock option or restricted stock grants awarded to Executive on or after April 25, 2002 shall be subject to all of the terms as shall be provided for under each grant.

 

 

(c)

Absence From Work. If the Executive’s employment hereunder is terminated as a result of disability as defined in Section 3(b), then (i) the Company shall pay the Executive, as soon as practicable after the Date of Termination (1) any Base Salary and any reimbursable expenses accrued or owing the Executive hereunder as of the Date of Termination, (2) a pro rata portion of any bonus owed to the Executive for that portion of the year through to the Date of Termination and any earned and unpaid bonus relating to service performed by the Executive in the year preceding his Date of Termination for excessive absenteeism, (3) severance benefits as described in Sections 4(e)(ii) and 4(e)(iii), and (4) all stock option grants awarded to Executive before April 25, 2002 shall immediately become fully vested as of the Date of Termination but continue to be subject to such exercise periods as shall be provided for under the terms of each grant. All other stock option or restricted stock grants awarded to Executive on or after April 25, 2002 shall be subject to all of the terms as shall be provided for under each grant.

 

 

(d)

Termination for Cause or by the Executive. If the Executive’s employment hereunder is terminated by the Company for Cause or by the Executive, then (i) the Company shall pay the Executive, as soon as practicable after Date of Termination, any Base Salary and any reimbursable expenses accrued or owing the Executive hereunder for services as of the Date of Termination; and (ii) the Executive shall immediately forfeit any then unvested stock option awards granted before April 25, 2002, and all outstanding awards granted after April 25, 2002. In the event of termination by the Company for Cause, the Executive shall have the right to exercise the vested unexercised portion of all outstanding stock option awards for such period following the Date of Termination as shall be provided for under the terms of each grant and the unexercised portion of any such award shall be forfeited.

 

190


 

(e)

All Other Terminations. Executive’s employment may be terminated without Cause (including as a result of a disability) by the Company’s Board of Director’s, provided that in such event:

 

 

(i)

Executive shall be entitled to receive all Base Salary, reimbursable expenses and Annual Bonus accrued and owing the Executive hereunder as of the Date of Termination, payable in a lump-sum (net of appropriate withholdings) within thirty (30) days of the Date of Termination.

 

 

(ii)

Executive shall be entitled to receive three (3) years Base Salary (at the Executive’s effective annual rate on the date of termination) to be paid in a lump-sum (net of appropriate withholdings) within thirty (30) days of the Date of Termination;

 

 

(iii)

Executive shall be entitled to receive three (3) times his Annual Bonus Award, calculated at 100% of target, as of the Date of Termination, to be paid in a lump sum (net of appropriate withholding), within thirty (30) days of the Date of Termination; provided that the bonus payment pursuant to this Section 4(e)(iii) shall not duplicate any bonus payments previously paid to the Executive;

 

 

(iv)

Executive and his eligible dependents shall be entitled to continue participation in the Company’s Benefit Plans at the same cost as other Company senior executives (to the extent allowable in accordance with the administrative provisions of those plans and applicable federal and state law) or receive the cash equivalent of such continued participation for a period of up to three (3) years or until Executive and his eligible dependents are eligible to be covered by a successor employer’s comparable benefit plans, whichever is sooner;

 

 

(v)

All stock options granted to Executive before April 25, 2002 subject to vesting restrictions shall immediately vest in full and be subject to an extended exercise period equal to the remaining option term;

 

 

(vi)

If during the two years following the Date of Termination, a new employer does not provide for the disposition of your principal residence in the Corning, New York area and you make a request of the Company, the Company will acquire your home at the higher of (A) its appraised value under the Company’s then effective relocation policy, or (B) the original purchase price, plus documented improvements, less allowances for depreciation in accordance with the Company’s then effective “protected value” relocation policy.

 

 

(vii)

Executive will not be required to sign a non-compete agreement to receive the compensation and benefits outlined in this Section 4. However, such compensation and benefits will be subject to the Company’s standard non-solicit terms with respect to Company employees and Executive shall continue to be required to protect (and not disclose) the Company’s confidential information.

 

5.

Arbitration. In the event of any difference of opinion or dispute between the Executive and the Company with respect to the construction or interpretation of this Letter or the alleged breach thereof, which cannot be settled amicably by agreement of the parties, then such dispute shall be submitted to and determined by arbitration by a single arbiter in the city of New York, New York in accordance with the rules then in effect of the Commercial Arbitration Panel of the American Arbitration Association (the “AAA”), and judgment upon the award rendered shall be final, binding and conclusive upon the parties and may be entered in the highest court, state or federal, having jurisdiction. The costs of the arbitration shall be borne as determined by the arbitrator; provided, however, that if the Company’s position is not substantially upheld, as determined by the arbitrator, the expenses of the Executive (including, without limitation, fees and expenses payable to the AAA and the arbitrator, fees and expenses payable to witnesses, including expert witnesses, fees and expenses payable to attorneys and other professionals, expenses of the Executive in attending the hearing, costs in connection with obtaining and presenting evidence and costs of the transcription of the proceedings), as determined by the arbitrator, shall be reimbursed to him by the Company.

 

6.

Other Matters.

 

 

(a)

Entire Agreement. This Letter constitutes the entire agreement between the Company and the Executive relating to the subject matter hereof, and supersedes any previous agreements, commitments and understandings, written or oral, with respect to the matters provided herein and with respect to any post-termination activities of the Executive. As used in this Letter, terms such as “herein,” “hereof,” “hereto” and similar language shall be construed to refer to this entire instrument and not merely the paragraph or sentence in which they appear, unless so limited by express language.

 

191


 

(b)

Assignment. Except as set forth below, this Letter and the rights and obligations contained herein shall not be assignable or otherwise transferable by either party to this Letter without prior written consent of the other party to this Letter. Notwithstanding the foregoing, any amounts owing to the Executive upon his death shall inure to the benefit of his heirs, legatees, personal representatives, executor or administrator.

 

 

(c)

Amendment/Waiver. No provision of this Letter may be amended, waived, modified, extended or discharged unless such amendment, waiver, extension or discharge is agreed to in writing signed by both the Company and the Executive.

 

 

(d)

Applicable Law. This Letter and the rights and obligations of the parties hereunder shall be construed, interpreted, and enforced in accordance with the laws of the State of New York (applicable to contracts to be performed wholly within such State).

 

 

(e)

Severability. If any provision or any part of any provision of this Letter shall be invalid or unenforceable under applicable law, such part shall be ineffective only to the extent of such invalidity or unenforceability and shall not affect in any way the validity or enforceability of the remaining provisions of this Letter, or the remaining parts of such provision.

 

 

(f)

Successor of Interests. In the event the Company merges or consolidates with or into any other corporation or corporations, or sells or otherwise transfers substantially all of its assets to another corporation, the provisions of this Letter shall be binding upon and inure to the benefit of the corporation surviving or resulting from the merger or consolidation or to which the assets are sold or transferred and, prior to the consummation of any such event, the Company shall obtain the express written assumption of this Letter by the other corporation (other than in the case of a merger after which the Company is the surviving entity). All references herein to the Company refer with equal force and effect to any corporate or other successor of the corporation that acquires directly or indirectly by merger, consolidation, purchase or otherwise, all or substantially all of the assets of the Company.

 

 

(g)

No Mitigation. The Executive shall not be required to mitigate amounts payable hereunder by seeking other employment or otherwise.

 

7.

Authority. The execution, delivery and performance of this Letter has been duly authorized by the Company and this Letter represents the valid, legal and binding obligation of the Company, enforceable against the Company according to its terms.

IN WITNESS WHEREOF, the Company has caused this Letter to be executed on its own behalf and has caused its corporate seal to be affixed, and the Executive has executed this Letter on his own behalf intending to be legally bound, as of the date first written above.

 

CORNING INCORPORATED

By:

 

/s/ John P. MacMahon

 

John P. MacMahon

 

VP, Global Compensation & Benefits

 

EXECUTIVE

/s/ Wendell P. Weeks

 

192


 

 

Exhibit 10.42

Amendment to Letter of Understanding Between

Corning Incorporated and Wendell P. Weeks

This amendment (the “Amendment”), dated as of February 1, 2004, is entered into between Corning Incorporated, a corporation organized under the laws of the State of New York (“Corning” or the “Company”), and Wendell P. Weeks (the “Executive”) and amends the Letter of Understanding dated April 23, 2002 (the “Letter”) originally entered into between the Company and Executive as of December 6, 2000 and as subsequently amended on February 28, 2001, May 15, 2001 and December 1, 2001.

1. Section 4(e)(ii) of the Letter is hereby amended to be 2.99 times Executive’s Base Salary (as opposed to 3 times).

2. Section 4(e)(iii) of the Letter is hereby amended to be 2.99 times Executive’s Annual Bonus Award (as opposed to 3 times).

Except as noted above, all other provisions of the Letter remain in effect with no changes.

IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by its duly authorized officer and the Executive has executed this Amendment as of the day and year first above written.

 

Corning Incorporated:

By:

 

/s/ John P. MacMahon

 

John P. MacMahon

 

VP, Global Compensation & Benefits

 

Executive:

/s/ Wendell P. Weeks

 

188


 

 

 

 

CORNING INCORPORATED

AMENDMENT NO. 2 TO LETTER OF UNDERSTANDING

Whereas Corning Incorporated (the “Company”) and Wendell P. Weeks (the “Executive”) entered into that certain Letter of Understanding dated as of April 23, 2002, and amended on February 1, 2004 (the “Letter”); and

Whereas the Company and the Executive want to further amend the Letter to take into account federal tax law changes under Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance issued thereunder.

Now Therefore, the Company and Executive hereby agree to the following amendments, which shall be effective as of January 1, 2005:

 

1.

Section 2 of the Letter is amended by adding the following sentences to the end of such Section:

Notwithstanding the foregoing, the maximum number of years of service credit the Executive shall be credited with for purposes of calculating his benefit under the SERP shall not exceed the service credit limits under the SERP. Accordingly, the 5 Year Extension and/or 3 Year Extension shall not apply to the extent that such extensions result in the Executive being credited with more than twenty-five years of service.

 

2.

Section 4(e)(iv) of the Letter is amended by deleting the words “or receive the cash equivalent of such continued participation”, replacing “sooner;” with “sooner.”, and adding the following sentences to the end of such Section:

The provision of benefits under the Company’s Benefits Plans, which are defined to mean the Company’s group medical and dental plans, shall comply with the requirements of Section 409A of the Internal Revenue Code, as amended, and the regulations and guidance issued thereunder (“Section 409A”). Generally, Section 409A requires (i) that the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year; (ii) the reimbursement of an eligible expense is made on or before the last day of the calendar year following the calendar year in which the expense was incurred; and (iii) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

 

3.

Section 4(e)(vi) of the Letter is amended by adding the following sentence to the end of such Section:

The Company shall acquire the Executive’s home and pay the Executive the amount described in the preceding sentence during the 45 day period preceding the date that is the second anniversary of the Executive’s Date of Termination.

 

4.

Section 5 of the Letter is further amended by adding the following sentence to the end of such Section:

To the extent there is an arbitration during the lifetime of the Executive, for the Executive to obtain reimbursement of the expenses described in the preceding sentence, the Executive must itemize and submit such expenses to the Company for reimbursement within thirty (30) days after the date of the arbitrator’s final decision, and the Company shall reimburse the Executive for such expenses within fifteen (15) days after receiving the itemized list of expenses. The right to reimbursement of the expenses described above, is not subject to liquidation or exchange for another benefit.

 

5.

A new Section 8 is added to the Letter, as follows:

 

 

8.

Section 409A. Notwithstanding anything to the contrary contained herein, in the event that the Executive is a “specified employee” within the meaning of Section 409A and the Company determines that payments or benefits under this Letter would otherwise violate Section 409A unless such payments or benefits are delayed for six months, such payments or benefits shall not commence until six months after the Date of Termination (or, if earlier, the Executive’s date of death). To the extent that payments under this Letter are subject to Section 409A, this Letter shall be governed by and subject to the requirements of Section 409A and shall be interpreted and administered in accordance with that intent. If any provision of this Letter would otherwise conflict with or frustrate this intent, that provision will be interpreted so as to avoid the conflict.

 

193


IN WITNESS WHEREOF, the parties have executed this Amendment on February 13, 2008.

 

CORNING INCORPORATED

 

/s/ John P. MacMahon

By:

 

John P. MacMahon

 

Senior Vice President

 

Global Compensation and Benefits

 

/s/ Wendell P. Weeks

 

Wendell P. Weeks

 

194

 

 

 

 

EX-10.55 8 dex1055.htm AMENDMENT NO. 3 DATED DECEMBER 19, 2008

EXHIBIT 10.55

CORNING INCORPORATED

LETTER OF UNDERSTANDING

AMENDMENT NO. 3

Whereas Corning Incorporated (the “Company”) and Wendell P. Weeks (the “Executive”) entered into that certain Letter of Understanding dated April 23, 2002 (the “Letter”); and

Whereas the Company and the Executive amended such Letter on February 1, 2004 (Amendment No. 1); and

Whereas the Company and the Executive amended such Letter on February 13, 2008 (Amendment No. 2); and

Whereas the Company and the Executive want to amend the Letter to take into account federal tax law changes under Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.

Now Therefore, the Company and Executive hereby agree to the following amendments, which shall be effective as of January 1, 2005:

 

1.

Subsection 4(e)(vi) of the Letter is amended by replacing such subsection with the following:

“(vi) If before the later of the last day of the calendar year during which the Date of Termination occurs or 6 months after the Date of Termination, a new employer does not provide for the disposition of your principal residence in the Corning, New York area and you make a request of the Company in the calendar year following the calendar year in which the Date of Termination occurs, the Company will acquire your home at the higher of (A) its appraised value under the Company’s then effective relocation policy, or (B) the original purchase price, plus documented improvements, less allowances for depreciation in accordance with the Company’s then effective “protected value” relocation policy; provided that such purchase must take place and be finalized in the calendar year following the year in which the Date of Termination occurs and, if Executive is a “specified employee” (as defined in Section 409A), on a date that is at least 6 months and one day following the Date of Termination. The Company agrees to use good faith efforts to ensure the purchase occurs in the time period described in the previous sentence.”

 

2.

Any reference in the Letter to “as soon as practicable after the Date of Termination” shall mean a date that is not later than thirty (30) days after the Date of Termination.

 

3.

The following new Section 8 shall be added to the Letter:

8. Coordination with Change in Control AgreementNo amounts or benefits shall be provided to Executive under this Letter in the event that the Executive becomes entitled to benefits under a separate Change in Control Agreement with the Company which separately addresses payments in that situation.

IN WITNESS WHEREOF, the parties have executed this Amendment on December 19, 2008.

 

CORNING INCORPORATED

/s/ John P. MacMahon

 

 

/s/ Wendell P. Weeks

By:

 

John P. MacMahon

 

 

Wendell P. Weeks

 

Senior Vice President,

 

 

 

Global Compensation and Benefits

 

 

 

182

 

 

 

 

FORM OF

CORNING INCORPORATED

OFFICER SEVERANCE AGREEMENT

AMENDMENT

Whereas Corning Incorporated (the “Company”) and              (the “Executive”) entered into that certain Officer Severance Agreement dated February 1, 2004 (the “Agreement”); and

Whereas the Company and the Executive want to amend the Agreement to take into account federal tax law changes under Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder.

Now Therefore, the Company and Executive hereby agree to the following amendments, which shall be effective as of January 1, 2005:

 

1.

Section 2(i) of the Agreement is amended by adding the following provision to the end of the last sentence of such Section: “, which specified time period shall not extend beyond the last day of February of the calendar year following the calendar year in which the Termination Date occurs”.

 

2.

Section 2(i) of the Agreement is further amended by adding the following provision to the end thereof:

If the Executive fails to execute the Notice of Termination within the time period specified in the preceding sentence, the Executive shall forfeit all rights under this Agreement.

 

3.

Section 3(a)(v) is amended by deleting the last sentence of such Section.

 

4.

Section 3(a)(viii) of the Agreement is amended by adding the following provision to the second sentence after the first occurrence of “Termination Date”: “or, if earlier, by March 15th of the calendar year following the calendar year in which the Termination Date occurs”.

 

5.

Section 3(b) of the Agreement is amended by adding the following provision to the end of the sentence in such Section: “, but in no event later than March 15th of the calendar year following the calendar year in which the Termination Date occurs”.

IN WITNESS WHEREOF, the parties have executed this Amendment on             .

CORNING INCORPORATED

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

John P. MacMahon

 

 

 

Employee Name

 

 

Senior Vice President,

 

 

 

 

 

 

Global Compensation and Benefits

 

 

 

 

 

 

 

 

 

 

EX-10.54 7 dex1054.htm FORM OF OFFICER SEVERANCE AGREEMENT AMENDMENT NO. 2 EFFECTIVE DECEMBER 19, 2008

EXHIBIT 10.54

CORNING INCORPORATED

OFFICER SEVERANCE AGREEMENT

AMENDMENT NO. 2

Whereas Corning Incorporated (the “Company”) and                      (the “Executive”) entered into that certain Officer Severance Agreement dated February 1, 2004 (the “Agreement”); and

Whereas the Company and the Executive amended such Agreement on December 12, 2007 (Amendment No. 1); and

Whereas the Company and the Executive want to amend the Agreement to take into account federal tax law changes under Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.

Now Therefore, the Company and Executive hereby agree to the following amendments, which shall be effective as of January 1, 2005:

 

1.

Subsection 3(a)(viii) of the Agreement is amended by replacing the second sentence of such subsection with the following: “Such purchase must take place and be finalized in the calendar year following the year in which the Termination Date occurs and, if the Executive is a “specified employee” (as defined in Section 409A), on a date that is at least 6 months after the Termination Date and shall be made at the greater of (i) the residence’s appraised value at the Termination Date, as determined in accordance with the Company’s relocation policies in effect immediately prior to the Involuntary Termination, or (ii) the total cost of the residence plus improvements and tax gross-up as applicable (“Protected Value”), as determined in accordance with the Company’s Protected Value policy in effect as of the date of this Agreement.”

 

2.

The following new Section 14 shall be added to the end of the Agreement:

“14. SECTION 409A. To the extent that payments or benefits under this Agreement are subject to Section 409A of the Internal Revenue Code of 1986, as amended, and the Treasury regulations and other authoritative guidance issued thereunder (“Section 409A”), this Agreement shall be governed by the requirements of Section 409A, and this Agreement shall be interpreted and administered in accordance with that intent. If any provision of this Agreement would otherwise conflict with or frustrate this intent, that provision will be interpreted and deemed amended so as to avoid the conflict.”

IN WITNESS WHEREOF, the parties have executed this Amendment on December 19, 2008.

 

 

 

 

 

 

 

 

CORNING INCORPORATED

 

 

 

 

 

 

 

 

By:

 

John P. MacMahon

 

 

 

Executive

 

 

Senior Vice President,

 

 

 

 

 

 

Global Compensation and Benefits

 

 

 

 

 

181

 

 

 

 

 

 

 

CORNING INCORPORATED

                     CHANGE IN CONTROL AGREEMENT (Version 2)

 

 

         This Agreement, dated as of April 23, 2002, is entered into between

Corning Incorporated, a corporation organized under the laws of the State of New

York ("Corning" or "Company"), and Wendell P. Weeks (the "Executive").

 

         WHEREAS, the Board of Directors of the Company (the "Board") recognizes

that the possibility of a Change in Control (as hereinafter defined) exists and

that the threat or the occurrence of a Change in Control can result in

significant distractions to its key management personnel because of the

uncertainties inherent in such a situation; and

 

         WHEREAS, the Board has determined that it is essential and in the best

interest of the Company and its stockholders to retain the services of the

Executive in the event of a threat or occurrence of a Change in Control and to

ensure the Executive's continued dedication and efforts in such event without

undue concern for the Executive's personal, financial and employment security;

and

 

         WHEREAS, in order to induce the Executive to remain in the employ of

the Company, particularly in the event of a threat or the occurrence of a Change

in Control, the Company desires to enter into this Agreement with the Executive

to provide the Executive with certain benefits in connection with a Change in

Control or a potential Change in Control; and

 

         WHEREAS, this Agreement is intended to supersede both the prior Change

in Control provisions of the "comfort letter", dated June 1, 1998, regarding the

Company's Executive Severance and Change-in-Control Policy (the "CIC Policy")

and the Change in Control provisions of a certain Employment Agreement between

the Company and Executive dated December 6, 2000,

 

         NOW, THEREFORE, in consideration of the respective agreements of the

parties contained herein, it is agreed as follows:

 

         1.       TERM OF AGREEMENT. This Agreement shall commence as of April

23, 2002 (the "Effective Date") and shall continue in effect until the third

anniversary of the Effective Date, provided, that commencing on the second

anniversary of the Effective Date and on each subsequent anniversary thereof,

the term of this Agreement shall be automatically extended for one (1) year

unless either the Company or the Executive shall have given written notice to

the other at least ninety (90) days prior thereto that the term of this

Agreement shall not be so extended; and provided, further, that notwithstanding

any such notice by the Company not to extend, the term of this Agreement shall

not expire during a Potential Change in Control Period (as hereinafter defined)

or prior to the expiration of four (4) years after the date of a Change in

Control that occurs during the term hereof (including during a Potential Change

in Control Period).

 

         2.       DEFINITIONS.

 

                  a. ACCRUED COMPENSATION. For purposes of this Agreement,

"Accrued Compensation" shall mean an amount which shall include all amounts

earned or accrued through the "Termination Date" (as hereinafter defined) but

not paid as of the Termination Date, including (i) base salary, (ii)

reimbursement for reasonable and necessary expenses incurred by the Executive on

behalf of the Company during the period ending on the Termination Date, (iii)

vacation pay, (iv) the Executive's target percentage for the annual Management

Variable Compensation and GoalSharing plans (collectively, the "Bonus Plans")

times the Executive's base salary, pro-rated to the last day of the month

closest to the Termination Date, and (v) all other accrued and unpaid amounts

under the Letter of Understanding between the Executive and the Company dated

April 23, 2002.

 

                  b. BASE AMOUNT. For purposes of this Agreement, "Base Amount"

shall mean the Executive's annual base salary at the rate in effect on the

Termination Date, including all amounts of base salary that are deferred under

the employee benefit plans of the Company or any other agreement or arrangement.

 

 

 

<PAGE>

 

 

                  c. BONUS AMOUNT. For purposes of this Agreement, "Bonus

Amount" shall mean the greater of (i) the amount paid or payable to the

Executive under the Bonus Plans in the full calendar year preceding the calendar

year in which the Termination Date occurred, or (ii) the Executive's target

percentage (or, if higher, the percentage amount the Executive would have been

entitled to under the Bonus Plans for performance in the Termination Year

determined as of the last day of the month closest to the Termination Date)

times the Base Amount.

 

                  d. CAUSE. For purposes of this Agreement, "Cause" shall mean:

 

(i) conviction of the Executive for a felony; (ii) the commission by the

Executive of fraud or theft against, or embezzlement from, the Company, in each

case that is materially and demonstrably damaging to the financial condition of

the Company; and (iii) gross abdication in the performance of his duties (other

than as a result of a disability or personal family problems) that has resulted

in substantial and material damage to the Company, after a written demand for

substantial performance is delivered to the Executive by the Board which

specifically identifies the manner in which the Board believes he has not

substantially performed his duties and he has been provided with a reasonable

opportunity to cure any alleged gross abdication. For purposes of this section,

no act or failure to act on Executive's part shall be considered to be reason

for termination for Cause if done, or omitted to be done, by Executive in good

faith and with the reasonable belief that the action or omission was in the best

interests of the Company. Cause shall not exist unless and until there shall

have been delivered to the Executive a copy of a resolution, duly adopted by the

affirmative vote of not less than two thirds of the entire membership of the

Board at a meeting of the Board held for the purpose (after ten (10) days' prior

written notice to the Executive of such meeting and the purpose thereof and an

opportunity for him, together with his counsel, to be heard before the Board at

such meeting), of finding that in the good faith opinion of the Board, the

Executive was guilty of the conduct set forth above in this Section and

specifying the particulars thereof in detail. Anything herein to the contrary

notwithstanding, if, following a termination of the Executive's employment by

the Company for Cause based upon the conviction of the Executive for a felony,

such conviction is overturned in a final determination on appeal, the Executive

shall be entitled to the payments and the economic equivalent of the benefits

the Executive would have received if his employment had been terminated by the

Company without Cause.

 

                  e. CHANGE IN CONTROL. For purposes of this Agreement, a

"Change in Control"  shall mean any of the following events:

 

                           (i)  Any person (as such term is used in Sections

13(d)  and 14(d)(2) of the Securities  Exchange Act of 1934) is or becomes the

beneficial owner, directly or indirectly, of securities of the Company

representing 30% or more of the combined voting power of the Company's then

outstanding securities, or such beneficial owner increases its ownership in

securities of the Company from 30% or more to 50% or more of the combined

voting power of the Company's then outstanding securities (thereby resulting in

a second Change in Control with respect to such beneficial owner and,

accordingly, an extension of the term of this Agreement pursuant to Section

1 hereof);

 

                           (ii) The individuals who are members of the Board as

of the date this Agreement is approved by the Board (the "Incumbent Board")

cease for any reason to constitute at least a majority of the Board; PROVIDED,

HOWEVER, that if the appointment, election or nomination for election by the

Company's stockholders, of any new director is approved by a vote of at least

two-thirds of the Incumbent Board, such new director shall, for purposes of

this Agreement, be considered a member of the Incumbent Board; PROVIDED,

FURTHER, HOWEVER, that no individual shall be considered a member of the

Incumbent Board if such individual initially assumed office as a result of

either an actual or threatened "Election Contest" (as described in Rule 14a-11

promulgated under the 1934 Act) or other actual or threatened solicitation of

proxies or consents by or on behalf of a Person other than the Board (a

"Proxy Contest") including by reason of any agreement intended to avoid or

settle any Election Contest or Proxy Contest;

 

                           (iii) Consummation of a merger, consolidation or

reorganization involving the Company, unless such merger, consolidation or

reorganization results in the voting securities of the Company outstanding

immediately prior thereto continuing to represent (either by remaining

outstanding or by being converted into voting securities of the surviving

entity or parent thereof) more than (50%) of the total voting power represented

by the voting securities of the Company or such surviving entity or parent

thereof outstanding immediately after such merger, consolidation, or

reorganization;

 

                           (iv) A complete liquidation or dissolution of the

Company; or

 

 

 

<PAGE>

 

 

                           (v) The sale or other disposition of all or

substantially all of the assets of the Company to any

Person (other than a transfer to a subsidiary).

 

                  f. COMPANY. For purposes of this Agreement, "Company" shall

include Corning's "Successors and Assigns" (as hereinafter defined).

 

                  g. DISABILITY. For purposes of this Agreement, "Disability"

shall mean a physical or mental infirmity which impairs the Executive's ability

to substantially perform the Executive's duties with the Company for a period

of: (i) one hundred eighty (180) consecutive days; or (ii) 180 days during any

twelve (12) month period, and the Executive has not returned to full time

employment prior to the Termination Date as stated in the "Notice of

Termination".

 

                  h. GOOD REASON. For purposes of this Agreement, "Good Reason"

shall mean the occurrence of any of the events or conditions described in

subsections (i) through (vi) below, PROVIDED, HOWEVER, that the Executive gives

the Company thirty (30) days' Notice of Termination (as defined below) (during

which time the Company will have an opportunity to correct the condition

constituting "Good Reason"):

 

                           (i) a material change in the Executive's status,

title, position or responsibilities which represents a material and adverse

change from the Executive's status, title, position or responsibilities as in

effect immediately prior to such change; the assignment to the Executive of any

duties or responsibilities which are substantially inconsistent with the

Executive's status, title, position or responsibilities as in effect

immediately prior to such assignment; or any removal of the Executive from or

failure to reappoint or reelect the Executive to any of such offices or

positions, except in connection with the termination of the Executive's

employment for Disability, Cause, as a result of the Executive's death or by the

Executive other than for Good Reason;

 

                           (ii) a reduction in the Executive's base salary;

 

                           (iii) the Company's requiring the Executive to change

the location of his principal office which results in Executive having to

commute more than 30 miles from his residence, without Executive's express

consent, except for reasonably required travel on the Company's business which

is not materially greater than such travel requirements prior to thePotential

Change in Control Period;

 

                           (iv) a material reduction by the Company in the kind

or level of employee benefits (other than base, bonus or long-term salary or

compensation) to which the Executive is entitled at any time within ninety

(90) days preceding the commencement of a Potential Change in Control Period

or the date of a Change in Control or at any time thereafter, (other than any

such reduction which is part of, and generally consistent with, a general

reduction applicable to all officers of the Company);

 

                           (v) any material breach by the Company of any

material provision of this Agreement or any Employment Agreement between the

Company and the Executive;

 

                           (vi) the failure of the Company to obtain an

agreement from any Successors and Assigns to assume and agree to perform this

Agreement, as contemplated in Section 8 hereof.

 

                  i. LONG-TERM CASH AMOUNT. For purposes of this Agreement,

"Long-Term Cash Amount" shall mean any cash award granted to the Executive under

the Company's Corporate Performance Plan while the Executive was actively

employed. For purpose of this Section, the cash award shall be multiplied by a

factor of 150%.

 

                  j. NOTICE OF TERMINATION. For purposes of this Agreement,

"Notice of Termination" shall mean a written notice of termination of the

Executive's employment from the Company, which notice indicates the Termination

Date (as defined below), the specific termination provision in this Agreement

relied upon and which sets forth in reasonable detail the facts and

circumstances claimed to provide a basis for termination of the Executive's

employment under the provision so indicated.

 

 

 

<PAGE>

 

 

                  k. POTENTIAL CHANGE IN CONTROL PERIOD. For purposes of this

Agreement, "Potential Change in Control Period" shall mean the period beginning

on the date of execution (during the term of this Agreement) of an agreement

with respect to a transaction the consummation of which would constitute or

result in a Change in Control, and ending on the date immediately following the

Change in Control date or the date on which such agreement is terminated or the

transaction contemplated therein otherwise is abandoned.

 

                  l. SUCCESSORS AND ASSIGNS. For purposes of this Agreement,

"Successors and Assigns" shall mean a corporation or other entity acquiring all

or substantially all of the assets and business of the Company, whether by

operation of law or otherwise.

 

                  m. TERMINATION DATE. For purposes of this Agreement,

"Termination Date" shall mean, in the case of the Executive's death, the

Executive's date of death, in the case of Good Reason, the last day of the

Executive's employment (which shall be no sooner than thirty (30) days after the

Executive submits his Notice of Termination), and, in all other cases, the date

specified in the Notice of Termination; PROVIDED, HOWEVER, that if the

Executive's employment is terminated by the Company due to Disability, the date

specified in the Notice of Termination shall be at least 30 days from the date

the Notice of Termination is given to the Executive, provided that, in the case

of Disability, the Executive shall not have returned to the full-time

performance of the Executive's duties during such period of at least 30 days.

 

         3.       CHANGE IN CONTROL BENEFITS

 

                  a. If, during the term of this Agreement, a Change in Control

occurs, the Executive shall be entitled to the following compensation and

benefits:

 

                           (1) the restrictions on any Long-Term Cash Amount

shall lapse and such cash award shall become 100% vested and payable; and

 

                           (2) the restrictions on any outstanding equity

incentive awards, including stock options and restricted stock, granted to the

Executive under the Company's stock option and other stock incentive plans or

under any other incentive plan or arrangement shall lapse and such incentive

award shall become 100% vested and, in the case of stock options, immediately

exercisable.

 

                  b. If, during the term of this Agreement, either (x) the

Executive's employment is terminated by the Company without Cause or he resigns

for Good Reason during a Potential Change in Control Period, or (y) the

Executive's employment with the Company is terminated for any reason by the

Company or the Executive resigns for any reason on or within four (4) years

following a Change in Control, the Executive shall be entitled to the following

compensation and benefits:

 

                           (1) the Company shall pay the Executive in a single

lump-sum payment,  an amount in cash equal to three (3) times the sum of (A) the

Base Amount, and (B) the Bonus Amount;

 

                           (2) the Company shall pay the Executive all Accrued

Compensation;

 

                           (3) the restrictions on any Long-Term Cash Amount

shall lapse and such cash award shall become 100% vested and payable;

 

 

 

<PAGE>

 

 

                           (4) for a number of months equal to thirty-six

(36) months (the "Continuation Period"), the Company shall, at its expense,

continue on behalf of the Executive and the Executive's dependents and

beneficiaries the life insurance, disability, medical, dental and

hospitalization benefits provided (A) to the Executive at any time during the

90-day period prior to the Change in Control or at any time thereafter or (B) to

other similarly situated executives who continue in the employ of the Company

during the Continuation Period. The coverage and benefits (including deductibles

and costs) provided in this subsection 3(b)(4) during the Continuation Period

shall be no less favorable to the Executive and the Executive's dependents and

beneficiaries, than the most favorable of such coverage and benefits provided to

Corning executives in general during any of the periods referred to in clauses

(A) and (B), above, of this subsection. This subsection 3(b)(4) shall not be

interpreted so as to limit any benefits to which the Executive or the

Executive's dependents or beneficiaries may be entitled under any of the

Company's employee benefit plans, programs or practices following the

Executive's termination of employment, including without limitation, retiree

medical and life insurance benefits. In lieu of the continuation of benefits

referenced in this subsection 3(b)(4), the Executive may elect to waive such

benefits and receive a one-time cash payment of $75,000 within 30 days of the

Executive's Termination Date in full satisfaction of this provision;

 

                           (5) the Executive may request the Company to purchase

the Executive's principal residence. Such purchase shall be made at the greater

of (i) the residence's appraised value at the Termination Date, as determined

in accordance with the Company's relocation policies in effect immediately

prior to the Potential Change in Control Period or Change in Control (as

applicable); (ii) the total cost of the residence plus improvements

("Protected Value"), as determined in accordance with the Company's Protected

Value policy in effect as of the date of this Agreement, or (iii) the

modified appraised market value defined to be the appraised market value of the

Executive's principal residence at a point in time prior to the Change in

Control announcement (the "Baseline") updated annually by an appropriate housing

inflation index, or until the next "Baseline" is established. For purposes of

this modified appraised value, the Company will undertake to obtain the

appraised market value of the Executive's principal residence, to establish the

Baseline, at least once every ten (10) years and no more frequently than once

every four (4) years, and will maintain records of the values calculated under

this modified appraised market value;

 

                           (6) the restrictions on any outstanding equity

incentive awards, including stock options and restricted stock, granted to the

Executive under the Company's stock option and other stock incentive plans or

under any other incentive plan or arrangement shall lapse and such incentive

award shall become 100% vested and, in the case of stock options, immediately

exercisable;

 

                           (7) the Executive's pension benefit ("Pension

Benefit") will be calculated under the terms of the Company's Executive

Supplemental Pension Plan ("SERP") after providing the Executive with an

additional five (5) years age and service credit under the plan. The Executive

shall be credited as having received annual compensation during each year of

the 5-year period referenced above equal to the the sum of the Base Amount and

the Bonus Amount for purposes of determining Executive's final average

compensation under the SERP. The Pension Benefit determined under this

subsection 3(b)(7) shall commence at age 55, or as of the Termination Date

if the Executive is already at least age 55, without giving effect to any

actuarial reductions that may otherwise be imposed by the plan; and

 

                           (8) the Executive shall be eligible for comprehensive

outplacement assistance up to a maximum benefit equal to 20% of base pay at the

time of termination payable by the Company within one year directly to an

outside vendor selected by the Executive. At the election of the Executive, a

one-time taxable payment of 20% of base salary (up to a maximum of $65,000) may

be paid in lieu of the benefit provided in the preceding sentence.

 

                  c. The amount provided for in subsection 3(a)(1) shall be paid

in a single lump sum cash payment within fourteen (14) days of a Change in

Control. The amounts provided for in subsections 3(b)(1), 3(b)(2), 3(b)(3),

3(b)(4) and 3(b)(8) shall be paid in a single lump sum cash payment within

fourteen (14) days after the Executive's Termination Date (or earlier, if

required by applicable law).

 

                  d. The Executive shall not be required to mitigate the amount

of any payment provided for in this Agreement by seeking other employment or

otherwise, and no such payment shall be offset or reduced by the amount of any

compensation or benefits provided to the Executive in any subsequent employment.

 

 

 

<PAGE>

 

 

         4.       NOTICE OF TERMINATION. During the Potential Change in Control

Period and on or following a Change in Control, any purported termination of the

Executive's employment shall be communicated by a Notice of Termination to the

Executive. For purposes of this Agreement, no such purported termination shall

be effective without such Notice of Termination.

 

         5.       TAX GROSS-UP PAYMENTS

 

                  a. In the event that the severance and any other payments or

benefits (including, without limitation, any accelerated vesting of equity-based

awards) due to the Executive provided for in this Agreement or any other

payments or benefits due to the Executive (individually, a "Payment" and

collectively, the "Payments") (i) constitute "parachute payments" within the

meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the

"Code"), and (ii) but for this Section, would be subject to the excise tax

imposed by Section 4999 of the Code (the "Excise Tax"), then the Executive shall

receive a full gross-up ("Tax Gross-up") for any and all Excise Taxes imposed.

 

                  b. An initial determination as to whether the Excise Tax will

be imposed, the amount of the Excise Tax and the calculated Tax Gross-up shall

be made, at the Company's expense, by the accounting firm that is the Company's

independent accounting firm as of the date of the Change in Control (the

"Accounting Firm"). The Accounting Firm shall provide its determination (the

"Determination"), together with detailed supporting calculations and

documentation, to the Company and the Executive within ten (10) days of the

Termination Date, if applicable, or such other time as requested by the Company

or by the Executive (provided the Executive reasonably believes that any of the

Payments may be subject to the Excise Tax) and, if the Accounting Firm

determines that no Excise Tax is payable by the Executive with respect to a

Payment or Payments, it shall furnish the Executive with an opinion reasonably

acceptable to the Executive that no Excise Tax will be imposed with respect to

any such Payment or Payments. Within ten (10) days of the delivery of the

Determination to the Executive, the Executive shall have the right to dispute

the Determination (the "Dispute"). If there is no Dispute, the Determination

shall be binding, final and conclusive upon the Company and the Executive.

 

                  c. As a result of uncertainty in the application of Section

4999 of the Code at the time of the initial determination by the Accounting Firm

hereunder, it is possible that Tax Gross-Up payments not made by the Company

should have been made ("Underpayment"), or that Tax Gross-Up payments will have

been made by the Company which should not have been made ("Overpayments"). In

either such event, the Accounting Firm shall determine the amount of the

Underpayment or Overpayment that has occurred. In the case of an Underpayment,

the amount of such Underpayment shall be promptly paid by the Company to or for

the benefit of the Executive. In the case of an Overpayment, the Executive

shall, at the direction and expense of the Company, take such steps as are

reasonably necessary (including the filing of returns and claims for refund),

follow reasonable instructions from, and procedures established by, the Company,

and otherwise reasonably cooperate with the Company to correct such Overpayment.

 

                  d. Any other provision of this Section 5 notwithstanding, if

the Excise Tax could be avoided by reducing the Payments by a present value

(determined in accordance with any proposed, temporary or final regulations

under Sections 280G or 4999 of the Code) of $45,000 or less, then the Payments

shall be reduced to the extent necessary to avoid the Excise Tax and no Tax

Gross-Up payment shall be made. If the Accounting Firm determines that the

Payments are to be reduced under the preceding sentence, then the Company shall

promptly give the Executive notice to that effect and a copy of the detailed

calculation thereof. The Executive may then elect, in the Executive's sole

discretion, which and how much of the Payments are to be eliminated or reduced

(as long as after such election no Excise Tax will be payable) and shall advise

the Company in writing of the Executive's election within 10 days of receipt of

notice. If no such election is made by the Executive within such 10-day period,

then the Company may elect which and how much of the Payments are to be

eliminated or reduced (as long as after such election no Excise Tax will be

payable) and shall notify the Executive promptly of such election.

 

         6.       EMPLOYMENT TAXES. All payments made pursuant to this Agreement

will be subject to applicable withholdings of income and employment taxes.

 

 

 

<PAGE>

 

 

         7.       SUCCESSORS; BINDING AGREEMENT. This Agreement shall be binding

upon and shall inure to the benefit of the Company, its Successors and Assigns

and the Company shall require any Successors and Assigns to expressly assume and

agree to perform this Agreement in the same manner and to the same extent that

the Company would be required to perform it if no such succession or assignment

had taken place. Neither this Agreement nor any right or interest hereunder

shall be assignable or transferable by the Executive or the Executive's

beneficiaries or legal representatives, except by will or by the laws of descent

and distribution. This Agreement shall inure to the benefit of and be

enforceable by the Executive's legal personal representative.

 

         8.       NOTICE. For the purposes of this Agreement, notices and all

other communications provided for in the Agreement (including the Notice of

Termination) shall be in writing and shall be deemed to have been duly given

when personally delivered or sent by certified mail, return receipt requested,

postage prepaid, addressed to the respective addresses last given by each party

to the other, provided that all notices to the Company shall be directed to the

attention of the Chairman of the Board with a copy to the Secretary of the

Company. All notices and communications shall be denied to have been received on

the date of delivery thereof or on the third business day after the mailing

thereof, except that notice of change of address shall be effective only upon

receipt.

 

         9.       NON-EXCLUSIVITY OF RIGHTS; EFFECT ON CIC POLICY. Nothing in

this Agreement shall prevent or limit the Executive's continuing or future

participation in any benefit, bonus, incentive or other plan or program provided

by the Company (except for any severance or termination policies, plans,

programs or practices) and for which the Executive may qualify, nor shall

anything herein limit or reduce such rights as the Executive may have under any

other agreements with the Company. Amounts which are vested benefits or which

the Executive is otherwise entitled to receive under any plan or program of the

Company shall be payable in accordance with such plan or program, except as

explicitly modified by this Agreement. This Agreement shall supersede the Change

in Control provisions of the CIC Policy and the Employment Agreement dated

December 6, 2000.

 

         10.      NO IMPLIED EMPLOYMENT RIGHTS. Nothing in this Agreement shall

alter the Executive's status as an "at will" employee of the Company or be

construed to imply that the Executive's employment is guaranteed for any period

of time except as otherwise agreed in a written agreement signed by a duly

authorized officer of the Company.

 

         11.      MISCELLANEOUS. No provision of this Agreement may be modified,

waived or discharged, unless such waiver, modification or discharge is agreed to

in writing and signed by the Executive and the Company. No waiver by either

party hereto at any time of any breach by the other party hereto, or compliance

with, any condition or provision of this Agreement to be performed by such other

party shall be deemed a waiver of similar or dissimilar provisions or conditions

at the same or at any prior or subsequent time. No agreement or representation,

oral or otherwise, express or implied, with respect to the subject matter hereof

have been made by either party which are not expressly set forth in this

Agreement.

 

         12.      GOVERNING LAW. This Agreement shall be governed by and

construed and enforced in accordance with the laws of the State of New York

without giving effect to the conflict of law principles thereof.

 

         13.      ARBITRATION. Any dispute or controversy arising under or in

connection with the subject matter, the interpretation, the application, or

alleged breach of this Agreement ("Arbitrable Claims") shall be resolved by

binding arbitration in the City of New York, New York, in accordance with the

then-current National Rules for the Resolution of Employment Disputes of the

American Arbitration Association. Arbitration shall be final and binding upon

the parties and shall be the exclusive remedy for all Arbitrable Claims.

Notwithstanding the foregoing, either party may bring an action in court to

compel arbitration under this Agreement, to enforce an arbitration award, or to

seek injunctive relief. THE PARTIES HEREBY WAIVE ANY RIGHT TO JURY TRIAL AS TO

ARBITRABLE CLAIMS.

 

         14.      LEGAL FEES AND EXPENSES. The Company shall pay or reimburse

the Executive on an after-tax basis for all costs and expenses (including,

without limitation, court and arbitrations cost and reasonable legal fees and

expenses which reflect common practice with respect to the matters involved)

incurred by the Executive as a result of any claim, action or proceeding arising

out of this Agreement or the contesting, disputing or enforcing of any

provision, right or obligation under this Agreement, except where it is finally

determined that the Executive's position was entirely without merit and asserted

in bad faith.

 

         15.      SEVERABILITY. The provisions of this Agreement shall be deemed

severable and the invalidity or unenforceability of any provision shall not

affect the validity or enforceability of the other provisions hereof.

 

 

 

<PAGE>

 

 

         16.      ENTIRE AGREEMENT. The parties agree that the terms of this

Agreement are intended to be the final expression of their agreement with

respect to the subject matter of this Agreement and may not be contradicted by

evidence of any prior or contemporaneous Agreement, except to the extent that

the provisions of any such agreement have been expressly referred to in this

Agreement as having continued effect. Any and all previous change in control

agreements between the Company and the Executive (including, without limitation,

the Change in Control provisions of the "comfort letter" pursuant to the CIC

Policy) are null and void and given no effect.

 

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its

duly authorized officer and the Executive has executed this Agreement as of the

day and year first above written.

 

         Corning Incorporated:

 

 

 

         By:     /s/  Kirk P. Gregg

              ------------------------------------------------

                 Kirk P. Gregg

                 Senior Vice President, Administration

 

         Executive:

 

 

 

                 /s/  Wendell P. Weeks

              ------------------------------------------------

                 Wendell P. Weeks

 

 

 

 

 

Amendment to Corning Incorporated

                           Change-In-Control Agreement

 

 

 

         This amendment (the "Amendment"), dated as of February 1, 2004, is

entered into between Corning Incorporated, a corporation organized under the

laws of the State of New York ("Corning" or the "Company"), and Wendell P. Weeks

(the "Executive") and amends the Change In Control Agreement - Version 2 (the

"CIC Agreement") originally entered into between the Company and Executive on

April 23, 2002.

 

 

 

                  1. Section 1 of the CIC Agreement is hereby deleted in its

entirety and is replaced with the following:

 

 

                  "TERM OF AGREEMENT. This Agreement shall commence as of April

23, 2002 (the "Effective Date") and shall continue in effect until the Executive

leaves the employ of the Company for any reason or until the Executive ceases to

be an officer of Corning Incorporated and is also notified in writing (within 90

days of ceasing to be an officer of Corning) that this Agreement is null and

void."

 

         Except as noted above, all other provisions of the CIC Agreement remain

in effect with no changes.

 

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its

duly authorized officer and the Executive has executed this Agreement as of the

day and year first above written.

 

 

         Corning Incorporated:

 

         By:     /s/  John P. MacMahon

              ------------------------------------------------

                 John P. MacMahon

                 VP, Global Compensation & Benefits

 

 

         Executive:

 

                 /s/  Wendell P. Weeks

              ------------------------------------------------

                 Wendell P. Weeks