Unassociated Document
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
Form
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
CORNING
NATURAL GAS CORPORATION
(Exact
name of Registrant as specified in its charter)
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New
York
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16-0397420
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(State
or other jurisdiction
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(I.R.S.
Employer
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of
incorporation or organization)
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Identification
Number)
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330
W. William St.
Corning,
New York 14830
(607)
936-3755
(Address,
including zip code, and telephone number,
including
area code, of Registrant's principal executive offices)
Michael
I. German
President
and Chief Executive Officer
Corning
Natural Gas Corporation
330
W. William St.
Corning,
New York 14830
(607)
936-3755
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
With
copy to:
Christopher
J. Hubbert, Esq.
Kohrman
Jackson & Krantz P.L.L.
1375
East Ninth Street, 20th Floor
Cleveland,
Ohio 44114
(216) 696-8700
Approximate date of commencement of
proposed sale to the public: As soon as practicable
after this Registration Statement becomes effective.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, check the following box. þ
If any of
the securities being registered on this Form are being offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with divided or interest reinvestment
plans, check the following box. o
If this Form is filed to register
additional securities for an offering pursuant to Rule 462(b) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this Form is a post-effective
amendment to registration statement filed pursuant to General Instruction I.D.
filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See definitions of “Large accelerated filer,” “accelerated
filer” and “Smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
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Large
accelerated filer ¨
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Accelerated
filer ¨
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Non-accelerated
filer ¨
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Smaller
reporting company þ
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CALCULATION
OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount to be Registered
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Proposed Maximum Amount
of Offering Price Per Unit
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Proposed Maximum Amount
of Aggregate Offering Price
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Amount of
Registration Fee
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Common
Stock, par value $5.00 per share
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100,000 |
(1)
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$ |
17.75 |
(2)
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$ |
1,775,000 |
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$ |
99.05 |
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(1) The
securities registered hereunder are issued pursuant to the terms of the
Registrant’s Dividend Reinvestment Plan that provides for adjustments in the
amount of securities being issued resulting from stock splits, stock dividends
or similar transactions.
(2)
Represents the average of the high and low reported priced for the Registrant’s
common stock as quoted on the OTC Bulletin Board on May 21, 2009.
THESE
SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
CORNING
NATURAL GAS CORPORATION
100,000
Shares of Common Stock
DIVIDEND
REINVESTMENT PLAN
This
prospectus covers shares of common stock, par value $5.00 per share, of Corning
Natural Gas Corporation, a New York corporation, which may be offered and sold
from time to time pursuant to the terms of the Corning Natural Gas Corporation
Dividend Reinvestment Plan. Our principal executive offices are
located at 330 West William Street, Corning, New York, 14830 and our telephone
number is (607) 936-3755.
No person
has been authorized to give any information or to make any
representations, other than as contained in this prospectus and, if given or
made, information or representations must not be relied upon as having been
authorized by us. The plan is not available to any person to whom we may not
legally offer it.
The plan
provides participants with a convenient and economical method for investing cash
dividends paid on our common stock in additional shares of our common stock.
This prospectus contains a summary of the material provisions of the
plan.
Shares of
our common stock are traded on the Nasdaq Stock Market’s OTC Bulletin Board
under the symbol “CNIG.” The closing price for our common stock on May 22, 2009
was $17.75 per share.
We have
registered 100,000 shares of our common stock for sale under the plan. You
should keep this prospectus for future reference.
AN
INVESTMENT IN OUR COMMON STOCK INVOLVES RISKS. YOU SHOULD CONSIDER CAREFULLY THE
RISK FACTORS BEGINNING AT PAGE 3 OF THIS PROSPECTUS BEFORE INVESTING CASH
DIVIDENDS PURSUANT TO THE PLAN.
The date
of this prospectus is May 22, 2009
PROSPECTUS
TABLE
OF CONTENTS
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3
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FORWARD-LOOKING
STATEMENTS
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3
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RISK
FACTORS
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3
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DESCRIPTION
OF THE PLAN
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6
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INDEMNIFICATION
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14
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USE
OF PROCEEDS
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15
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LEGAL
MATTERS
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15
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15
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WHERE
YOU CAN FIND MORE INFORMATION
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15
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission (SEC) on Form S-3 relating to the offer and sale of
shares of our common stock. This prospectus does not include all of the
information in the registration statement and only provides you with a general
description of the securities offered and the plan. The registration statement
containing this prospectus, including exhibits to the registration statement,
provides additional information about us, the plan and the securities offered.
The registration statement can be read at the SEC’s web site or at the SEC
offices listed under the heading “Where You Can Find More Information”
below.
When
acquiring any securities discussed in this prospectus, you should rely only on
the information provided in this prospectus, including the information
incorporated by reference. We have not authorized anyone to provide you with
different information. We are not offering the securities in any state or
jurisdiction where the offer is
prohibited. You should not assume that the information in this prospectus or any
document incorporated by reference is truthful or complete at any date other
than the date mentioned on the cover page of these documents.
Unless
otherwise mentioned or unless the context requires otherwise, (1) all references
in this prospectus to “we,” “us,” “our” or similar references mean Corning
Natural Gas Corporation and its subsidiaries; and (2) all references in this
prospectus to “stock,” “our stock” or “your stock” refer to our shares of common
stock.
FORWARD-LOOKING
STATEMENTS
The
prospectus includes forward-looking statements within the meaning of the federal
securities laws with respect to Corning’s future operations and, as such,
concerns matters that are not historical facts. These statements are
subject to risks and uncertainties that could cause actual results to differ
materially from those expressed in these statements. Reference is
made to Corning’s filings with the SEC, including our annual report, as amended,
on Form 10-K and Form 10-K/A for the year ended September 30, 2008, our
quarterly reports on Form 10-Q, and other periodic filings, for a description of
the foregoing and other factors that could cause actual results to differ
materially from those in the forward-looking statements. Any
forward-looking statement speaks only as of the date on which the statement is
made, and Corning undertakes no obligation to update any forward-looking
statement, whether as a result of new information, future events or
otherwise.
RISK
FACTORS
An
investment in our common stock involves significant risk. You should
consider carefully, in addition to the other information contained in this
prospectus, the following risk factors before making a decision to participate
in the plan.
Our
operations could be adversely affected by fluctuations in the price of natural
gas.
Prices
for natural gas are subject to volatile fluctuations in response to changes in
supply and other market conditions. While these costs are usually passed on to
customers pursuant to natural gas adjustment clauses and therefore do not pose a
direct risk to earnings, we are unable to predict what effect a sharp increase
in natural gas prices may have on our customers’ energy consumption or ability
to pay. Higher prices to customers can lead to higher bad debt expense and
customer conservation. Higher prices may also have an adverse effect on our cash
flow as typically we are required to pay for our natural gas prior to receiving
payments for the natural gas from our customers.
Operational
issues beyond our control could have an adverse effect on our
business.
Our
ability to provide natural gas depends both on our own operations and facilities
and that of third parties, including local gas producers and natural gas
pipeline operators from whom we receive our natural gas supply. The loss of use
or destruction of our facilities or the facilities of third parties due to
extreme weather conditions, breakdowns, war, acts of terrorism or other
occurrences could greatly reduce potential earnings and cash flows and increase
our costs of repairs and replacement of assets. Although we carry property
insurance to protect our assets and have regulatory agreements that provide for
the recovery of losses for such incidents, our losses may not be fully
recoverable through insurance or customer rates.
Significantly
warmer than normal weather conditions may affect the sale of natural gas and
adversely impact our financial position and the results of our
operations.
The
demand for natural gas is directly affected by weather conditions. Significantly
warmer than normal weather conditions in our service areas could greatly reduce
our earnings and cash flows as a result of lower gas sales levels. Although we
mitigate the risk of warmer winter weather through the weather normalization
clauses in our tariffs, we may not always be able to fully recover all lost
revenues as the weather mitigation rate design provides only partial protection
for warmer than normal weather.
There
are inherent risks associated with storing and transporting natural gas, which
could cause us to incur significant financial losses.
There are
inherent hazards and operation risks in gas distribution activities, such as
leaks, accidental explosions and mechanical problems that could cause
substantial financial losses. These risks could, if they occur, result in the
loss of human life, significant damage to property, environmental pollution,
impairment of operations and substantial losses to us. The location of pipelines
and storage facilities near populated areas, including residential areas,
commercial business centers and industrial sites, could increase the level of
damages resulting from these risks. These activities may subject us to
litigation and administrative proceedings that could result in substantial
monetary judgments, fines or penalties against us. To the extent that the
occurrence of any of these events is not fully covered by insurance, they could
adversely affect our financial position and results of operations.
Changes
in regional economic conditions could reduce the demand for natural
gas.
Our
business follows the economic cycle of the customers in our service regions,
Corning, Bath and Hammondsport, New York. A falling, slow or sluggish economy
that would reduce the demand for natural gas in the areas in which we are doing
business by forcing temporary plant shutdowns, closing operations or slow
economic growth would reduce our earnings potential.
Many of
our commercial and industrial customers use natural gas in the production of
their products. During economic downturns, these customers may see a decrease in
demand for their products, which in turn may lead to a decrease in the amount of
natural gas they require for production. Two of our larger customers have
recently announced reductions in work force at local plants. Corning has not
seen any meaningful change in billing to large customers to date.
Our
earnings may decrease in the event of adverse regulatory actions.
Our
operations are subject to the jurisdiction of the New York Public Service
Commission (NYPSC). The NYPSC approves the rates that we may charge to our
customers. If we are required in a rate proceeding to reduce the rates we charge
our customers, or if we are unable to obtain approval for rate relief from the
NYPSC, particularly when necessary to cover increased costs, including costs
that may be incurred in connection with mandated infrastructure improvements,
our earnings would decrease.
Our
success depends in large part upon the continued services of a number of
significant employees, the loss of which could adversely affect our business,
financial condition and results of operation.
Our
success depends in large part upon the continued services of our senior
executives and other key employees. Although we have entered into an employment
agreement with Michael I. German, our president and chief executive officer, he
can terminate his agreement on ninety days notice and other significant
employees, who have not entered into employment agreements, may terminate their
employment at any time. The loss of the services of any significant employee
could have a material adverse effect on our business.
Concentration
of share ownership among our largest shareholders may prevent other shareholders
from influencing significant corporate decisions.
Michael
I. German, our president and chief executive officer and Richard M. Osborne, our
former chairman of the board, currently own approximately 30% of our outstanding
common stock. As a result, these individuals, if they chose to act together,
will have the ability to exert substantial influence over all matters requiring
approval by our shareholders, including the election and removal of directors
and any proposed merger, consolidation or sale of all or substantially all of
our assets and other corporate transactions. This concentration of ownership
could be disadvantageous to other shareholders with differing interests from
these shareholders.
We
will need additional equity or debt financing to meet all of our cash
needs.
Although
we will have cash resources available for general corporate purposes, we do not
generate sufficient cash flows to meet all of our cash needs. Historically, we
have made large capital expenditures in order to fund the expansion and
upgrading of our distribution system. We have also purchased and will continue
to purchase natural gas to store in inventory. The successful continuation of
our business will be dependent upon our ability to obtain additional equity or
debt financing. The sale of additional equity securities could result in
dilution to our shareholders. The incurrence of debt would result in increased
debt service obligations and could result in operating and financing covenants
that would restrict our operations. Additional financing may have unacceptable
terms or may not be available at all for reasons relating to:
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limits
placed on us by our current lenders in our loan
agreements,
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our
future results of operations, financial condition and cash
flows,
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our
inability to meet our business
plan,
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lenders’
or investors’ perception of, and demand for, securities of natural gas
utilities, and
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conditions
of the capital markets in which we may seek to raise
funds.
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If we
cannot raise additional capital on acceptable terms, we may not be able to
finance the expansion and upgrading of our distribution system, take advantage
of future opportunities or respond to competitive pressures or unanticipated
capital requirements.
Our
profitability may be adversely affected by increased competition.
We are in
a geographical area with a number of interstate pipelines and local production
sources. If a major customer decided to connect directly to either an interstate
pipeline or a local producer, our earnings and revenues would
decrease.
DESCRIPTION
OF THE PLAN
The
following questions and answers constitute a summary description of the
provisions of our Dividend Reinvestment Plan. The full text of the plan is set
forth as an exhibit to the registration statement of which this prospectus is a
part and is incorporated by reference in this prospectus.
Purpose
and Advantages
What
is the purpose of the plan?
The
purpose of the Dividend Reinvestment Plan is to provide participants with a
simple, convenient and economical method of investing cash dividends paid on
shares of common stock of Corning for the purchase of additional shares of
Corning common stock. The plan allows participants to have all or a portion of
cash dividends paid on their shares of common stock automatically reinvested in
shares of common stock of Corning.
What
are the advantages of the plan?
Participants
may increase their holdings of shares of our common stock with the reinvestment
of cash dividends received on previously owned shares of common stock registered
in their names without incurring any service charges and without the payment of
brokerage commissions in connection with purchases under the plan. In addition,
participants will acquire shares under the plan at a 5% discount to their market
price. Regular account statements provide each participant in the plan with a
record of each transaction. Participation in the plan is entirely voluntary. You
may join or terminate your participation at any time prior to a particular
dividend record date by making timely written notice to the plan administrator,
subject to your eligibility to participate and the payment of termination fees
(see “Who is eligible to
participate,” “How many shares of common stock will
be purchased for participants” and “How do I withdraw from the plan”
below).
Plan
Administration
Who
administers the plan for participants?
Registrar
and Transfer Company, Corning’s transfer agent (the Plan Administrator),
administers the plan for participants by maintaining records, sending account
statements to participants and performing other duties relating to the plan.
Shares of common stock purchased under the plan are registered in the name of
the Plan Administrator’s nominee and are credited to the accounts of the
participants in the plan. The Plan Administrator acts in the capacity as agent
for participants in the plan. We may replace the Plan Administrator at any time
in our sole discretion.
Participation
in the Plan
Who
is eligible to participate?
All
holders of record of at least ten (10) shares of common stock of Corning are
eligible to participate in the plan. Beneficial owners of shares of common stock
whose shares are registered in names other than their own may participate by
requesting their broker or nominee to transfer their shares into their own name
or requesting that the broker or nominee enroll in the plan on their behalf. The
right to participate in the plan is not transferable to another person apart
from a transfer of a participant’s shares of common stock of Corning.
Shareholders who reside in jurisdictions in which it is unlawful for a
shareholder to participate in the plan are not eligible to participate in the
plan.
How
do I participate?
To
participate in the plan, a shareholder of record must complete an Authorization
Form and return it to the Plan Administrator. Copies of the Authorization Form
may be obtained at any time by written request to the Registrar and Transfer
Company, 10 Commerce Drive, P.O. Box 664, Cranford, New Jersey 07016, Attn:
Dividend Reinvestment Department, online at www.rtco.com, or by
calling (800) 368-5948.
When
may I join the plan?
A
shareholder of record owning at least ten (10) shares of common stock of Corning
may enroll in the plan at any time. If the Authorization Form is received by the
Plan Administrator no fewer than five (5) business days before the record date
for a dividend payment, and the participant elects to reinvest the dividends in
shares of our common stock, reinvestment of dividends will begin with that
dividend payment. Please note that the plan does not represent any change in
Corning’s dividend policy or a guarantee of the payment of any future
dividends.
What
does the Authorization Form provide?
The
Authorization Form directs Corning to pay to the Plan Administrator for the
account of the participating shareholder of record all dividends paid on the
shares credited to the participant’s account under the plan. It also appoints
the Plan Administrator (or such other plan administrator as Corning may from
time to time designate) as agent for the shareholder and directs the agent to
apply all of the dividends for the purchase of additional shares of common stock
in accordance with the terms and conditions of the plan.
May a shareholder have dividends
reinvested under the plan with respect to less than all of the
shares of common stock registered in that shareholder’s name?
Yes,
provided that a participant elects to reinvest cash dividends on at least ten
(10) shares of common stock.
Optional
Cash Payments
May
I elect to make additional cash payments under the plan?
No. The
plan does not permit optional, additional cash purchases.
Purchases
How
will purchases be made?
Shares of
common stock of Corning needed to fund the plan may be:
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(1)
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issued
directly by Corning from authorized but unissued
shares;
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(2)
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issued
directly by the Corning from our treasury shares,
or
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(3)
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through
a combination of (1) and (2),
above.
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The
dividends payable to participants will be retained by Corning as consideration
for the shares.
How
many shares of common stock will be purchased for participants?
The
number of shares that will be purchased for each participant on any dividend
payment date will depend on the amount of the participant’s cash dividend and
the purchase price of the shares of our common stock. Each participant’s account
will be credited with that number of shares (including fractional shares
computed to four (4) decimal places) equal to the total amount to be invested,
divided by the applicable purchase price (also computed to four (4) decimal
places).
The
purchase price will be determined by averaging the closing price of the
Company’s common stock on the previous five (5) days on which the stock traded
on the Nasdaq Stock Market’s OTC Bulletin Board or such other market where the
stock is traded. This average price will be multiplied by 0.95. The
Plan Administrator will have no responsibility with respect to the market value
of the shares of common stock acquired under the plan for a participant’s
account. Corning will bear all costs of administering the plan, except as
described under “Are there any
expenses to me in connection with the plan” below.
How
are dividends on shares purchased through the plan applied?
The
purpose of the plan is to provide a participant with a convenient method of
purchasing shares of common stock and to have the dividends on those shares
reinvested. Accordingly, dividends paid on shares held in the plan will be
automatically reinvested in additional shares of common stock unless and until
the participant elects in writing to terminate participation in the
plan.
Costs
to Participants
Are
there any expenses to me in connection with purchases under the
plan?
No.
Participants will make purchases of shares of common stock under the plan
without the payment of brokerage commissions, and Corning will pay all fees in
connection with purchases of shares of Corning common stock under the plan,
except for costs associated with the actual purchase price of the shares of
common stock purchased on the investment date. There are no service charges
to participants in connection with purchases of shares of common stock under the
plan. All costs of administration of the plan are paid by Corning.
However,
there will be a $20 fee if a participant requests to withdraw from the plan. A
certificate will be issued for all whole shares and a check will be issued for
the cash payment to be made for any fraction of a share. In addition, if a
participant requests the Plan Administrator to sell his or her shares in the
event of his or her withdrawal from the plan, the participant will pay the
applicable brokerage commission associated with the sale of the shares, any
required transfer tax, and applicable service charges. There is also a $15 fee
to sell shares under the plan (see “What happens to a fraction of a
share when I withdraw from the plan” below).
Reports
to Participants
How
will I be advised of my purchases of shares of common stock under the
plan?
As soon
as practicable after each purchase, each participant will receive an account
statement from the Plan Administrator. These statements are the participant’s
continuing record of the purchase price of the shares of Corning common stock
acquired and the number of shares acquired, and should be retained for tax
purposes. Participants will also receive, from time to time, communications sent
to all record holders of the shares of Corning’s common stock.
Dividends
Will
I be credited with dividends on shares held in my account under the
plan?
Yes. A
participant’s account will be credited with dividends paid on whole shares and
fractional shares credited to the participant’s account. The Plan Administrator
will automatically reinvest the cash dividends received for the purchase of
additional shares of our common stock.
Stock
Certificates
Will
stock certificates be issued for shares of common stock purchased?
The Plan
Administrator will hold all stock certificates representing the shares of common
stock purchased under the plan in the name of its nominee. Normally,
certificates for shares of our common stock purchased under the plan will not be
issued to participants. The number of shares credited to an account under the
plan will be shown on the participant’s account statement.
A
participant may receive certificates for whole shares accumulated in his or her
account under the plan by sending a written request to the Plan Administrator.
Participants may request periodic issuance of certificates for all full shares
in the account.
When certificates are issued to a participant, future dividends on the shares
will be reinvested in additional shares of common stock. Any undistributed
shares will continue to be reflected in a participant’s account. No certificates
representing fractional shares will be issued.
A
participant’s rights under the plan and shares credited to the account of the
participant under the plan may not be pledged. A participant who wishes to
pledge the shares must request that certificates for the shares be issued in his
or her name.
Accounts
under the plan are maintained in the names in which the certificates of
participants were registered at the time they entered the plan. Additional
certificates for whole shares will be similarly registered when
issued.
Sale
of Shares from the Plan
How
do I sell shares from the plan?
A
participant may request that any or all of the shares credited to his or her
account be sold by the Plan Administrator. If a sale is requested, the sale will
be made for the account of the participant by the Plan Administrator’s broker
within ten business days after receipt of the request at the prevailing market
price at the time of the sale. Within ten business days after the sale, the
participant will receive from the Plan Administrator a check for the proceeds of
the sale less the $15 liquidation fee, any applicable brokerage commission and
any transfer tax. The signature on any request for sales in excess of $10,000 or
higher must be guaranteed by a firm that is a bank, broker, dealer, credit
union, savings association or other entity which is a member in good standing of
the Securities Transfer Agents’ Medallion Program.
Because
the Plan Administrator will sell shares on behalf of the plan, neither Corning
nor any participant in the plan has the authority or power to control the timing
or pricing of shares sold or the selection of the broker making the sales.
Therefore, you will not be able to precisely time your sales through the plan,
and you will bear the market risk associated with fluctuations in the price of
our common stock. Accordingly, if you send in a request to sell shares, it is
possible that the market price of Corning’s common stock could go down or up
before the broker sells your shares. In addition, you will not earn interest on
a sales transaction.
Withdrawal
from the Plan
How
do I withdraw from the plan?
A
participant may withdraw from the plan at any time by sending a written
withdrawal notice to the Plan Administrator and including payment of the $20.00
termination fee. Notice received after a particular dividend record date will be
effective following the payment date of the dividend. (See “How do I participate” above
for the full name and address of the Plan Administrator). When a participant
withdraws from the plan, or upon termination of the plan by Corning,
certificates for whole shares credited to the participant’s account under the
plan will be issued and a cash payment will be made for any fraction of a
share.
Upon
withdrawal from the plan, a participant may also request that all of the shares
credited to his or her account be sold by the Plan Administrator. If a sale is
requested, the sale will be made for the account of the participant by the Plan
Administrator’s broker within ten business days after receipt of the request at
the prevailing market price at the time of the sale. Within ten business days
after the sale, the participant will receive from the Plan Administrator a check
for the proceeds of the sale less the $15 liquidation fee, any applicable
brokerage commission and any transfer tax. The signature on any request for
sales in excess of $10,000 or higher must be guaranteed by a firm that is a
bank, broker, dealer, credit union, savings association or other entity which is
a member in good standing of the Securities Transfer Agents’ Medallion
Program.
What
happens to a fraction of a share when I withdraw from the plan?
When a
participant withdraws from the plan, a cash adjustment representing the value of
any fraction of a share then credited to the participant’s account will be
mailed directly to the participant. The cash adjustment will be based on the
closing price of the shares of common stock on the date on which the termination
is processed by the Plan Administrator. In no case will certificates
representing a fractional share interest be issued.
Other
Information
What
happens when a participant’s record ownership of shares of common stock is less
than 10 shares as of a dividend record date?
If a
participant disposes of shares of common stock registered in his or her name
(including shares credited to his or her account under the plan) so that the
total number of shares held under the plan in the name of the participant is
less than 10 shares, the Plan Administrator will discontinue the reinvestment of
cash dividends on the shares credited to the participant’s account under the
plan, or otherwise, until the participant’s record ownership of shares increases
to at least 10 shares. All applicable dividends will be paid in the form of cash
until the participant’s stock ownership under the plan increases to at least 10
shares. If following a disposition of stock, a participant’s record ownership of
the shares of common stock contains fewer than 10 shares of common stock, then
at Corning’s election, a certificate will be issued for the full shares in the
account, a cash payment will be made for any fractional shares, any uninvested
cash balance in the account will be paid to the participant, and the account
will be terminated.
What
happens if Corning issues a stock dividend, declares a stock split or has a
rights offering?
Any
shares representing stock dividends or stock splits distributed by Corning on
shares credited to the account of a participant under the plan will be added to
a participant’s account. Shares representing stock dividends or split shares
distributed on shares registered in the name of a participant will be mailed
directly to the participant in the same manner as to shareholders who are not
participating in the plan.
In the
event Corning has a rights offering of any of its securities to holders of
common stock, participants in the plan will be notified by Corning in advance of
the commencement of the offering. Participants should instruct the Plan
Administrator to transfer whole plan shares into their own names prior to the
record date for the offering if they wish to exercise their rights. If no
instructions are received by the Plan Administrator prior to the record date,
then the rights will terminate with respect to both the participant and the Plan
Administrator.
How will my shares held under the
plan be voted at meetings of shareholders?
Shares
credited to the account of a participant under the plan (other than fractional
shares) will be automatically added to the shares covered by the proxy sent to
the shareholder with respect to his or her other shares in Corning and may be
voted by the holder pursuant to the proxy. The Plan Administrator will forward
any proxy solicitation materials relating to the shares of common stock held by
the plan to the participating shareholder.
Where no
instructions are received from a participant with respect to a participant’s
shares held under the plan, or otherwise, the shares will not be voted unless
the participant votes the shares in person.
What
are the income tax consequences of participation in the plan?
In
general, a participant in the plan has the same Federal and State income tax
obligations with respect to dividends credited to his or her account under the
plan as other holders of shares of common stock who elect to receive cash
dividends directly. A participant is treated for Federal income tax purposes as
having received, on the dividend payment date, a dividend in an amount equal to
the fair market value of the shares of common stock credited to his or her
account under the plan, even though that amount was not actually received by the
participant in cash, but was applied to the purchase of additional shares for
his or her account. The amounts will be included on any annual information
return filed with the Internal Revenue Service, a copy of which will be sent to
the participant.
The cost
basis of each share of common stock credited to a participant’s account pursuant
to the dividend reinvestment aspect of the plan is the fair market value of the
shares of Corning common stock on the dividend payment date, and the holding
period for the shares begins on the day following the dividend payment
date.
The
receipt by a participant of certificates representing whole shares previously
credited to his or her account under the plan upon withdrawal from the plan or
pursuant to the request of the participant will not result in the recognition of
taxable income. A participant will recognize a gain or loss when shares are sold
on behalf of the participant upon withdrawal from the plan or when the
participant sells shares after the participant’s withdrawal from the
plan.
All
participants are advised to consult with their own tax advisors to determine the
particular tax consequences that may result from their participation in the plan
and the subsequent sale by them of shares purchased pursuant to the
plan.
What
are the responsibilities of Corning under the plan?
Corning,
and the Plan Administrator in administering the plan, will not be liable for any
act done in good faith or for the good faith omission to act, including, without
limitation, any claim of liability arising out of failure to terminate a
participant’s account upon the participant’s death or judicially declared
incompetency or with respect to the prices at which shares are purchased for the
participant’s account, and the times when the purchases are made, with respect
to any loss or fluctuation in the market value after purchase of shares, or with
respect to any sales of shares of common stock made under the plan on behalf of
the participant.
Corning
will interpret the plan; all interpretations and determinations made by Corning
will be conclusive. The terms and conditions of the plan, the Authorization
Form, the plan’s operation, and a participant’s account will be governed by the
laws of the State of New York and the Rules and Regulations of the SEC. The
terms of the plan and the Authorization Form cannot be changed by oral
agreement.
Who
bears the risk of market price fluctuations in the shares of common
stock?
A
participant’s investment in shares acquired under the plan is no different from
direct investment in shares of common stock Corning. The participant bears the
risk of loss and realizes the benefits of any gain from market price changes
with respect to all shares held in the plan, or otherwise. Neither Corning nor
the Plan Administrator make any representations with respect to the future value
of the shares of Corning common stock purchased under the plan. The participant
should recognize that Corning, the Plan Administrator and related parties cannot
assure the participant of realizing any profits or protect the participant
against a loss related to investment in the shares of Corning common stock
purchased or sold under the plan.
May
the plan be changed or discontinued?
The plan
may be amended, suspended, modified or terminated at any time by the board of
directors of Corning without the approval of the participants. Thirty (30)
calendar days notice of any suspension, termination or amendment or modification
that would have a material adverse effect on the participants’ rights under the
plan will be sent to all participants, who will at all times have the right to
withdraw from the plan.
Corning
or the Plan Administrator may terminate a shareholder’s individual participation
in the plan at any time by written notice to the shareholder. In such event, the
Plan Administrator will request instructions from a participant for disposition
of the shares in the account. If the Plan Administrator does not receive
instructions from a participant, it will send the participant a certificate for
the number of full shares held for the participant under the plan and a check
for any fractional share.
INDEMNIFICATION
New York
Business Corporation Law (NYBCL) permits a corporation to indemnify its current
and former directors and officers against expenses, judgments, fines and amounts
paid in connection with a legal proceeding. To be indemnified, the person must
have acted in good faith and in a manner the person reasonably believed to be
in, and not opposed to, the best interests of the corporation. With respect to
any criminal action or proceeding, the person must not have had reasonable cause
to believe the conduct was unlawful.
NYBCL
permits a present or former director or officer of a corporation to be
indemnified against certain expenses if the person has been successful, on the
merit or otherwise, in defense of any proceeding brought against such person by
virtue of the fact that the person is or was an officer or director of the
corporation. In addition, NYBCL permits the advancement of expenses relating to
the defense of any proceeding to directors and officers contingent upon the
person’s commitment to repay advances for expenses in the case he or she is
ultimately found not to be entitled to be indemnified.
NYBCL
provides that the indemnification provisions contained in NYBCL are not
exclusive of any other right that a person seeking indemnification may have or
later acquire under any provision of a corporation’s by-laws, by any agreement,
by any vote of shareholders or disinterested directors or otherwise. NYBCL also
provides that a corporation may maintain insurance, at its expense, to protect
its directors and officers in instances in which they may not otherwise be
indemnified by the corporation under the provisions of NYBCL provided the
contract of insurance covering the directors and officers provides, in a manner
acceptable to the New York superintendent of insurance, for a retention amount
and for co-insurance.
Our
restated articles of incorporation and by-laws provide that, to the fullest
extent permitted by NYGCL, we will indemnify our present and future directors
and officers against all expenses actually and reasonably incurred by them as a
result of their being threatened with or otherwise involved in any action, suit
or proceeding (other than an action commenced on our own behalf) by virtue of
the fact that they are or were one of our officers or directors.
Our
by-laws also provide that we may purchase and maintain insurance to indemnify
Corning for any obligation we incur as a result of the indemnification of
directors and officers, or to indemnify directors and officers, pursuant to our
by-laws and in accordance with NYBCL.
In
addition to the provisions of our restated articles of incorporation and by-laws
providing for indemnification of directors and officers, we have entered into an
employment agreement with Michael I. German, our president and chief executive
officer, which requires us to indemnify Mr. German against all expenses actually
and reasonably incurred by him as a result of his being threatened with or
otherwise involved in any action, suit or proceeding by virtue of the fact that
he is or was one of our officers.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as
amended (the Securities Act) may be permitted to our directors and officers, we
have been advised that, although the validity and scope of the governing statute
have not been tested in court, in the opinion of the SEC, such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In addition, indemnification may be limited by state securities
laws.
USE
OF PROCEEDS
The net
proceeds from the sale of newly issued shares of common stock issued under the
plan will be used for general corporate purposes. Pending such use, the net
proceeds may be temporarily invested. The precise amounts and timing of the
application of net proceeds will depend upon our funding requirements and
availability of other funds.
LEGAL
MATTERS
Certain
legal matters with respect to the validity of the shares of common stock offered
by this prospectus will be passed upon for us by Kohrman Jackson & Krantz
PLL.
EXPERTS
The
financial statements incorporated by reference in this prospectus have been
audited by Rotenberg & Co., LLP, an independent registered public accounting
firm, to the extent and for the periods set forth in its report incorporated
herein by reference, and are incorporated by reference in reliance upon such
reports given upon the authority of said firm as experts in auditing and
accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any document we file at the SEC’s public
reference rooms at 100 F Street, N.E., Washington, DC 20549. Please
call the SEC at 1-800-SEC-0330 for further information on the public reference
rooms. In addition, our SEC filings are available to the public at the SEC’s web
site at http:\\www.sec.gov. Our filings
are also available on our website at www.coringgas.com.
The
following documents are incorporated by reference in this
prospectus:
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1.
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Our
Annual Report, as amended, on Form 10-K and Form 10-K/A for the fiscal
year ended September 30, 2008;
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2.
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Our
Proxy Statement filed with the Securities and Exchange Commission on
February 27, 2009;
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3.
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Our
Quarterly Reports, as amended, on Form 10-Q and Form 10-Q/A for the
quarters ended March 31, 2009 and December 31,
2008;
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4.
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Our
Current Reports on Form 8-K dated April 3, 2009, March 16, 2009, March 11,
2009, February 26, 2009, January 26, 2009, and December 22,
2008;
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5.
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The
description of our common stock contained in our Registration Statement on
Form S-2 dated April 7, 1989 (File No. 033-27987), as amended, filed with
the Commission pursuant to Section 12(g) of the Exchange Act;
and
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6.
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All
reports and documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates all securities offered have been
sold or that deregisters all securities then remaining
unsold.
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All
documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 after the date of this prospectus and prior to
termination of the offering will be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of the documents. Any
statement in this prospectus or in a document incorporated by reference or
deemed to be incorporated by reference herein will be deemed to be modified or
superseded for purposes of this prospectus to the extent that the statement is
modified or superseded by any other subsequently filed document which is
incorporated or is deemed to be incorporated by reference herein. Any statement
so modified or superseded will not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
Corning hereby
undertakes to provide without charge to each person, including any beneficial
owner, to whom this prospectus has been delivered, on written or oral request, a
copy of any or all of the documents referred to above which have been or may be
incorporated into this prospectus and deemed to be part hereof, other than
exhibits to the documents unless the exhibits are specifically incorporated by
reference in the documents. These documents are available upon request by
contacting Registrar and Transfer Company, 10 Commerce Drive, P.O. Box 664,
Cranford, New Jersey 07016, Attn: Dividend Reinvestment Plan Department or by
calling (800) 368-5948.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item
14.
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Other
Expenses of Issuance and
Distribution
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The
following table sets forth costs and expenses payable by Corning in connection
with the sale and distribution of the securities being registered
hereby. All amounts shown are estimates except the SEC registration
fee.
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SEC
registration fee
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$ |
99.05 |
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Accounting
fees and expenses
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1,000 |
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Legal
fees and expenses
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5,000 |
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Printing
expenses
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500
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Miscellaneous
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––– |
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Total
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$ |
6,599
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Item
15.
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Indemnification
of Officers and Directors.
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Our
restated articles of incorporation and by-laws provide that Corning will
indemnify our directors, officers and certain other parties to the fullest
extent permitted from time to time by the New York Business Corporation Law
(“NYBCL”). NYBCL permits a corporation to indemnify its current and
former directors and officers against expenses, judgments, fines and amounts
paid in connection with a legal proceeding. To be indemnified, the person must
have acted in good faith and in a manner the person reasonably believed to be
in, and not opposed to, the best interests of the corporation. With respect to
any criminal action or proceeding, the person must not have had reasonable cause
to believe the conduct was unlawful.
The
exhibits to the registration statement required by Item 601 of Regulation S-K
are listed in the exhibit index on page II-4.
(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 of
1933;
(ii) to
reflect in the prospectus any facts or events arising after the effective date
of the 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 the 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 percent
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 the registration statement or any material change to
such information in the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
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 of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (the “Securities Exchange Act”) (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act) that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offer therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering
thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 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 28, 2009.
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Corning
Natural Gas Corporation
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By:
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/s/ Michael I. German
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Michael
I. German, Chief
Executive Officer and
President
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POWER
OF ATTORNEY
KNOW ALL
PERSON BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Michael I. German and Firouzeh Sarhangi, jointly and
severally, his attorneys-in-fact, each with the power of substitution, for him
in any and all capacities, to sign any amendments to this registrant statement
on Form S-3 and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorney-in-fact, or his
substitute or substitutes, may 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 and on the dates
indicated.
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Signature
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Title
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Date
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/s/ Michael I. German
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Chief
Executive Officer and President
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May
28, 2009
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Michael
I. German
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(principal
executive officer)
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/s/ Firouzeh Sarhangi
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Chief
Financial Officer
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May
28, 2009
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Firouzeh
Sarhangi
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(principal
financial and accounting officer)
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/s/ Henry B. Cook, Jr.
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Chairman
of the Board
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May
28, 2009
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Henry
B. Cook, Jr.
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/s/ Ted W. Gibson
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Director
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May
28, 2009
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Ted
W. Gibson
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/s/ Gregory J. Osborne
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Director
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May
28, 2009
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Gregory
J. Osborne
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/s/ Stephen G. Rigo
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Director
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May
28, 2009
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Stephen
G. Rigo
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/s/ Thomas J. Smith
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Director
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May
28, 2009
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Thomas
J. Smith
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/s/ George J. Welch
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Director
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May
28, 2009
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George
J. Welch
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EXHIBIT
INDEX
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Exhibit
Number
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Exhibit
Description
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5.1
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Opinion
of Kohrman Jackson & Krantz P.L.L.
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23.1
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Consent
of Rotenberg & Co., LLP
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23.2
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Consent
of Kohrman Jackson & Krantz P.L.L. (included in Exhibit
5.1)
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24.1
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Powers
of Attorney (included in signature
pages)
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