|As filed with the Securities and Exchange Commission on June 5, 2018|
|Registration Statement No. 333-|
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
THE SECURITIES ACT OF 1933
Eastman Kodak Company
(Exact name of registrant as specified in its charter)
|(State or Other Jurisdiction of||(IRS Employer|
|Incorporation or Organization)||Identification Number)|
343 State Street
Rochester, New York 14650
(Address of principal executive offices and zip code)
Eastman Kodak Company 2013 Omnibus Incentive Plan, as amended
(Full title of the plan)
Sharon E. Underberg
General Counsel, Secretary and Senior Vice President
Eastman Kodak Company
343 State Street
Rochester, New York 14650
(Name, address and telephone number, including area code, of agent for service)
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
|Large accelerated filer||☐||Accelerated filer||☒|
|Non-accelerated filer||☐||(Do not check if a smaller reporting company)||Smaller reporting company||☐|
|Emerging growth company||☐|
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
|Title of Securities
to be Registered
Common Stock, par value $0.01 per share, under the Eastman Kodak Company 2013 Omnibus Incentive Plan, as amended
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares of common stock which may be issued pursuant to the terms of the Eastman Kodak Company 2013 Omnibus Incentive Plan, as amended, in order to prevent dilution resulting from adjustments in the event of a stock split, stock dividend, reorganization, recapitalization or similar adjustments of common stock.
Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and Rule 457(h) of the Securities Act on the basis of the average of the high and low prices of the Registrant’s common stock as reported on the NYSE on June 1, 2018.
STATEMENT PURSUANT TO
GENERAL INSTRUCTION E TO FORM S-8
REGISTRATION OF ADDITIONAL SECURITIES
The purpose of this Registration Statement is to register additional shares for issuance under the Eastman Kodak Company 2013 Omnibus Incentive Plan, as amended. This Registration Statement is submitted in accordance with General Instruction E to Form S-8 regarding registration of additional securities, and pursuant to such instruction, the contents of the registration statement on Form S-8 (Registration No. 333-190957), filed with the Securities and Exchange Commission on September 3, 2013, are incorporated herein by reference, except for Part II, Item 3 – Incorporation of Documents by Reference, Item 5–Interests of Named Experts and Counsel and Item 8 – Exhibits.
Item 3. Incorporation of Documents by Reference.
The following documents filed by Eastman Kodak Company (the “Company”) with the Securities and Exchange Commission (the “Commission”) are incorporated by reference herein (except for portions thereof furnished or otherwise not filed with the Commission, which are deemed not to be incorporated by reference into this Registration Statement):
The Company’s Annual Report on Form 10-K for the year ended December 31, 2017 filed on March 15, 2018;
The Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2018, filed on May 10, 2018;
The Company’s Current Reports on Form 8-K filed on March 15, 2018, April 9, 2018, May 9, 2018 and May 24, 2018; and
The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A filed on September 3, 2013, including the description of the Company’s Common Stock contained in the Company’s Registration Statement on Form S-8 filed on September 3, 2013 and incorporated by reference therein, and any amendments or reports filed for the purpose of updating that description.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) subsequent to the effective date of this Registration Statement (except for the portions thereof furnished or otherwise not filed with the Commission which are deemed not to be incorporated by reference into this Registration Statement), but prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered hereby have been sold or de-registering all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or supersedes such statement.
Item 5. Interests of Named Experts and Counsel.
The legality of securities being offered hereby will be passed upon by Sharon E. Underberg, General Counsel, Secretary and Senior Vice President of the Company. Ms. Underberg is eligible to participate in the Eastman Kodak Company 2013 Omnibus Incentive Plan, as amended (the “Plan”), and pursuant to Ms. Underberg’s employment agreement, the Company is obligated to make annual equity award grants to her pursuant to the Plan.
Item 8. Exhibits.
|4.1||Second Amended and Restated Certificate of Incorporation of Eastman Kodak Company (Incorporated by reference to Exhibit 4.1 of the Company’s Registration Statement on Form S-8 as filed on September 3, 2013).|
|4.2||Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation of Eastman Kodak Company (Incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K as filed on November 16, 2016).|
|4.3||Fourth Amended and Restated By-laws of Eastman Kodak Company (Incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K as filed on May 25, 2017).|
|4.4||Registration Rights Agreement between Eastman Kodak Company and certain stockholders listed on Schedule 1 thereto, dated September 3, 2013 (Incorporated by reference to Exhibit 4.1 of the Company’s Registration Statement on Form 8-A as filed on September 3, 2013).|
|4.5||Warrant Agreement between Eastman Kodak Company and ComputerShare Trust Company, N.A. and ComputerShare Inc. as Warrant Agent, dated September 3, 2013 (Incorporated by reference to Exhibit 4.2 of the Company’s Registration Statement on Form 8-A as filed on September 3, 2013).|
|4.6||Registration Rights Agreement by and among Eastman Kodak Company, Southeastern Asset Management, Inc., Longleaf Partners Small-Cap Fund, C2W Partners Master Fund Limited and Deseret Mutual Pension Trust, dated November 15, 2016 (Incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K as filed on November 16, 2016).|
|4.7||Shareholder Agreement, dated as of April 17, 2017, by and among Eastman Kodak Company, Longleaf Partners Small-Cap Fund, C2W Partners Master Fund Limited, Deseret Mutual Pension Trust and Southeastern Asset Management, Inc. (Incorporated by reference to Exhibit 4.6 of the Company’s Amendment No. 2 to Registration Statement on Form S-3 as filed on May 5, 2017).|
|4.8||Eastman Kodak Company 2013 Omnibus Incentive Plan (Incorporated by reference to Exhibit 4.4 of the Company’s Registration Statement on Form S-8 as filed on September 3, 2013).|
|4.9||First Amendment to Eastman Kodak Company 2013 Omnibus Incentive Plan (Incorporated by reference to Exhibit 99.1 of the Company’s Current Report on Form 8-K as filed on May 24, 2018).|
|5.1*||Opinion of Sharon E. Underberg.|
|23.1*||Consent of PricewaterhouseCoopers LLP.|
|23.2*||Consent of Sharon E. Underberg (included in Exhibit 5.1).|
|24.1*||Power of Attorney (included on the signature page of this Registration Statement).|
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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rochester, State of New York, on June 5, 2018.
|Eastman Kodak Company|
|By:||/s/ Sharon E. Underberg|
|Name:||Sharon E. Underberg|
|Title:||General Counsel, Secretary|
|and Senior Vice President|
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Sharon E. Underberg his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933 and any and all amendments (including post-effective amendments) to this registration statement and to any registration statement filed pursuant to Rule 462(b), and to file same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the foregoing, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|/s/ Jeffrey J. Clarke||Chief Executive Officer and Director||June 5, 2018|
|Jeffrey J. Clarke||(Principal Executive Officer)|
|/s/ David E. Bullwinkle||Chief Financial Officer||June 5, 2018|
|David E. Bullwinkle||(Principal Financial Officer)|
|/s/ Eric H. Samuels||Chief Accounting Officer and||June 5, 2018|
|Eric H. Samuels||Controller|
|(Principal Accounting Officer)|
|/s/ Richard Todd Bradley||Director||June 5, 2018|
|Richard Todd Bradley|
|/s/ Mark S. Burgess||Director||June 5, 2018|
|Mark S. Burgess|
|/s/ James V. Continenza||Director||June 5, 2018|
|James V. Continenza|
|/s/ Matthew A. Doheny||Director||June 5, 2018|
|Matthew A. Doheny|
|/s/ Jeffrey D. Engelberg||Director||June 5, 2018|
|Jeffrey D. Engelberg|
|/s/ George Karfunkel||Director||June 5, 2018|
|/s/ Jason New||Director||June 5, 2018|
|/s/ William G. Parrett||Director||June 5, 2018|
|William G. Parrett|
June 5, 2018
Eastman Kodak Company
343 State Street
Rochester, New York 14650
Ladies and Gentlemen:
I am General Counsel, Secretary and Senior Vice President of Eastman Kodak Company, a New Jersey corporation (“Kodak”).
With respect to the Registration Statement on Form S-8 (the “Registration Statement”) filed today by Kodak with the Securities and Exchange Commission for the purpose of registering under the Securities Act of 1933, as amended, 1,000,000 shares of common stock of Kodak, par value $0.01 per share (the “Shares”), to be granted to participants under, or issued upon the exercise of options and stock appreciation rights, or issued in connection with other awards granted under the Eastman Kodak Company 2013 Omnibus Incentive Plan, as amended (the “Plan”), I have examined originals or copies, certified or otherwise identified to my satisfaction, of such corporate records, certificates, and other documents and instruments, and such questions of law, as I have considered necessary or desirable for the purpose of this opinion.
In my examination, I have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. In making my examination of executed documents, I have assumed that the parties thereto, other than Kodak, had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts material to the opinions expressed herein which I have not independently established or verified, I have relied upon statements and representations of officers and other representatives of Kodak and others.
Based on the foregoing, I am of the opinion that the Shares will, when the Registration Statement has become effective and the Shares have been issued and delivered as contemplated in the Plan, be legally issued, fully paid, and non-assessable.
This opinion is rendered as of the date first written above and I disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to my attention and which may alter, affect or modify the opinion expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated. I consent to the filing of this opinion as an exhibit to the Registration Statement.
I also consent to the reference to me in Item 5, Interests of Named Experts and Counsel, of the Registration Statement. In giving such consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations promulgated thereunder or Item 509 of Regulation S-K.
|Very truly yours,|
|/s/ Sharon E. Underberg|
|Sharon E. Underberg|
|General Counsel, Secretary and|
|Senior Vice President|
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Eastman Kodak Company of our report dated March 15, 2018 relating to the financial statements, financial statement schedules and the effectiveness of internal control over financial reporting, which appears in Eastman Kodak Company’s Annual Report on Form 10-K for the year ended December 31, 2017.
/s/ PricewaterhouseCoopers LLP
Rochester, New York
June 5, 2018