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As filed with the Securities and Exchange Commission on March 14, 1997
Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EASTMAN KODAK COMPANY
Exact name of registrant as specified in its charter)
New Jersey 16-0417150
(State or other jurisdiction (I.R.S. employer identification
of incorporation or organization) number)
343 STATE STREET, ROCHESTER, NEW YORK 14650
(Address of principal executive offices) (Zip code)
WAGE DIVIDEND PLAN
(Full title of the plan)
JOYCE P. HAAG
Secretary
Eastman Kodak Company
343 State Street
Rochester, New York 14650
(716) 724-4666
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Max. Proposed Max. Amount of
Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered Per Share (1) Offering Price Fee
Common Stock 4,000,000 $90.50 $362,000,000.00 $110,048.00
par value $2.50 shares
per share
(1) Estimated on the basis of the average of the high and low prices of
Eastman Kodak Company ("Kodak") Common Stock reported on the New York Stock
Exchange for March 7, 1997, solely for the purpose of determining the
registration fee pursuant to Rule 457 (c) and (h).
Approximate date of commencement of the proposed sale
of the securities to the public:
From time to time after the Registration Statement becomes effective.
PART II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following information previously filed by Kodak with the
Securities and Exchange Commission (the "Commission") is incorporated herein
by reference:
Kodak's Form 10-K Annual Report for the year ended December 31,
1996.
All documents filed by Kodak with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
de-registers all securities then remaining unsold will be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Description Of Kodak Common Stock
The following is a brief description of Kodak Common Stock.
Dividend Rights
Each share of Kodak Common Stock ranks equally with all other
shares of Kodak Common Stock with respect to dividends. Dividends may be
declared by the Board of Directors and paid by Kodak at such times as the
Board of Directors determines, all pursuant to the provisions of the New
Jersey Business Corporation Act.
Voting Rights
Each holder of Kodak Common Stock is entitled to one vote per
share of such stock held. Kodak Common Stock does not have cumulative voting
rights. Holders of Kodak Common Stock are entitled to vote on all matters
requiring shareholder approval under New Jersey law and Kodak's Restated
Certificate of Incorporation and By-Laws, and to elect the members of the
Board of Directors. Directors are divided into three classes, each such
class, as nearly as possible, having the same number of directors. At each
annual meeting of the shareholders, the directors chosen to succeed those
whose terms have then expired shall be identified as being of the same class
as the directors they succeed and shall be elected by the shareholders for a
term expiring at the third succeeding annual meeting of the shareholders.
Liquidation Rights
Holders of Kodak Common Stock are entitled on liquidation to
receive all assets which remain after payment to creditors and holders of
preferred stock.
Preemptive Rights
Holders of Kodak Common Stock are not entitled to preemptive
rights. There are no provisions for redemption, conversion rights, sinking
funds, or liability for further calls or assessments by Kodak with respect to
Kodak Common Stock.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the securities being offered hereby will be passed
upon by Gary P. Van Graafeiland, General Counsel and Senior Vice President of
Kodak. Mr. Van Graafeiland owns and has options to purchase Kodak Common
Stock and is eligible to receive awards under the Plan.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 14A:3-5 of the New Jersey Business Corporation Act
empowers a corporation to indemnify its directors, officers, and employees
against expenses or liabilities in connection with any proceeding involving
such persons by reason of their being such directors, officers, or employees.
Article 6 of Kodak's Restated Certificate of Incorporation and Article 8,
Section 2 of Kodak's by-laws provides for indemnification, to the full extent
permitted by law of Kodak's directors, officers, and employees. In addition,
Kodak maintains directors and officers liability insurance insuring its
directors and officers against liabilities against which they cannot be
indemnified by Kodak.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS
Exhibit
Number Exhibit
4 Wage Dividend Plan
5 Opinion of Gary P. Van Graafeiland as to the legality of the
securities registered
23A Consent of Price Waterhouse LLP, independent accountants
23B Consent of Gary P. Van Graafeiland (included in Exhibit 5 to
this Registration Statement)
Item 9. UNDERTAKINGS
Updating Information
(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 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 Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Indemnification of Certain Persons
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
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-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
this 14 day of March, 1997.
EASTMAN KODAK COMPANY
By: /s/ George M.C. Fisher By: /s/ Harry L. Kavetas
Chairman of the Board Chief Financial Officer
and Chief Executive Officer and Executive Vice President
(Principal Financial Officer)
By: /s/ David J. FitzPatrick
Controller and Vice President
(Principal Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on March 14, 1997.
Name Title
Richard S. Braddock Director /s/ Richard S. Braddock
Martha Layne Collins Director /s/ Martha Layne Collins
Alice F. Emerson Director /s/ Alice F. Emerson
George M.C. Fisher Director /s/ George M.C. Fisher
Roberto C. Goizueta Director /s/ Roberto C. Goizueta
Paul E. Gray Director /s/ Paul E. Gray
Karlheinz Kaske Director /s/ Karlheinz Kaske
Richard A. Zimmerman Director /s/ Richard A. Zimmerman
EASTMAN KODAK COMPANY
REGISTRATION STATEMENT ON FORM S-8
WAGE DIVIDEND PLAN
INDEX TO EXHIBITS
Exhibit
Number Exhibit Location
4 Wage Dividend Plan *
5 Opinion of Gary P. Van Graafeiland *
as to the legality of the
securities registered
23A Consent of Price Waterhouse LLP, *
independent accountants
23B Consent of Gary P. Van Graafeiland Included in Exhibit 5
to this Registration
Statement
*Included as part of the electronic submission of this Registration Statement
EXHIBIT 4
EASTMAN KODAK COMPANY
WAGE DIVIDEND PLAN
Article Page
1. Purpose, Effective Date and Term of Plan 1
2. Definition 2
3. Eligibility and Participation 9
4. Plan Administration 10
5. Forms of Awards 12
6 Determination of Awards for a Performance Period 13
7. Payment of Awards for a Performance Period 14
8. Deferral of Awards 15
9. Shares Subject to the Plan 16
10. Miscellaneous 18
O 1996, Eastman Kodak Company
ARTICLE 1 -- PURPOSE, EFFECTIVE DATE AND TERM OF PLAN
1.1 Purpose
The purposes of the Plan are to assist the Company in attracting, motivating
and retaining its Employees by rewarding Employees for their contributions to
the Company's growth and success, provided Company performance meets or
exceeds established Performance Goals, and to endeavor to qualify the Awards
granted to Covered Employees under the Plan as performance-based compensation
as defined in Section 162(m) of the Code.
1.2 Effective Date
The Plan shall be effective as of January 1, 1995, subject to approval by
Kodak's shareholders at the 1995 Annual Meeting of the Shareholders of Kodak.
1.3 Term
Awards shall not be granted pursuant to the Plan after December 31, 1999;
provided, however, the Committee may grant Awards after such date in
recognition of performance for a Performance Period completed on or prior to
such date.
ARTICLE 2 -- DEFINITIONS
2.1. Average Net Assets
"Average Net Assets" means, for the Performance Period, the simple average
of the Company's Net Assets for each of the following five fiscal quarters of
the Company: the four fiscal quarters of the Performance Period and the fiscal
quarter immediately preceding the Performance Period. For purposes of this
calculation, Net Assets for a fiscal quarter shall be determined as of the end
of such quarter.
2.2. Award
"Award" means the compensation payable to a Participant by the Committee for
a Performance Period pursuant to Article 7. All Awards shall be issued in one
or more of the forms specified by Article 5.
2.3. Award Payment Date
"Award Payment Date" means, for each Performance Period, the date that the
Awards, if any, for that Performance Period shall be paid to Participants
pursuant to Article 7, without regard to any election to defer receipt of an
Award made under Article 8 of the Plan.
2.4. Board
"Board" means the Board of Directors of Kodak.
2.5. Code
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, including regulations thereunder and successor provisions and
regulations thereto.
2.6. Committee
"Committee" means the Executive Compensation and Development Committee of
the Board, or such other Board committee as may be designated by the Board to
administer the Plan; provided, however, that the Committee shall consist of
three or more directors, all of whom are both a "Non-Employee Director"
within the meaning of Rule 16b-3 under the Exchange Act and an "outside
director" within the meaning of the definition of such term as contained in
Proposed Treasury Regulation Section 1.162-27(e)(3), or any successor
definition subsequently adopted.
2.7. Common Stock
"Common Stock" means the common stock, $2.50 par value per share, of Kodak
which may be newly issued or treasury stock.
2.8. Company
"Company" means Kodak and its Subsidiaries.
2.9. Covered Employee
"Covered Employee" means an Employee who is a "Covered Employee" within
the meaning of Section 162(m) of the Code.
2.10. Effective Date
"Effective Date" means the date an Award is determined to be effective by
the Committee upon its grant of such Award.
2.11. Employee
"Employee" means, for a Performance Period:
(a) Any person employed by the Company during such Performance Period and
compensated for services in the form of an hourly wage or salary: provided,
however, that the persons described in Subsections (b) and (c) of this Section
2.11 are not Employees.
(b) The following persons are not Employees:
(1) Limited Services Employees; and
(2) Any person employed by the Company during the 1996 Performance Period
who: (i) is offered a position of employment by Danka; (ii) accepts such offer
of employment; and (iii) is employed by Danka on January 1, 1997; and
(3) Any person employed by the Company during the 1996 Performance Period
who; (i) is disabled and receiving benefits under the Short Term Disability
Plan on January 1, 1997; (ii) does not have a "Continuos Disability" (as
defined in Section 2.06 of the Short Term Disability Plan) as a result of such
disability for a period in excess of 180 days; (iii) returns to work for the
Company prior to March 14, 1997, (iv) is offered a position of employment by
Danka; (vi) accepts such offer of employment; and (vi) is employed by Danka
prior to March 14, 1997; and
(4) Any person employed by the Company during the 1996 Performance Period
who; (i) is on a leave of absence on January 1, 1997; (ii) returns to work for
the Company prior to March 14, 1997, (iii) is offered a position of employment
by Danka; (iv) accepts such offer of employment; and (v) is employed by Danka
prior to March 14, 1997
(c) By way of example, and not by way of limitation, the term "Employee"
does not include independent contractors or leased employees (within the
meaning of Section 414(n) of the Code).
2.12. Exchange Act
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, including rules thereunder and successor provisions and rules
thereto.
2.13. Kodak
"Kodak" means Eastman Kodak Company.
2.14. Limited Service Employee
"Limited Service Employee" means a person who is hired by the Company for
the specific purpose of meeting short-term needs of 900 hours or less in any
consecutive 12 month period and who is designated as a Limited Service
Employee when hired.
2.15. Negative Discretion
"Negative Discretion" means the discretion authorized by the Plan to be
applied by the Committee in determining the size of the Award to be paid to a
Covered Employee for a Performance Period if, in the Committee's sole
judgment, such application is appropriate. Negative Discretion may only be
used by the Committee to eliminate or reduce the size of the Award earned by a
Covered Employee pursuant to the Performance Formula. By way of example, and
not by way of limitation, in no event shall any discretionary authority
granted to the Committee by the Plan, including, but not limited to Negative
Discretion, be used to: (a) grant an Award to a Covered Employee for a
Performance Period if the Performance Goals for such Performance Period have
not been attained; or (b) increase an Award to a Covered Employee above the
maximum amount payable under Section 6.2(b) of the Plan.
2.16. Net Assets
"Net Assets" means the Company's consolidated Total Shareholders' Equity and
Borrowings (both short-term and long-term) as reported in its audited
consolidated financial statements. The Committee is authorized at any time
during the first 90 days of a Performance Period, or at any time thereafter in
its sole and absolute discretion, to adjust or modify the calculation of Net
Assets for such Performance Period in order to prevent the dilution or
enlargement of the rights of Participants, (a) in the event of, or in
anticipation of, any unusual or extraordinary corporate item, transaction,
event or development; (b) in recognition of, or in anticipation of, any other
unusual or nonrecurring events affecting the Company, or the financial
statements of the Company, or in response to, or in anticipation of, changes
in applicable laws, regulations, accounting principles, or business
conditions; and (c) in view of the Committee's assessment of the business
strategy of the Company, performance of comparable organizations, economic and
business conditions, and any other circumstances deemed relevant. However, if
and to the extent the exercise of such authority after the first 90 days of a
Performance Period would cause the Awards granted to the Covered Employees for
the Performance Period to fail to qualify as "Performance-Based
Compensation" under Section 162(m) of the Code, then such authority shall
only be exercised with respect to those Participants who are not Covered
Employees.
2.17. Net Income
"Net Income" means, for a Performance Period, the Company's consolidated Net
Earnings (Loss) before Cumulative Effect of Changes in Accounting Principle
for the Performance Period as reported in its audited consolidated financial
statements. The Committee is authorized at any time during the first 90 days
of a Performance Period, or at any time thereafter in its sole and absolute
discretion, to adjust or modify the calculation of Net Income for such
Performance Period in order to prevent the dilution or enlargement of the
rights of Participants, (a) in the event of, or in anticipation of, any
dividend or other distribution (whether in the form of cash, securities or
other property), recapitalization, restructuring, reorganization, merger,
consolidation, spin off, combination, repurchase, share exchange, liquidation,
dissolution, or other similar corporate transaction, event or development; (b)
in recognition of, or in anticipation of, any other unusual or nonrecurring
event affecting the Company, or the financial statements of the Company, or in
response to, or in anticipation of, changes in applicable laws, regulations,
accounting principles, or business conditions; (c) in recognition of, or in
anticipation of, any other extraordinary gains or losses; and (d) in view of
the Committee's assessment of the business strategy of the Company,
performance of comparable organizations, economic and business conditions, and
any other circumstances deemed relevant. However, if and to the extent the
exercise of such authority after the first 90 days of a Performance Period
would cause the Awards granted to the Covered Employees for the Performance
Period to fail to qualify as "Performance-Based Compensation" under Section
162(m) of the Code, then such authority shall only be exercised with respect
to those Participants who are not Covered Employees.
2.18. Participant
"Participant" means, for a Performance Period, an Employee who is designated
to participate in the Plan pursuant to Section 3.2.
2.19. Participation Rules
"Participation Rules" means, for a Performance Period, the rules established
by the Committee in accordance with Section 3.2 pursuant to which the
Committee shall determine which Employees will be Participants for such
Performance Period.
2.20. Performance Criterion
"Performance Criterion" means the stated business criterion upon which the
Performance Goals for a Performance Period are based as required pursuant to
Proposed Treasury Regulation Section 1.162-27(e)(4)(iii). For purposes of the
Plan, RONA shall be the Performance Criterion.
2.21. Performance Formula
"Performance Formula" means, for a Performance Period, the one or more
objective formulas applied against the Performance Goals to determine whether
Awards have been earned for the Performance Period and, if so, the amount of
such Awards. The Performance Formula for a Performance Period shall be
established in writing by the Committee within the first 90 days of the
Performance Period (or, if later, within the maximum period allowed pursuant
to Section 162(m) of the Code).
2.22. Performance Goals
"Performance Goals" means, for a Performance Period, the one or more goals
for the Performance Period established by the Committee in writing within the
first 90 days of the Performance Period (or, if later, within the maximum
period allowed pursuant to Section 162(m) of the Code) based upon the
Performance Criterion. The Committee is authorized at any time during the
first 90 days of a Performance Period, or at any time thereafter in its sole
and absolute discretion, to adjust or modify the calculation of a Performance
Goal for such Performance Period in order to prevent the dilution or
enlargement of the rights of Participants, (a) in the event of, or in
anticipation of, any unusual or extraordinary corporate item, transaction,
event or development; (b) in recognition of, or in anticipation of, any other
unusual or nonrecurring events affecting the Company, or the financial
statements of the Company, or in response to, or in anticipation of, changes
in applicable laws, regulations, accounting principles, or business
conditions; and (c) in view of the Committee's assessment of the business
strategy of the Company, performance of comparable organizations, economic and
business conditions, and any other circumstances deemed relevant. However, if
and to the extent the exercise of such authority after the first 90 days of a
Performance Period would cause the Awards granted to the Covered Employees for
the Performance Period to fail to qualify as "Performance-Based
Compensation" under Section 162(m) of the Code, then such authority shall
only be exercised with respect to those Participants who are not Covered
Employees.
2.23. Performance Period
"Performance Period" means Kodak's fiscal year.
2.24. Plan
"Plan" means the Wage Dividend Plan.
2.25. RONA
"RONA" means, for a Performance Period, Return on Net Assets for the
Performance Period. RONA shall be calculated by dividing Net Income for the
Performance Period by Average Net Assets for the same period.
2.26. Stock Equivalent
"Stock Equivalent" means an Award under Article 5 that is valued in whole or
in part by reference to, or is payable in or is otherwise based on, Common
Stock.
2.27. Subsidiary
Subsidiary means a subsidiary which is majority owned by Kodak and reported in
Kodak's audited consolidated financial statements.
ARTICLE 3 -- ELIGIBILITY AND PARTICIPATION
3.1 Eligibility
All Employees are eligible to participate in the Plan. However, the fact that
a person is an Employee for a Performance Period shall not in any manner
entitle such Employee to be eligible for an Award for the Performance Period.
In order to be eligible for an Award for a Performance Period, the Employee
must be designated as a Participant for such Performance Period by the
Committee in accordance with Section 3.2 below.
3.2 Participation
Through the adoption of written Participation Rules within the first 90 days
of a Performance Period, the Committee will, in its sole discretion, designate
those Employees who will be Participants for such Performance Period.
Pursuant to the Participation Rules for a Performance Period, the Committee
may condition the receipt of Awards upon satisfaction of such preconditions
and/or requirements as it, in its sole discretion, determines. The fact that
an Employee is a Participant for a Performance Period shall not in any manner
entitle such Participant to receive an Award for the Performance Period. The
determination as to whether or not such Participant shall be paid an Award for
such Performance Period shall be decided solely in accordance with the
provisions of Article 7 hereof.
ARTICLE 4 -- PLAN ADMINISTRATION
4.1 Responsibility
The Committee shall have total and exclusive responsibility to control,
operate, manage and administer the Plan in accordance with its terms.
4.2 Authority of the Committee
The Committee shall have all the authority that may be necessary or helpful to
enable it to discharge its responsibilities with respect to the Plan. Without
limiting the generality of the preceding sentence, the Committee shall have
the exclusive right: to interpret the Plan, to determine eligibility for
participation in the Plan, to decide all questions concerning eligibility for
and the amount of Awards payable under the Plan, to establish and administer
the Performance Goals and certify whether, and to what extent, they are
attained, to construe any ambiguous provision of the Plan, to correct any
default, to supply any omission, to reconcile any inconsistency, to issue
administrative guidelines as an aid to administer the Plan, to make
regulations for carrying out the Plan and to make changes in such regulations
as they from time to time deem proper, and to decide any and all questions
arising in the administration, interpretation, and application of the Plan.
In addition, in order to enable Employees who are foreign nationals or are
employed outside the United States or both to receive Awards under the Plan,
the Committee may adopt such amendments, procedures, regulations, subplans and
the like as are necessary or advisable, in the opinion of the Committee, to
effectuate the purposes of the Plan.
4.3 Discretionary Authority
The Committee shall have full discretionary authority in all matters related
to the discharge of its responsibilities and the exercise of its authority
under the Plan including, without limitation, its construction of the terms of
the Plan and its determination of eligibility for participation and Awards
under the Plan. It is the intent of Kodak that the decisions of the Committee
and its action with respect to the Plan shall be final, binding and conclusive
upon all persons having or claiming to have any right or interest in or under
the Plan.
4.4 Section 162(m) of the Code
With regard to all Covered Employees, the Plan shall for all purposes be
interpreted and construed in accordance with Section 162(m) of the Code.
4.5 Delegation of Authority
Except to the extent prohibited by law, the Committee may delegate some or all
of its authority under the Plan to any person or persons provided that any
such delegation be in writing.
ARTICLE 5 -- FORM OF AWARDS
Awards may at the Committee's sole discretion be issued and paid in cash,
Common Stock, Stock Equivalents or a combination thereof. Awards paid in the
form of Common Stock or Stock Equivalents shall be issued for no
consideration. The Committee may, in its sole judgment, subject an Award to
such terms, conditions, restrictions and/or limitations (including, but not
limited to, restrictions on transferability and vesting), provided they are
not inconsistent with the terms of the Plan. For purposes of the Plan, the
value of any Award granted in the form of Common Stock shall be the mean
between the high and low at which the Common Stock trades on the New York
Stock Exchange as of the date of the grant's Effective Date. To the extent
Awards are granted in Common Stock or Stock Equivalents, such payments shall
count against the number of available shares reserved under Section 9.1.
ARTICLE 6 -- DETERMINATION OF AWARDS FOR A PERFORMANCE PERIOD
6.1 Procedure for determining Awards
Within the first 90 days of a Performance Period (or, if later, within the
maximum period allowed under Section 162(m) of the Code), the Committee shall
establish in writing for such Performance Period: (a) the Participation Rules;
(b) the Performance Goal(s); and (c) and the Performance Formula.
6.2 Limitations on Awards
The provisions of this Section 6.2 shall control over any Plan provision to
the contrary.
(a) General Limitation. Participants in the Plan for a Performance Period
shall be eligible to receive Awards for such Performance Period only if: (1)
the Performance Goals for such Performance Period are achieved; and (2) the
Performance Formula as applied against such Performance Goals determines that
Awards have been earned for the Performance Period.
(b) Maximum Award Payable to Covered Employees. The maximum Award payable
to any Covered Employee under the Plan for a Performance Period shall be
$700,000.
ARTICLE 7 -- PAYMENT OF AWARDS FOR A PERFORMANCE PERIOD
7.1 Certification
Following the completion of each Performance Period, the Committee shall meet
to review and certify in writing whether, and to what extent, the Performance
Goals for the Performance Period have been achieved. If the Committee
certifies that such Performance Goals have been achieved, it shall, based upon
the Performance Formula, (i) calculate and certify in writing the amount of
the Award earned by each Covered Employee; (ii) determine the actual size of
the Award to be paid to each Covered Employee for the Performance Period by
applying Negative Discretion, if and when it deems appropriate; and (iii)
calculate the size of the Awards to be paid for the Performance Period to all
other Participants.
7.2 Election of Form of Award
Prior to or coincident with its performance of the certifications required by
Section 7.1, the Committee shall, in its sole discretion, determine the
form(s) in which to grant Awards under the Plan for such period.
7.3 Negative Discretion
In determining the actual size of the Award to be paid to a Covered Employee
for a Performance Period, the Committee may, through the use of Negative
Discretion, reduce or eliminate the amount of the Award earned under the
Performance Formula for the Performance Period, if, in its sole judgment, such
reduction or elimination is appropriate.
7.4 Timing of Award Payments
Unless deferred pursuant to Article 8 hereof, the Awards granted for a
Performance Period shall be paid to Participants on the Award Payment Date for
such Performance Period, which date shall occur as soon as administratively
practicable following the completion of the procedure described in Section
7.1.
ARTICLE 8 -- DEFERRAL OF AWARDS
At the discretion of the Committee, a Participant may, subject to such terms,
conditions and limitations as the Committee may determine, elect to defer
payment of all or a portion of the Award that would otherwise be paid to the
Participant with respect to a Performance Period by complying with such
procedures as the Committee may prescribe. Any Award, or portion thereof,
upon which such an election is made shall be deferred into, and subject to the
terms, conditions and requirements of the Eastman Kodak Employees' Savings and
Investment Plan, the 1982 Eastman Kodak Company Executive Deferred
Compensation Plan or successor plans thereto.
ARTICLE 9 -- SHARES SUBJECT TO THE PLAN
9.1 Available Shares
Subject to adjustment as provided in Section 9.2 below, the maximum number of
shares of Common Stock, $2.50 par value per share, of the Company which shall
be available for grant of Awards under the Plan during its term shall not
exceed 4,000,000. Any shares of Common Stock related to Awards which are
terminated by expiration, forfeiture, cancellation or otherwise without the
issuance of such shares, or are settled in cash in lieu of Common Stock, or
are exchanged with the Committee's permission for Awards not involving Common
Stock, shall not be available again for grant under the Plan. The shares of
Common Stock available for issuance under the Plan may be authorized and
unissued shares or treasury shares.
9.2 Adjustment of Shares Available
(a) In General. The provisions of this Subsection 9.2(a) are subject to the
limitation contained in Subsection 9.2(b). If there is any change in the
number of outstanding shares of Common Stock through the declaration of stock
dividends, stock splits or the like, the number of shares available for Awards
and the shares subject to any Award shall be automatically adjusted. If there
is any change in the number of outstanding shares of Common Stock through any
change in the capital account of Kodak, or through a merger, consolidation,
separation (including a spin off or other distribution of stock or property)
reorganization (whether or not such reorganization comes within the definition
of such term in Section 368(a) of the Code) or partial or complete
liquidation, the Committee shall make appropriate adjustments in the maximum
number of shares of Common Stock which may be issued under the Plan and any
adjustments and/or modifications to outstanding Awards as it, in its sole
discretion, deems appropriate. In the event of any other change in the
capital structure or in the Common Stock of the Company, the Committee shall
also be authorized to make such appropriate adjustments in the maximum number
of shares of Common Stock available for issuance under the Plan and any
adjustments and/or modifications to outstanding Awards as it, in its sole
discretion, deems appropriate.
(b) Covered Employees. In no event shall the Award of any Participant who is
a Covered Employee be adjusted pursuant to Subsection 9.2(a) to the extent it
would cause such Award to fail to qualify as "Performance-Based
Compensation" under Section 162(m) of the Code.
ARTICLE 10 -- MISCELLANEOUS
10.1 Nonassignability
No Awards under the Plan shall be subject in any manner to alienation,
anticipation, sale, transfer (except by will or the laws of descent and
distribution), assignment, pledge, or encumbrance. Further, except in the
case of an Award payable to a deceased Participant, no Award shall be payable
to anyone other than the Participant to whom it was granted. In the case of
an Award payable to a deceased Participant, the Committee shall, in the
exercise of its sole and absolute discretion, determine the party to whom such
Award shall be paid.
10.2 Withholding Taxes
The Company shall be entitled to deduct from any payment under the Plan,
regardless of the form of such payment, the amount of all applicable income
and employment taxes required by law to be withheld with respect to such
payment or may require the Participant to pay to it such tax prior to and as a
condition of the making of such payment. In accordance with any applicable
administrative guidelines it establishes, the Committee may allow a
Participant to pay the amount of taxes required by law to be withheld from an
Award by withholding from any payment of Common Stock due as a result of such
Award, or by permitting the Participant to deliver to the Company, shares of
Common Stock having a fair market value, as determined by the Committee, equal
to the amount of such required withholding taxes.
10.3 Regulatory Approvals and Listings
Notwithstanding anything contained in this Plan to the contrary, the Company
shall have no obligation to issue, deliver, pay, credit or otherwise
acknowledge any Award resulting in the payment of Common Stock prior to (a)
the obtaining of any approval from any governmental agency which the Company
shall, in its sole discretion, determine to be necessary or advisable, (b) the
admission of such shares to listing on the stock exchange on which the Common
Stock may be listed, and (c) the completion of any registration or other
qualification of said shares under any state or Federal law or ruling of any
governmental body which the Company shall, in its sole discretion, determine
to be necessary or advisable.
10.4 No Right to Continued Employment or Grants
Participation in the Plan shall not give any Employee any right to remain in
the employ of the Company. Kodak or, in the case of employment with a
Subsidiary, the Subsidiary, reserves the right to terminate any Employee at
any time. Further, the adoption of this Plan shall not be deemed to give any
Employee any right to be selected as a Participant or to be granted an Award.
10. Amendment/Termination
The Committee may suspend or terminate the Plan at any time with or without
prior notice. In addition, the Committee may, from time to time and with or
without prior notice, amend the Plan in any manner, but may not without
shareholder approval adopt any amendment which would require the vote of the
shareholders of Kodak pursuant to Section 162(m) of the Code, but only insofar
as such amendment affects Covered Employees.
10.6 Governing Law
The Plan shall be governed by and construed in accordance with the laws of the
State of New York, except as superseded by applicable Federal Law.
10.7. No Right, Title, or Interest in Company Assets
In the case of Awards payable in the form of Common Stock or Awards resulting
in the payment of Common Stock, no Participant shall have any rights as a
shareholder as a result of participation in the Plan until the date of
issuance of a stock certificate in his or her name or, in the event such
Common Stock is issued in book entry form, until Kodak's transfer agent
provides valid written notification thereof to the Participant, and, in the
case of restricted shares of Common Stock, such rights are granted to the
Participant under the Plan. To the extent any person acquires a right to
receive payments from the Company under this Plan, such rights shall be no
greater than the rights of an unsecured creditor of the Company and the
Participant shall not have any rights in or against any specific assets of the
Company. All of the Awards granted under the Plan shall be unfunded.
10.8 No Guarantee of Tax Consequences
No person connected with the Plan in any capacity, including, but not limited
to, Kodak and its Subsidiaries and their directors, officers, agents and
employees makes any representation, commitment, or guarantee that any tax
treatment, including, but not limited to, Federal, state and local income,
estate and gift tax treatment, will be applicable with respect to amounts
deferred under the Plan, or paid to or for the benefit of a Participant under
the Plan, or that such tax treatment will apply to or be available to a
Participant on account of participation in the Plan.
10.9 Compliance with Section 162(m)
If any provision of the Plan would cause the Awards granted to a Covered
Person not to constitute qualified Performance-Based Compensation under
Section 162(m) of the Code, that provision, insofar as it pertains to the
Covered Person, shall be severed from, and shall be deemed not to be a part
of, this Plan, but the other provisions hereof shall remain in full force and
effect.
10.10 Compliance with Exchange Act
With respect to Participants who are subject to the Section 16 of the Exchange
Act, transactions under this Plan are intended to comply with applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the
extent any provision of the Plan or action by the Committee fails to so
comply, it shall, but only insofar as it pertains to Participants who are
subject to Section 16 of the Exchange Act, be deemed null and void, to the
extent permitted by law and deemed advisable by the Committee.
EXHIBIT 5
March 14, 1997
Eastman Kodak Company
343 State Street
Rochester, New York 14650
Ladies and Gentlemen:
I am General Counsel 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,
4,000,000 shares of common stock, $2.50 par value, of Kodak (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 Wage Dividend Plan (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.
Based on the foregoing, I am of the opinion that the Shares, when the
Registration Statement has become effective and the Shares have been issued
and delivered as contemplated in the Plan, will be legally issued, fully paid,
and non-assessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Gary P. Van Graafeiland
General Counsel and
Senior Vice President
EXHIBIT 23A
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 15, 1997, appearing on page
12 of Eastman Kodak Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
Price Waterhouse LLP
Rochester, New York
March 14, 1997
March 14, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Eastman Kodak Company Registration Statement on Form S-8 Relating to
Securities to be Issued Under the Wage Dividend Plan
Ladies and Gentlemen:
We are filing today by electronic EDGAR transmission Eastman Kodak Company's
Registration Statement on Form S-8 for the Wage Dividend Plan. The filing fee
of $110,048.00 was transferred to the Commission. This transfer consisted of
a wire transfer on March 14 of $108,629.48 to the Commission's account at
Mellon Bank in Pittsburgh, Pennsylvania, and utilization of a credit balance
of $1,418.52 credited to Account Number 0000031235.
Please call the undersigned at 716-724-4368 if you have any questions.
Very truly yours,
EASTMAN KODAK COMPANY
Joyce P. Haag
Secretary