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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest
event reported) December 16, 2003
Eastman Kodak Company
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
New Jersey
(State or Other Jurisdiction of Incorporation)
- --------------------------------------------------------------------------------
1-87 16-0417150
(Commission File Number) (IRS Employer Identification No.)
- ---------------------------- ----------------------------------
343 State Street
Rochester, New York 14650 14650
(Address of Principal Executive Offices) (Zip Code)
- ----------------------------------------- ------------------
(585) 724-4000
-----------------------------------
(Registrant's Telephone Number,
Including Area Code)
N/A
- --------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
ITEM 5. OTHER EVENTS.
At their regular meeting on December 16, the Board of Directors (the
"Board") of Eastman Kodak Company, a New Jersey corporation (the "Company"),
approved a number of changes to the Company's by-laws (the "By-laws") and
amended and restated the By-laws to effect those changes. The changes to the
By-laws generally have the effect of modernizing and clarifying the By-laws, in
some cases by setting forth specific procedures for actions by shareholders and
directors, and conforming certain provisions of the By-laws to the current
provisions set forth in the New Jersey Business Corporation Act and the
Company's Certificate of Incorporation.
Among other items, the Board adopted a typical advance notice provision
for public companies requiring shareholders to provide the Company with written
notice of any matters (other than proposals submitted pursuant to Rule 14a-8 of
the Securities and Exchange Act of 1934) the shareholder desires to bring before
any annual meetings, including nominations for directors, at least 90 days prior
to the anniversary of the preceding year's annual meeting, clarified the
procedures for the calling of special meetings and actions by written consent by
shareholders, clarified the indemnification and expense reimbursement standards
and procedures for directors and officers, made provisions for notices of
meetings by facsimile and email, established procedures for setting up Board
committees and raised the quorum requirement to a majority for meetings of the
Board, removed the requirement that the annual meeting must be held in May and,
consistent with recently adopted New York Stock Exchange listing standards,
required that each standing committee have a charter approved by the Board. In
addition, the changes to the By-laws eliminated certain provisions already
provided for by operation of New Jersey law.
The description of the amendments to the By-laws set forth herein is
qualified in its entirety by reference to the Amended and Restated By-laws
attached as Exhibit 3 and hereby incorporated in its entirety.
ITEM 7. EXHIBITS.
(3) Amended and Restated By-laws, dated December 16, 2003.
Page 2 of 4 Pages
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EASTMAN KODAK COMPANY
By
/s/ James M. Quinn
--------------------------------------
Name: James M. Quinn
Title: Secretary and Assistant
General Counsel
Date: December 17, 2003
Page 3 of 4 Pages
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
(3) Amended and Restated By-laws, dated December 16, 2003.
Page 4 of 4 Pages
Exhibit 3
EASTMAN KODAK COMPANY
A New Jersey Corporation
AMENDED AND RESTATED BY-LAWS
Dated December 16, 2003
Article 1
SHAREHOLDERS
Section 1. Annual Meetings of Shareholders.
An annual meeting of the shareholders of the corporation, for the election of
directors and for the transaction of other business properly before the meeting,
shall be held in each year, on the date and at the time and place, as shall be
fixed from time to time by the Board of Directors (the "Board").
Section 2. Special Meetings of Shareholders.
Special meetings of the shareholders, except where otherwise provided by law or
these by-laws, may be called to be held on the date and at the time and place
fixed by the Board, the Chairman of the Board (the "Chairman"), or the
President, and shall be called by the Chairman, the President or the Secretary
at the request in writing of a majority of the Board or at the request in
writing of shareholders owning, in the aggregate, shares entitled to at least
10% of the total number of votes represented by the entire amount of capital
stock of the corporation issued and outstanding and entitled to vote at the
meeting. The request shall state the purpose or purposes of the proposed meeting
and shall include (i) a request for the inclusion in the notice of meeting of
the proposal(s) the requesting shareholder(s) desires to bring before the
meeting, (ii) the text of the proposal(s), (iii) the requesting shareholder(s)'
name(s) and address(es) and (iv) the number and class of all shares of each
class of stock of the corporation owned of record and beneficially (pursuant to
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 (the "Exchange
Act")) by the requesting shareholder(s). The Secretary shall (as promptly as
practicable but in no event more than ten days following delivery of a request)
determine whether the request has been made by shareholders owning and holding,
in the aggregate, the number of shares necessary to request a special meeting
pursuant to this Section 2. Upon the Secretary's finding that the requisite
number of shares have made the request, the Board shall determine (as promptly
as practicable but in no event more than ten days following the date of the
Secretary's finding) whether the request is valid under applicable law, and if
the request is determined to be valid shall fix a place and time for the
meeting, which time shall be not less than ninety nor more than one hundred days
after the receipt of the meeting request.
Section 3. Notices of Meetings of Shareholders.
Notice of annual and special meetings of shareholders shall be given, not less
than ten nor more than sixty days before the meeting, to each shareholder of
record entitled to vote at the meeting, setting forth the date, time, place, and
purpose or purposes of the meeting. The notice shall be given by mail or any
other method permitted by law to each shareholder of record entitled to vote at
the meeting, directed to the shareholder at the shareholder's address as it
appears on the stock books of the corporation.
Section 4. Quorum.
Unless otherwise provided by law or the Certificate of Incorporation, the
holders of shares entitled to cast a majority of the votes at a meeting of
shareholders shall constitute a quorum at the meeting. Any action, other than
the election of directors, shall be authorized by a majority of the votes cast
at the meeting by the holders of shares entitled to vote thereon, unless a
greater plurality is required by law or the Certificate of Incorporation. Less
than a quorum may adjourn the meeting. No notice of an adjournment of the
meeting shall be necessary if the Board does not fix a new record date for the
adjourned meeting and if the time and place to which the meeting is adjourned
are announced at the meeting at which the adjournment is taken and if at the
adjourned meeting only such business is transacted as might have been transacted
at the original meeting.
Section 5. Qualifications of Voters.
At each meeting of the shareholders, each holder of record of each outstanding
share of common stock of the corporation shall be entitled to one vote on each
matter submitted to a vote. The Board may fix in advance a date not less than
ten nor more than sixty days preceding the date of any meeting of shareholders
and not exceeding sixty days preceding the date for the payment of any dividend,
or for the allotment of any rights, or for the purpose of any other action, as a
record date for the determination of shareholders entitled to notice of and to
vote at the meeting or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividend or allotment of any right, or for the purpose of
any other action. In each case only shareholders of record at the close of
business on the date so fixed shall be entitled to notice of and to vote at such
meeting or to consent to or dissent from any proposal without a meeting, or to
receive payment of a dividend or allotment of rights or take any other action,
as the case may be, notwithstanding any transfer of any shares on the books of
the corporation after the record date.
Section 6. Voting.
The vote for the election of directors and the vote on any question before the
meeting may be taken by ballot and shall be taken by ballot if requested at the
meeting by a shareholder entitled to vote at the meeting. Each ballot shall
state the name of the shareholder voting, if the shareholder is voting in
person, or if voting by proxy, then the name of the proxy and the number of
votes cast by the ballot. A shareholder may vote either in person or by proxy.
Section 7. Selection of Inspectors.
The Board may, in advance of any meeting of shareholders, appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors are
not so appointed, or if any inspector fails to qualify, appear or act and the
vacancy is not filled by the Board in advance of the meeting, the person
presiding at the meeting may, and on the request at the meeting of any
shareholder entitled to vote at the meeting shall, make such appointment. No
person shall be elected a director at a meeting at which the person has served
as an inspector.
Section 8. Duties of Inspectors.
The inspectors shall determine the number and voting power of shares
outstanding, the number of shares represented at the meeting, the existence of a
quorum, and the validity and effect of proxies. The inspectors shall receive
votes or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes or consents,
determine the result, and do any acts proper to conduct the election or vote
with fairness to all shareholders. In determining the number of shares
outstanding, the inspectors may rely on reports of the Treasurer or transfer
agent. In determining the voting power of each share, the inspectors may rely on
reports of the Secretary. In determining the results of any voting, the
inspectors may rely on the reports of the Secretary as to the vote required to
take any action or the vote required in an election.
Section 9. Advance Notice of Shareholder Nominees for Director and Other
Shareholder Proposals.
(a) In addition to any other requirements under these by-laws, the
Certificate of Incorporation or applicable laws, only matters properly
brought before any annual or special meeting of shareholders of the
corporation in compliance with the procedures set forth in this Section 9
shall be considered at such meeting.
(b) For any matter to be properly brought before any meeting of
shareholders, the matter must be specified in the notice of meeting given
by the corporation.
(c) A shareholder desiring to bring a proposal before an annual meeting of
shareholders (other than to nominate a director of the corporation) shall
deliver to the Secretary, the following: (i) a request for inclusion of the
proposal in the notice of meeting, (ii) the text of the proposal(s) the
shareholder intends to present at the meeting and, at the option of the
shareholder, a brief explanation of why the shareholder favors the
proposal(s), (iii) the shareholder's name and address, (iv) the number and
class of all shares of each class of stock of the corporation owned of
record and beneficially (pursuant to Rules 13d-3 and 13d-5 under the
Exchange Act) by the shareholder and (v) any material interest of the
shareholder (other than as a shareholder) in the proposal.
(d) A shareholder desiring to nominate a person(s) for election as director
of the corporation at an annual meeting shall deliver to the Secretary, the
following: (i) the name of the person(s) to be nominated, (ii) the number
and class of all shares of each class of stock of the corporation owned of
record and beneficially by each nominee, as reported to the shareholder by
the nominee(s), (iii) the information regarding each nominee required by
paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted by the
Securities and Exchange Commission (or the corresponding provisions of any
regulation subsequently adopted by the Securities and Exchange Commission
applicable to the corporation), (iv) each nominee's signed consent to serve
as a director, (v) the proposing shareholder's name and address and (vi)
the number and class of all shares of each class of stock of the
corporation owned of record and beneficially (pursuant to Rules 13d-3 and
13d-5 under the Exchange Act) by the shareholder. In addition, the
proposing shareholder shall furnish the corporation with all other
information the corporation may reasonably request to determine whether the
nominee would be considered "independent" under the rules and standards
applicable to the corporation.
(e) Any request to be delivered pursuant to subsection (c) or (d) hereof
must be delivered to the Secretary at the principal office of the
corporation not less than ninety nor more than one hundred twenty days
prior to the first anniversary date of the annual meeting for the preceding
year; provided, however, if and only if the annual meeting is not scheduled
to be held within thirty days before or after the first anniversary date,
the request shall be given in the manner provided herein by the later of
the close of business on (i) the ninetieth day prior the annual meeting
date or (ii) the tenth day following the date that the annual meeting date
is first publicly disclosed.
Notwithstanding anything in this Section 9(e) to the contrary, if the
number of directors to be elected is increased due to an increase in the
number of directors fixed by the Board or a change in the Certificate of
Incorporation and either all of the nominees or the size of the increased
Board is not publicly disclosed by the corporation at least one hundred
days prior to the first anniversary of the preceding year's annual meeting,
a request to be delivered pursuant to subsection (d) hereof shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive office of the corporation not later than the close of
business on the tenth day following the first date all of such nominees or
the size of the increased Board shall have been publicly disclosed in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission.
(f) A shareholder desiring to call a special meeting pursuant to Article I,
Section 2 of these by-laws shall comply with that Section in addition to
Subsection (b) of this Section 9.
(g) If a shareholder has submitted a request in compliance with subsection
(c) or (f) hereof, the corporation shall include the proposal contained in
the request in the corporation's notice of meeting sent to shareholders,
unless the requested proposal is not a proper action for shareholders to
take as determined by the Board after advice from counsel.
(h) In no event shall the postponement or adjournment of an annual meeting
already publicly noticed, or any announcement of the postponement or
adjournment, commence a new period (or extend any time period) for the
giving of notice as provided in this Section 9.
(i) Subsections (c) and (f) of this Section 9 shall not apply to
shareholders' proposals made pursuant to Rule 14a-8 under the Exchange Act.
This Section 9 shall not apply to the election of directors selected by or
pursuant to the provisions of Section 5 of the Certificate of Incorporation
relating to the rights of the holders of any class or series of stock of
the corporation having a preference, as to dividends or upon liquidation of
the corporation to elect directors under specified circumstances.
(j) The Chairman or, in the absence of the Chairman, the Chief Executive
Officer, or in the absence of the Chairman and the Chief Executive Officer,
the President, or in the absence of the Chairman, Chief Executive Officer
and the President, the Vice-President designated by the Board to perform
the duties and exercise the powers of the President, shall preside at any
meeting of shareholders and, in addition to making any other determinations
appropriate to the conduct of the meeting, shall have the power and duty to
determine whether notice of nominees and other matters proposed has been
duly given in the manner provided in this Section 9 and, if not so given,
shall direct and declare at the meeting that such nominees or other matters
are not properly before the meeting and shall not be considered. The Board
may adopt by resolution the rules, regulations and procedures for the
conduct of shareholders' meetings it shall deem appropriate.
Section 10. Procedure for Action by Written Consent; Inspectors and
Effectiveness.
(a) In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board
shall fix a record date, which record date shall not precede the date upon
which it adopts the resolution fixing the record date. Any shareholder
entitled to vote on an action required or permitted to be taken at a
meeting of shareholders who is seeking to have the shareholders authorize
or take any such action by written consent shall, by written notice to the
Secretary, request the Board to fix a record date. The Board shall
promptly, but in no event more than ten days after the date on which the
request is received, adopt a resolution fixing the record date. If no
record date has been fixed within the time set forth above, the record
date, when no prior action by the Board is required by applicable law,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Secretary. If no
record date has been fixed by the Board and prior action by the Board is
required by applicable law, the record date shall be at the close of
business on the date on which the Board adopts the resolution taking such
prior action.
(b) The Board shall fix a date on which written consents are to be
tabulated (the "Tabulation Date").
(c) Every written consent shall bear the date of signature of each
shareholder or person acting by proxy who signs the consent, and in the
case of a consent executed by a person acting by proxy, a copy of the proxy
shall be attached. No action by written consent shall be effective unless
by the Tabulation Date (or in the event the Board fails to set a Tabulation
Date, by the date required under applicable law) a written consent or
consents (after taking into account any consent revocations) signed by a
sufficient number of shareholders to take such action are delivered to the
corporation.
(d) Promptly following the receipt of any consents with respect to a
proposed corporate action, after taking into account any consent
revocations, the corporation shall promptly engage independent inspectors
of elections for the purpose of promptly performing a ministerial review of
the validity of the consents and revocations, counting and tabulating the
valid consents, making a written report certifying the results thereof
promptly following the Tabulation Date, and performing other proper
incident duties. Nothing contained in this paragraph shall in any way be
construed to suggest or imply that the Board or any shareholder shall not
be entitled to contest the validity of any consent or revocation thereof,
whether before or after such certification by the independent inspectors,
or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect
thereto, and the seeking of injunctive relief in such litigation).
Article 2
DIRECTORS
Section 1. Directors and Term of Office.
The Board shall consist of as many directors, not less than nine nor more than
18, as may from time to time be determined by the Board. Directors shall be, at
all times during their terms, bona fide shareholders of the corporation. The
directors shall be divided into three classes: Class I, Class II and Class III,
each class, as nearly as possible, to have the same number of directors.
Section 2. Election of Directors.
A class of directors whose term is expiring shall be elected at the annual
meeting of the shareholders. At each annual meeting of the shareholders held
after 1987, 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.
Section 3. Vacancies.
In the event of a vacancy occurring in the Board, including a vacancy resulting
from an increase in the number of directors as provided in Section 5 of the
Certificate of Incorporation and Section 1 of this Article, and unless the Board
determines to reduce the size of the Board to eliminate the vacancy, the vacancy
shall be filled by the affirmative vote of a majority of the directors then in
office, although less than a quorum, or by a sole remaining director and the
directors so chosen shall hold office until the next succeeding annual meeting
of shareholders.
Section 4. Compensation.
Directors may receive from the corporation reasonable compensation for their
services, including a fixed sum and expenses for attendance at meetings of the
Board and at meetings of committees of the Board as shall be determined from
time to time by the Board.
Section 5. Regular Meetings of Directors.
The Board shall by resolution schedule regular Board meetings.
Section 6. Notice of Regular Meetings of Directors.
No notice shall be required to be given of any regular meeting of the Board
except as the Board may require.
Section 7. Special Meetings of Directors.
Special meetings of the Board may be called at any time by the Chairman or any
two directors and may be held at any time and place within or without the State
of New Jersey.
Section 8. Notice of Special Meetings of Directors.
Notice of each special meeting of the Board, stating the day, time, place, and
purpose or purposes thereof, shall be given by the Chairman of the Board, the
Secretary or any two directors to each director not less than two days by mail
or one day by facsimile, telephone (including voice mail) or, electronic mail,
prior to the date specified for the meeting. Special meetings of the Board may
also be held at any place and time, without notice, if all the directors are
either present at the meeting or sign a waiver of notice, either before or after
the meeting.
Section 9. Quorum.
At any meeting of the Board a quorum shall consist of a majority of the total
number of directors and, except as otherwise provided by law or these by-laws, a
majority of directors at a meeting at which a quorum is present shall decide any
question that may come before the meeting. A majority of the directors present
at any regular or special meeting, although less than a quorum, may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present. At the adjourned meeting at which a quorum
shall be present, any business may be transacted which might have been
transacted at the original meeting.
Section 10. Action of Directors or Committees Without a Meeting or When
Directors are in Separate Places.
Any action required or permitted to be taken pursuant to authorization voted at
a meeting of the Board or any Board committee may be taken without a meeting if,
prior or subsequent to the action, all directors or members of the committee, as
the case may be, consent thereto in writing and the written consents are filed
with the minutes of the proceedings of the Board or committee. Any or all
directors may participate in a meeting of the Board or committee by means of a
conference telephone or any means of communication by which all persons
participating in the meeting are able to hear each other.
Section 11. Common Directorship and Director's Personal Interest.
No contract or other transaction between the corporation and one or more of its
directors, or between the corporation and any other corporation, firm or
association of any type or kind in which one or more of this corporation's
directors are directors or are otherwise interested, shall be void or voidable
solely by reason of such common directorship or interest, or solely because such
director or directors are present at the meeting of the Board or a committee
thereof which authorizes or approves the contract or transaction, or solely
because the votes of such director or directors are counted for such purpose,
if, any one of the following is true: (1) the contract or other transaction is
fair and reasonable as to the corporation at the time it is authorized, approved
or ratified; or (2) the fact of the common directorship or interest is disclosed
or known to the Board or committee and the Board or committee authorizes,
approves or ratifies the contract or transaction by unanimous written consent,
providing that at least one director so consenting is disinterested, or by a
majority of the directors present at the meeting and also by a majority of the
disinterested directors, even though the number of the disinterested directors
is less than a quorum; or (3) the fact of the common directorship or interest is
disclosed or known to the shareholders and they authorize, approve, or ratify
the contract or transaction. Common or interested directors may be counted in
determining the presence of a quorum at a Board or committee meeting at which a
contract or transaction described in this by-law is authorized, approved or
ratified.
Article 3
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 1. Establishment of Executive Committee and Other Committees.
There may be an Executive Committee, consisting of three or more directors, one
of whom shall be the Chairman, appointed by the Board and such other committees,
consisting of one or more directors, as from time to time established by a
majority of the total number of directors the corporation would have if there
were no vacancies (the "Entire Board"). All committee members shall be appointed
for the term of one year but shall hold office until their successors are
elected and have qualified. Any member of any committee, however, may be removed
by the affirmative vote of a majority of the Entire Board. The Board may
determine whether any committee shall be composed in part or entirely of
directors who are independent of the corporation. The Board shall make all
determinations of whether a director is independent.
Section 2. Vacancies.
In the event of a vacancy occurring in any committee, the Board, by resolution
adopted by a majority of the Entire Board, may fill the vacancy for the
unexpired term.
Section 3. Powers of Committees.
Subject to the limitations and regulations prescribed by law, including the New
Jersey Business Corporation Act, or these by-laws or by the Board, the
committees established by the Board shall have and may exercise all the
authority of the Board, subject to their respective charters, except that no
committee may make, alter, or repeal any by-laws, elect any director, remove any
director or officer, submit to shareholders any action that requires shareholder
approval, or amend or repeal any resolution of the Board establishing such
committee or any other resolution of the Board which by its terms may be amended
or repealed only by the Board.
Section 4. Regular Meetings.
The members of the Committee may by resolution schedule regular committee
meetings.
Section 5. Notice of Regular Meetings.
No notice shall be required to be given of any regular meeting of any committee.
Section 6. Special Meetings.
Special meetings of the Executive Committee may be called at any time by the
Chairman, the Chair of the committee, or by any two members of the committee and
may be held at any place within or without the State of New Jersey and at any
time. Special meetings of any other committee may be called as the committee may
determine.
Section 7. Notice of Special Meetings.
Notice of each special meeting of any committee, stating the meeting time,
place, and purpose or purposes, shall be given by the Chair of the committee or
by any two members of the committee, or, with respect to the Executive
Committee, the Chairman or the Secretary or by any two members of the Executive
Committee, to each member of the committee not less than two days by mail or one
day by facsimile or telephone (including voice mail) or by electronic mail,
prior to the meeting date. Special meetings of any committee may also be held at
any place and time, without notice, by unanimous consent of all the committee
members or if all the committee members are present at the meeting.
Section 8. Quorum.
At any committee meeting a majority of the committee members shall constitute a
quorum and, except where otherwise provided by law or these by-laws, a majority
of committee members at a committee meeting at which a quorum is present shall
decide any question that may come before the committee meeting. A majority of
the committee members present at any regular or special committee meeting,
although less than a quorum, may adjourn the committee meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present. At such adjourned committee meeting at which a quorum shall be present,
any business may be transacted which might have been transacted at the original
committee meeting.
Section 9. Committee Charters.
Each committee may and, if directed by the Board, shall establish a charter
reflecting its function, charge, and responsibilities. The charter shall be
prepared by the committee and shall be subject to approval by the Board.
Section 10. Committee Reports.
Each committee shall report its actions taken at committee meetings to the Board
at the next meeting of the Board following the committee meeting unless the
committee meeting occurred fewer than two days before the Board Meeting, in
which case, the committee report may be made at the second regular Board after
the committee meeting.
Article 4
OFFICERS
Section 1. Officers Enumerated.
The officers of the corporation shall be a Chairman of the Board, a Chief
Executive Officer, a President, one or more Vice-Presidents, a Secretary, a
Treasurer, a Controller, and may include one or more Assistant Vice-Presidents,
Assistant Secretaries, Assistant Treasurers, and Assistant Controllers, all of
whom shall be elected by the Board. The Chairman shall be a director of the
corporation. One person may hold more than one office. The Board may designate
the officers who shall be the chief operating officer, the chief financial
officer, and the chief legal officer of the corporation.
Section 2. Other Officers.
The Board may by resolution elect other officers, managers, agents, employees,
or committees it deems necessary, who shall hold their offices for the terms and
shall have the powers and perform the duties as shall be prescribed by the Board
or the by-laws. One person may hold more than one office.
Section 3. Term of Office.
All officers elected by the Board shall be elected for one year terms, but shall
hold office until their successors are elected and have qualified. Any officer
elected by the Board may be removed at any time by the affirmative vote of
majority of the Entire Board.
Section 4. Vacancies.
If any officer vacancy shall occur, the Board may fill it for the unexpired
term.
Section 5. The Chairman of the Board.
The Chairman shall preside at all meetings of the Board and at all meetings of
the shareholders and shall perform other duties as directed by the Board.
Section 6. The Chief Executive Officer.
The Chief Executive Officer shall have the general powers and duties of
supervision and managements of the property and affairs of the corporation which
usually pertain to the office, and shall perform all other duties as directed by
the Board. In the absence of the Chairman, the Chief Executive Officer shall
preside at shareholder meetings and, if a director, Board meetings. In the
absence or disability of the Chairman, the Chief Executive Officer, if a
director, shall perform the duties and exercise the power of the Chairman.
Section 7. The President.
The President shall have the powers and perform the duties which usually pertain
to the office, and shall perform all other duties as directed by the Board or
the Chief Executive Officer. In the absence of the Chairman and the Chief
Executive Officer, the President shall perform the duties and exercise the
powers of the Chief Executive Officer and, if a director, the Chairman.
Section 8. The Vice-Presidents.
Each Vice-President shall have the powers and perform the duties which usually
pertain to the office or as the Board, the Chairman, Chief Executive Officer or
the President may direct. In the absence or disability of the Chairman, Chief
Executive Officer and President, the Vice-President designated by the Board
shall perform the duties and exercise the powers of the Chief Executive Officer,
President and, if a director, the Chairman.
Section 9. The Secretary.
The Secretary shall issue notices of all meetings of shareholders and of the
directors and of the Executive Committee where notices of such meetings are
required by law or these by-laws. The Secretary shall keep the minutes of
meetings of shareholders and of the Board and of the Executive Committee and
shall sign instruments requiring the Secretary's signature, and shall perform
other duties usually pertaining to the office and as the Board or the Chairman
may direct.
Section 10. The Treasurer.
The Treasurer shall have the care and custody of all the moneys and securities
of the corporation. The Treasurer shall cause to be entered in books of the
corporation, full and accurate accounts of all moneys received and paid, shall
sign instruments requiring the signature of the Treasurer, and shall perform
other duties usually pertaining to the office and as the Board or the Chairman
shall direct.
Section 11. The Controller.
The Controller shall have the custody and operation of the accounting books and
records of the corporation and shall establish and maintain adequate systems of
internal control, disclosure control, and audit to safeguard the assets of the
corporation and shall perform other duties usually pertaining to the office and
as the Board and the Chairman may direct.
Section 12. Assistant Vice-Presidents, Assistant Secretaries, Assistant
Treasurers and Assistant Controller.
The duties of any Assistant Vice-Presidents, Assistant Secretaries, Assistant
Treasurers and Assistant Controller shall be those usually pertaining to their
respective offices and as may be properly required of them by the Board or by
the officers to whom they report.
Article 5
RESERVED
Article 6
CAPITAL STOCK
Section 1. Stock Certificates.
Certificates of stock shall be issued only in numerical order with or without an
alphabetic prefix or suffix. Certificates shall be signed by or bear the
facsimile signatures of the Chairman, the President, or one of the
Vice-Presidents and the Secretary, the Treasurer, Assistant Secretary or
Assistant Treasurer. Certificates shall also be signed by or bear the facsimile
signature of one of the transfer agents and of one of the registrars of the
corporation as permitted or required by law. In case any officer, transfer agent
or registrar who has signed or whose facsimile signature has been placed upon
any such certificate shall thereafter have ceased to be such officer, transfer
agent or registrar before the certificate is issued, it may be issued by the
corporation with the same effect as if the signatory had not ceased to be such
at the date of its issue.
Section 2. Transfer of Shares.
Transfers of shares, except where otherwise provided by law or these by-laws,
shall be made on the books of the corporation pursuant to authority granted by
power of attorney duly executed and filed by the holder thereof with one of the
transfer agents, upon surrender of the certificate or certificates of the shares
and in accordance with the provisions of the Uniform Commercial Code as adopted
in New Jersey and as amended from time to time.
Section 3. Transfer Agents and Registrars.
The Board may at any time appoint one or more transfer agents and/or registrars
for the transfer and/or registration of shares of stock, and may from time to
time by resolution fix and determine the manner in which shares of stock of the
corporation shall be transferred and/or registered.
Section 4. Lost, Stolen or Destroyed Certificates.
Where a certificate for shares has been lost, apparently destroyed, or
wrongfully taken and its owner fails to so notify the corporation or the
transfer agent within a reasonable time after having notice of the fact and the
transfer agent or the corporation registers a transfer of the shares before
receiving notification, the owner shall be precluded from asserting against the
corporation any claim for registering the transfer of the shares or any claim to
a new certificate.
Subject to the foregoing, where the owner of shares claims that the certificate
representing the shares has been lost, destroyed, or wrongfully taken, the
corporation shall issue a new certificate in place of the original certificate
if the registered owner thereof, or the owner's legal representative, (a)
requests the issue of a new certificate before the corporation has notice that
the certificate has been acquired by a bona fide purchaser; (b) makes proof, in
the form as the corporation prescribes, of ownership and that the certificate
has been lost, destroyed or wrongfully taken; (c) files either (i) an assumption
of liability by a surety approved by the corporation under a blanket lost
instrument indemnity bond, substantially in the form approved by the
corporation, or (ii) an indemnity bond in the form and with the surety and in
the amount (open or specified) as may be approved by the corporation,
indemnifying the corporation and its transfer agents and registrars against all
loss, cost and damage which may arise from issuance of a new certificate in
place of the original certificate; and (d) satisfies any other reasonable
requirements imposed by the corporation. Approvals or any requirements pursuant
to this section by the corporation may be granted or imposed by the Chairman,
the President, any Vice-President, the Secretary, any Assistant Secretary, or
any other officer as authorized by the Board.
Article 7
DIVIDENDS AND FINANCES
Section 1. Dividends.
Dividends may be declared by the Board and paid by the corporation at the times
determined by the Board, pursuant to the provisions of the New Jersey Business
Corporation Act. Before payment of any dividend or making of any distribution of
net profits there may be set aside out of the net profits of the corporation the
sums determined by the Board from time to time, in its absolute discretion, to
be proper and for the purposes determined by the Board to be conducive to the
interests of the corporation.
Section 2. Finances.
All funds of the corporation not otherwise employed shall be deposited in its
name in, and shall be subject to application or withdrawal from, banks, trust
companies or other depositories to be selected in accordance with and in the
manner and under the conditions authorized by, or pursuant to the authority of,
resolutions of the Board. All checks, notes, drafts and other negotiable
instruments of the corporation shall be signed by the officer, officers, agent,
agents, employee or employees authorized by, or pursuant to the authority of,
resolutions of the Board. No officers, agents, or employees, either singly or
together, shall have power to make any check, note, draft, or other negotiable
instrument in the name of the corporation or to bind the corporation thereby,
except as may be authorized in accordance with the provisions of this section.
Article 8
GENERAL
Section 1. Form of Seal.
The seal of the corporation shall be two concentric circles with the words and
figures "Eastman Kodak Company, Incorporated, 1901" between the circles and a
monogram of the letters EKC in their center. The seal may be an impression, a
drawing or a facsimile thereof as determined from time to time by the Board.
Section 2. Indemnification of Directors, Officers and Employees.
(a) The corporation shall indemnify and hold harmless against all
liabilities any person who is or was a director or officer, including the
director's or officer's estate (an "Indemnitee"), who is or was a party to
or threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative, investigative or otherwise in respect of
any past, present or future matter, including any action suit or proceeding
by or in the right of the corporation (an "Action"), by reason of the fact
that the Indemnitee is or was serving as a director, officer, employee or
agent of the corporation or is or was serving at the request of the
corporation as a director, officer, trustee, employee or agent of any other
enterprise; provided, however, that the corporation shall not indemnify an
Indemnitee if a judgment or other final adjudication adverse to the
Indemnitee establishes that the Indemnitee's acts or omissions (a) were
acts or omissions that the Indemnitee knew or believed to be contrary to
the best interests of the corporation or shareholders in connection with a
matter to which he had a material conflict of interest, (b) were not in
good faith or involved a knowing violation of law or (c) resulted in
receipt by such person of an improper personal benefit. Subject to the
receipt by the corporation of an undertaking by the Indemnitee to repay
Expenses if there shall be a judgment or other final adjudication that the
Indemnitee is not entitled to receive reimbursement of Expenses from the
corporation, the corporation shall pay or reimburse within 20 days
following the later of (i) the receipt of such undertaking and (ii) receipt
of a demand from the Indemnitee for payment or reimbursement of Expenses,
in advance of final disposition or otherwise, to the full extent authorized
or permitted by law, Expenses as incurred by the Indemnitee in defending
any actual or threatened Action by reason of the fact that the Indemnitee
is or was serving as a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, trustee, employee or agent of any other enterprise;
provided, however, the corporation shall not be required hereunder to
further pay or reimburse Expenses and, if requested by the corporation,
shall be entitled to repayment of Expenses from the Indemnitee following
any plea formally entered by or formal written admission by the Indemnitee
in the Action for which the Indemnitee has sought payment or reimbursement
of Expenses or indemnification that the Indemnitee has committed such acts
or omissions establishing that the Indemnitee is not entitled to
indemnification pursuant to this subsection (a). The Indemnitee shall be
entitled to be paid or reimbursed for Expenses incurred in any Action to
obtain indemnification or payment or reimbursement of Expenses under this
subsection (a) on the same terms, conditions and limitations as the
Indemnitee is entitled to Expenses under the previous sentence. The
corporation shall not be obligated under this subsection (a) to provide any
indemnification or any payment or reimbursement of Expenses to an
Indemnitee in connection with an Action (or part thereof) initiated by the
Indemnitee unless the Board has authorized or consented to the Action (or
part thereof) in a resolution adopted by the Board. For the purposes of
this Article 8, "Expenses" shall include, without limitation, all
reasonable fees, costs and expenses, including without limitation,
attorneys' fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection
with prosecuting, defending, preparing to prosecute or defend, or
investigating an Action, including any Action to obtain indemnification or
payment or reimbursement of Expenses.
(b) To the extent authorized from time to time by the Board and subject to
any terms and conditions thereof, the corporation may, to the full extent
authorized or permitted by law, advance Expenses and indemnify and hold
harmless against liabilities any person not covered by subsection (a) of
this Section 2, including the person's estate (an "Employee Indemnitee"),
who is or was an employee or agent of this corporation, or who is or was
serving at the request of the corporation as a director, officer, trustee,
employee or agent of any other enterprise, or the legal representative of
any such person, and who is or was a party to or threatened to be made a
party to any Action by reason of the fact that the Employee Indemnitee is
or was serving in any of the foregoing capacities.
Section 3. Non-Exclusivity of Indemnification Rights.
The right of an Indemnitee or Employee Indemnitee to indemnification and payment
or reimbursement of Expenses by the corporation under Section 2 of this Article
8 shall be in addition to, and not in lieu of, any statutory or other right of
indemnification or payment, advancement or reimbursement of Expenses provided to
any Indemnitee or Employee Indemnitee. No amendment of this Article 8 shall
impair the rights of any person arising at any time with respect to events
occurring prior to such amendment.
Article 9
AMENDMENTS
Except as may otherwise be required by law or by the Certificate of
Incorporation, these by-laws may be amended, altered, or repealed, in whole or
in part, by the affirmative vote of a majority of the Entire Board at any
regular or special Board meeting. The shareholders, by a majority of the votes
cast at a meeting of the shareholders called for the purpose, may adopt, alter,
amend or repeal the by-laws whether made by the Board or otherwise.