Registration No. 333-
As filed with the Securities and Exchange Commission on March 13, 2001
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
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 of (IRS Employer Identification No.)
incorporation or organization)
343 STATE STREET
ROCHESTER, NEW YORK 14650
716-724-4000
(Address, including zip code, and telephone number including area
code, of registrant's principal executive office)
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Joyce P. Haag, Secretary
Eastman Kodak Company
343 State Street
Rochester, New York 14650
716-724-4368
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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Approximate date of commencement of proposed sale to the public: At such time or
times after the effective date of this Registration Statement as the selling
shareholder shall determine.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: |_|
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier registration
statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
CALCULATION OF REGISTRATION FEE
Proposed Proposed Amount of
Securities to Amount to be Maximum Offering Maximum Aggregate Registration
be Registered Registered Price Per Share* Offering Price* Fee
- ------------- ------------ ---------------- ----------------- ------------
Common Stock
$2.50 par value 317,496 shares $44.32 $14,071,422 $3,517.85
*Inserted solely for the purpose of calculating the registration fee pursuant to
Rule 457(c) under the Securities Act of 1933, as amended, and based upon the
average of the high and low trade prices for the registrant's Common Stock on
the New York Stock Exchange on March 12, 2001.
PROSPECTUS
EASTMAN KODAK COMPANY
317,496 Shares of Common Stock
This Prospectus relates to up to 317,496 shares of common stock, par
value $2.50 per share, of Eastman Kodak Company, a New Jersey corporation, all
of which may be offered from time to time by the selling shareholder named
herein. The company will not receive any of the proceeds from the sale of the
shares. The shares are being registered pursuant to agreements in which the
company granted the selling shareholder certain registration rights with respect
to the shares.
The common stock of the company is traded on the New York Stock
Exchange. The average of the high and low trade prices of the common stock as
reported on the New York Stock Exchange on March 12, 2001, was $44.32 per
share. The selling shareholder will bear the costs relating to the registration
of the shares, which are estimated to be approximately $7,017.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is March 13, 2001.
The information in this Prospectus is not complete and may be changed. These
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This Prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
THE COMPANY
Eastman Kodak Company is engaged primarily in developing,
manufacturing, and marketing consumer, professional, health and other imaging
products and services.
THE OFFERING
This Prospectus relates to up to 317,496 shares of the company's common
stock, par value $2.50 per share. These shares were issued in connection with
the acquisition of a portion of the stock of another corporation by Kodak. Of
the shares offered by this Prospectus, 57,901 shares are held in escrow and will
be released to the selling shareholder, or returned to the company, upon the
happening of certain events. The shares may be offered from time to time as
described under the heading "Plan of Distribution" by the selling shareholder
named under the heading "Selling Shareholder." The company will not receive any
of the proceeds from the sale of the shares. In connection with the acquisition,
the company entered into agreements with the selling shareholder in which the
company agreed to register the shares.
SELLING SHAREHOLDER
All of the shares described in this Prospectus may be sold by the
selling shareholder, Robert E. McCarthy, who has informed the company that he
beneficially owns, or upon their release from the escrow to him will own, all
317,496 shares of the common stock offered by this Prospectus and that he will
own no shares of Kodak common stock upon sale of the shares described in this
Prospectus. The selling shareholder is not an officer or employee of Kodak.
DESCRIPTION OF THE COMMON STOCK
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
Corporations Act.
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
succeeded and shall be elected by the shareholders for a term expiring at the
third succeeding annual meeting of shareholders.
Holders of Kodak common stock are entitled on liquidation to receive
all assets which remain after payment to creditors and holders of preferred
stock.
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.
PLAN OF DISTRIBUTION
This Prospectus relates to the offer by the selling shareholder of up
to 317,496 shares of Kodak common stock. The selling shareholder is offering the
shares for his own account, and not for the account of Kodak. Kodak will not
receive any proceeds from the sale of the shares by the selling shareholder.
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The selling shareholder may sell the shares of common stock from time
to time on any stock exchange or automated interdealer quotation system on which
the shares of common stock are listed, in the over-the-counter market, in
privately negotiated transactions or otherwise, at fixed prices that may be
changed, at market prices prevailing at the time of sale, at prices related to
prevailing market prices or at prices otherwise negotiated. The selling
shareholder may sell the shares of common stock by one or more of the following
methods, without limitation:
(a) block trades in which the broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
(b) purchases by a broker or dealer as principal and resale by
the broker or dealer for its own account pursuant to this Prospectus;
(c) an exchange distribution in accordance with the rules of
any stock exchange on which the shares of common stock are listed;
(d) ordinary brokerage transactions and transactions in which
the broker solicits purchases;
(e) privately negotiated transactions;
(f) short sales;
(g) through the writing of options on the shares of common
stock, whether or not the options are listed on an options exchange;
(h) one or more underwritten offerings on a firm commitment or
best efforts basis; and
(i) any combination of any of these methods of sale.
The selling shareholder may also transfer the shares of common stock by
gift. Kodak does not know of any arrangements made by the selling shareholder
for the sale of any of the shares of common stock.
The selling shareholder may engage brokers and dealers, and any brokers
or dealers may arrange for other brokers or dealers to participate in effecting
sales of the shares of common stock. These brokers, dealers or underwriters may
act as principals, or as an agent of the selling shareholder. Broker-dealers may
agree with the selling shareholder to sell a specified number of the shares of
common stock at a stipulated price per share. If the broker-dealer is unable to
sell shares of common stock acting as agent for the selling shareholder, it may
purchase as principal any unsold shares of common stock at the stipulated price.
Broker-dealers who acquire shares of common stock as principals may thereafter
resell the shares of common stock from time to time in transactions on any stock
exchange or automated interdealer quotation system on which the shares of common
stock are then listed, at prices and on terms then prevailing at the time of
sale, at prices related to the then-current market price or in negotiated
transactions. Broker-dealers may use block transactions and sales to and through
broker-dealers, including transactions of the nature described above.
To the extent required under the Securities Act of 1933, the aggregate
amount of the selling shareholder's shares of common stock being offered and the
terms of the offering, the names of any agents, brokers, dealers or underwriters
and any applicable commission with respect to a particular offer will be set
forth in an accompanying prospectus supplement. Any underwriters, dealers,
brokers or agents participating in the distribution of the shares of common
stock may receive compensation in the form of underwriting discounts,
concessions, commissions or fees from the selling shareholder and/or purchasers
of the selling shareholder's shares of common stock, for whom they may act
(which compensation as to a particular broker-dealer might be in excess of
customary commissions).
The selling shareholder and any underwriters, brokers, dealers or
agents that participate in the distribution of the shares of common stock may be
deemed to be "underwriters" within the meaning of the Securities Act of
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1933, and any discounts, concessions, commissions or fees received by them and
any profit on the resale of the shares of common stock sold by them may be
deemed to be underwriting discounts and commissions.
The selling shareholder may enter into hedging transactions with
broker-dealers, and the broker-dealers may engage in short sales of the shares
of common stock in the course of hedging the positions they assume with the
selling shareholder, including, without limitation, in connection with
distributions of the shares of common stock by those broker-dealers. The selling
shareholder may enter into option or other transactions with broker-dealers that
involve the delivery of the shares of common stock offered hereby to the
broker-dealers, who may then resell or otherwise transfer those shares of common
stock. The selling shareholder may also loan or pledge the shares of common
stock offered hereby to a broker-dealer, and the broker-dealer may sell such
shares, or upon a default, may sell or otherwise transfer such shares.
The selling shareholder and other persons participating in the sale or
distribution of the shares of common stock will be subject to applicable
provisions of the Securities Exchange Act of 1934 and the rules and regulations
thereunder, including Regulation M. This regulation may limit the timing of
purchases and sales of any of the shares of common stock by the selling
shareholder and any other person. The anti-manipulation rules under the
Securities Exchange Act of 1934 may apply to sales of shares of common stock in
the market and to the activities of the selling shareholder and his agents.
Furthermore, Regulation M may restrict the ability of any person engaged in the
distribution of the shares of common stock to engage in market-making activities
with respect to the particular shares of common stock being distributed for a
period of up to five business days before the distribution. These restrictions
may affect the marketability of the shares of common stock and the ability of
any person or entity to engage in market-making activities with respect to the
shares of common stock.
The selling shareholder will be subject to the prospectus delivery
requirements of the Securities Act of 1933, which may include, with respect to
the common stock, delivery through the facilities of the New York Stock Exchange
pursuant to Rule 153 under the Securities Act of 1933.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In certain states, the shares may not
be sold unless registered or qualified for sale in such state or unless an
exemption from registration or qualification is available and such sale is made
in compliance with such exemption.
Of the shares offered by this Prospectus 57,901 shares are held in
escrow and will be released to the selling shareholder, or returned to the
company, upon the happening of certain events. Upon release to the selling
shareholder, the shares held in escrow will be distributed in the manner
described above. There is no assurance that the selling shareholder will sell
any or all of the shares offered hereby.
WHERE YOU CAN FIND MORE INFORMATION
The company files reports, including annual reports on Form 10-K and
quarterly reports on Form 10-Q, proxy statements and other information with the
Securities and Exchange Commission. This information may be reviewed and copied
(at fixed rates) at the public reference facilities of SEC at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549 and at the following regional offices of
the SEC: 7 World Trade Center, Suite 1300, New York, New York 10048 and
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. You may also obtain this information from the SEC's web site at
http://www.sec.gov. The reports, proxy statements and other information
concerning the company can also be inspected at the offices of the New York
Stock Exchange, 111 Wall Street, New York, New York 10005.
The company has filed with the SEC a registration statement on Form S-3
under the Securities Act of 1933 with respect to the shares of common stock
offered by this Prospectus. This Prospectus is a part of the registration
statement but does not contain all the information contained in, or filed as
exhibits to, the registration statement. Since certain portions of the
registration statement have been omitted pursuant to rules of the SEC, you may
refer to
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the registration statement and its exhibits for more complete information about
documents described in this Prospectus. While complete in material respects, any
descriptions of documents in this Prospectus are summaries. Please refer to the
full text of documents filed as exhibits for complete descriptions.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the company with the SEC are
incorporated by reference in this Prospectus:
-- the company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000, filed pursuant to Section 13 of the Securities Exchange Act
of 1934 with the SEC on March 13, 2001.
Kodak also incorporates by reference additional documents that may be
filed by the company with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 after the date of this Prospectus. These include
periodic reports, such as annual reports on Form 10-K, quarterly reports on Form
10-Q and current reports on Form 8-K, as well as proxy statements.
This Prospectus incorporates by reference documents that are not
presented or delivered to you with it. We will send you copies of these
documents, exclusive of exhibits, at no cost to you. Please direct your requests
to the to the company's principal executive offices: Attn: Secretary, 343 State
Street, Rochester, New York 14650, telephone number (716) 724-4000.
LEGAL MATTERS
The legality of the securities being offered hereby has been passed
upon by Gary P. Van Graafeiland, Senior Vice President and General Counsel of
Kodak. Mr. Van Graafeiland owns and has options to purchase Kodak common stock.
EXPERTS
The consolidated financial statements incorporated in this Prospectus
by reference to the Annual Report on Form 10-K for the year ended December 31,
2000 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses relating to the registration of shares will be borne by
the selling shareholder. Such expenses are estimated to be as follows:
SEC Registration Fee $3,517.00
Accountant's Fees $ 0.00
Legal Fees $3,000.00
Miscellaneous $ 500.00
Total $7,017.00
Item 15. Indemnification.
Section 14A: 3-5 of the New Jersey Business Corporation Act empowers a
corporation to indemnify its directors, officers, and employees against (a)
expenses or liabilities in connection with any proceeding involving such persons
by reason of their being such directors, officers, or employees, other than a
proceeding by or in the right of the corporation, if (i) such directors,
officers, or employees acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interets of the corporation and,
(ii) with respect to any criminal proceeding, such directors, officers, or
employees had no reasonable cause to believe their conduct was unlawful, and (b)
expenses in connection with any proceeding by or in the right of the corporation
to procure a judgment in its favor involving such persons by reason of their
being such directors, officers, or employees if such directors, officers, or
employees acted in good faith and in a manner which they reasonably believed to
be in or not opposed to the best interests of the corporation. Article 8,
Section 2 of the Company's by-laws provides for indemnification, to the full
extent permitted by law, of the Company's directors, officers, and employees. In
addition, the Company maintains directors and officers liability insurance
insuring its directors and officers against that which they cannot be
indemnified by the Company.
Item 16. List of Exhibits
Exhibit
- -------
Number Description Location
- ----- ----------- --------
4(a) Certificate of Incorporation Incorporated by
reference to Exhibit 3A
to the registrant's
1998 Annual Report
on Form 10-K
4(b) By-laws, as amended through Incorporated by
February 12, 1999 reference to Exhibit 3B
to the registrant's
1998 Annual Report
on Form 10-K
5 Opinion of Gary P. Van Graafeiland Filed herewith
23(a) Consent of PricewaterhouseCoopers LLP Filed herewith
as Independent Accountants
23(b) Consent of Gary P. Van Graafeiland Included in Exhibit 5
II-1
24 Power of Attorney Included on signature
page
Item 17. Undertakings
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 this Registration Statement or any material
change to such information in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act if 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.
(4) 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 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the 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.
(5) Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers, or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has
been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed
in the 1933 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 1933
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rochester, State of New York on March 13, 2001.
EASTMAN KODAK COMPANY
By: /s/ Daniel A. Carp
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Daniel A. Carp
Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Gary P. Van Graafeiland,
Lawrence L. Hickey and Joyce P. Haag, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them or their or his 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 as of
the dates indicated.
/s/ Daniel A. Carp Chairman of the Board, March 13, 2001
- ------------------------ President and
Daniel A. Carp Chief Executive
Officer (Principal
Executive Officer)
/s/ Robert H. Brust Executive Vice President March 13, 2001
- ------------------------ and Chief Financial
Robert H. Brust Officer (Principal
Financial Officer)
/s/ E. Mark Rajkowski Controller March 13, 2001
- ------------------------ (Principal Accounting
E. Mark Rajkowski Officer)
/s/ Richard S. Braddock Director March 13, 2001
- ------------------------
Richard S. Braddock
/s/ Martha Layne Collins Director March 13, 2001
- ------------------------
Martha Layne Collins
/s/ Alice F. Emerson Director March 13, 2001
- ------------------------
Alice F. Emerson
/s/ Paul E. Gray Director March 13, 2001
- ------------------------
Paul E. Gray
II-3
/s/ Durk I. Jager Director March 13, 2001
- ------------------------
Durk I. Jager
/s/ Debra L. Lee Director March 13, 2001
- ------------------------
Debra L. Lee
/s/ John J. Phelan, Jr. Director March 13, 2001
- ------------------------
John J. Phelan, Jr.
/s/ Hector de J. Ruiz Director March 13, 2001
- ------------------------
Hector de J. Ruiz
/s/ Laura D'Andrea Tyson Director March 13, 2001
- ------------------------
Laura D'Andrea Tyson
/s/ Richard A. Zimmerman Director March 13, 2001
- ------------------------
Richard A. Zimmerman
Exhibit 5
March 13, 2001
Eastman Kodak Company
343 State Street
Rochester, New York 14650
Gentlemen:
I am Senior Vice President and General Counsel of Eastman Kodak
Company, a New Jersey corporation ("Kodak").
With respect to the Registration Statement on Form S-3 (the
"Registration Statement") filed today by Kodak with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to shares of
common stock, par value $2.50 per share, of Kodak (the "Common Stock") that may
be offered for sale from time to time by and for the account of Robert E.
McCarthy, I have examined and relied upon the originals or copies certified, or
otherwise identified to my satisfaction, of such corporate records, documents,
certificates and other instruments as in my judgment are necessary or
appropriate to enable me to render the opinion set forth below.
Based on the foregoing, I am of the opinion that the shares of Common
Stock proposed to be offered for sale from time to time by Robert E. McCarthy
have been duly authorized and issued and are fully paid an non-assessable under
the laws of the State of New Jersey.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to me under the caption Legal
Opinions in the Prospectus.
Very truly yours,
/s/Gary P. Van Graafeiland
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Gary P. Van Graafeiland
Senior Vice President and General Counsel
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 15, 2001 relating to the
consolidated financial statements, which appears in Eastman Kodak Company's
Annual Report on Form 10-K for the year ended December 31, 2000. We also consent
to the reference to us under the heading "Experts" in such Registration
Statement.
/s/PricewaterhouseCoopers LLP
Rochester, New York
March 13, 2001