(e) Section 2 of the Security Agreement is amended by adding the following proviso at the end of the first sentence thereof:

 

“; provided that the Secured Obligations shall not include any such obligations of any US Guarantor”

 

(f) Section 24(a) of the Security Agreement is amended by inserting the words “in such Collateral or in the shares of stock or other equity interests (including, without limitation, any Initial Pledged Equity) of such Subsidiary that has ceased to be a Material Subsidiary” immediately after the words “the security interests granted under this Agreement by such Grantor”.

 

(g) The first sentence of Section 24(b) of the Security Agreement is amended and restated as follows:

 

“(b)           The pledge and security interest granted hereby will be terminated as set forth in Section 9.14(b) of the Credit Agreement and upon such termination all rights to the Collateral shall revert to the applicable Grantor and the Agent will promptly deliver to the applicable Grantors all certificates representing any Pledged Equity or Pledged Debt, Receivables or other Collateral.”

 

SECTION 2.  Conditions to Effectiveness.  This Amendment shall become effective as of the date hereof only upon the satisfaction or waiver by the Agent of all of the following conditions precedent (the “Amendment Effective Date”):

(a) Execution.  The Agent shall have received counterparts of this Amendment duly executed and delivered by the Borrower and the Agent.

 

(b) Payment of Fees and Expenses.  The Borrower shall have paid to the Agent all reasonable costs and expenses owing to the Agent as of such date (including the reasonable fees and expenses of Shearman & Sterling LLP) required to be reimbursed or paid by the Borrower pursuant to the Loan Documents.

 

(c) Representations and Warranties.  Each of the representations and warranties in Section 3 below shall be true and correct in all material respects.

 

 

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 SECTION 3.  Representations and Warranties.  In order to induce the Agent to enter into this Amendment and to amend the Security Agreement in the manner provided herein, the Borrower represents and warrants to the Agent that the following statements are true and correct in all material respects:

 

(a) Corporate Power and Authority.  The Borrower has all requisite power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its obligations under, this Amendment and under the Security Agreement as amended by this Amendment (the “Amended Agreement”).

 

(b) Authorization; No Conflict.  The execution and delivery by the Borrower of this Amendment and the performance by the Borrower of its obligations under this Amendment and under the Amended Agreement have been duly authorized by all necessary corporate, partnership or other applicable entity action on its part (including, without limitation, any required shareholder approvals), and do not and will not conflict with, or result in a breach of, or require any consent under, the charter or by-laws or other constitutive document of the Borrower, or any applicable law or regulation, or any order, writ, injunction or decree of any federal, state, foreign or other governmental authority or regulatory body, or any agreement or instrument to which the Borrower or any of its subsidiaries is a party or by which any of them or any of their property is bound or to which any of them is subject, or constitute a default under any such agreement or instrument, or (except for Liens created pursuant to the Collateral Documents) result in the creation or imposition of any Lien upon any property of the Borrower or any of its subsidiaries pursuant to the terms of any such agreement or instrument.

 

(c) Governmental Consents.  No authorizations, approvals or consents of, and except for filings and recordings in respect of the Liens created pursuant to the Collateral Documents and as otherwise provided in Section 4 of the Security Agreement, no filings or registrations with, any federal, state, foreign or other governmental authority or regulatory body, or any securities exchange or other third party, are necessary for the execution or delivery by the Borrower of this Amendment, or the performance by the Borrower of this Amendment or the Amended Agreement or for the legality, validity or enforceability hereof or thereof.

 

(d) Binding Effect.  This Amendment has been duly and validly executed and delivered by the Borrower.  Each of this Amendment and the Amended Agreement constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (b) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

(e) Absence of Default.  No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Amendment or the Amended Agreement.

 

SECTION 4.  Miscellaneous.

 

(a) Reference to and Effect on the Security Agreement and the Loan Documents.

 

(i)           On and after the Amendment Effective Date, each reference in the Security Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Security Agreement, and each reference in the other Loan

 

 

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Documents to the “Canadian Security Agreement”, “thereunder”, “thereof” or words of like import referring to the Security Agreement shall mean and be a reference to the Amended Agreement.

 

(ii)           Except as specifically amended by this Amendment, the Security Agreement and the other Loan Documents (including any exhibits, schedules and annexes thereto) shall remain in full force and effect and are hereby in all respects ratified and confirmed.  Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents to the extent provided in the Collateral Documents.

 

(iii)           The execution, delivery and performance of this Amendment shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of the Agent or any other Secured Party under, the Security Agreement or any of the other Loan Documents.

 

(b) Headings.  Section and subsection headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Amendment.

 

(c) Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

(d) Severability.  Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

(e) Counterparts.  This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page to this Amendment by telecopier or other electronic transmission shall be effective as delivery of an original executed counterpart of this Amendment.

 

(f) Governing Law.  This Amendment shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein.

 

(g) Loan Document.  This Amendment is a “Collateral Document” and a “Loan Document” under and as defined in the Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered and applied in accordance with the terms and provisions thereof.

 

 

[Remainder of page Intentionally Blank]

 

 

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the day and year first above written.

 

KODAK CANADA INC.,

as the Borrower

 

By:  /s/ William G. Love

Name: William G. Love

Title: Assistant Treasurer

 

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CITICORP USA, INC.,

as Agent

 

 

By: /s/ Jeffrey Stern

Name: Jeffrey Stern

Title: Vice President

 

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Exhibit (4.16)

 

NOTE PURCHASE AGREEMENT

 

This Note Purchase Agreement (this “Agreement”), dated as of February 24, 2010, is entered into by and among Eastman Kodak Company, a New Jersey corporation (the “Purchaser”), 8 North America Investor (Cayman) Limited, a Cayman Islands exempted limited company (“8NAI”), OPERF Co-Investment LLC, a Delaware limited liability company (“OPERF”), and KKR Jet Stream (Ireland) Corporation, an Ireland corporation (“Jet Stream Ireland” and together with 8NAI and OPERF, collectively, the “Sellers” and each a “Seller”).

 

RECITAL

WHEREAS, on September 29, 2009, 8NAI, OPERF and KKR Jet Stream (Cayman) Limited (“Jet Stream Cayman”, and together with 8NAI and OPERF, the “Original Investors”), pursuant to (i) that certain Note and Warrant Purchase Agreement, dated as of September 16, 2009, between the Purchaser, Jet Stream Cayman, and Kohlberg Kravis & Roberts & Co. L.P. (“KKR”) (with respect to specified provisions) (the “Purchase Agreement”), (ii) that certain Assignment and Assumption Agreement, dated as of September 29, 2009, among the Original Investor s and KKR Jet Stream LLC, a Delaware limited liability company (“Jet Stream”) (the “Assignment Agreement”) and (iii) that certain Joinder Agreement, dated as of September 29, 2009, among the Original Investors, Jet Stream and the Purchaser (the “Joinder Agreement”), purchased $300,000,000 principal amount of the Purchaser’s 10.50% Senior Secured Notes due 2017 (the “Notes”);

 

WHEREAS, the Notes initially held by Jet Stream Cayman were transferred to Jet Stream Ireland on October 16, 2009;

 

WHEREAS, each Seller holds the principal amount of Notes set forth opposite each such Seller’s name on Schedule A hereto, and each Seller desires to sell the Notes held by such Seller to the Purchaser on the terms and conditions set forth herein; and

 

WHEREAS, the Purchaser desires to purchase all outstanding Notes from the Sellers on the terms and conditions set forth herein.

 

AGREEMENT

 

NOW THEREFORE, in consideration of the premises and mutual agreements contained herein, the parties agree as follows:

 

1.           Purchase of the Notes.  Subject to the conditions set forth herein, on the Closing Date (as defined below) each Seller hereby agrees to sell to the Purchaser, and the Purchaser hereby agrees to purchase from each such Seller, all of the Notes held by each such Seller as set forth on Schedule A hereto, at the purchase price to be determined by the parties by mutual agreement (the “Purchase Price”).

 

2.           Closing.

 

(a)           The closing of the purchase of the Notes contemplated hereby is expressly conditioned upon the closing of the issuance by the Purchaser of at least $300,000,000 aggregate principal amount of

 

 

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senior secured notes (the “High Yield Offering”).  In the event that (a) the price at which the Notes will be purchased hereunder shall not have been agreed to by the parties by 9:00 a.m. E.S.T. on February 24, 2010, (b) Purchaser has not entered into a customary purchase agreement with respect to the High Yield Offering by 9:00 p.m. E.S.T. on February 25, 2010, (c) any of the conditions to the purchase agreement becomes impossible to satisfy (in the reasonable judgment of the Purchaser) without waiver from the party entitled thereto, or (d) the closing of the High Yield Offering does not occur by 5:00 p.m. E.S.T. on March 11, 2010, this Agreement shall immediately terminate, the Purchaser shall have no further obligation to purchase the Notes hereunde r, and the Sellers shall have no further obligation to sell the Notes hereunder.  Unless this Agreement is so terminated, the closing of the purchase of the Notes contemplated hereby shall take place simultaneously with the closing of the High Yield Offering.  The date the closing of the purchase of the Notes occurs is referred to herein as the “Closing Date”.

 

(b) On the Closing Date, the Purchaser will cause the Purchase Price payable to each Seller to be paid by wire transfer of immediately available funds pursuant to wire instructions provided in writing to the Purchaser prior to the Closing Date. Immediately upon receipt of the aggregate Purchase Price, the Sellers shall effect the transfer of the Notes in accordance with the procedures of the Depository Trust Company and shall deliver a receipt of payment to the Purchaser. For the avoidance of doubt, each Seller shall cease to own any Notes upon the settlement of such transfer and the Purchaser shall be entitled to instruct the appropriate parties immediately thereafter to terminate the indenture governing the Notes and the security documents related thereto.

 

3.           Representations of the Purchaser.  The Purchaser represents and warrants to each Seller on the date hereof and as of the Closing Date that:

 

(a)           The Purchaser is duly organized and validly existing under the laws of the jurisdiction of its organization and has all requisite power and authority to enter into and perform its obligations under this Agreement.

 

(b)           The execution, delivery and performance of this Agreement has been duly authorized by all necessary action on the part of the Purchaser, and this Agreement is a valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, except as enforceability may be affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors’ rights generally and by general principles of equity.  Purchaser has the full right, power, legal capacity and authority to purchase the Notes and to enter into and perform its obligations under this Agreement.

 

(c)           The execution, delivery and performance of this Agreement will not conflict with, violate or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both would constitute a default) under, or result in the termination of or accelerate the performance required by, or result in a right of termination or acceleration under, (A) any provision of the organizational or governing documents of the Purchaser or (B) any mortgage, note, indenture, deed of trust, lease, loan agreement or other agreement or instrument or any permit, concession, grant, franchise, license, judgment, order, decree, ruling, injunction, statute, law, ordinance, rule or regulation applicable to the Purchaser or any of its properties or assets, ot her than any such conflict, violation, breach, default, termination and acceleration under clause (B) that would not reasonably be expected to adversely impact the ability of the Purchaser to consummate the transactions contemplated hereby.

 

(d)           No material consent, approval, order or authorization of, or material registration, declaration or filing with, any governmental entity is required on the part of the Purchaser in connection

 

 

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with the execution, delivery and performance by it of this Agreement and the consummation by the Purchaser of the transactions contemplated hereby.

 

4.           Representations of the Sellers.  Each Seller represents and warrants to the Purchaser on that date hereof and as of the Closing Date that:

 

(a)           Such Seller is duly organized and validly existing under the laws of the jurisdiction of its organization and has all requisite power and authority to enter into and perform its obligations under this Agreement.

 

(b)           The execution, delivery and performance of this Agreement has been duly authorized by all necessary action on the part of such Seller, and this Agreement is a valid and binding obligation of such Seller, enforceable against it in accordance with its terms, except as enforceability may be affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors’ rights generally and by general principles of equity.  Such Seller has the full right, power, legal capacity and authority to sell and transfer the Notes and to enter into and perform its obligations under this Agreement.

 

(c)           The execution, delivery and performance of this Agreement will not conflict with, violate or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both would constitute a default) under, or result in the termination of or accelerate the performance required by, or result in a right of termination or acceleration under, (A) any provision of the organizational or governing documents of such Seller or (B) any mortgage, note, indenture, deed of trust, lease, loan agreement or other agreement or instrument or any permit, concession, grant, franchise, license, judgment, order, decree, ruling, injunction, statute, law, ordinance, rule or regulation applicable to such Seller or any of its properties or assets, other than any such conflict, violation, breach, default, termination and acceleration under clause (B) that would not reasonably be expected to adversely impact the ability of such Seller to consummate the transactions contemplated hereby.

 

(d)           No material consent, approval, order or authorization of, or material registration, declaration or filing with, any governmental entity is required on the part of such Seller in connection with the execution, delivery and performance by it of this Agreement and the consummation by such Seller of the transactions contemplated hereby.

 

(e)           Such Seller owns the principal amount of the Notes set forth opposite its name on Schedule A hereto and has the absolute and unrestricted right, power and authority to sell, transfer and assign the Notes held by it to the Purchaser pursuant to this Agreement, in each case free and clear of any liens, claims, pledges, options, rights of first offer, rights of first refusal or other encumbrances (collectively, “Liens”).  Upon consummation of the purchase and sale of the Notes as provided in this Agreement, the Purchaser shall receive good and marketable title to the Notes, free and clear of any Liens, other than any Liens created by the Purchaser.

 

5.           No Transfer.  Unless and until this Agreement is terminated in accordance with its terms, each Seller agrees not to convey, sell, assign, or otherwise transfer any Notes held by it, other than to Purchaser as contemplated by this Agreement.

 

6. Specific Enforcement.  The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or was otherwise breached.  It is accordingly agreed that in addition to any other available remedy, the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to

 

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7. enforce specifically the terms and provisions of this Agreement.  Each party irrevocably waives any defenses based on adequacy of any other remedy, whether at law or in equity, that might be asserted as a bar to the remedy of specific performance of any of the terms or provisions of this Agreement or injunctive relief in any action brought therefor.

8. Publicity.  The parties agree to keep the subject matter of this Agreement confidential and no written public release or public announcement concerning the matters contemplated hereby shall be issued by any party without the prior written consent of the other party (which consent shall not be unreasonably withheld), except (i) for any disclosure reasonably necessary in connection with (A) the High Yield Offering, (B) the Purchaser’s tender offer for its 7.25% Senior Notes due 2013 (the “Tender Offer”), or (C) any amendment of the Purchaser’s credit fa cilities relating to the High Yield Offering, the transactions contemplated hereby or the Tender Offer, or (ii) as such release or announcement may be required by law or the rules or regulations of any securities exchange, in which case the party required to make the release or announcement shall, to the extent reasonably practicable, allow the other party reasonable time to comment on such release or announcement in advance of such issuance.  The provisions of this paragraph shall not restrict the ability of a party to summarize or describe the transactions contemplated by this Agreement in any required report, prospectus or other similar document so long as the other party is provided a reasonable opportunity to review such disclosure in advance.

9. Entire Agreement.  This Agreement and any subsequent written correspondence between the parties relating to the setting of the purchase price of the Notes constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and supersede all other prior agreements and understandings, both oral and written, between the parties, with respect to the subject matter hereof.

9.           Expenses.  All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs or expenses; provided, that, the Purchaser agrees to reimburse the reasonable fees and expenses of outside legal counsel of the Sellers and their affiliates directly arising out of the negotiation of this Agreement and the consummation of the transactions specifically contemplated hereby.

10.           Miscellaneous. This Agreement (i) may be amended only by written agreement between the Purchaser and Sellers holding a majority in principal amount of Notes; (ii) shall be governed by and construed under the laws of the State of New York, without regard to its rules governing conflicts of laws; (iii) may be executed in counterparts, each of which shall be deemed an original; and (iv) may not be assigned, nor may the rights or obligations hereunder be transferred, without the consent of the Purchaser and Sellers holding a majority in principal amount of Notes.  Th e parties hereto agree to execute any additional documents necessary to carry out the purposes of this Agreement.  Any party’s failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver of any such provision or provisions, nor prevent that party thereafter from enforcing each and every other provision of this Agreement.  The rights granted herein are cumulative and shall not constitute a waiver of any party’s right to assert all other legal remedies available to it under the circumstances.  In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.  Each party hereto acknowledges and agrees that it has been represented, or had the opportunity to be represented, by independent counsel of its own choosing and that it has had the full right and opportunity to consult with its respective attorney(s), that to the extent, if any, that it desired, it availed itself of this right and opportunity, that it or its authorized

 

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officers (as the case may be) have carefully read and fully understand this Agreement in its entirety and have had it fully explained to them by such party’s respective counsel, that each is fully aware of the contents thereof and their meaning, intent and legal effect (including with respect to tax matters), and that it or its authorized officer (as the case may be) is competent to execute this Agreement and has executed this Agreement free from coercion, duress or undue influence.  If an ambiguity or question of intent or interpretation arises, then this Agreement will be construed as if drafted jointly by the parties to this Agreement, and no presumption or burden of proof will arise favoring or disfavoring any party to this Agreement by virtue of the authorship of any of the provisions of this Agreement.

(Signature Page Follows)

 

 

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The parties hereto have executed this Note Purchase Agreement as of the day and year first set forth above.

 

EASTMAN KODAK COMPANY

By:           /s/ Joyce P. Haag                                           

Name:      Joyce P. Haag

Title:        Sr. VP and General Counsel

 

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	SELLERS:
	8 NORTH AMERICA INVESTOR (CAYMAN) LIMITED
	By:  /s/ William Janetschek
	Name: William Janetschek
	Title:    Director
	OPERF CO-INVESTMENT LLC   By:         KKR Associates 2006 L.P., its general manager   By:         KKR 2006 GP LLC, its general partner
	By:  /s/ William Janetschek
	Name: William Janetschek
	Title:   Director
	KKR JET STREAM (IRELAND) CORPORATION
	By:  /s/ William Janetschek
	Name: William Janetschek
	Title:    Director

 

 

 
 

 

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SCHEDULE A

Name of Seller	Principal Amount of Notes Beneficially Owned
KKR Jet Stream (Ireland) Corporation	$279,728,000
8 North America Investor (Cayman) Limited	15,064,000
OPERF Co-Investment LLC	5,208,000
Total	$300,000,000

 

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Exhibit (10.6)

Granted to Mr. Antonio M. Perez

2010 Performance Stock Unit Program Administrative Guide

under Article 7 (Performance Awards) of the

2005 Omnibus Long-Term Compensation Plan

ARTICLE 1.  INTRODUCTION

1.1           Background

Under Article 7 (Performance Awards) of the 2005 Omnibus Long-Term Compensation Plan (the “Plan”), the Executive Compensation and Development Committee of Kodak’s Board of Directors (the “Committee”) may, among other things, award the opportunity to earn shares of Common Stock to those Participants as the Committee in its discretion may determine, subject to such terms, conditions and restrictions as it deems appropriate.

1.2           Purpose

This Administrative Guide governs the Committee’s grant of Awards under Article 7 of the Plan pursuant to a subprogram that is hereinafter referred to as the “Performance Stock Unit Program” to be effective as of January 4, 2010, by which the Committee will award the opportunity to earn shares of Common Stock for the Cycle to the Participant, with the objectives of improving the relationship between controllable performance and realized compensation and enhancing the focus on operating goals.  It is expected that improvement in these areas will have a corollary effect upon the price of the Common Stock.  Unless otherwise determined by the Committee, the terms of the Plan shall apply to Awards granted under this Administrative Guide.

In addition, this Administrative Guide is intended to establish those requirements necessary to ensure that the Cycle’s Awards will be treated as performance-based compensation for the purposes of Section 162(m) of the Code.  These requirements include establishment of the Cycle’s Performance Criteria, performance goals under the Performance Criteria and Performance Formula.

 
 

1.3           Administration

This Performance Stock Unit Program shall be administered by the Committee.  The Committee is authorized to issue this Administrative Guide and to make changes in this Administrative Guide as it from time to time deems proper. The Committee is authorized to interpret and construe the Performance Stock Unit Program and this Administrative Guide, to prescribe, amend, and rescind rules and regulations relating to each, and to make all other determinations necessary, appropriate or advisable for the administration of the Performance Stock Unit Program,

 

 

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including without limitation, whether or not to pay fractional shares, whether and how to round fractional shares, and any issues regarding valuation, withholding and international considerations.  If there are any inconsistencies between the terms of this Administrative Guide and the terms of the Plan, the terms of the Plan will control.   Any determination by the Committee in carrying out, administering or construing the Performance Stock Unit Program will be final and binding for all purposes and upon all interested persons and their heirs, successors and personal representatives.  The Committee is authorized to suspend or terminate the Performance Stock Unit Program, at any time, for any reason, with or without prior notice.  Notwithstanding any provision herein to the contrary, the Company 's Chief Human Resources Officer is authorized to round fractional shares arising in any way under the Plan either up or down for ease of administration or some other reasonable purpose.

ARTICLE 2.  DEFINITIONS

Any defined term used in this Administrative Guide, other than those set forth in this Article 2 or defined within another Article of this Administrative Guide, will have the same meaning for purposes of this document as that ascribed to it under the terms of the Plan.

2.1           Approved Reason

With regard to a Participant who is subject to Section 16 of the Exchange Act or is a Covered Employee, “Approved Reason” means a reason for terminating employment which, in the opinion of the Committee, is in the best interests of the Company.

2.2           Award Payment Date

“Award Payment Date” is the date payment of an Award in the form of shares of Common Stock is credited to the Participant’s account with Kodak’s transfer agent pursuant to Section 9.3, which shall be as soon as is administratively practicable after the Vesting Date, but in no event later than 90 days thereafter.

2.3           Cycle

“Cycle” or “Performance Cycle” means the one-year period commencing on January 4, 2010 and ending December 31, 2010.

2.4           Participant Account

“Participant Account” means the account established by the Company for the Participant who is granted an Award under the Performance Stock Unit Program to record and account for the grant of the Award that are to be credited to the Account pursuant to Article 10, until

 

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such time as the balance in the Account is paid, canceled, forfeited or terminated, as the case may be.

2.5           Performance Criteria

“Performance Criteria” means, with respect to the Performance Stock Unit Program, the criteria that will be used to establish the Performance Goal for the Performance Cycle, as described in Article 6.

2.6           Performance Cycle

“Performance Cycle” has the meaning specified in Section 2.3.

2.7           Performance Goals

“Performance Goals” means, with respect to the Performance Cycle of the Performance Stock Unit Program, the goals based upon the Performance Criteria and established by the Committee, as more particularly described in Article 6.

2.8           Participant’s Individual Allocation

“Participant’s Individual Allocation” means, for the Performance Cycle of the Performance Stock Unit Program, the target allocation amount, expressed as a number of units of Common Stock, allocated to the Participant at the start of the Performance Cycle pursuant to Section 5.2.

2.9           Unit

“Unit” means a bookkeeping entry used by the Company to record and account for the amount of an Award granted to the Participant that are to be credited to the Participant’s Account pursuant to Article 10, even though such Award and have not yet been earned, until such time as the balance in the Account is paid, canceled, forfeited, or terminated, as the case may be.  Units are expressed in terms of one Unit being the equivalent of one share of Common Stock.

2.10           Vesting Date

“Vesting Date” shall mean December 31, 2013.

 
 

ARTICLE 3.  TERMINATION OF PARTICIPATION

A Participant’s participation in this Cycle of the Performance Stock Unit Program is subject to immediate termination upon the Participant’s termination of employment from the Company during the Performance Cycle.  In the case of the Participant’s termination of employment

 

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after the end of the Performance Cycle but prior to the Vesting Date, the Participant will forfeit any and all rights to receive payment on account of an Award for the Cycle, except as specified in Section 8.2 (Death, Disability, or Termination for an Approved Reason).

ARTICLE 4.  FORM OF AWARDS

4.1           Form of Awards

Awards granted under the Performance Stock Unit Program provide the Participant with the opportunity to earn shares of Common Stock, subject to the terms and conditions contained in this Administrative Guide and the Plan.  Each Award granted under the Performance Stock Unit Program shall be expressed as a fixed number of Units that will be equivalent to an equal number of shares of Common Stock.  The fixed number of Units that are allocated to the Participant by the Committee at the start of the Performance Cycle is referred to herein and in the Plan as the Participant’s Individual Allocation.

4.2           Participant Account

The Company will establish a Participant Account for the Participant who is granted an Award.

4.3           Participant’s Account Unfunded

The maintenance of individual Participant Account is for bookkeeping purposes only; the Units recorded in the account are not actual shares of Common Stock.  The Company will not reserve or otherwise set aside any Common Stock for or to the Participant Account.  The Participant shall not have the right to exercise any of the rights or privileges of a shareholder with respect to the Units credited to his Participant Account.  As more specifically described in Article 10, until the Committee has certified the Award earned by the Participant pursuant to the procedure referred to in Article 7 of this Guide, no Units will be credited.

ARTICLE 5.  ESTABLISHING THE PARTICIPANT’S AWARD ALLOCATION

On the first business day of the Cycle, a fixed number of Units will be determined by dividing the intended dollar value of the award by the average 10-day closing price of Eastman Kodak Common Stock up to and including the grant date.

The fixed number of Units allocated to the Participant at the start of the Performance Cycle is referred to herein as the “Participant’s Individual Allocation.”

 

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ARTICLE 6.  ESTABLISING PERFORMANCE FACTORS

 
 

6.1           Performance Goals

In the first 90 days of the Performance Cycle, the Committee will establish the target “Performance Goals” for purposes of assessing the Participant’s performance during the Performance Cycle.

The Committee will also establish the “Minimum Performance Goals” that will serve as the minimum actual amount for the Performance Cycle that will be necessary in order for any amount of an Award to be considered to have been earned by the Participant for the Performance Cycle.

The “Maximum Performance Goals” are same as the Target Performance Goals.

The Committee will cause the Performance Goals and the Minimum Performance Goals to be documented in an Exhibit to be maintained by the Company’s Chief Human Resources Officer.

6.2           Performance Formula

The “Performance Formula,” which will determine the amount of an Award that will be considered to have been earned by the Participant is as follows:

Award Earned = Participant’s Individual Allocation x Applicable Performance Percentage

The “Applicable Performance Percentage” will be determined from the performance matrix documented in an Exhibit to be maintained by the Company’s Chief Human Resources Officer.  For purposes of the performance matrix, results between the amounts shown will be interpolated to derive an Applicable Performance Percentage.  The maximum Applicable Performance Percentage is same as the Target Performance Percentage which is 100%.

 
 

ARTICLE 7.  DETERMINATION OF EARNED AWARDS

7.1           Certification

Following the completion of the Performance Cycle, the Committee shall meet to review and certify in writing whether, and to what extent, the Performance Goals for the Performance Cycle have been achieved.  If the Committee certifies that the Minimum Performance Goals have been achieved, it shall also calculate and certify in writing the Applicable Performance Percentage.  By applying the Performance Formula, the Committee shall then determine and certify the actual amount of the Participant’s Award that has been earned for the Performance Cycle,

 

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keeping any fractional shares in the Participant’s Account.

7.2           Discretion

Notwithstanding any provision contained herein to the contrary, in determining the actual amount of an individual Award to be deemed earned for the Cycle, the Committee may, through the use of negative discretion, reduce the amount of the Award that would otherwise be earned by application of the Performance Formula, if, in its sole judgment, such reduction is appropriate.  No positive discretion may be exercised to increase the size of an Award.

ARTICLE 8.  PRECONDITIONS TO RECEIPT OF AN EARNED AWARD

8.1           Continuous Employment Until Payment

The Participant must remain continuously employed with the Company at all times from the first day of the Cycle through the Vesting Date in order to remain eligible for an Award.  If the Participant’s employment with the Company ceases during this period for any reason, the Participant will forfeit the entire number of Units that have been allocated to him for the Cycle (including any Units that are earned but not vested) and that have been credited to the Account pursuant to Article 10 hereof.  The limited exceptions to the requirements of this Section 8.1 are specified in Section 8.2 below.

 
 

8.2     Death, Disability, or Termination for an Approved Reason before the Vesting Date

Notwithstanding any provision contained in this Article 8 to the contrary, if after the end of the Performance Cycle but prior to the Vesting Date, the Participant’s employment with the Company ceases for an Approved Reason or as a result of his death or Disability, and if the Participant had been employed with the Company for the entire Performance Cycle, the Participant shall be entitled to receive a pro-rata Award calculated according to the formula set forth in Section 8.3 below.

In the event the Participant’s employment with the Company ceases at any time during the Performance Cycle (whether for an Approved Reason or as a result of his or her death or Disability), the Participant will no longer be eligible for an Award for such Cycle and, consequently, will forfeit any and all rights to receive an Award for such Cycle.

 

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8.3           Pro-rata Award

The pro-rata Award to which the Participant may become entitled pursuant to the provisions of Sections 8.2 shall be determined by dividing the number of full months in the vesting period prior to the Participant’s cessation of employment with the Company by the total number of full months in the vesting period.  For purposes of this calculation, a partial month shall be treated as a full month to the extent of 15 or more days in such month have elapsed.

ARTICLE 9.  PAYMENT OF AWARDS

9.1           Timing of Award Payments

Awards that have been earned for this Cycle that are credited to the Account pursuant to Article 10 shall be paid on the Award Payment Date by the procedure described in Section 9.3.  Participants cannot defer Awards.

9.2           Form of Payment of Awards

All awards for this Cycle that are credited to the Account pursuant to Article 10 shall be paid in the form of shares of Common Stock in accordance with the procedure described in Section 9.3, subject to the terms, restrictions and conditions of the Plan and those set forth in this Administrative Guide.

9.3           Issuance of Shares of Common Stock

On the Award Payment Date, Kodak will subtract from a Participant's account the number of Units that are withheld for taxes under Section 11.6 below, and then, with respect to the remaining Units, promptly instruct its transfer agent to reflect, in an account of the Participant on the books of the transfer agent, the shares of Common Stock that are to be delivered to the Participant.  Upon the Participant’s request, the transfer agent will deliver to the Participant a stock certificate for the remaining number of shares of Common Stock held in that account of the Participant.

9.4           Non-Assignable

No Awards or any other payment under the Performance Stock Unit Program shall be subject in any manner to alienation, sale, transfer (except by will of the laws of descent and distribution), assignment, pledge or encumbrance, nor shall any Award by payable to any one other than the Participant to whom it was granted.

 

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ARTICLE 10.  REORGANIZATION

If the Company undergoes a reorganization (as defined in Section 368(a) of the Code) during the period beginning on the date the Committee certifies the amount of the Award that has been earned by the Participants and ending on the Vesting Date, the Committee may, in its sole and absolute discretion, take whatever action it deems necessary, advisable or appropriate with respect to the Account of each Participant that has earned an Award in order to reflect such transaction, including, but not limited to, adjusting the number of Units credited to each such Participant's Account.

ARTICLE 11.  MISCELLANEOUS

11.1           Compliance with Laws

The obligations of the Company to issue Common Stock awarded pursuant hereto are subject to compliance with all applicable governmental laws, regulations, rules and administrative actions, including, but not limited to, the Securities Act of 1933, as amended, and the Exchange Act, and all rules promulgated thereunder.

11.2           Termination/Amendment

The Committee may amend, suspend or terminate the Performance Stock Unit Program in whole or in part at any time, for any reason, with or without prior notice.  In addition, the Committee, or any person to whom the Committee has delegated the requisite authority, may, at any time and from time to time, amend this Administrative Guide in any manner.

11.3           Section 162(m) of the Code

If any provision of this Administrative Guide 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 Administrative Guide, but the other provisions hereof shall remain in full force and effect.  Further, if this Administrative Guide fails to contain any provision required under Section 162(m) in order to make the Awards granted hereunder to a Covered Employee be “qualified performance-based compensation,” then this Administrative Guide shall be deemed to incorporate such provision, effective as of the date of this Administrative Guide’s adoption by the Committee.

11.4           Participant’s Rights Unsecured

The amounts payable under this Administrative Guide shall be unfunded, and the right of the Participant or his estate to receive payment under this Administrative Guide shall be an unsecured claim against the general assets of the Company.  The Participant shall have no

 

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right to exercise any of the rights or privileges of a shareholder with respect to the Units credited to the Participant Account.

11.5           No Guarantee of Tax Consequences

No person connected with the Performance Stock Unit Program or this Administrative Guide in any capacity, including, but not limited to, the Company and its 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 paid to or for the benefit of a Participant or Beneficiary under the Performance Stock Unit Program, or that such tax treatment will apply to or be available to a Participant or Beneficiary on account of participation in the Performance Stock Unit Program.

11.6           Tax Withholding

Kodak will pay the taxes required to be withheld with respect to an Award under the Performance Stock Unit Program by reducing a portion of the Units otherwise due the Participant as a result of an Award.  The portion of the Units withheld will equal in amount the taxes required to be withheld.  The Units which are so withheld will be valued at the Fair Market Value of the Common Stock on the date of the payment of the Award.

11.7           Section 409A Compliance

The Awards described in this Administrative Guide are intended to comply with Section 409A of the Internal Revenue Code to the extent such arrangements are subject to that law, and this Administrative Guide shall be interpreted and administered consistent with such intention, and in accordance with Eastman Kodak Company’s Policy Regarding Section 409A Compliance.  The Company may unilaterally amend this Administrative Guide for purposes of compliance if, in its sole discretion, Kodak determines that such amendment would not have a material adverse effect with respect to the Participant’s rights under the Administrative Guide.

 

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EXHIBIT - PERFORMANCE GOAL (SECTION 6.1) AND PERFORMANCE FORMULA (SECTION 6.2)

 
 

To be approved by the Committee within the first 90 days of the start of the Performance Cycle.  Approved document will be maintained by the Company’s Chief Human Resources Officer.

 

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Exhibit (12)

          

Eastman Kodak Company

Computation of Ratio of Earnings to Fixed Charges

(in millions, except for ratio)

		Three Months
		Ended
		March 31, 2010
Earnings from continuing operations before income taxes		$	245
Adjustments:
Interest expense			38
Interest component of rental expense  (1)			9
Amortization of capitalized interest			1
Loss from continuing operations as adjusted		$	293
Fixed charges:
Interest expense		$	38
Interest component of rental expense  (1)			9
Capitalized interest			-
Total fixed charges		$	47
Ratio of earnings to fixed charges			6.23

(1)	Interest component of rental expense is estimated to equal 1/3 of such expense, which is considered a reasonable approximation of the interest factor.

 

 

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Exhibit (31.1)

CERTIFICATION

I, Antonio M. Perez, certify that:

1.  I have reviewed this quarterly report on Form 10-Q of Eastman Kodak Company;

2.  Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.  Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.  The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a)  Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)  Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)  Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d)  Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5.  The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

a)  All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

b)  Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

Date:  April 29, 2010

/s/ Antonio M. Perez

Antonio M. Perez

Chairman and Chief Executive Officer

Exhibit (31.2)

CERTIFICATION

I, Frank S. Sklarsky, certify that:

1.  I have reviewed this quarterly report on Form 10-Q of Eastman Kodak Company;

2.  Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.  Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.  The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a)  Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)  Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)  Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d)  Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

 

5.  The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

a)  All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting  which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

b)  Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

Date:  April 29, 2010

/s/ Frank S. Sklarsky

Frank S. Sklarsky

Chief Financial Officer

Exhibit (32.1)

CERTIFICATION PURSUANT TO

18 U.S.C. Section 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report on Form 10-Q of Eastman Kodak Company (the "Company") for the three month period ended March 31, 2010 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Antonio M. Perez, Chairman and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge:

     1)  The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

     2)  The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/s/ Antonio M. Perez  

Antonio M. Perez

Chairman and Chief Executive Officer

April 29, 2009

Exhibit (32.2)

CERTIFICATION PURSUANT TO

18 U.S.C. Section 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report on Form 10-Q of Eastman Kodak Company (the "Company") for the three month period ended March 31, 2010 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Frank S. Sklarsky, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge:

     1)  The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

     2)  The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/s/ Frank S. Sklarsky

Frank S. Sklarsky

Chief Financial Officer

April 29, 2009