REGISTRATION RIGHTS AGREEMENT
By and Between
EASTMAN KODAK COMPANY
and
THE BANK OF NEW YORK
as Investment Manager for
THE KODAK RETIREMENT INCOME PLAN
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is
entered into as of November 17, 1995, by and between Eastman
Kodak Company, a New Jersey corporation (the "Issuer"), and The
Bank of New York, a New York banking corporation, as investment
manager (such entity or any successor entity or entities
appointed to act in such capacity, the "Investment Manager") for
and on behalf of the Kodak Retirement Income Plan (the "Pension
Plan"), which Pension Plan is also thereby deemed to be a party
to this Agreement. Capitalized terms used and not otherwise
defined herein shall have the respective meanings set forth in
Section 1 hereof.
WHEREAS, the Issuer intends, subject to applicable law
and the satisfaction of certain conditions in connection
therewith, to contribute $500 million, in aggregate value, of
shares of its common stock, $2.50 par value (the "Common Stock")
to the Pension Plan; and
WHEREAS, the Pension Plan is prepared to accept,
subject to the terms and conditions hereof, the Common Stock that
may be contributed to it as described herein; and
WHEREAS, the Investment Manager has been appointed by
the Kodak Retirement Income Plan Committee, the named fiduciary
(the "Named Fiduciary") of the Pension Plan (as determined in
accordance with Section 402(a) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), to manage certain
shares of Common Stock held by the Pension Plan as described
herein and managed pursuant to the Management Agreement, dated
November 14, 1995, between the Named Fiduciary and the Investment
Manager, and to exercise all rights, powers and privileges
appurtenant to such shares (subject to the authority of the Named
Fiduciary to terminate such appointment and appoint one or more
other investment managers for any such shares); and
WHEREAS, the Investment Manager has full power and
authority to execute and deliver this Agreement for the account
and on behalf of the Pension Plan and to so bind the Pension
Plan;
NOW, THEREFORE, in consideration of the foregoing and
the mutual agreements set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Issuer, the Investment Manager and the
Pension Plan hereby agree as follows:
Section 1. Definitions. Unless otherwise defined
herein or the context otherwise requires, the following terms
shall have the respective meanings set forth below:
"Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated
thereunder.
"Agreement" has the meaning set forth in the preamble
hereto.
"Affiliate" of any specified person means any other
person that, directly or indirectly, is in control of, is
controlled by, or is under common control with, such specified
person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Business Day" means any day that the New York Stock
Exchange, Inc. is open for business.
"Commission" means the Securities and Exchange
Commission.
"Common Stock" has the meaning set forth in the first
"Whereas" clause hereto.
"ERISA" has the meaning set forth in the third
"Whereas" clause hereof.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Investment Manager" has the meaning set forth in the
preamble hereto.
"Issuer" has the meaning set forth in the preamble
hereto.
"Losses" has the meaning set forth in Section 6(d)
hereof.
"Named Fiduciary" has the meaning set forth in the
third "Whereas" clause hereto.
"Pension Plan" has the meaning set forth in the
preamble hereto.
"Prospectus" means the prospectus included in any
Registration Statement (including, without limitation, a
prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement
in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all
amendments and supplements to the Prospectus, including post-
effective amendments.
"Registrable Securities" means the Common Stock
contributed from time to time by the Issuer to the Pension Plan
and any securities issued or issuable with respect to the
contributed Common Stock in connection with any stock dividend,
stock split (forward or reverse), combination of shares,
recapitalization, merger, consolidation, redemption, exchange of
securities or other reorganization or reclassification after the
date hereof. In the event of any of the foregoing with respect
to the Registrable Securities or similar transactions affecting
the Registrable Securities, all references herein to any
designation of securities and to any specific number of shares or
Registrable Securities shall be appropriately adjusted to give
effect thereto. As to any particular Registrable Securities,
such securities will cease to be Registrable Securities when they
have been Transferred by the Pension Plan.
"Registration Statement" has the meaning set forth in
Section 3(a) hereof.
"Transfer" means any sale, transfer or other
disposition of the Registrable Securities, whether by means of a
Registration Statement hereunder or otherwise (including by way
of a private placement or sale under Rule 144 under the Act), and
"Transferred" shall have a meaning correlative to the foregoing.
"Underwriter" means any underwriter of Registrable
Securities in connection with an offering thereof under a
Registration Statement, provided, that, except with respect to
Section 6 hereof, if the Underwriters are represented by one or
more lead or managing underwriters, references herein to the
"Underwriters" shall be deemed to refer to such lead or managing
underwriter or underwriters as representatives of the several
underwriters.
"Underwritten Offering" means an offering in which the
Registrable Securities are sold to an Underwriter for reoffering
to the public or with the assistance of an Underwriter are sold
directly to the public.
Section 2. Legends on Certificates Representing
Registrable Securities.
(a) The Investment Manager acknowledges that, subject
to Section 2(b), each certificate representing the Registrable
Securities shall conspicuously bear legends in substantially the
following form:
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER ANY STATE SECURITIES LAW
AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO A REGISTRATION
RIGHTS AGREEMENT, DATED AS OF NOVEMBER 17,
1995, BY AND BETWEEN THE ISSUER OF SUCH
SECURITIES (THE "ISSUER") AND THE BANK OF NEW
YORK, AS INVESTMENT MANAGER FOR AND ON BEHALF
OF THE KODAK RETIREMENT INCOME PLAN. A COPY
OF SUCH REGISTRATION RIGHTS AGREEMENT WILL BE
FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE
HOLDER HEREOF UPON WRITTEN REQUEST."
(b) The Issuer will instruct its transfer agent that
the legends set forth in Section 2(a) shall be removed upon the
Pension Plan's Transfer of Registrable Securities if such
Transfer is made in accordance with all applicable provisions of
this Agreement and the Issuer determines that such legends are no
longer required pursuant to, or deemed necessary or appropriate
in order to effect compliance with, applicable law.
(c) The Investment Manager understands and
acknowledges that the Registrable Securities have not been
registered under the Act or any state securities law and that the
Registrable Securities are "restricted securities" within the
meaning of Rule 144 under the Act until such time as they are
Transferred pursuant to an effective Registration Statement under
the Act, or, in certain circumstances, an exemption therefrom.
(d) Notwithstanding any provision to the contrary
herein, the Investment Manager and the Issuer agree that in
exercising their respective rights and discharging their
respective obligations under this Agreement, they will comply
with the federal securities laws, ERISA, and all other
requirements of applicable law.
Section 3. Shelf Registration.
(a) The Issuer hereby agrees with respect to any
Registrable Securities that a registration statement on Form S-3
or other appropriate form pursuant to Rule 415 (or any similar
rule that may be adopted by the Commission) under the Act for the
resale of the Registrable Securities (such registration
statement, including amendments or supplements thereto, a
"Registration Statement") by the Pension Plan will be filed by
the Issuer as soon as reasonably practicable on or after the date
of the contribution (but it is the expectation of the parties
hereto that the Registration Statement will be filed no later
than November 22, 1995) and that the Issuer will use its best
efforts to cause such Registration Statement to be declared
effective by the Commission as soon as possible thereafter and
shall cause a registration statement to remain continuously
effective for so long as the Registrable Securities are held by
the Pension Plan. The Issuer shall notify the Pension Plan when
any such Registration Statement has been declared effective.
(b) If at any time, or from time to time, the
Investment Manager proposes to cause the Pension Plan to effect a
Transfer of Registrable Securities pursuant to a Registration
Statement, it shall notify the Issuer not less than two business
days prior to the commencement of the proposed Transfer (a
"Transfer Notice"). Each Transfer Notice shall specify the
proposed timetable for the Transfer.
(c) Notwithstanding anything to the contrary herein,
the Issuer may postpone the filing or effectiveness of any
Registration Statement, or suspend the use of any Prospectus
included therein, at any time if the Issuer determines, in its
reasonable judgment, that (i) appropriate financial statements
will not be available when a Transfer is proposed to be made, or
(ii) that such filing, effectiveness or proposed Transfer would
(1) materially interfere with any proposal or plan by the Issuer
or any of its Affiliates to engage in a material acquisition,
merger, consolidation, tender offer, securities offering or other
material transaction, significant work on which had commenced
prior to receipt by the Issuer of the Transfer Notice relating to
the proposed Transfer or (2) would require the Issuer to make a
public disclosure of previously non-public information. Upon
receipt by the Issuer of a Transfer Notice, the Issuer shall
promptly notify the Pension Plan of any postponement or
suspension pursuant to this paragraph. The Issuer agrees that it
will terminate any such postponement or suspension as promptly as
reasonably practicable, consistent with the consummation of such
transactions and the ripeness for and appropriateness of public
disclosure of the non-public information (as applicable), and
will promptly notify the Pension Plan of such termination. In
making any such determination to initiate or terminate a
postponement or suspension, the Issuer shall not be required to
consult with the Pension Plan or the Investment Manager and any
such determination shall be Issuer's responsibility alone, and
neither the Pension Plan nor the Investment Manager shall have
any responsibility or liability therefor.
(d) The Investment Manager agrees that it will not
cause the Pension Plan to make any transfer of Registrable
Securities pursuant to any Registration Statement other than in
accordance with the plan of distribution described therein and
that it will keep (and will cause any Underwriter or other person
acting on its behalf to keep) strictly confidential any
information provided to them in connection with the Issuer's
exercise of its rights under Section 3(c) hereof or otherwise
provided to the Investment Manager, or any person acting on its
behalf, hereunder. Nothing herein shall be construed to prevent
the Investment Manager from causing the Pension Plan to effect
any Transfer of Registrable Securities otherwise than pursuant to
a Registration Statement hereunder, provided that any such
Transfer complies with all applicable laws.
Section 4. Registration Procedures. In connection
with any Registration Statement filed in accordance with the
terms hereof, the following provisions shall apply:
(a) The Issuer shall furnish to the Investment
Manager, prior to the filing thereof with the Commission, a copy
of any Registration Statement, and each amendment thereof and
each amendment or supplement, if any, to the Prospectus included
therein and shall use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as the
Investment Manager, acting on behalf of the Pension Plan, may
reasonably propose. The Investment Manager and the Pension Plan
agree to provide to the Issuer any information that the Issuer
may reasonably request in connection with the preparation and
filing of any such Registration Statement and any amendment or
supplement thereto.
(b) The Issuer shall ensure that (i) any Registration
Statement, and any amendment and any Prospectus forming part
thereof, and any amendment or supplement thereto, complies in all
material respects with the Act and the rules and regulations
thereunder, (ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of
any Registration Statement, and any amendment or supplement to
such Prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that no
representation or agreement is made hereby with respect to
information supplied in writing for inclusion in a Registration
Statement or Prospectus by the Investment Manager or the Pension
Plan.
(c) The Issuer shall notify the Pension Plan in
writing:
(i) when a Registration Statement and any
amendment thereto has been filed with the Commission
and when a Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to any Registration Statement
or any Prospectus included therein or for additional
information;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of any
Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Issuer of any
notification with respect to the suspension of the
qualification of the Registrable Securities included in
any Registration Statement for sale in any jurisdiction
or the initiation or threatening of any proceeding for
such purpose; and
(v) of the occurrence of any event that requires
the making of any changes in any Registration Statement
or Prospectus so that, as of such date, the statements
therein are not misleading and do not omit to state a
material fact required to be stated therein or
necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under
which they were made) not misleading (in which case the
notice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite
changes have been made).
(d) The Issuer shall use its reasonable efforts to
obtain the withdrawal of any order suspending the effectiveness
of any Registration Statement at the earliest possible time.
(e) The Issuer shall furnish to the Investment Manager
and to the Underwriters, if any, named therein, such copies of
any such Registration Statement, amendment or supplement thereto,
and any Prospectus included therein (including each preliminary
Prospectus and any amendments or supplements thereto), and such
other documents as the Investment Manager or such Underwriters
(or their counsel) may reasonably request in order to facilitate
the disposition of the Registrable Securities.
(f) Prior to any offering of Registrable Securities
pursuant to any Registration Statement, the Issuer shall use its
best efforts to register or qualify such Registrable Securities
under the securities or blue sky laws of such jurisdictions as
the Investment Manager or the Underwriters, if any, shall
reasonably request and do any and all other acts or things
necessary or advisable to enable the Pension Plan to consummate
the Transfer of the Registrable Securities in such jurisdictions;
provided, however, that the Issuer will not be required to
qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action which would subject
it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(g) The Issuer shall cooperate with the Pension Plan
to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be Transferred pursuant to
any Registration Statement free of any restrictive legends and in
such denominations and registered in such names as the Investment
Manager or the Underwriters, if any, may request.
(h) Upon the occurrence of any event contemplated by
paragraph (c)(v) above, the Issuer shall promptly prepare a post-
effective amendment to any Registration Statement or an amendment
or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to purchasers
of the Registrable Securities included therein, the Prospectus
will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(i) So long as the Common Stock is listed on any U.S.
securities exchange or quoted on an automated inter-dealer
quotation system, the Issuer shall use its best efforts to cause
all of the Registrable Securities to be listed on such exchange
or quotation system.
(j) The Issuer shall, if requested, promptly include
in a Prospectus supplement or post-effective amendment to a
Registration Statement such information as the Investment Manager
and, if applicable, the Underwriters reasonably agree should be
included therein, and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as
reasonably practicable after being notified of the matters to be
included in such Prospectus supplement or post-effective
amendment.
(k) The Issuer shall enter into such agreements
(including underwriting agreements in customary form) and take
all other appropriate actions in order to expedite or facilitate
the registration or the Transfer of the Registrable Securities as
the Investment Manager or the Underwriters, if any, may
reasonably request.
(l) The Issuer shall (i) make reasonably available for
inspection by the Investment Manager and the Underwriters, if
any, participating in any Transfer pursuant to such Registration
Statement, and any attorney, accountant or other agent retained
by the Pension Plan, the Investment Manager or any such
Underwriters all relevant financial and other records, pertinent
corporate documents and properties of the Issuer and its
subsidiaries; (ii) cause the Issuer's officers, directors,
employees and independent accountants to supply all relevant
information reasonably requested by the Investment Manager or any
such Underwriter, attorney, accountant or agent in connection
with any such Registration Statement as is customary for similar
due diligence examinations; provided, however, that any
information that is designated in writing by the Issuer, in its
sole discretion, as confidential at the time of delivery of such
information shall be kept confidential by the Investment Manager,
the Pension Plan and any such Underwriter, attorney, accountant
or agent, unless disclosure thereof is made in connection with a
court proceeding or is required by law, or such information has
become available to the public generally or through a third party
without an accompanying obligation of confidentiality; (iii) make
such representations and warranties to the Pension Plan, the
Investment Manager and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to
Underwriters; (iv) obtain opinions of counsel to the Issuer and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Underwriters,
if any) addressed to the Pension Plan, the Investment Manager and
the Underwriters, if any, covering such matters as are
customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested
by the Pension Plan and such Underwriters; (v) obtain "cold
comfort" letters and updates thereof from the independent public
accountants of the Issuer (and, if necessary, any other
independent public accountants of any subsidiary of the Issuer or
of any business acquired by the Issuer for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the Pension
Plan (provided the Pension Plan furnishes the accountants with
such representations as the accountants customarily require in
similar situations), the Investment Manager and the Underwriters,
if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and (vi) deliver such documents
and certificates as may be reasonably requested by the Pension
Plan, the Investment Manager and the Underwriters, if any, and
with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Issuer. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi)
of this Section 4 (l) shall be performed at (A) the effectiveness
of such Registration Statement and each post-effective amendment
thereto and (B) each closing under any underwriting or similar
agreement as and to the extent required thereunder.
Section 5. Registration Expenses. The Issuer shall
bear all expenses incurred in connection with the performance of
its obligations under this Agreement and shall reimburse the
Pension Plan and the Investment Manager for the reasonable fees
and disbursements of one firm or counsel (which shall be
reasonably acceptable to the Issuer) designated by each of them
to act as their respective legal counsel in connection with any
Registration Statement hereunder. The Issuer shall have the
right to select the financial printer to be used in connection
with any registration of Registrable Securities hereunder.
Section 6. Indemnification and Contribution.
(a)(i) In connection with any Registration Statement,
the Issuer agrees to indemnify and hold harmless the Pension Plan
and the Investment Manager and each person who controls either of
them within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement as originally filed or in any amendment
thereof, or in any preliminary Prospectus or Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Issuer will not
be liable in any case to the extent that any such loss, claim,
damage or liability arises out of or is based upon (A) any such
untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity
with written information furnished to the Issuer by or on behalf
of the Pension Plan or any other indemnified party specifically
for inclusion therein, (B) use of a Registration Statement or the
related Prospectus during a period when a stop order has been
issued in respect of such Registration Statement or any
proceedings for that purpose have been initiated or use of a
Prospectus when use of such Prospectus has been suspended
pursuant to Section 3(d); provided, further, in each case, that
the Pension Plan or such other indemnified party received prior
notice of such stop order, initiation of proceedings or
suspension or (C) if the Pension Plan fails to deliver a
Prospectus or the then current Prospectus. This indemnity
agreement will be in addition to any liability which the Issuer
may otherwise have.
(ii) The Issuer also agrees to indemnify or contribute
to Losses, as provided in Section 6(d), of any Underwriters of
Registrable Securities under a Registration Statement, their
officers and directors and each person who controls such
Underwriters on substantially the same basis as that of the
indemnification of the Pension Plan and the Investment Manager
provided in this Section 6(a) and shall, if requested by the
Pension Plan, enter into an underwriting agreement reflecting
such agreement, as provided in Section 4 hereof.
(b) Each Underwriter (if any) shall agree to indemnify
and hold harmless the Issuer, the Investment Manager and the
Pension Plan, and each of their directors, officers, employees
and agents, and each person who controls the Issuer within the
meaning of either the Act or the Exchange Act to the same extent
as the foregoing indemnity from the Issuer, but only with
reference to written information relating to the Underwriter
furnished to the Issuer by or on behalf of such Underwriter
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition
to any liability which any such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party
under this Section 6 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 6,
notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b)
above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in
an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party; provided further, that the
indemnifying party shall not be responsible for the fees and
expenses of more than one separate counsel (together with
appropriate local counsel) representing all the indemnified
parties under paragraph (a)(i), paragraph (a)(ii) or paragraph
(b) above. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 6 is unavailable to or
insufficient to hold harmless an indemnified party for any
reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and
several obligation to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending
same) (collectively "Losses") to which such indemnified party may
be subject in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the
Registration Statement which resulted in such Losses. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also
the relative fault of such indemnifying party, on the one hand,
and such indemnified party, on the other hand, in connection with
the statements or omissions which resulted in such Losses as well
as any other relevant equitable considerations. The parties
agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions
of this paragraph (d), the aggregate contribution of the Pension
Plan hereunder shall not exceed the gross proceeds received by
the Pension Plan from the Transfer of the Registrable Securities
and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6,
each person who controls the Pension Plan within the meaning of
either the Act or the Exchange Act shall have the same rights to
contribution as the Pension Plan, and each person who controls
the Issuer within the meaning of either the Act or the Exchange
Act, and each of its directors, officers, employees and agents,
shall have the same rights to contribution as the Issuer, subject
in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 6 will remain in
full force and effect, regardless of any investigation made by or
on behalf of any indemnified party, and will survive the
termination of this Agreement and the sale by the Pension Plan of
any Registrable Securities covered by a Registration Statement
hereunder.
7. Selection of Underwriters.
The Pension Plan may sell at its option, any
Registrable Securities pursuant to an Underwritten Offering. In
any such Underwritten Offering, the Underwriters that will
participate in the offering will be selected by the Pension Plan,
provided, however, that such Underwriters must be reasonably
satisfactory to the Issuer.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer has not,
as of the date hereof, entered into nor shall it, on or after the
date hereof, enter into, any agreement that is inconsistent with
the rights granted to the Pension Plan herein or that otherwise
conflicts with the provisions hereof.
(b) Amendments and waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, qualified, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given, unless agreed to in a writing executed by the Issuer and
the Pension Plan, provided that none of the foregoing shall
affect the duties or responsibilities of the Investment Manager
without its prior written consent which shall not be unreasonably
withheld.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall, except where notice by
teleconference is specifically provided for herein, be made in
writing by hand-delivery, first-class mail, telex, telecopier, or
air courier guaranteeing overnight delivery:
(i) If to the Pension Plan, to the Investment Manager
at the following address:
The Bank of New York
One Wall Street
11th Floor
New York, New York 10286
Attention: Michael H. LaPlante, Senior Vice President
Tel: (212) 635-1577
Fax: (212) 635-1592
(ii) If to the Issuer, at the following address:
Eastman Kodak Company
343 State Street
Rochester, New York 14650-0250
Attention: The Treasurer
Tel: (716) 724-4325
Fax: (716) 724-9088
All such notices and communications shall be deemed to
have been duly given when received.
The Pension Plan or the Issuer may, by notice to the
other, designate additional or different addresses for subsequent
notices or communications.
(d) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto and their respective
directors, trustees, officers, employees, agents and controlling
persons. Except for an assignment to a successor Investment
Manager, none of the rights or obligations under this Agreement
shall be assigned by the Pension Plan without the prior written
consent of the Issuer.
(e) Counterparts. This agreement 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.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(g) Governing Law. This agreement shall be governed
by and construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be
performed in said State, without regard to such State's conflicts
of laws provisions.
(h) No Third Party Beneficiaries. This Agreement is
for the sole and exclusive benefit of the Issuer, the Pension
Plan and the Investment Manager, and to the extent set forth in
Section 5, those other persons expressly named as indemnified
parties hereunder. Nothing in this Agreement shall be construed
to give to any other person any legal or equitable right, remedy
or claim under this Agreement.
(i) Termination. Unless extended by the Issuer, this
Agreement shall terminate at such time as there are no longer any
Registrable Securities held by the Pension Plan.
(j) Cooperation. Each party hereto shall take such
further action, and execute and deliver such additional
documents, as may be reasonably requested by any other party
hereto in order to carry out the purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto, being duly
authorized, have executed and delivered this Agreement as of the
date first above written.
EASTMAN KODAK COMPANY
By: /s/ Jesse J. Greene, Jr.
--------------------------
Name: Jesse J. Greene, Jr.
Title: Treasurer
KODAK RETIREMENT INCOME PLAN
By: THE BANK OF NEW YORK, as
Investment Manager
By: /s/ Michael LaPlante
---------------------------
Name: Michael LaPlante
Title: Senior Vice President