Exhibit (1)
EASTMAN KODAK COMPANY
(a New Jersey corporation)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
September 5, 2003
From time to time, Eastman Kodak Company, a New Jersey corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time debt securities (the
"Securities") to be issued pursuant to the provisions of the Indenture dated as
of January 1, 1988 between the Company and The Bank of New York, as Trustee (the
"Trustee"), as heretofore amended by a First Supplemental Indenture dated as of
September 6, 1991, a Second Supplemental Indenture dated as of September 20,
1991, a Third Supplemental Indenture dated as of January 26, 1993 and a Fourth
Supplemental Indenture dated as of March 1, 1993, and as may hereafter be
further supplemented by supplemental indentures as provided in Article Nine of
such indenture or as modified by resolutions of the Board of Directors as
provided in Section 301 of such indenture (the indenture as so supplemented or
modified being hereinafter referred to as the "Indenture"). The Securities will
have varying designations, maturities, rates and times of payment of interest,
selling prices, redemption terms and other terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Securities and has filed with, or proposes to file with, the Commission a
prospectus supplement or supplements specifically relating to the Offered
Securities pursuant to Rule 424 under the Securities Act of 1933 (the
"Securities Act"). The term Registration Statement means the registration
statement as amended to the date of the Underwriting Agreement. The term Basic
Prospectus means the prospectus included in the Registration Statement. The term
Prospectus means the Basic Prospectus together with the prospectus supplement
(other than a preliminary prospectus supplement) specifically relating to the
Offered Securities as filed with, or proposed to be filed with, the Commission
pursuant to Rule 424. The term preliminary prospectus means a preliminary
prospectus supplement specifically relating to the Offered Securities together
with the Basic Prospectus. As used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include, in
each case, the material, if any, incorporated by reference therein.
The term Underwriters' Securities means the Offered Securities to be
purchased by the Underwriters herein. The term Manager means the firm or firms
designated as manager or managers of such Underwriters of such Offered
Securities in the underwriting agreement relating thereto which will act as
manager or managers and also refers to any Underwriters who act without any firm
being designated as manager. The term Contract Securities means the Offered
Securities, if any, to be purchased pursuant to the delayed delivery contracts
referred to below.
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II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Manager as
compensation, for the accounts of the Underwriters, the commissions set forth in
the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the Principal amount of Offered Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to make
a public offering of their respective portions of the Underwriters' Securities
as soon after this Agreement is entered into as in the Manager's judgment is
advisable. The terms of the public offering of the Underwriters' Securities are
set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made in same day funds
paid to the order of the Company at the time and place set forth in the
Underwriting Agreement, upon delivery to the Manager for the respective accounts
of the several Underwriters of the Underwriters' Securities registered in such
names and in such denominations as the Manager shall request in writing not less
than two full business days prior to the date of delivery. The time and date of
such payment and delivery with respect to the Underwriters' Securities are
herein referred to as the Closing Date.
V.
The several obligations of the Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained herein,
to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to each of the following additional
terms and conditions:
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(a) The Prospectus, as amended or supplemented with respect to the
Underwriters' Securities and any Contract Securities, shall have been filed with
the Commission pursuant to the Securities Act within the applicable time period
prescribed for such filing by the Commission; no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor any order
directed to any document incorporated by reference in the Prospectus shall have
been issued, no stop order proceeding with respect to the foregoing shall have
been initiated or threatened by the Commission and no challenge shall have been
made to the accuracy or adequacy of any document incorporated by reference in
the Prospectus; any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with; and the Company shall not have filed with the
Commission any amendment or supplement to the Registration Statement or the
Prospectus (or any document incorporated by reference therein) without the
consent of the Manager.
(b) The Manager shall not have discovered and disclosed to the Company that
the Registration Statement or the Prospectus contains an untrue statement of a
fact which, in the opinion of counsel for the Underwriters, is material or omits
to state a fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, any Delayed Delivery
Contract, the Underwriters' Securities, any Contract Securities, the Indenture,
the form of the Registration Statement, the Prospectus (other than financial
statements and other financial data) and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be satisfactory in
all respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) At the Closing Date, the Manager shall have received the opinion,
addressed to the Underwriters and dated the Closing Date, of Gary P. Van
Graafeiland, Esq., Senior Vice President and General Counsel of the Company, in
form and substance satisfactory to the Manager, to the effect that:
(i) the Company and each of its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly
qualified to conduct business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to
register or qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results
of operations of the Company and its subsidiaries taken as a whole;
(ii) except as set forth in the Prospectus, the Company has full
corporate power and authority, and all necessary governmental
authorizations,
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approvals, orders, licenses, certificates, franchises and permits of and
from all governmental regulatory officials and bodies (except where the
failure so to have any such authorizations, approvals, orders, licenses,
certificates, franchises or permits, individually or in the aggregate,
would not have a material adverse effect on the business, properties,
operations or financial condition of the Company and its subsidiaries taken
as a whole), to own its properties and to conduct its business as now being
conducted, as described in the Prospectus;
(iii) other than as described or contemplated in the Prospectus (or
any amendment or supplement thereto) or in the documents incorporated by
reference therein, there are no legal or governmental proceedings pending
or threatened against the Company or any of its subsidiaries, or to which
the Company or any of its subsidiaries, or any of their property, is
subject, which are required to be described in the Prospectus (or any
amendment or supplement thereto);
(iv) there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Prospectus (or any
amendment or supplement thereto) or in the documents incorporated by
reference therein that are not described as required;
(v) neither the Company nor any of its subsidiaries is in violation in
any material respect of any applicable law, ordinance, administrative or
governmental rule or regulation, or of any decree of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries;
(vi) there is no holder of any security of the Company who has the
right, as a result of the filing of the Prospectus, to require registration
under the Securities Act of any shares of common stock or other securities
of the Company;
(vii) the Company has the corporate power and authority necessary to
execute and deliver this Agreement and any Delayed Delivery Contract; this
Agreement and any Delayed Delivery Contract have been duly authorized,
executed and delivered by the Company, and each such agreement constitutes
the valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited by public policy considerations;
(viii) the Indenture has been duly and validly authorized, executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, and has been duly qualified under the Trust Indenture Act
of 1939 (the "Trust Indenture Act");
(ix) the Underwriters' Securities and any Contract Securities are in
the form contemplated by the Indenture and have been duly and validly
authorized by all necessary action for issuance and sale, the terms of the
Underwriters' Securities and any Contract Securities have been duly
established in accordance
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with the Indenture and this Agreement and any Delayed Delivery Contract in
a manner that does not violate any applicable law or agreement or
instrument then binding on the Company, and the Underwriters' Securities
and any Contract Securities have been duly executed and, when authenticated
as specified in the Indenture and delivered against payment therefor in
accordance with this Agreement and any Delayed Delivery Contract, will be
legal, valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms and entitled to the benefits of
the Indenture;
(x) neither the issue, offer, sale or delivery of the Underwriters'
Securities and any Contract Securities, the execution, delivery or
performance of this Agreement, any Delayed Delivery Contract or the
Indenture, compliance by the Company with the provisions hereof or thereof,
incurrence of the obligations herein or therein contemplated, nor
consummation by the Company of the transactions contemplated hereby or
thereby conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, the certificate of incorporation, by-laws or
other charter documents of the Company or any material agreement,
indenture, lease or other instrument known to such counsel to which the
Company is a party or by which it or any of its property is bound, nor will
any such action result in any violation of any existing law, regulation,
ruling (assuming compliance with all applicable state securities laws),
judgment, injunction, order, decree or regulation known to such counsel to
be applicable to the Company or any of its properties;
(xi) no consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official is required on the
part of the Company (except as have been obtained under the Securities Act
and the Securities Exchange Act of 1934 (the "Exchange Act"), and except as
may be required under state securities laws governing the purchase and
distribution of the Underwriters' Securities and any Contract Securities)
for the valid issuance and sale of the Underwriters' Securities and any
Contract Securities as contemplated by this Agreement and any Delayed
Delivery Contract;
(xii) the statements in the Prospectus and in the documents
incorporated by reference therein, insofar as they are descriptions of
contracts, agreements or other legal documents, or refer to statements of
law or legal conclusions, constitute fair summaries of the information
required to be shown;
(xiii) the Registration Statement has been declared effective by the
Commission and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the Commission;
(xiv) such counsel has no reason to believe that when it became
effective the Registration Statement, or any amendment thereof, contained
an
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untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading;
(xv) such counsel is not aware of anything that has caused such
counsel to believe that the Prospectus, at the date thereof, or any
amendment thereto or supplement thereof, or the documents incorporated by
reference therein, as of each of their respective dates, and as of the
Closing Date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and the notes thereto and
the schedules and other financial and statistical data included in the
Prospectus or included in the documents incorporated by reference therein);
(xvi) the Registration Statement, the Prospectus and the documents
incorporated by reference in the Prospectus (except that no opinion need be
expressed as to the financial statements and the notes thereto and the
schedules and other financial and statistical data contained therein)
comply as to form in all material respects with the applicable requirements
of the Securities Act;
(xvii) such counsel is not aware of any contracts or other documents
which are required to be filed as exhibits to the Registration Statement by
the Securities Act, or which are required to be filed by the Exchange Act
or the rules and regulations of the Commission thereunder as exhibits to
any document incorporated by reference in the Prospectus, which have not
been filed as exhibits to the Registration Statement or to such document or
incorporated therein by reference as permitted by the Exchange Act or the
rules and regulations of the Commission thereunder; and
(xviii) the Company is not and, after giving effect to the issue and
sale of the Underwriters' Securities and any Contract Securities, will not
be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
The opinions set forth in paragraphs (vii), (viii) and (ix) above may be
given subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and to general equitable principles, including an
implied covenant of good faith and fair dealing (regardless of whether
enforceability is considered in a proceeding in equity or at law).
The opinion shall be rendered as of the Closing Date and may state that it
shall be rendered solely for the benefit of the Underwriters, and may not be
relied upon by any other person without such counsel's prior written consent.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
New Jersey (the New Jersey Business Corporation Act only), the State of New York
or the United States, to the extent
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deemed proper and specified in such opinion, upon the opinion of other counsel
of good standing believed to be reliable and who are satisfactory to counsel for
the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and public officials.
(e) The Company shall have furnished to the Manager on the Closing
Date a certificate, dated the Closing Date, of its Chairman of the Board,
its President or any Vice President and the Controller, Treasurer or the
principal financial or accounting officer of the Company stating that:
(i) the representations, warranties and agreements of the Company
in this Agreement are true and correct on and as of the Closing Date;
the Company has complied with all its agreements contained herein; and
all the conditions on its part to be performed or satisfied as a
condition to the obligation of the Underwriters to market the
Underwriters' Securities and any Contract Securities set forth in this
Agreement have been fulfilled; and
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened; and
(iii) they have examined the Registration Statement and the
Prospectus and, to their knowledge, (A) the Registration Statement, as
of its effective date, did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
(B) the Prospectus does not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (C) since
the effective date of the Registration Statement, there has not
occurred any event required to be set forth in an amended or
supplemented Prospectus which has not been so set forth, and (D) since
the date of the most recent financial statements included or
incorporated in the Prospectus, there has been no material adverse
change in the condition (financial or otherwise), business,
properties, net worth or earnings of the Company and its subsidiaries
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth or contemplated in
the Prospectus.
(f) The Company shall have furnished to the Manager on the Closing
Date a letter of PricewaterhouseCoopers, LLP, addressed jointly to the
Company and the Underwriters and dated the Closing Date, of the type
described in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 72, in form and substance satisfactory
to the Manager, confirming that they are independent certified public
accountants within the meaning of the Securities Act and the Exchange Act.
(g) The Manager shall have received from Sidley Austin Brown & Wood
LLP, counsel to the Underwriters, such opinion or opinions, dated the
Closing Date, with
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respect to the issuance and sale of the Underwriters' Securities and any
Contract Securities, the Registration Statement, the Prospectus and other
related matters as the Manager may reasonably require and the Company shall
have furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(h) There shall not have occurred: (i) any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the
general affairs, management, stockholders' equity, business, properties,
condition (financial or other), results of operations or prospects of the
Company and its subsidiaries, taken as a whole, which, in the opinion of
the Manager, materially impairs the investment quality of the Underwriters'
Securities; (ii) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market or the establishment of minimum
prices on such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having
jurisdiction; (iii) a general moratorium on commercial banking activities
declared by Federal or New York State authorities; (iv) any downgrading in
the rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities or preferred stock of the Company (other
than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (v) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national calamity or emergency; or (vi) any material adverse change in the
existing financial, political or economic conditions in the United States,
including any effect of international conditions on the financial markets
in the United States, that in the judgment of the Manager makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Underwriters' Securities as contemplated by the
Registration Statement and the Prospectus.
(i) Prior to the Closing Date, the Company shall have furnished to the
Manager such further information, certificates, documents and opinions of
counsel for the Company relating to the business, operations and affairs of
the Company, as the Manager or counsel to the Underwriters may reasonably
request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in the form and substance satisfactory to
counsel for the Underwriters.
VI.
In further consideration of the agreements of the Underwriters contained in
this Agreement, the Company covenants and agrees as follows:
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(a) To furnish, without charge, to the Manager, one conformed copy of
the Registration Statement including exhibits and materials, if any,
incorporated by reference therein and to each other Underwriter, one
conformed copy of the Registration Statement without exhibits but including
materials, if any, incorporated by reference therein, in each case as
originally filed with the Commission, and each amendment or supplement
thereto, and, during the period mentioned in paragraph (b) below, as many
copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto as the Manager may reasonably
request. The terms "supplement' and "amendment" or "amend" as used in this
Agreement with respect to the Registration Statement or Prospectus shall
include all documents filed by the Company with the Commission subsequent
to the date of the Basic Prospectus, pursuant to the Exchange Act, which
are deemed to be incorporated by reference in the Registration Statement
and Prospectus.
(b) If, during such period after the commencement of the public
offering of the Underwriters' Securities as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be delivered with
respect thereto (the "Marketing Period"), any event shall occur as a result
of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if it is necessary to amend or to
supplement the Prospectus to comply with law, forthwith at its own expense,
to amend or to supplement the Prospectus and to furnish such amendment or
supplement to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Offered Securities may
have been sold by you on behalf of the Underwriters and to any other
dealers upon request, so as to correct such statement or omission or effect
such compliance.
(c) To timely file with the Commission prior to the completion of the
distribution of the Underwriters' Securities, all documents (and any
amendments to previously filed documents) required to be filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(d) Prior to filing with the Commission before the completion of the
distribution of the Underwriters' Securities (i) any amendment or
supplement to the Registration Statement, (ii) any amendment or supplement
to the Prospectus or (iii) any document incorporated by reference in any of
the foregoing or any amendment of or supplement to any such incorporated
document, to furnish the Manager a copy thereof.
(e) To qualify the Underwriters' Securities and any Contract
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Manager shall reasonably request and to pay all
expenses (including reasonable fees and disbursements of counsel) in
connection with such qualification and in connection with the determination
of the eligibility of such Offered Securities for investment under the laws
of such jurisdictions as the Manager may designate.
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(f) To timely file such reports pursuant to the Exchange Act as are
necessary in order to make generally available to the Company's security
holders as soon as practicable an earnings statement or statements of the
Company and its Subsidiaries (which need not be audited) for the purposes
of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(g) So long as any of the Underwriters' Securities are outstanding, to
furnish to the Manager, not later than the time the Company makes the same
available to others, copies of all public reports or releases and all
reports and financial statements furnished by the Company to any securities
exchange on which the Underwriters' Securities are listed pursuant to the
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act and the Securities Act.
(h) Without the prior written consent of the Manager, between the date
of the Underwriting Agreement and the Closing Date, not to offer or sell,
or enter into any agreement to sell, any debt securities of the Company,
other than borrowings under the Company's revolving credit agreements and
lines of credit, and issuances of the Company's commercial paper.
(i) To advise the Manager immediately during the Marketing Period (i)
when any post-effective amendment to the Registration Statement becomes
effective, (ii) of any request or proposed request by the Commission for an
amendment or supplement to the Registration Statement or to the Prospectus
or to any document incorporated by reference in the Registration Statement
or the Prospectus or for any additional information, and the Company will
afford the Manager a reasonable opportunity to comment on any such proposed
amendment or supplement, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
any part thereof or any order directed to the Prospectus or any document
incorporated therein by reference, or the initiation or threat of any stop
order proceeding or of any challenge to the accuracy or adequacy of any
document incorporated by reference in the Prospectus, (iv) of receipt by
the Company of any notification with respect to the suspension of the
qualification of the Underwriters' Securities or any Contract Securities
for sale in any jurisdiction or the initiation or threat of any proceeding
for that purpose, (v) of any downgrading in the rating of the Offered
Securities, or any other debt securities of the Company, or any proposal to
downgrade the rating of the Offered Securities or any other debt securities
of the Company, by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading of such rating), as
soon as the Company learns of any such downgrading, proposal to downgrade
or public announcement and (vi) of the happening of any event which makes
untrue any statement of a material fact made in the Registration Statement
or the Prospectus or which requires the making of a change in the
Registration Statement or the Prospectus in order to make any material
statement therein not misleading.
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(j) With respect to the events described in clauses (iii) and (iv) of
paragraph (i) above, prior to the completion of the distribution of the
Underwriters' Securities and any Contract Securities, to use promptly its
best efforts to obtain the withdrawal of such stop order or of any order
suspending the qualification of the Underwriters' Securities and any
Contract Securities.
(k) To advise the Manager in writing not later than 3:30 p.m., New
York City time, on the second business day prior to the Closing Date of the
names of any investors with which the making of Delayed Delivery Contracts
has been approved by the Company and the principal amount of any Contract
Securities to be covered by each such Delayed Delivery Contract.
(l) If the Company elects to rely upon Rule 462(b) under the
Securities Act, to file a registration statement increasing the size of the
offering (a "Rule 462(b) Registration Statement") with the Commission in
compliance with Rule 462(b) under the Securities Act by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, and to, at the time
of filing, either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Securities Act.
VII.
The Company represents and warrants to each Underwriter as of the date
hereof and as of the Closing Date that (i) each document, if any, filed or to be
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations thereunder, (ii) each
part of the registration statement (including the documents incorporated by
reference therein), when such part became effective under the Securities Act
(or, with respect to documents incorporated by reference therein, when filed
pursuant to the Exchange Act) did not contain any 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, (iii) each preliminary
prospectus, if any, filed pursuant to Rule 424 under the Securities Act complied
when so filed in all material respects with the Securities Act and the
applicable rules and regulations thereunder, (iv) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable rules
and regulations thereunder and (v) the Registration Statement and the Prospectus
do not contain and, as amended or supplemented, if applicable, will not contain
any 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, however,
that the Company makes no representation or warranty as to (A) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee and (B)
the information contained in or omitted from the Registration Statement or any
Prospectus in reliance upon and in conformity with written information furnished
to the Company by any Underwriter expressly for inclusion therein.
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VIII.
This Agreement shall be subject to termination in the absolute discretion
of the Manager, by notice given to the Company, if prior to the Closing Date
there shall have occurred (i) any change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
stockholders' equity, business, properties, condition (financial or other),
results of operations or prospects of the Company and its subsidiaries, taken as
a whole, which, in the opinion of the Manager, materially impairs the investment
quality of the Underwriters' Securities; (ii) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the over-the-counter market or the establishment
of minimum prices on such exchanges or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority having
jurisdiction; (iii) a general moratorium on commercial banking activities
declared by Federal or New York State authorities; (iv) any downgrading in the
rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities or preferred stock of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national calamity or emergency; or (vi) any
material adverse change in the existing financial, political or economic
conditions in the United States, including any effect of international
conditions on the financial markets in the United States, that in the judgment
of the Manager makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Underwriters' Securities as contemplated by the
Registration Statement and the Prospectus.
IX.
The Company will pay:
(a) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Offered Securities
under the Securities Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
preliminary prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers;
(b) the cost of printing, word processing or reproducing this
Agreement, the Indenture, any Delayed Delivery Contracts, any Blue Sky and
Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Offered Securities;
(c) all expenses in connection with the qualification of the Offered
Securities for offering and sale under state securities laws as provided in
Article VI hereof, including reasonable fees and disbursements of the
Underwriters' counsel in connection
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with such qualification and in connection with any Blue Sky and Legal
Investment Memoranda;
(d) any fees charged by securities rating services for rating the
Offered Securities;
(e) any filing fees incident to any required review by the Corporate
Financing Department of NASD Regulation, Inc. (NASDR) of the terms of the
sale of the Offered Securities;
(f) the cost of preparing the Offered Securities, including any fees
and expenses relating to the use of book-entry securities;
(g) the fees and expenses of any Trustee and any agent of any Trustee
and the fees and disbursements of counsel for any Trustee in connection
with the Indenture and the Offered Securities; and
(h) all other costs and expenses incident to the performance of its
obligations hereunder and under any Delayed Delivery Contracts which are
not otherwise specifically provided for in this Article IX. It is
understood, however, that, except as provided in this Article IX and
Article X, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Offered Securities by them, and any advertising expenses connected with any
offers they may make.
X.
(a) The Company shall indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of
the Securities Act from and against any loss, claim, damage or liability,
joint or several, and any action in respect thereof, to which such
Underwriter or controlling person may become subject, under the Securities
Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus as amended or supplemented, or
arises out of, or is 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 shall reimburse each Underwriter
and controlling person for any legal and other expenses (including
reasonable fees and disbursements of counsel) reasonably incurred by such
Underwriter or controlling person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action, including any amounts paid in settlement of any litigation,
investigation or proceeding; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement or the Prospectus as amended or supplemented in
reliance upon and in conformity with written information furnished to the
Company by such
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Underwriter specifically for inclusion therein; provided further, that as
to any preliminary prospectus filed with the Commission pursuant to Rule
424(b), this indemnity agreement shall not inure to the benefit of any
Underwriter on account of any loss, claim, damage, liability or action
arising from the sale of Offered Securities to any person by that
Underwriter if that Underwriter failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact in such preliminary prospectus was corrected in
the Prospectus, unless such failure resulted from non-compliance by the
Company with Article VI. The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have to any Underwriter or
controlling person.
(b) Each Underwriter shall indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration
Statement and any person who controls the Company within the meaning of the
Securities Act from and against any loss, claim, damage or liability, joint
or several, and any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus as amended or supplemented, or
arises out of, or is 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, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter specifically for
inclusion therein, and shall reimburse the Company or any such director,
officer or controlling person for any legal and other expenses reasonably
incurred by such indemnified party in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any of its
directors, officers or controlling persons. The Company acknowledges that
the statements set forth in the last paragraph of the cover page, under the
heading "Underwriting" and "Plan of Distribution" in any preliminary
prospectus and the Prospectus constitute the only information furnished in
writing by or on behalf of the Underwriters for inclusion in the documents
referred to in the foregoing indemnity.
(c) Promptly after receipt by an indemnified party under this Article
X of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Article X, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Article X. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein, and, to
the extent that it wishes, jointly with any other singularly
-15-
notified indemnifying party, to assume the defense thereof with counsel
satisfactory to the indemnified party; provided, however, that the
Underwriters shall have the right to employ separate counsel to represent
the Underwriters who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the Underwriters against the
Company under this Article X if, in the reasonable judgment of the
Underwriters, it is advisable for the Underwriters to be represented by
separate counsel, and in that event the reasonable fees and expenses of
such counsel shall be paid by the Company. Upon receipt of notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action and approval by the indemnified party of
counsel, the indemnifying party shall not be liable to the indemnified
party under this Article X for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation unless (i) the indemnified
party shall have employed separate counsel in connection with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Underwriters in the case of paragraph (a)
of this Article, representing the indemnified parties under such paragraph
(a) who are parties to such action), (ii) 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 commencement
of the action or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying
party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) If the indemnification provided for in this Article X shall for
any reason be unavailable to an indemnified party under paragraphs (a) or
(b) hereof in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and
-16-
any Underwriters on the other from the offering of the Offered Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and any Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and any Underwriters on the other with respect to
such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Offered Securities (before deducting
expenses) received by the Company bears to the total commissions received
by such Underwriter with respect to such offering. The relative fault shall
be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by any
Underwriter, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this paragraph (d) were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this paragraph (d) shall be deemed to include, for purposes of this
paragraph (d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this paragraph (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Offered Securities sold
through such Underwriter and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters in this paragraph (d) to contribute are several in proportion
to their respective underwriting obligations with respect to the Offered
Securities and not joint.
(e) The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Underwriters
contained in this Agreement, or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter or any person controlling such Underwriter or by or on behalf
of the Company or any person controlling the Company and shall survive
delivery of and payment for any of the Underwriters' Securities.
XI.
If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase Offered Securities which it or they have agreed to purchase
hereunder on such date, and
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the aggregate principal amount of Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the Offered Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions which the principal amount of Offered Securities set forth
opposite their names in the Underwriting Agreement pursuant to which the Offered
Securities are being purchased bear to the aggregate principal amount of Offered
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Manager may specify, to purchase the Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Offered Securities which any Underwriter has agreed to
purchase pursuant to such Underwriting Agreement be increased pursuant to this
Article XI by an amount in excess of one-ninth of such principal amount of
Offered Securities without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Offered Securities and the aggregate principal amount of Offered Securities with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Offered Securities to be purchased on such date, and
arrangements satisfactory to the Manager and the Company for the purchase of
such Offered Securities are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Manager or the Company
shall have the right to postpone the Closing Date but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement or if for any reason
the Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement, with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the Offered
Securities.
This Agreement may be executed in counterparts and the executed
counterparts shall together constitute a single instrument.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflicts of law
provisions thereof.
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Schedule I
DELAYED DELIVERY CONTRACT
, 20__
Dear Sirs:
The undersigned hereby agrees to purchase from Eastman Kodak Company, a New
Jersey corporation (the "Company"), and the Company agrees to sell to the
undersigned
$...............
principal amount of the Company's [title of issue] (the "Securities") offered by
the Company's Prospectus dated , 20__ and Prospectus Supplement
dated , 20__ receipt of copies of which are hereby acknowledged, at
a purchase price of % of the principal amount of such Securities plus
accrued interest from , 20__ [and accrued amortization, if any,
from , 20__], to the delivery date or dates thereof and on the further
terms and conditions set forth in this contract.
The undersigned does not contemplate selling Securities prior to making
payment therefor.
The undersigned will purchase from the Company the principal amounts of
Securities on the delivery dates set forth below:
Plus
Accrued
Delivery Principal Interest
Date Amount From:
-------- --------- --------
- -------------------- $ -------------------- --------------------
- -------------------- $ -------------------- --------------------
- -------------------- $ -------------------- --------------------
Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by wire transfer of
immediately available funds to a bank account specified by the Company by 10:00
A.M. (New York time) on the Delivery Date, upon delivery to the undersigned of
the Securities to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than three full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for the
Securities on the Delivery Date shall be subject to the conditions that (1) the
purchase of Securities to be made by the undersigned shall not at the time of
delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named it the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinions of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the
laws of the State of New York.
Yours very truly,
-----------------------------
Purchaser
By
---------------------------
-----------------------------
(Title)
-----------------------------
(Address)
Accepted:
EASTMAN KODAK COMPANY
By
----------------------------
Title:
-2-
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows: (Please Print.)
Telephone No.
(Including
Name Area Code) Department
---- ---------- ----------
- ---------------------- --------------------- --------------------------
- ---------------------- --------------------- --------------------------
- ---------------------- --------------------- --------------------------
- ---------------------- --------------------- --------------------------
- ---------------------- --------------------- --------------------------
- ---------------------- --------------------- --------------------------
-3-