Kodak 2009 Annual Report Download - page 242

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Article 12 – Payment of Awards
12.1 In General
Absent a Plan provision to the contrary, payment of Awards may, at the discretion of the Committee, be made in cash (or equivalents),
Common Stock, or a combination of cash and Common Stock. In addition, payment of Awards may include such terms, conditions,
restrictions and/or limitations, if any, as the Committee deems appropriate, including, in the case of Awards paid in the form of Common
Stock, restrictions on transfer and forfeiture provisions; provided, however, such terms, conditions, restrictions and/or limitations are not
inconsistent with the Plan. Further, payment of Awards may be made in the form of a lump sum or installments, as determined by the
Committee, in accordance with the requirements of Section 409A, to the extent applicable.
12.2 Termination of Employment
Subject to the requirements of Section 409A, the Committee shall determine the treatment of a Participant’s Award under the Plan in the
event of the Participant’s termination of employment, either in an individual Award Notice or administrative guide, or at the time of
termination. Notwithstanding anything herein to the contrary, except as set forth in Article 15, in no event shall any Award (other than an
Award of Stock Options and/or SARs) granted to any Covered Employee that is intended to qualify as “performance-based compensation”
under Section 162(m) of the Code provide for accelerated vesting and/or payment without regard to the satisfaction of any Performance
Criteria applicable thereto upon termination of the applicable Participant’s employment for any reason other than death or Disability.
12.3 Inimical Conduct
If a Participant performs any act or engages in any activity which the CEO, in the case of an Employee or former Employee, or the
Committee, in the case of the CEO, a Director, or a former Director, determines is inimical to the best interests of the Company, the
Participant shall, effective as of the date the Participant engages in such conduct, forfeit all unexercised, unearned and/or unpaid Awards,
including, but not by way of limitation, Awards earned but not yet paid, all unpaid dividends and dividend equivalents, and all interest, if
any, accrued on the foregoing.
12.4 Breach of Employee’s Agreement
(a) In General. A Participant who engages in conduct described in Section 12.4(c) below shall immediately: (1) forfeit, effective as of
the date the Participant engages in such conduct, all unexercised, unearned, and/or unpaid Awards, including, but not by way of
limitation, Awards earned but not yet paid, all unpaid dividends and dividend equivalents, and all interest, if any, accrued on the
foregoing; and (2) pay to the Company the amount of any gain realized or payment received as a result of any Stock Option or
SAR exercised by the Participant under the Plan within the two year period immediately preceding the date the Participant
engages in such conduct.
(b) Set-Off. By accepting an Award under this Plan, a Participant consents to a deduction from any amounts the Company owes the
Participant from time to time (including, but not limited to, amounts owed to the Participant as wages or other compensation,
fringe benefits, or vacation pay), to the extent of the amounts the Participant owes the Company under Section 12.4(a). If the
Company elects to make an off-set in whole or in part, the Company will not off-set amounts owed by a Participant to the
Company against amounts subject to Section 409A that are payable by the Company until the time that payment would have
been made, except as permitted by Section 409A. Whether or not the Company elects to make any set-off in whole or in part, if
the Company does not recover by means of set-off the full amount the Participant owes the Company, the Participant shall
immediately pay the unpaid balance to the Company.
(c) Conduct. The following conduct shall result in the consequences described in Section 12.4(a):
(i) Kodak. In the case of a Participant who has signed a Kodak company employee’s agreement that has restrictive covenants
similar to those in Section (iii) below (an “Eastman Kodak Company Employee’s Agreement”), the Participant’s breach of the
Eastman Kodak Company Employee’s Agreement.
(ii) Subsidiary. In the case of a Participant who is employed by a Subsidiary and has signed a written agreement with the
Subsidiary that contains restrictive covenants similar to those in the Eastman Kodak Company Employee’s Agreement, the
Participant’s breach of such written agreement.
(iii) Other Participants. In the case of a Participant other than a Participant described in Subsection 12(c)(i) or (ii) above, the
Participant without the prior written consent of Kodak, in the case of an Employee or former Employee, or the Committee, in
the case of a Director or former Director: (A) engages directly or indirectly in any manner or capacity as principal, agent,
partner, officer, director, stockholder, employee, or otherwise, in any business or activity competitive with the business
conducted by Kodak or any Subsidiary; or (B) at any time divulges to any person or any entity other than the Company any
trade secrets, methods, processes or the proprietary or confidential information of the Company. For purposes of this Section
12.4(c)(iii), a Participant shall not be deemed a stockholder if the Participant’s record and beneficial ownership amount to not
more than 1% of the outstanding capital stock of any company subject to the periodic and other reporting requirements of the
Exchange Act.