Kodak 2009 Annual Report Download - page 244

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payment therefore. For Performance Awards, regardless of Section 15.6, (A) if at the time of the Change in Control more than fifty percent
(50%) of the applicable Performance Cycle has elapsed, the Performance Award granted to the Participant shall vest and Awards shall be
paid out as soon as practicable, but in no event later than ninety (90) days after the Change in Control event, in an amount equal to the
greater of (i) the target performance set out in the Performance Formula or (ii) actual performance to date, and (B) if at the time of the
Change in Control fifty percent (50%) or less of the applicable Performance Cycle has elapsed, the Performance Award granted to the
Participant shall vest and Awards shall be paid out as soon as practicable, but in no event later than ninety (90) days after the Change in
Control event, in an amount equal to fifty percent (50%) of target performance set out in the Performance Formula without consideration of
actual performance to date. Notwithstanding the foregoing, if the Award is subject to Section 409A and the treatment described by this
Section 15.3 would violate Section 409A, then the treatment described in this Section 15.3 shall not apply to the extent such treatment
would violate Section 409A unless the Change in Control event also qualifies as a Section 409A Change in Control, in which event the
treatment described in this Section 15.3 shall further apply to such Award to the extent such treatment would not violate Section 409A.
15.4 Deferred Awards
Upon a Change in Control, all Awards deferred by a Participant under Article 14 hereof, but for which he or she has not received payment
as of such date, shall be paid in a single lump-sum cash payment as soon as practicable, but in no event later than ninety (90) days after
the Change in Control. For purposes of making such payment, the value of all Awards that are equity-based shall be determined by the
Change in Control Price. Notwithstanding the foregoing, if the Award is subject to Section 409A and the treatment described by this
Section 15.4 would violate Section 409A, then the treatment described in this Section 15.4 shall not apply to the extent such treatment
would violate Section 409A unless the Change in Control event also qualifies as a Section 409A Change in Control, in which event the
treatment described in this Section 15.4 shall further apply to such Award to the extent such treatment would not violate Section 409A.
15.5 Miscellaneous
Upon a Change in Control, the provisions of Sections 12.2, 12.3, 12.4 and 16.3 hereof shall become null and void and of no further force
and effect and no action, including, but not by way of limitation, the amendment, suspension or termination of the Plan, shall be taken
which would affect the rights of any Participant or the operation of the Plan with respect to any Award to which the Participant may have
become entitled hereunder on or prior to the date of such action or as a result of such Change in Control.
15.6 Continuation of Awards
Unless otherwise determined by the Committee, upon a Change in Control pursuant to which the Surviving Company or Parent Company,
as applicable, assumes (or substitutes) all outstanding Awards (other than Performance Awards) pursuant to the terms hereof, then the
provisions of Sections 15.1 through 15.3 shall not apply to any Award; provided, however, that if the Award is subject to Section 409A and
the treatment described by this Section 15.6 would violate Section 409A, then the treatment described in this Section 15.6 shall not apply
to the extent such treatment would violate Section 409A. The Committee shall determine in its sole discretion whether an Award shall be
considered “assumed” or “substituted.” Without limiting the foregoing, for the purposes of this Article, a Stock Option or SAR shall be
considered “assumed” or “substituted” if in the reasonable determination of the Committee, (i) the aggregate intrinsic value (the difference
between the then Fair Market Value and the exercise price per share of Common Stock multiplied by the number of shares of Common
Stock subject to such award) of the assumed (or substituted) Award immediately after the Change in Control is substantially the same as
the aggregate intrinsic value of such Award immediately before such transaction, (ii) the ratio of the exercise price per assumed (or
substituted) Award to the fair market value per share of successor corporation stock immediately after the Change in Control is
substantially the same as such ratio for such Award immediately before such transaction, (iii) the Award is exercisable for the consideration
approved by the Committee (including shares of stock, other securities or property or a combination of cash, stock, securities and other
property), and (iv) the other terms and conditions of the Stock Options or SARs remain substantially the same. For the purposes of this
Article, Restricted Stock Awards and Restricted Stock Unit Awards shall be considered an assumed (or substituted) Award if in the
reasonable determination of the Committee, the value and terms and conditions of the assumed (or substituted) Award immediately after
the Change in Control are substantially the same as the value and terms and conditions of such Award immediately before such
transaction.
15.7 Termination of Employment Following a Change in Control
(a) Eligibility. Notwithstanding any provision contained in the Plan, including, but not limited to, Sections 4.4, and 12.2, the provisions
of this Section 15.7 shall control over any contrary provision. All Participants shall be eligible for the treatment afforded by this
Section 15.7 if their employment by the Company terminates within two years following a Change in Control, unless the
termination is due to (i) death, (ii) Disability, (iii) one of the following reasons (A) the willful and continued failure by the Participant
to substantially perform his or her duties with his or her employer after a written warning identifying the lack of substantial
performance is delivered to the Participant by his or her employer to specifically identify the manner in which the employer
believes that Participant has not substantially performed his or her duties, or (B) the willful engaging by the Participant in illegal
conduct which is materially and demonstrably injurious to Kodak or a Subsidiary, (iv) resignation other than (A) a resignation from
a declined reassignment to a job that is not reasonably equivalent in responsibility or compensation (as would be determined
under Kodak’s Termination Allowance Plan), or that is not in the same geographic area (as would be determined under Kodak’s
Termination Allowance Plan), or (B) a resignation within 30 days following a reduction in base pay, or (v) Retirement.