Kodak 2011 Annual Report Download - page 569

11. Non-Solicitation of Employees or Customers
In partial consideration for the termination benefits under this letter agreement, you agree that during the two (2) year period after the termination of your
employment with Kodak, you will not directly or indirectly recruit, solicit or otherwise induce or attempt to induce any of Kodak’
s employees or
independent contractors to terminate their employment or contractual relationship with Kodak or work for you or any other entity in any capacity, or solicit
or attempt to solicit the business or patronage of any of Kodak’
s actual or prospective clients, customers, or accounts with respect to any technologies,
services, products, trade secrets, or other matters in which the Company is active.
12. Injunctive Relief
You acknowledge by accepting the benefits under this letter agreement that any breach or threatened breach by you of any term of Sections 11, 12 or 13
cannot be remedied solely by the recovery of damages or the withholding of benefits and the Company will therefore be entitled to an injunction against
such breach or threatened breach without posting any bond or other security. Nothing herein, however, will prohibit the Company from pursuing, in
connection with an injunction or otherwise, any other remedies available at law or equity for such breach or threatened breach, including the recovery of
damages.
13. Miscellaneous
A.
Confidentiality
. You will agree to keep the existence and terms and conditions of this letter agreement, including Addendum A,
confidential except that you may review it with your attorney, financial advisor and spouse/domestic partner, or with my designee or
me. Prior to any such disclosure, you agree to advise these individuals of the confidential nature of this letter agreement and the facts
giving rise to it as well as their obligations to maintain the confidentiality of this letter agreement and the facts giving rise to
it. Nonetheless, either party to this Agreement (that is, you and Kodak) may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of this transaction and all materials of any kind (including opinions or other tax analyses) that
may be provided to the party relating to tax treatment and tax structure.
B. Unenforceability
. If any portion of this letter agreement is deemed to be void or unenforceable by a court of competent jurisdiction, the
remaining portions will remain in full force and effect to the maximum extent allowed by law. The parties intend and desire that each
portion of this letter agreement be given the maximum possible effect allowed by law.
C.
Headings
. The heading of the several sections of this letter agreement have been prepared for convenience and reference only and shall
not control, affect the meaning, or be taken as the interpretation of any provision of this letter agreement.
D.
Applicable Law.
This letter agreement will be construed and governed by the laws of the State of New York, without giving effect to
principles of conflicts of laws. Disputes arising under this letter agreement will be adjudicated within the exclusive jurisdiction of a state
or federal court located in Monroe County, New York. Neither party waives any right it may have to remove such an action to the United
States Federal District Court located in Monroe County, New York.
E.
Amendment.
This letter agreement may not be changed, modified, or amended, except in a writing signed by both you and Kodak that
expressly acknowledges that it is changing, modifying or amending this letter agreement.
F.
Forfeiture.
In the event that you violate any provision of this letter agreement, including Addendum “A”,
or your Eastman Kodak
Company Executive Employee’
s Agreement, in addition to, and not in lieu of, any other remedies that Kodak may pursue against you, no
further Termination Benefits will be paid to you hereunder and you agree to immediately repay all Termination Benefits previously paid
to you pursuant to this letter agreement. In such event all other provisions of this letter agreement will remain in full force and effect as
though the breach had not occurred.
G.
At Will
. Please also keep in mind that, regardless of any provision contained in this letter to the contrary, your employment with Kodak
is
“
at will
”
.
That is, you are free to terminate your employment at any time, for any reason, and Kodak is free to do the same.
H.
Code Section 409A.
The arrangements described in this letter are intended to comply with Section 409A of the Internal Revenue Code
to the extent such arrangements are subject to that law, and shall be interpreted and administered accordingly. The parties agree that they
will negotiate in good faith regarding amendments necessary to bring the arrangements into compliance with the terms of that Section or
an exemption therefrom as interpreted by guidance issued by the Internal Revenue Service; provided, however, that Kodak may
unilaterally amend this Agreement for purposes of compliance if, in its sole discretion, Kodak determines that such amendment would not
have a material adverse effect with respect to your rights under the Agreement. The parties further agree that to the extent an arrangement
described in this letter fails to qualify for exemption from or satisfy the requirements of Section 409A, the affected arrangement may be
operated in compliance with Section 409A pending amendment to the extent authorized by the Internal Revenue Service. In such
circumstances Kodak will administer the letter in a manner which adheres as closely as reasonably possible to the existing terms and
intent of the letter while complying with Section 409A. This paragraph does not restrict Kodak’
s rights (including, without limitation, the
right to amend or terminate) with respect to arrangements described in this letter to the extent such rights are reserved under the terms of
such arrangements.
I.
Plan Documents Control
. To extent that the terms of this letter agreement relate to a compensation or benefit plan, such
terms are subject to the provisions of the applicable governing documents (such as plan documents, administrative guides
and award notices), which are subject to change.
J. Administration . All benefits provided under this agreement will be administered by the Kodak employee with the title
Corporate Secretary for Kodak (“Administrator”). The Administrator will have total and exclusive responsibility to control,
operate, manage and administer such benefits in accordance with their terms and all the authority that may be necessary or
helpful to enable him/her to discharge his/her responsibilities with respect to them. Without limiting the generality of the
preceding sentence, the Administrator will have the exclusive right to: interpret the agreement, decide all questions