UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
10-Q
(Mark
One)
|
|
[X]
|
QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF
1934
|
|
For
the quarterly period ended September 30, 2007
|
|
OR
|
[ ]
|
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF
1934
|
|
For
the transition period from ______________ to
______________
|
Commission
file number 1-12626
|
EASTMAN
CHEMICAL COMPANY
|
(Exact
name of registrant as specified in its
charter)
|
Delaware
|
|
62-1539359
|
(State
or other jurisdiction of
|
|
(I.R.S.
employer
|
incorporation
or organization)
|
|
identification
no.)
|
|
|
|
200
South Wilcox Drive
|
|
|
Kingsport,
Tennessee
|
|
37660
|
(Address
of principal executive offices)
|
|
(Zip
Code)
|
|
|
|
Registrant’s
telephone number, including area code: (423)
229-2000
|
Indicate
by check mark whether the registrant (1) has filed all reports required
to
be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934
during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject
to
such filing requirements for the past 90 days.
YES
[X] NO [ ]
|
|
Indicate
by check mark whether the registrant is a large accelerated filer,
an
accelerated filer, or a non-accelerated filer. See definition of
“accelerated filer and large accelerated filer” in Rule 12b-2 of the
Exchange Act. (check one);
Large
accelerated filer [X] Accelerated filer [ ] Non-accelerated
filer [ ]
|
|
Indicate
by check mark whether the registrant is a shell company (as defined
in
Rule 12b-2 of the Exchange Act) YES
[ ] NO [X]
|
Indicate
the number of shares outstanding of each of the issuer’s classes of common
stock, as of the latest practicable date.
|
Class
|
Number
of Shares Outstanding at September
30, 2007
|
Common
Stock, par value $0.01 per share
|
|
81,027,677
|
|
|
|
--------------------------------------------------------------------------------------------------------------------------------
PAGE
1 OF 53 TOTAL SEQUENTIALLY NUMBERED PAGES
EXHIBIT
INDEX ON PAGE 52
TABLE
OF CONTENTS
PART
I. FINANCIAL INFORMATION
1.
|
Financial
Statements
|
|
|
|
|
|
|
3
|
|
|
4
|
|
|
5
|
|
|
6
|
|
|
|
2.
|
|
23
|
|
|
|
3.
|
|
48
|
|
|
|
4.
|
|
48
|
PART
II. OTHER INFORMATION
SIGNATURES
COMPREHENSIVE
INCOME AND RETAINED EARNINGS
|
|
Third
Quarter
|
|
First
Nine Months
|
(Dollars
in millions, except per share amounts)
|
|
2007
|
|
2006
|
|
2007
|
|
2006
|
|
|
|
|
|
|
|
|
|
Sales
|
$
|
1,813
|
$
|
1,966
|
$
|
5,503
|
$
|
5,698
|
Cost
of sales
|
|
1,503
|
|
1,650
|
|
4,580
|
|
4,701
|
Gross
profit
|
|
310
|
|
316
|
|
923
|
|
997
|
|
|
|
|
|
|
|
|
|
Selling,
general and administrative expenses
|
|
107
|
|
105
|
|
321
|
|
316
|
Research
and development expenses
|
|
43
|
|
40
|
|
116
|
|
126
|
Asset
impairments and restructuring charges, net
|
|
120
|
|
13
|
|
143
|
|
23
|
Operating
earnings
|
|
40
|
|
158
|
|
343
|
|
532
|
|
|
|
|
|
|
|
|
|
Interest
expense, net
|
|
17
|
|
21
|
|
50
|
|
62
|
Other
(income) charges, net
|
|
(9)
|
|
1
|
|
(15)
|
|
(2)
|
Earnings
before income taxes
|
|
32
|
|
136
|
|
308
|
|
472
|
Provision
for income taxes
|
|
12
|
|
41
|
|
106
|
|
158
|
Net
earnings
|
$
|
20
|
$
|
95
|
$
|
202
|
$
|
314
|
|
|
|
|
|
|
|
|
|
Earnings
per share
|
|
|
|
|
|
|
|
|
Basic
|
$
|
0.24
|
$
|
1.16
|
$
|
2.41
|
$
|
3.84
|
Diluted
|
$
|
0.24
|
$
|
1.15
|
$
|
2.38
|
$
|
3.79
|
|
|
|
|
|
|
|
|
|
Comprehensive
Income
|
|
|
|
|
|
|
|
|
Net
earnings
|
$
|
20
|
$
|
95
|
$
|
202
|
$
|
314
|
Other
comprehensive income (loss)
|
|
|
|
|
|
|
|
|
Change
in cumulative translation adjustment
|
|
21
|
|
(8)
|
|
31
|
|
32
|
Change
in pension and other post employment benefits due to amortization,
net of
tax
|
|
22
|
|
--
|
|
18
|
|
--
|
Change
in unrealized gains (losses) on investments, net of tax
|
|
--
|
|
--
|
|
1
|
|
(1)
|
Change
in unrealized gains (losses) on derivative instruments, net of
tax
|
|
(8)
|
|
(6)
|
|
(5)
|
|
5
|
Total
other comprehensive income (loss)
|
|
35
|
|
(14)
|
|
45
|
|
36
|
Comprehensive
income
|
$
|
55
|
$
|
81
|
$
|
247
|
$
|
350
|
|
|
|
|
|
|
|
|
|
Retained
Earnings
|
|
|
|
|
|
|
|
|
Retained
earnings at beginning of period
|
$
|
2,302
|
$
|
2,070
|
$
|
2,186
|
$
|
1,923
|
Net
earnings
|
|
20
|
|
95
|
|
202
|
|
314
|
Adoption
of accounting standards
|
|
--
|
|
--
|
|
8
|
|
--
|
Cash
dividends declared
|
|
(36)
|
|
(36)
|
|
(110)
|
|
(108)
|
Retained
earnings at end of period
|
$
|
2,286
|
$
|
2,129
|
$
|
2,286
|
$
|
2,129
|
The
accompanying notes are an integral part of these consolidated financial
statements.
|
|
September
30,
|
|
December
31,
|
(Dollars
in millions, except per share amounts)
|
|
2007
|
|
2006
|
|
|
(Unaudited)
|
|
|
Assets
|
|
|
|
|
Current
assets
|
|
|
|
|
Cash
and cash equivalents
|
$
|
781
|
$
|
939
|
Trade
receivables, net of allowance of $6 and $16
|
|
596
|
|
682
|
Miscellaneous
receivables
|
|
69
|
|
72
|
Inventories
|
|
646
|
|
682
|
Other
current assets
|
|
75
|
|
47
|
Current
assets held for sale
|
|
130
|
|
--
|
Total
current assets
|
|
2,297
|
|
2,422
|
|
|
|
|
|
Properties
|
|
|
|
|
Properties
and equipment at cost
|
|
8,679
|
|
8,844
|
Less: Accumulated
depreciation
|
|
5,716
|
|
5,775
|
Net
properties
|
|
2,963
|
|
3,069
|
|
|
|
|
|
Goodwill
|
|
321
|
|
314
|
Other
noncurrent assets
|
|
309
|
|
368
|
Noncurrent
assets held for sale
|
|
55
|
|
--
|
Total
assets
|
$
|
5,945
|
$
|
6,173
|
|
|
|
|
|
Liabilities
and Stockholders’ Equity
|
|
|
|
|
Current
liabilities
|
|
|
|
|
Payables
and other current liabilities
|
$
|
975
|
$
|
1,056
|
Borrowings
due within one year
|
|
72
|
|
3
|
Current
liabilities related to assets held for sale
|
|
27
|
|
--
|
Total
current liabilities
|
|
1,074
|
|
1,059
|
|
|
|
|
|
Long-term
borrowings
|
|
1,522
|
|
1,589
|
Deferred
income tax liabilities
|
|
234
|
|
269
|
Post-employment
obligations
|
|
985
|
|
1,084
|
Other
long-term liabilities
|
|
133
|
|
143
|
Other
long-term liabilities related to assets held for sale
|
|
6
|
|
--
|
Total
liabilities
|
|
3,954
|
|
4,144
|
|
|
|
|
|
Stockholders’
equity
|
|
|
|
|
Common
stock ($0.01 par value – 350,000,000 shares authorized; shares issued –
93,576,549 and 91,579,294 for 2007 and 2006, respectively)
|
|
1
|
|
1
|
Additional
paid-in capital
|
|
564
|
|
448
|
Retained
earnings
|
|
2,286
|
|
2,186
|
Accumulated
other comprehensive loss
|
|
(129)
|
|
(174)
|
|
|
2,722
|
|
2,461
|
Less:
Treasury stock at cost (12,631,546 shares for 2007 and 8,048,442
shares
for 2006)
|
|
731
|
|
432
|
|
|
|
|
|
Total
stockholders’ equity
|
|
1,991
|
|
2,029
|
|
|
|
|
|
Total
liabilities and stockholders’ equity
|
$
|
5,945
|
$
|
6,173
|
|
|
|
|
|
The
accompanying notes are an integral part of these consolidated financial
statements.
|
|
First
Nine Months
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
|
|
|
|
|
Cash
flows from operating activities
|
|
|
|
|
Net
earnings
|
$
|
202
|
$
|
314
|
|
|
|
|
|
Adjustments
to reconcile net earnings to net cash provided by operating
activities:
|
|
|
|
|
Depreciation
and amortization
|
|
247
|
|
226
|
Gain
on sale of assets
|
|
(3)
|
|
(5)
|
Asset
impairments
|
|
138
|
|
20
|
Provision
(benefits) for deferred income taxes
|
|
(23)
|
|
49
|
Changes
in operating assets and liabilities:
|
|
|
|
|
(Increase)
decrease in receivables
|
|
22
|
|
(189)
|
(Increase)
decrease in inventories
|
|
1
|
|
(134)
|
Increase
(decrease) in trade payables
|
|
(63)
|
|
50
|
(Decrease)
in liabilities for employee benefits and incentive pay
|
|
(88)
|
|
(60)
|
Other
items, net
|
|
(22)
|
|
(38)
|
|
|
|
|
|
Net
cash provided by operating activities
|
|
411
|
|
233
|
|
|
|
|
|
Cash
flows from investing activities
|
|
|
|
|
Additions
to properties and equipment
|
|
(346)
|
|
(279)
|
Proceeds
from sale of assets and investments
|
|
43
|
|
12
|
Additions
to capitalized software
|
|
(8)
|
|
(12)
|
Other
items, net
|
|
12
|
|
--
|
|
|
|
|
|
Net
cash (used in) investing activities
|
|
(299)
|
|
(279)
|
|
|
|
|
|
Cash
flows from financing activities
|
|
|
|
|
Net
increase in commercial paper, credit facility and other
borrowings
|
|
42
|
|
33
|
Dividends
paid to stockholders
|
|
(112)
|
|
(108)
|
Treasury
stock purchases
|
|
(300)
|
|
--
|
Proceeds
from stock option exercises and other items
|
|
100
|
|
25
|
|
|
|
|
|
Net
cash (used in) financing activities
|
|
(270)
|
|
(50)
|
|
|
|
|
|
Effect
of exchange rate changes on cash and cash equivalents
|
|
--
|
|
2
|
|
|
|
|
|
Net
change in cash and cash equivalents
|
|
(158)
|
|
(94)
|
|
|
|
|
|
Cash
and cash equivalents at beginning of period
|
|
939
|
|
524
|
|
|
|
|
|
Cash
and cash equivalents at end of period
|
$
|
781
|
$
|
430
|
The
accompanying notes are an integral part of these consolidated financial
statements.
ITEM
|
Page
|
|
|
|
7
|
|
8
|
|
9
|
|
9
|
|
10
|
|
11
|
|
11
|
|
13
|
|
14
|
|
15
|
|
16
|
|
16
|
|
17
|
|
18
|
|
18
|
|
21
|
|
21
|
|
22
|
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
The
accompanying unaudited consolidated financial statements have been prepared
by
Eastman Chemical Company (the "Company" or "Eastman") in accordance and
consistent with the accounting policies stated in the Company's 2006 Annual
Report on Form 10-K, except as described below. The Company
adopted the provisions of Financial Accounting Standards Board ("FASB")
Interpretation No. 48,
Accounting for Uncertainty in Income Taxes
("FIN
48")
,
on January 1, 2007. In the opinion of the Company, all
normal recurring adjustments necessary for a fair presentation have been
included in the unaudited consolidated financial statements. The
unaudited consolidated financial statements are prepared in conformity with
generally accepted accounting principles ("GAAP") in the United States and,
of
necessity, include some amounts that are based upon management estimates and
judgments. Future actual results could differ from such current
estimates. The unaudited consolidated financial statements include
assets, liabilities, revenues and expenses of all majority-owned subsidiaries
and joint ventures. Eastman accounts for other joint ventures and
investments in minority-owned companies where it exercises significant influence
on the equity basis. Intercompany transactions and balances are
eliminated in consolidation.
The
Company has reclassified certain 2006 amounts to conform to the 2007
presentation including the reclassification of segment sales and operating
earnings. For additional information, see Note 15 to the Company's unaudited
consolidated financial statements.
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
During
the third quarter 2007, Eastman entered into definitive agreements to sell
its
polyethylene terephthalate ("PET") polymers production facilities in Mexico
and
Argentina and the related businesses. The sale, which is subject to
customary approvals, includes Eastman's PET manufacturing facilities in
Cosoleacaque, Mexico, and Zarate, Argentina. Their production capacity is
150,000 and 185,000 metric tons per year, respectively. The Company
also recorded an impairment charge of $117 million to adjust the asset values
to
the expected sales price less cost to sell, resulting from the expected fourth
quarter 2007 sale. See Note 7 for additional
information.
The
Company has concluded that the assets, businesses and product lines being sold
should not be reported as discontinued operations per Statement of Financial
Accounting Standards ("SFAS") No. 144, "Accounting for the Impairment or
Disposal of Long-Lived Assets," due to
continuing
involvement in the PET businesses in the region
.
|
|
September
30,
|
(Dollars
in millions)
|
|
2007
|
Current
assets
|
|
|
Miscellaneous
receivables
|
$
|
8
|
Trade
receivables
|
|
81
|
Inventories
|
|
41
|
Total
current assets held for sale
|
|
130
|
|
|
|
Non-current
assets
|
|
|
Properties
and Equipment, net
|
|
35
|
Other
non-current assets
|
|
20
|
Total
non-current assets held for sale
|
|
55
|
Total
assets
|
$
|
185
|
|
|
|
Current
liabilities
|
|
|
Payables
and other current liabilities, net
|
$
|
27
|
Total
current liabilities held for sale
|
|
27
|
|
|
|
Non-current
liabilities
|
|
|
Deferred
tax liability
|
|
6
|
Total
non-current liabilities held for sale
|
|
6
|
Total
liabilities
|
$
|
33
|
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
|
September
30,
|
|
December
31,
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
|
|
|
At
FIFO or average cost (approximates current cost)
|
|
|
|
Finished
goods
|
$
|
632
|
$
|
660
|
Work
in process
|
191
|
|
206
|
Raw
materials and supplies
|
304
|
|
280
|
Total
inventories
|
1,127
|
|
1,146
|
LIFO
Reserve
|
(481)
|
|
(464)
|
Inventories
before assets held for sale
|
|
646
|
|
682
|
Inventories
related to assets held for sale
(1)
|
|
41
|
|
--
|
Total
inventories
|
$
|
687
|
$
|
682
|
(1)
|
For
more information regarding assets held for sale, see Note 2 to the
Company's unaudited consolidated financial statements
.
|
Inventories
valued on the LIFO method were approximately 70% as of September 30, 2007 and
65% as of December 31, 2006 of total inventories.
|
|
September
30,
|
|
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
|
|
|
|
|
Trade
creditors
|
$
|
510
|
$
|
581
|
Accrued
payrolls, vacation, and variable-incentive compensation
|
|
125
|
|
126
|
Accrued
taxes
|
|
26
|
|
59
|
Post-employment
obligations
|
|
60
|
|
63
|
Interest
payable
|
|
26
|
|
31
|
Bank
overdrafts
|
|
64
|
|
11
|
Other
|
|
164
|
|
185
|
Payables
and other current liabilities before assets held for sale
|
|
975
|
|
1,056
|
Current
liabilities related to assets held for sale
(1)
|
|
27
|
|
--
|
Total
payables and other current liabilities
|
$
|
1,002
|
$
|
1,056
|
|
(1)
For
more information regarding assets held for sale, see Note 2 to the
Company's unaudited consolidated financial statements
.
|
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
|
Third
Quarter
|
First
Nine Months
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
2007
|
|
2006
|
|
|
|
|
|
|
|
|
Provision
for
income
taxes
|
$
|
12
|
$
|
41
|
$
|
106
|
$
|
158
|
Effective
tax rate
|
|
40
%
|
|
30
%
|
|
35
%
|
|
34
%
|
The
third
quarter and first nine months 2007 effective tax rates reflect the Company's
normal tax rate on reported operating earnings before income tax, excluding
discrete items, of approximately 34 percent. The third quarter 2007
effective tax rate was negatively impacted by tax law changes in Europe due
to
German tax law changes resulting in a reduction in the value of deferred tax
assets. The third quarter 2006 effective tax rate was positively
impacted by the reversal of foreign loss valuation allowances.
The
Company adopted the provisions of FIN 48 on January 1, 2007. As a
result of the implementation of FIN 48 and reliance on the FASB Staff Position
No. FIN 48-a, "
Definition of Settlement in FASB Interpretation No. 48
,"
the Company recognized a decrease of approximately $3 million in the liability
for unrecognized tax benefits, which was accounted for as a $8 million increase
to the January 1, 2007 balance of retained earnings and a $5 million decrease
in
long-term deferred tax liabilities. After the above decrease, the liability
for
unrecognized tax benefits was approximately $31 million, of which $26 million
would, if recognized, impact the Company's effective tax rate.
Interest
and penalties, net, related to unrecognized tax benefits are recorded as a
component of income tax expense. As of January 1, 2007 the Company
had accrued approximately $3 million for interest, net of tax benefit and had
no
accrual for tax penalties. During the third quarter and first nine
months 2007, the Company recognized an immaterial amount of interest associated
with unrecognized tax benefits.
The
Company or one of its subsidiaries files tax returns in the U.S. federal
jurisdiction, and various states and foreign jurisdictions. With few exceptions,
the Company is no longer subject to U.S. federal, state and local, or non-U.S.
income tax examinations by tax authorities for years before 2001. It is
reasonably possible that within the next 12 months the Company will recognize
approximately $2 million of unrecognized tax benefits as a result of the
expiration of relevant statutes of limitations.
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
|
|
September
30,
|
|
December
31,
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
|
|
|
|
|
Borrowings
consisted of:
|
|
|
|
|
3
1/4% notes due 2008
|
$
|
72
|
$
|
72
|
7%
notes due 2012
|
|
143
|
|
141
|
6.30%
notes due 2018
|
|
182
|
|
182
|
7
1/4% debentures due 2024
|
|
497
|
|
497
|
7
5/8% debentures due 2024
|
|
200
|
|
200
|
7.60%
debentures due 2027
|
|
298
|
|
297
|
Credit
facility borrowings
|
|
187
|
|
185
|
Other
|
|
15
|
|
18
|
Total
borrowings
|
|
1,594
|
|
1,592
|
Borrowings
due within one year
|
|
(72)
|
|
(3)
|
Long-term
borrowings
|
$
|
1,522
|
$
|
1,589
|
At
September 30, 2007, the Company has credit facilities with various U.S. and
non-U.S. banks totaling approximately $890 million. These credit facilities
consist of a $700 million revolving credit facility (the "Credit Facility"),
expiring in April 2012, and a 132 million euro credit facility which expires
in
December 2011. Both of these credit facilities have options for a one
year extension. Borrowings under these credit facilities are subject to interest
at varying spreads above quoted market rates. These credit facilities
require facility fees on the total commitment that are based on Eastman's credit
rating. In addition, these credit facilities contain a number of
covenants and events of default, including the maintenance of certain financial
ratios. The Company's combined credit facility borrowings at
September 30, 2007 and December 31, 2006 were $187 million and $185 million
at
weighted average interest rates of 4.76 percent and 4.00 percent,
respectively.
The
Credit Facility provides liquidity support for commercial paper borrowings
and
general corporate purposes. Accordingly, any outstanding commercial
paper borrowings reduce borrowings available under the Credit
Facility. Since the Credit Facility expires in April 2012, any
commercial paper borrowings supported by the Credit Facility are classified
as
long-term borrowings because the Company has the ability to refinance such
borrowings on a long-term basis.
At
September 30, 2007 and December 31, 2006, the Company had outstanding interest
rate swaps associated with the entire outstanding principal of the 7% notes
due
in 2012 and $150 million of the outstanding principal of the 6.30% notes due
in
2018. The average variable interest rate on the 7% notes was 7.66
percent and 7.89 percent for September 30, 2007 and December 31, 2006,
respectively. The average variable interest rate on the 6.30% notes
was 6.06 percent and 6.30 percent for September 30, 2007 and December 31, 2006,
respectively.
In
the
third quarter 2007 and first nine months 2007, asset impairments and
restructuring charges totaled $120 million and $143 million, respectively,
related primarily to the impairment of assets of Eastman's PET manufacturing
facilities in Cosoleacaque, Mexico, and Zarate, Argentina which were classified
as held for sale in the third quarter 2007. The Company impaired the
assets of these facilities in third quarter 2007 to adjust the asset values
to
the expected sales price less cost to sell. These charges were reflected in
the
Performance Polymers segment. Also in third quarter 2007, the Company
adjusted the severance accrual recorded in fourth quarter 2006 which resulted
in
a reversal which was reflected in all segments.
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
In
first
quarter 2007, the Company impaired the assets of the San Roque, Spain PET
manufacturing facility which was sold in second quarter 2007 to adjust the
asset
values to the sales price less cost to sell and also recorded a charge to
shut
down the facility. The impairment was partially offset by the
reversal of the $5 million severance accrual related to the fourth quarter
2006
shut down of the cyclohexane dimethanol ("CHDM") manufacturing facility,
located
adjacent to the PET manufacturing facility. The employees included in the
CHDM
severance accrual were employed by the purchaser of the San Roque, Spain
PET
manufacturing facility, relieving the Company of the severance
obligation. These charges were reflected in the Performance Polymers
and the Specialty Plastics ("SP") segments.
In
the
third quarter and first nine months 2006, asset impairments and restructuring
charges totaled $13 million and $23 million, respectively, relating primarily
to
previously closed manufacturing facilities.
Changes
in Reserves for Asset Impairments, Restructuring Charges, and Severance
Charges
The
following table summarizes the beginning reserves, charges to and changes in
estimates to the reserves and the cash and non-cash reductions to the reserves
attributable to asset impairments and the cash payments for severance and site
closure costs for the full year 2006 and the first nine months
2007:
(Dollars
in millions)
|
|
Balance
at
January
1, 2006
|
|
Provision/
Adjustments
|
|
Non-cash
Reductions
|
|
Cash
Reductions
|
|
Balance
at
December
31, 2006
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash
charges
|
$
|
--
|
$
|
62
|
$
|
(62)
|
$
|
--
|
$
|
--
|
Severance
costs
|
|
3
|
|
32
|
|
--
|
|
(1)
|
|
34
|
Site
closure and other restructuring costs
|
|
7
|
|
7
|
|
--
|
|
--
|
|
14
|
Total
|
$
|
10
|
$
|
101
|
$
|
(62)
|
$
|
(1)
|
$
|
48
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance
at
January
1, 2007
|
|
Provision/
Adjustments
|
|
Non-cash
Reductions
|
|
Cash
Reductions
|
|
Balance
at
September
30, 2007
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash
charges
|
$
|
--
|
$
|
143
|
$
|
(143)
|
$
|
--
|
$
|
--
|
Severance
costs
|
|
34
|
|
(7)
|
|
--
|
|
(12)
|
|
15
|
Site
closure and other restructuring costs
|
|
14
|
|
7
|
|
--
|
|
(6)
|
|
15
|
Total
|
$
|
48
|
$
|
143
|
$
|
(143)
|
$
|
(18)
|
$
|
30
|
A
majority of the remaining severance is expected to be applied to the
reserves within one year.
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
DEFINED
BENEFIT PENSION PLANS
Eastman
maintains defined benefit plans that provide eligible employees with retirement
benefits. Costs recognized for these benefits are recorded using
estimated amounts, which may change as actual costs derived for the year are
determined.
Below
is
a summary of the components of net periodic benefit cost recognized for
Eastman's significant defined benefit pension plans:
Summary
of Components of Net Periodic Benefit Costs
|
|
|
|
|
|
|
Third
Quarter
|
|
First
Nine Months
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
|
2007
|
|
2006
|
|
|
|
|
|
|
|
|
|
Service
cost
|
$
|
12
|
$
|
11
|
$
|
36
|
$
|
33
|
Interest
cost
|
|
23
|
|
21
|
|
68
|
|
61
|
Expected
return on assets
|
|
(26)
|
|
(21)
|
|
(78)
|
|
(65)
|
Amortization
of:
|
|
|
|
|
|
|
|
|
Prior
service credit
|
|
(2)
|
|
(3)
|
|
(6)
|
|
(7)
|
Actuarial
loss
|
|
8
|
|
9
|
|
25
|
|
28
|
Other
loss
|
|
4
|
|
--
|
|
4
|
|
--
|
Net
periodic benefit cost
|
$
|
19
|
$
|
17
|
$
|
49
|
$
|
50
|
In
July
2006, the Company announced plans to change the U.S. defined benefit plans
such
that employees hired on or after January 1, 2007 will not be eligible for those
plans. This change did not impact net periodic benefit cost in 2006
and had minimal impact on the financial statements in the first nine months
2007.
The
Company contributed $100 million and $75 million to its U.S. defined benefit
plans during first nine months 2007 and 2006, respectively.
POSTRETIREMENT
WELFARE PLANS
Eastman
provides life insurance and health care benefits for eligible retirees, and
health care benefits for retirees' eligible survivors. In general,
Eastman provides those benefits to retirees eligible under the Company's U.S.
defined benefit pension plans. A few of the Company's non-U.S.
operations have supplemental health benefit plans for certain retirees, the
cost
of which is not significant to the Company. Costs recognized for
these benefits are recorded using estimated amounts, which may change as actual
costs derived for the year are determined. Below is a summary of the
components of net periodic benefit cost recognized for the Company’s U.S.
postretirement welfare plans:
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
|
|
|
|
|
|
Summary
of Components of Net Periodic Benefit Costs
|
|
|
|
|
|
|
Third
Quarter
|
|
First
Nine Months
|
|
|
2007
|
|
|
|
2007
|
|
2006
|
|
|
|
|
|
|
|
|
|
Service
cost
|
$
|
1
|
$
|
2
|
$
|
5
|
$
|
6
|
Interest
cost
|
|
11
|
|
10
|
|
32
|
|
31
|
Expected
return on assets
|
|
(1)
|
|
--
|
|
(2)
|
|
--
|
Amortization
of:
|
|
|
|
|
|
|
|
|
Prior
service credit
|
|
(6)
|
|
(5)
|
|
(17)
|
|
(17)
|
Actuarial
loss
|
|
3
|
|
3
|
|
9
|
|
11
|
Net
periodic benefit cost
|
$
|
8
|
$
|
10
|
$
|
27
|
$
|
31
|
Similar
benefits are also provided to retirees of Holston Defense Corporation (“HDC”), a
wholly-owned subsidiary of the Company that, prior to January 1, 1999, operated
a government-owned ammunitions plant. HDC’s contract with the
Department of Army (“DOA”) provided for reimbursement of allowable costs
incurred by HDC including certain postretirement welfare costs, for as long
as
HDC operated the plant. After the contract was terminated at the end
of 1998, the DOA did not contribute further to these costs. The
Company pursued extraordinary relief from the DOA and was granted an award
in
the amount of $95 million effective in the fourth quarter 2006. This
award was for reimbursement of the described costs and other previously expensed
post-retirement benefit costs. The Company began recognizing the
impact of the reimbursement in fourth quarter 2006 by recording an unrecognized
gain and amortizing the gain into earnings over a period of time.
In
July
2006, the Company announced plans to change its U.S. life insurance and health
care benefit plans such that employees hired on or after January 1, 2007 will
have access to post-retirement health care benefits only, while Eastman will
not
provide a company contribution toward the premium cost of post-retirement
benefits for those employees. This change had minimal impact on the
financial statements in the first nine months 2007.
Certain
Eastman manufacturing sites generate hazardous and nonhazardous wastes, the
treatment, storage, transportation, and disposal of which are regulated by
various governmental agencies. In connection with the cleanup of
various hazardous waste sites, the Company, along with many other entities,
has
been designated a potentially responsible party ("PRP"), by the U.S.
Environmental Protection Agency under the Comprehensive Environmental Response,
Compensation and Liability Act, which potentially subjects PRPs to joint and
several liability for such cleanup costs. In addition, the Company
will be responsible for costs for environmental remediation and closure and
postclosure under the federal Resource Conservation and Recovery
Act. Reserves for environmental contingencies have been established
in accordance with Eastman’s policies described in Note 1, "Significant
Accounting Policies" in the Company's 2006 Annual Report on Form
10-K. Because of expected sharing of costs, the availability of legal
defenses, and the Company’s preliminary assessment of actions that may be
required, management does not believe that the Company's liability for these
environmental matters, individually or in the aggregate, will be material to
the
Company’s consolidated financial position, results of operations or cash
flows. The Company’s reserve for environmental contingencies was $43
million and $47 million at September 30, 2007 and December 31, 2006,
respectively, representing the minimum or best estimate for remediation costs
and the best estimate accrued to date over the facilities' estimated useful
lives for asset retirement obligation costs. Estimated future
environmental expenditures for remediation costs range from the minimum or
best
estimate of $14 million to the maximum of $20 million at September 30, 2007
and
the minimum or best estimate of $18 million to the maximum of $32 million at
December 31, 2006.
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
Purchase
Obligations and Lease Commitments
At
September 30, 2007, the Company had various purchase obligations totaling
approximately $2.2 billion over a period of approximately 15 years for
materials, supplies, and energy incident to the ordinary conduct of
business. The Company also had various lease commitments for property
and equipment under cancelable, non-cancelable, and month-to-month operating
leases totaling approximately $200 million over a period of several
years. Of the total lease commitments, approximately 10 percent
relate to machinery and equipment, including computer and communications
equipment and production equipment; approximately 55 percent relate to real
property, including office space, storage facilities and land; and approximately
35 percent relate to vehicles, primarily railcars.
Accounts
Receivable Securitization Program
In
1999,
the Company entered into an agreement that allows the Company to sell certain
domestic accounts receivable under a planned continuous sale program to a third
party. The agreement permits the sale of undivided interests in
domestic trade accounts receivable. Receivables sold to the third
party totaled $200 million at September 30, 2007 and December 31,
2006. Undivided interests in designated receivable pools were sold to
the purchaser with recourse limited to the purchased interest in the receivable
pools. Average monthly proceeds from collections reinvested in the
continuous sale program were approximately $320 million and $334 million in
the
third quarter 2007 and 2006, respectively, and $308 million and $323 million
for
the first nine months of 2007 and 2006, respectively.
Guarantees
FASB
Interpretation No. 45, “Guarantor’s Accounting and Disclosure Requirements for
Guarantees, Including Indirect Guarantees of Indebtedness of Others" ("FIN
45"),
clarifies the requirements of Statement of Financial Accounting Standards
No. 5, “Accounting for Contingencies,” relating to the guarantor’s
accounting for, and disclosure of, the issuance of certain types of
guarantees. If certain operating leases are terminated by the
Company, it guarantees a portion of the residual value loss, if any, incurred
by
the lessors in disposing of the related assets. Under these operating
leases, the residual value guarantees at September 30, 2007
totaled $153 million
and
consisted primarily of leases for railcars, aircraft, and other
equipment. Leases with guarantee amounts totaling $2 million, $27
million, $9 million and $115 million will expire in 2007, 2008, 2011 and 2012,
respectively. The Company believes, based on current facts and
circumstances, that the likelihood of a material payment pursuant to such
guarantees is remote.
Variable
Interest Entities
The
Company has evaluated material relationships including the guarantees related
to
the third-party borrowings of joint ventures and has concluded that the entities
are not Variable Interest Entities (“VIEs”) or, in the case of Primester, a
joint venture that manufactures cellulose acetate at the Company's Kingsport,
Tennessee plant, the Company is not the primary beneficiary of the
VIE. As such, in accordance with FASB Interpretation No. 46R
"Consolidation of Variable Interest Entities" ("FIN 46R"), the Company is not
required to consolidate these entities. In addition, the Company has
evaluated long-term purchase obligations with two entities that may be VIEs
at
September 30, 2007. These potential VIEs are joint ventures from
which the Company has purchased raw materials and utilities for several years
and purchases approximately $70 million of raw materials and utilities on an
annual basis. The Company has no equity interest in these entities
and has confirmed that one party to each of these joint ventures does
consolidate the potential VIE. However, due to competitive and other
reasons, the Company has not been able to obtain the necessary financial
information to determine whether the entities are VIEs, and if one or both
are
VIEs, whether or not the Company is the primary beneficiary.
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
Hedging
Programs
Financial
instruments held as part of the hedging programs described below are recorded
at
fair value based upon comparable market transactions as quoted by
brokers.
The
Company is exposed to market risk, such as changes in currency exchange rates,
raw material and energy costs and interest rates. The Company uses
various derivative financial instruments pursuant to the Company's hedging
policies to mitigate these market risk factors and their effect on the cash
flows of the underlying transactions. Designation is performed on a specific
exposure basis to support hedge accounting. The changes in fair value
of these hedging instruments are offset in part or in whole by corresponding
changes in the cash flows of the underlying exposures being
hedged. The Company does not hold or issue derivative financial
instruments for trading purposes. For further information, see Note 9 to the
consolidated financial statements in Part II, Item 8 of the Company's 2006
Annual Report on Form 10-K.
At
September 30, 2007, mark-to-market gains from raw material and energy, currency
and certain interest rate hedges that were included in accumulated other
comprehensive loss totaled approximately $11 million, and if realized, the
majority will be reclassified into earnings during the next 12
months. The mark-to-market gains or losses on non-qualifying,
excluded and ineffective portions of hedges are immediately recognized in cost
of sales or other income and charges. Such amounts did not have a
material impact on earnings during the third quarter of 2007.
A
reconciliation of the changes in stockholders’ equity for the first nine months
2007 is provided below:
(Dollars
in millions)
|
Common
Stock at Par Value
|
Paid-in
Capital
|
Retained
Earnings
|
Accumulated
Other Comprehensive Income (Loss)
|
Treasury
Stock at Cost
|
Total
Stockholders' Equity
|
Balance
at December 31, 2006
|
1
|
448
|
2,186
|
(174)
|
(432)
|
2,029
|
|
|
|
|
|
|
|
Net
Earnings
|
--
|
--
|
202
|
--
|
--
|
202
|
Effect
of FIN 48 Adoption
|
--
|
--
|
8
|
--
|
--
|
8
|
Cash
Dividends Declared
(1)
|
--
|
--
|
(110)
|
--
|
--
|
(110)
|
Other
Comprehensive Income
|
--
|
--
|
--
|
45
|
--
|
45
|
Stock
Option Exercises and Other Items
(2)(3)
|
--
|
116
|
--
|
--
|
1
|
117
|
Stock
Repurchases
|
--
|
--
|
--
|
--
|
(300)
|
(300)
|
Balance
at September 30, 2007
|
1
|
564
|
2,286
|
(129)
|
(731)
|
1,991
|
|
(1)
Includes
cash dividends paid and dividends declared but
unpaid.
|
|
(2)
The
tax benefits relating to the difference between the amounts deductible
for
federal income taxes over the amounts charged to income for financial
reporting purposes have been credited to paid-in
capital.
|
|
(3)
Includes the fair value of equity share-based awards
recognized under SFAS No. 123 Revised December 2004 ("SFAS No. 123(R)"),
"Share-Based Payment".
|
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
ACCUMULATED
OTHER COMPREHENSIVE INCOME (LOSS)
(Dollars
in millions)
|
Cumulative
Translation Adjustment
|
Unfunded
Additional
Minimum
Pension Liability
|
Unrecognized
Loss and Prior Service Cost, net of taxes
|
Unrealized
Gains (Losses) on Cash Flow Hedges
|
Unrealized
Losses on Investments
|
Accumulated
Other Comprehensive Income (Loss)
|
Balance
at December 31, 2005
|
61
|
(255)
|
--
|
(5)
|
(1)
|
(200)
|
Period
change
|
60
|
48
|
--
|
(1)
|
--
|
107
|
Pre-SFAS
No. 158
(1)
balance at
December 31, 2006
|
121
|
(207)
|
--
|
(6)
|
(1)
|
(93)
|
Adjustments
to apply SFAS No. 158
|
--
|
207
|
(288)
|
--
|
--
|
(81)
|
Balance
at December 31, 2006
|
121
|
--
|
(288)
|
(6)
|
(1)
|
(174)
|
Period
change
|
31
|
--
|
18
|
(5)
|
1
|
45
|
Balance
at September 30, 2007
|
152
|
--
|
(270)
|
(11)
|
--
|
(129)
|
|
(1)
SFAS
No. 158, "Employers' Accounting for Defined Benefit Pension and Other
Postretirement Plans" ("SFAS No.
158").
|
Except
for cumulative translation adjustment, amounts of other comprehensive loss
are
presented net of applicable taxes. Because cumulative translation
adjustment is considered a component of permanently invested unremitted earnings
of subsidiaries outside the United States, no taxes are provided on such
amounts.
|
Third
Quarter
|
|
First
Nine Months
|
|
2007
|
|
2006
|
|
2007
|
|
2006
|
|
|
|
|
|
|
|
|
Shares
used for earnings per share calculation:
|
|
|
|
|
|
|
|
Basic
|
82.6
|
|
82.1
|
|
83.6
|
|
81.8
|
Diluted
|
83.6
|
|
83.1
|
|
84.6
|
|
82.8
|
In
the
third quarter and first nine months 2007, common shares underlying options
to
purchase 20,000 shares of common stock and 591,233 shares of common stock,
respectively, were excluded from the computation of diluted earnings per share,
because the total market value of option exercises for these awards was less
than the total proceeds that would be received for these
awards. Additionally, the basic and diluted shares were reduced in
third quarter and first nine months 2007 as a result of the share repurchase
program completed in third quarter 2007. For third quarter and first
nine months 2007, a total of 3,231,348 shares and 4,601,448 shares,
respectively, were repurchased.
In
the
third quarter and first nine months 2006, common shares underlying options
to
purchase 2,193,779 shares of common stock for both periods were excluded from
the computation of diluted earnings per share because, the total market value
of
option exercises for these awards was less than the total proceeds that would
be
received for these awards.
The
Company declared cash dividends of $0.44 per share in the third quarters 2007
and 2006 and $1.32 per share in the first nine months 2007 and
2006.
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
In
the
third quarter and first nine months 2007, approximately $5 million and $18
million, respectively, of compensation expense before tax was recognized in
selling, general and administrative expense in the earnings statement for all
share-based awards. The impact on third quarter 2007 net earnings of $3 million
is net of a $2 million credit to deferred tax expense for recognition of
deferred tax assets. The impact on the first nine months 2007 net
earnings of $11 million is net of a $7 million credit to deferred tax expense
for recognition of deferred tax assets.
In
the
third quarter and first nine months 2006, approximately $4 million and $15
million, respectively, of compensation expense before tax was recognized in
selling, general and administrative expense in the earnings statement for all
share-based awards of which approximately $2 million and $6 million related
to
stock options in the third quarter and the first nine months 2006,
respectively. The impact on third quarter 2006 net earnings of $2
million is net of a $2 million credit to deferred tax expense for recognition
of
deferred tax assets. The impact on the first nine months 2006 net
earnings of $9 million is net of a $6 million credit to deferred tax expense
for
recognition of deferred tax assets.
Additional
information regarding share-based compensation may be found in Note 15 to the
consolidated financial statements in Part II, Item 8 of the Company's 2006
Annual Report on Form 10-K.
Stockholders
approved the 2007 Omnibus Long-Term Compensation Plan at the annual
stockholders' meeting held on May 3, 2007. This new plan, effective
with the date of approval, replaces the 2002 Omnibus Long-Term Compensation
Plan.
The
Company's products and operations are managed and reported in five reportable
operating segments, consisting of the Coatings, Adhesives, Specialty Polymers
and Inks ("CASPI") segment, the Fibers segment, the Performance Chemicals and
Intermediates ("PCI") segment, the Performance Polymers segment and the SP
segment. For additional information concerning the Company's
segments' businesses and products, refer to Note 21 to the consolidated
financial statements in Part II, Item 8 of the Company's 2006 Annual Report
on
Form 10-K.
Revenues,
research and development, other expenses and assets not identifiable to an
operating segment are not included in segment operating results for either
of
the periods presented and are shown in the tables below as "other" revenues,
operating losses and assets.
In
fourth
quarter 2006, certain product lines were transferred from the PCI segment to
the
Performance Polymers segment. Accordingly, the 2006 amounts for sales
and operating earnings have been adjusted to retrospectively apply these changes
to all periods presented.
|
|
Third
Quarter
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
Sales
by Segment
|
|
|
|
|
CASPI
|
$
|
368
|
$
|
367
|
Fibers
|
|
258
|
|
228
|
PCI
|
|
509
|
|
437
|
Performance
Polymers
|
|
461
|
|
727
|
SP
|
|
217
|
|
207
|
Total
Sales by Segment
|
|
1,813
|
|
1,966
|
Other
|
|
--
|
|
--
|
|
|
|
|
|
Total
Sales
|
$
|
1,813
|
$
|
1,966
|
|
|
|
|
|
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
|
|
First
Nine Months
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
Sales
by Segment
|
|
|
|
|
CASPI
|
$
|
1,089
|
$
|
1,078
|
Fibers
|
|
731
|
|
696
|
PCI
|
|
1,559
|
|
1,260
|
Performance
Polymers
|
|
1,480
|
|
2,068
|
SP
|
|
644
|
|
596
|
Total
Sales by Segment
|
|
5,503
|
|
5,698
|
Other
|
|
--
|
|
--
|
|
|
|
|
|
Total
Sales
|
$
|
5,503
|
$
|
5,698
|
|
|
|
|
|
|
|
Third
quarter
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
|
|
|
|
|
Operating
Earnings (Loss)
|
|
|
|
|
CASPI
(1)
|
$
|
59
|
$
|
53
|
Fibers
|
|
66
|
|
55
|
PCI
(1)
|
|
50
|
|
22
|
Performance
Polymers
(1)
|
|
(134)
|
|
20
|
SP
(1)
|
|
13
|
|
18
|
Total
Operating Earnings (Loss) by Segment
|
|
54
|
|
168
|
Other
|
|
(14)
|
|
(10)
|
|
|
|
|
|
Total
Operating Earnings (Loss)
|
$
|
40
|
$
|
158
|
|
(1)
Operating
earnings (loss) for the following segments include asset impairments
and
restructuring charges: CASPI includes $(1) million in the third
quarter 2007 related primarily to an adjustment to severance charges
recorded in fourth quarter 2006; PCI includes $(1) million in the
third
quarter 2007 related primarily to an adjustment to severance charges
recorded in fourth quarter 2006 and $11 million in the third quarter
2006
for the expected divestiture of the Arkansas facility; Performance
Polymers includes $120 million in the third quarter of 2007 relating
primarily to the divestiture of PET assets in Latin America; and
Other
includes $2 million in the third quarter 2007 related to an intangible
asset impairment and $2 million in third quarter 2006 for
Cendian's shutdown of its business activities. Operating
earnings (loss) for the third quarter 2007 in the PCI and Performance
Polymers segments also include $2 million and $7 million, respectively,
in
accelerated depreciation costs related to cracking units at the Company's
Longview, Texas facility and polymer assets in Columbia, South
Carolina.
|
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
|
|
First
Nine Months
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
|
|
|
|
|
Operating
Earnings (Loss)
|
|
|
|
|
CASPI
(1)
|
$
|
190
|
$
|
176
|
Fibers
|
|
176
|
|
182
|
PCI
(1)
|
|
161
|
|
108
|
Performance
Polymers
(1)
|
|
(198)
|
|
51
|
SP
(1)
|
|
49
|
|
50
|
Total
Operating Earnings (Loss) by Segment
|
|
378
|
|
567
|
Other
|
|
(35)
|
|
(35)
|
|
|
|
|
|
Total
Operating Earnings (Loss)
|
$
|
343
|
$
|
532
|
(1)
|
Operating
earnings (loss) for the following segments include asset impairments
and
restructuring charges: CASPI includes $(1) million in the first
nine months 2007 related primarily to an adjustment to severance
charges
recorded in fourth quarter 2006 and $8 million in first nine months
2006
relating primarily to the divestiture of previously closed manufacturing
facilities; PCI includes $(1) million in the first nine months 2007
related primarily to an adjustment to severance charges recorded
in fourth
quarter 2006 and $11 million in the first nine months 2006 for the
expected divestiture of the Arkansas facility; Performance Polymers
includes $142 million in the first nine months 2007 related to the
divestiture of PET assets in Latin America and Europe; SP includes
$1
million in the first nine months 2007 relating primarily to the San
Roque,
Spain CHDM facility; and Other includes $2 million in first nine
months
2007 related to an intangible asset impairment and $4 million in
the first
nine months 2006 for Cendian's shutdown of its business activities.
Operating earnings (loss) for the first nine months 2007 in the PCI,
Performance Polymers and SP segments also include $16 million, $20
million
and $1 million, respectively, in accelerated depreciation costs related
to
cracking units at the Company's Longview, Texas facility and polymer
assets in Columbia, South Carolina.
|
|
|
September
30,
|
|
December
31,
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
|
|
|
|
|
Assets
by Segment
(1)
|
|
|
|
|
CASPI
|
$
|
1,118
|
$
|
1,078
|
Fibers
|
|
680
|
|
651
|
PCI
|
|
1,080
|
|
926
|
Performance
Polymers
(2)
|
|
972
|
|
1,480
|
SP
|
|
622
|
|
599
|
Total
Assets by Segment
|
|
4,472
|
|
4,734
|
Other
|
|
25
|
|
13
|
Corporate
Assets
|
|
1,263
|
|
1,426
|
Total
Assets Before Assets Held for Sale
|
|
5,760
|
|
6,173
|
Assets
Held for Sale
(3)
|
|
185
|
|
--
|
Total
Assets
|
$
|
5,945
|
$
|
6,173
|
(1)
|
Assets
managed by segments include accounts receivable, inventory, fixed
assets
and goodwill.
|
(2)
|
The
Performance Polymers assets have decreased as a result of asset
impairments, divestitures in Europe and assets held for sale in Latin
America.
|
(3)
|
For
more information regarding assets held for sale, see Note 2 to the
Company's unaudited consolidated financial statements
.
|
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
General
From
time
to time, the Company and its operations are parties to, or targets of, lawsuits,
claims, investigations and proceedings, including product liability, personal
injury, asbestos, patent and intellectual property, commercial, contract,
environmental, antitrust, health and safety, and employment matters, which
are
being handled and defended in the ordinary course of business. While
the Company is unable to predict the outcome of these matters, it does not
believe, based upon currently available facts, that the ultimate resolution
of
any such pending matters, including the sorbates litigation and the asbestos
litigation (described below), will have a material adverse effect on its overall
financial condition, results of operations or cash flows. However,
adverse developments could negatively impact
earnings
or cash flows in a particular future period.
Sorbates
Litigation
Over
time, the Company has been named in several putative class action lawsuits
filed
on behalf of purchasers of sorbates and products containing sorbates, claiming
those purchasers paid more for sorbates and for products containing sorbates
than they would have paid in the absence of the defendants’ price-fixing. Two
civil cases relating to sorbates remain. In each case, the Company
prevailed at the trial court, and in each case, the plaintiff appealed the
trial
court's decision. In one case, the appellate court affirmed the trial
court's dismissal of all claims, except the plaintiff's claim for civil
penalties. In the other case, the court of appeals overturned the
trial court's decision and ruled that the plaintiff could amend and re-file
its
complaint with the trial court. The Company appealed this decision to
the state supreme court, which declined to review the
decision. Accordingly, the plaintiff filed its Second Amended
Complaint on July 9, 2007. In each case the Company intends to
continue to vigorously defend its position.
Asbestos
Litigation
Over
the
years, Eastman has been named as a defendant, along with numerous other
defendants, in lawsuits in various state courts in which plaintiffs have alleged
injury due to exposure to asbestos at Eastman’s manufacturing
sites. More recently, certain plaintiffs have claimed exposure to an
asbestos-containing plastic, which Eastman manufactured in limited amounts
between the mid-1960’s and the early 1970’s.
To
date,
the Company has obtained dismissals or settlements of its asbestos-related
lawsuits with no material effect on its financial condition, results of
operations or cash flows, and over the past several years, has substantially
reduced its number of pending asbestos-related claims. The Company
has also confirmed insurance coverage that applies to a portion of certain
of
the Company’s defense costs and payments of settlements or judgments in
connection with asbestos-related lawsuits.
Based
on
an ongoing evaluation, the Company believes that the resolution of its pending
asbestos claims will not have a material impact on the Company’s financial
condition, results of operations, or cash flows, although these matters could
result in the Company being subject to monetary damages, costs or expenses,
and
charges against earnings in particular periods.
In
September 2006, the FASB issued SFAS No. 157, "Fair Value Measurements," ("SFAS
No. 157") which addresses the measurement of fair value by companies when they
are required to use a fair value measure for recognition or disclosure purposes
under GAAP. SFAS No. 157 provides a common definition of fair value
to be used throughout GAAP which is intended to make the measurement of fair
value more consistent and comparable and improve disclosures about those
measures. SFAS No. 157 will be effective for an entity's financial
statements issued for fiscal years beginning after November 15,
2007. The Company is currently evaluating the effect SFAS No. 157
will have on its consolidated financial position, liquidity, or results of
operations.
NOTES
TO THE UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS
In
February, 2007, the FASB issued SFAS No. 159, "The Fair Value Option for
Financial Assets and Financial Liabilities—Including an amendment of FASB
Statement No. 115" ("SFAS No. 159"). SFAS No. 159 permits companies
to choose to measure many financial instruments and certain other items at
fair
value at specified election dates. Upon adoption, an entity shall
report unrealized gains and losses on items for which the fair value option
has
been elected in earnings at each subsequent reporting date. Most of
the provisions apply only to entities that elect the fair value
option. However, the amendment to SFAS No. 115, "Accounting for
Certain Investments in Debt and Equity Securities," applies to all entities
with
available for sale and trading securities. SFAS No. 159 will be
effective as of the beginning of an entity's first fiscal year that begins
after
November 15, 2007. The Company is currently evaluating the effect
SFAS No. 159 will have on its consolidated financial position, liquidity, or
results of operations.
Certain
Businesses and Product Lines and Related Assets in Performance Polymers
Segments
On
April
30, 2007, the Company sold its San Roque, Spain PET manufacturing facility
in
the Performance Polymer's segment for net proceeds of approximately $43
million. The Company also retained approximately $12 million of
accounts receivable related to this manufacturing site. The Company
will continue to produce certain intermediate products for the buyer under
ongoing supply agreements with indefinite terms. In addition, the
Company indemnified the buyer against certain liabilities primarily related
to
taxes, legal matters, environmental matters, and other representations and
warranties. During the first nine months 2007, the Company has
recorded an impairment charge and site closure costs of $21 million related
to
the San Roque PET site.
ITEM
|
Page
|
|
|
|
21
|
|
|
|
22
|
|
|
|
22
|
|
|
|
24
|
|
|
|
28
|
|
|
|
36
|
|
|
|
38
|
|
|
|
41
|
|
|
|
41
|
|
|
|
42
|
|
|
This
Management's Discussion and Analysis of Financial Condition and Results of
Operations should be read in conjunction with the Company's audited consolidated
financial statements, including related notes, and Management’s Discussion and
Analysis of Financial Condition and Results of Operations contained in the
Company's 2006 Annual Report on Form 10-K, and the Company's unaudited
consolidated financial statements, including related notes, included elsewhere
in this report. All references to earnings per share contained in
this report are diluted earnings per share unless otherwise noted.
In
preparing the consolidated financial statements in conformity with generally
accepted accounting principles ("GAAP") in the United States, Eastman Chemical
Company's (the "Company" or "Eastman") management must make decisions which
impact the reported amounts and the related disclosures. Such
decisions include the selection of the appropriate accounting principles to
be
applied and assumptions on which to base estimates and judgments that affect
the
reported amounts of assets, liabilities, revenues and expenses, and related
disclosure of contingent assets and liabilities. On an ongoing basis,
the Company evaluates its estimates, including those related to allowances
for
doubtful accounts, impairment of assets, environmental costs, U.S. pension
and
other post-employment benefits, litigation and contingent liabilities, and
income taxes. The Company bases its estimates on historical
experience and on various other assumptions that are believed to be reasonable
under the circumstances, the results of which form the basis for making
judgments about the carrying values of assets and liabilities that are not
readily apparent from other sources. Actual results may differ from
these estimates under different assumptions or conditions. The
Company’s management believes the critical accounting policies listed and
described in Part II, Item 7 of the Company's 2006 Annual Report on Form 10-K
are the most important to the fair presentation of the Company’s financial
condition and results. These policies require management’s more
significant judgments and estimates in the preparation of the Company’s
consolidated financial statements.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
During
the second and third quarters 2007, the Company undertook strategic actions
in
its Performance Polymers segment for its underperforming polyethylene
terephthalate ("PET") manufacturing facilities outside the United States. In
second quarter 2007, the Company completed the sale of its San Roque, Spain
PET
manufacturing facility. During the third quarter 2007, the
Company entered into definitive agreements to sell its PET polymers production
facilities in Mexico and Argentina and the related businesses. Asset
impairments and restructuring charges resulting from these actions were $21
million for the Spain divestiture in the first nine months 2007 and $117 million
in the third quarter and first nine months 2007 for the Latin American
manufacturing sites.
In
fourth
quarter 2006, the Company sold its Batesville, Arkansas manufacturing facility
and related assets in the Performance Chemicals and Intermediates ("PCI")
segment and its polyethylene ("PE") and
Epolene
polymer businesses and
related assets of the Performance Polymers and Coatings, Adhesives, Specialty
Polymers, and Inks ("CASPI") segments. For the third quarter and
first nine months of 2006, sales revenue of $225 million and $667 million,
respectively and operating earnings of $4 million and $47 million, respectively,
were attributed to these divested product lines. Asset impairments
and restructuring charges resulting from the divested Arkansas manufacturing
facility were $11 million for the third quarter and first nine months
2006. As part of the PE divestiture, the Company entered into a
transition agreement for contract ethylene sales, for which revenues and
operating earnings are reflected in the PCI segment results in third quarter
and
first nine months 2007. Third quarter and first nine months
2007 included accelerated depreciation costs of $9 million and $37 million,
respectively, resulting from the scheduled shutdown of cracking units in
Longview, Texas related to the divestiture and a planned shutdown of higher
cost
PET assets in Columbia, South Carolina.
This
Management's Discussion and Analysis includes the following non-GAAP financial
measures and accompanying reconciliations to the most directly comparable GAAP
financial measures:
·
|
Company
and segment sales excluding contract ethylene sales under a transition
agreement related to the PE product lines divested in fourth quarter
2006;
|
·
|
Company
sales and segment sales and operating results excluding sales revenue
and
operating results from the fourth quarter 2006 divested product
lines;
|
·
|
Company
gross profit, operating earnings and net earnings excluding accelerated
depreciation costs and asset impairments and restructuring charges;
and
|
·
|
Segment
operating earnings excluding accelerated depreciation costs and asset
impairments and restructuring
charges.
|
Eastman's
management believes that sales from contract ethylene sales under the transition
agreement related to the previous divestiture of the PE product lines do not
reflect the continuing and expected future business of the PCI
segment. In addition, management believes that corporate and segment
earnings should be considered both with and without accelerated depreciation
costs and asset impairments and restructuring charges for evaluation and
analysis of ongoing business results. However, management
believes that these items are indicative of results of continuous efforts to
reduce costs and of actions to improve the profitability of the
Company. Management believes that investors can better evaluate and
analyze historical and future business trends if they also consider the reported
corporate and segment results, respectively, without the identified items.
Management utilizes corporate and segment results including and excluding the
identified items in the measures it uses to evaluate business performance and
in
determining certain performance-based compensation. These measures,
excluding the identified items, are not recognized in accordance with GAAP
and
should not be viewed as alternatives to the GAAP measures of
performance.
In
addition, the Company has chosen to present in this Management's Discussion
and
Analysis certain financial measures for the Company and certain segments with
and without sales and operating results attributable to sales revenue and
operating results in Latin America from PET manufactured at non-U.S.
sites. This additional information is provided to assist the
reader in understanding the impact on the Company and the Performance Polymers
segment of the announced Latin American PET divestitures. Following
the completion of the divestitures, subject to certain product-specific
agreements associated with the sale of the manufacturing facilities in Mexico
and Argentina,
the
Company plans to continue to sell a limited set of PET products manufactured
in
the U.S. in certain Latin American markets.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
The
Company generated sales revenue of $1.8 billion and $2.0 billion for the third
quarter 2007 and third quarter 2006, respectively, and $5.5 billion and $5.7
billion for the first nine months 2007 and first nine months 2006,
respectively. Excluding the sales from divested product lines
and contract ethylene sales,
sales
revenue decreased 1 percent in the third quarter 2007 and increased 5 percent
in
the first nine months 2007.
As
a
result of strategic decisions related to the Performance Polymers and PCI
segments discussed above, operating earnings in third quarter and first nine
months 2007 were negatively impacted by accelerated depreciation costs of $9
million and $37 million, respectively, as well as asset impairments and
restructuring charges of $120 million and $143 million for the respective
periods. Operating earnings in third quarter and first nine months
2006 were negatively impacted by asset impairments and restructuring charges
of
$13 million and $23 million, respectively. Operating earnings were
$40 million in third quarter 2007, a $118 million decrease compared with third
quarter 2006, and $343 million in the first nine months 2007, a $189 million
decrease compared with the first nine months 2006. Excluding
accelerated depreciation costs and asset impairments and restructuring charges,
operating earnings were $169 million in third quarter 2007 compared with $171
million in third quarter 2006, and $523 million in first nine months 2007
compared with $555 million in first nine months 2006. Net earnings
were $20 million for third quarter 2007 compared to $95 million for third
quarter 2006. Net earnings were $202 million for first nine months
2007 compared to $314 million for first nine months
2006. Excluding accelerated depreciation costs and asset impairments
and restructuring charges, net earnings were $106 million and $103 million,
for
third quarter 2007 and 2006, respectively and $322 million and $331 million
for
first nine months 2007 and 2006, respectively. The Company's broad base of
businesses continues to have strong results, with the declines primarily due
to
operating results in the Performance Polymers segment.
The
Company generated $411 million in cash from operating activities during the
first nine months 2007 compared to $233 million from operating activities in
the
first nine months 2006. The difference was due primarily to the
significant increases in working capital in the first nine months
2006. The Company contributed $100 million and $75 million to its
U.S. defined benefit pension plans in the first nine months 2007 and 2006,
respectively. The Company does not plan to make additional
contributions to its U.S. defined benefit pension plans in
2007. Priorities for use of available cash include paying the
quarterly cash dividend, funding targeted growth initiatives and repurchasing
shares.
In the third quarter and first nine months 2007,
the Company repurchased shares totaling $214 million and $300 million,
respectively, completing the share repurchases authorized by the board in
February 2007. In October 2007, the Board of Directors authorized an
additional $700 million in share repurchases.
In
addition to achieving the above results, Eastman continued to progress on its
overall growth objectives including the announcement in July 2007 of two
industrial gasification projects in the U.S. Gulf Coast and actions to improve
the performance of its Performance Polymers segment.
The
gasification projects announcement is an important milestone in the Company's
continuing efforts to leverage its technology and operational expertise for
future growth. The Beaumont, Texas project is expected to be
operational in 2011 and will produce low-cost intermediate chemicals, such
as
hydrogen, methanol, and ammonia. The Company will be an investor,
developer, service provider and customer for this project. In October
2007, the Company announced it has entered into an agreement with Green Rock
Energy, L.L.C., a company formed by the D. E. Shaw group and Goldman,
Sachs & Co., to jointly develop the approximately $1.6 billion industrial
gasification facility in Beaumont, Texas with expects to obtain non-recourse
project financing for the development, design, engineering, construction,
start-up, and testing of the facility. The Faustina project is
expected to be operational in 2010 and will produce anhydrous ammonia for
agriculture, methanol, sulfur and industrial-grade carbon
dioxide. The Company will be an investor, service provider and
customer for this project.
During
the second and third quarters 2007, the Company undertook strategic actions
in
its Performance Polymers segment for its underperforming PET manufacturing
facilities outside the United States. In second quarter 2007, the Company
completed the sale of its Spain PET manufacturing
facility. During the third quarter 2007, the Company entered
into definitive agreements to sell its PET polymers production facilities in
Mexico and Argentina and the related businesses.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
Additional
actions in the Performance Polymers segment include the start-up of the
Company's new 350 thousand metric tons PET facility using
IntegRex
technology in Columbia, South Carolina, which was fully operational in the
first
quarter of 2007 and continuing qualifications of the
ParaStar
PET
product with customers.
The
Company continues to pursue strategic actions for the remaining PET
manufacturing facilities located in Rotterdam, the Netherlands and Workington,
United Kingdom. The Company does not expect material asset
impairments and restructuring charges related to these actions.
|
Third
Quarter
|
|
Volume
Effect
|
|
Price
Effect
|
|
Product
Mix
Effect
|
|
Exchange
Rate
Effect
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
Change
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
|
$
|
1,813
|
$
|
1,966
|
|
(8)
%
|
|
(10)
%
|
|
1
%
|
|
1
%
|
|
--
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
- contract ethylene sales
|
|
84
|
|
--
|
|
|
|
|
|
|
|
|
|
|
Sales
- divested product lines
(1)
|
|
--
|
|
225
|
|
|
|
|
|
|
|
|
|
|
Sales
– continuing product lines
|
|
1,729
|
|
1,741
|
|
(1)
%
|
|
(5)
%
|
|
2
%
|
|
1
%
|
|
1
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
-
PET sales in Latin
America from non-U.S. sites
(2)
|
|
91
|
|
136
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
– continuing product lines excluding
PET sales in Latin
America from
non-U.S. sites
(2)
|
|
1,638
|
|
1,605
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
Divested
product lines are Polyethylene and Epolene polymer businesses and
related
assets of the Performance Polymers and CASPI segments located at
the
Longview, Texas site and the Company's ethylene pipeline and the
Company's
Batesville, Arkansas manufacturing facility and related assets and
the
specialty organic chemicals product lines in the PCI
segment.
|
(2)
|
Sales
revenue in Latin America from PET manufactured at non-U.S. sites,
including the Mexico and Argentina PET manufacturing facilities held
for
sale at September 30, 2007. During the third quarter 2007,
Eastman entered into definitive agreements to sell its PET manufacturing
facilities in Mexico and Argentina and the related
businesses. Subject to certain product-specific agreements
associated with the sale of the manufacturing facilities in Mexico
and
Argentina,
the
Company plans to continue to sell a limited set of PET products
manufactured in the U.S. in certain Latin American markets.
For more information, refer to Note 2 to the unaudited consolidated
financial statements.
|
Sales
revenue in third quarter 2007 compared to the third quarter 2006 decreased
$153
million. Sales revenue in the third quarter 2007 included $84 million
of revenue from contract ethylene sales under the transition agreement resulting
from the divestiture of the Performance Polymers segment's PE business in the
fourth quarter 2006. Sales revenue in third quarter 2006 included
$225 million of revenue from divested product lines. Excluding
contract ethylene sales and divested product lines, revenues decreased 1 percent
primarily due to lower volume in the Performance Polymers
segment.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
|
First
Nine Months
|
|
Volume
Effect
|
|
Price
Effect
|
|
Product
Mix
Effect
|
|
Exchange
Rate
Effect
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
Change
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
|
$
|
5,503
|
$
|
5,698
|
|
(3)
%
|
|
(6)
%
|
|
1
%
|
|
1
%
|
|
1
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
- contract ethylene sales
|
|
228
|
|
--
|
|
|
|
|
|
|
|
|
|
|
Sales
- divested product lines
(1)
|
|
--
|
|
667
|
|
|
|
|
|
|
|
|
|
|
Sales
– continuing product lines
|
|
5,275
|
|
5,031
|
|
5
%
|
|
--
%
|
|
3
%
|
|
1
%
|
|
1
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
- PET sales in Latin America
from non-U.S. sites
(2)
|
|
328
|
|
364
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
– continuing product lines excluding
PET sales in Latin
America
from non-U.S.
sites
(2)
|
|
4,947
|
|
4,667
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
Divested
product lines are Polyethylene and Epolene polymer businesses and
related
assets of the Performance Polymers and CASPI segments located at
the
Longview, Texas site and the Company's ethylene pipeline and the
Company's
Batesville, Arkansas manufacturing facility and related assets and
the
specialty organic chemicals product lines in the PCI
segment.
|
(2)
|
Sales
revenue in Latin America
from PET manufactured at non-U.S. sites, including the Mexico and
Argentina PET manufacturing facilities held for sale at September
30,
2007.
During the third quarter 2007, Eastman entered
into definitive agreements to sell its PET manufacturing facilities
in
Mexico and Argentina and the related businesses. Subject to
certain product-specific agreements associated with the sale of the
manufacturing facilities in Mexico and Argentina,
the
Company plans to continue to sell a limited set of PET products
manufactured in the U.S. in certain Latin American
markets.
For more information,
refer to
Note 2 to the unaudited consolidated financial
statements.
|
Sales
revenue in the first nine months 2007 compared to the first nine months 2006
decreased $195 million. Sales revenue in the first nine months 2007
included $228 million of revenue from contract ethylene sales under the
transition agreement. Sales revenue in first nine months 2006
included $667 million of revenue from divested product
lines. Excluding contract ethylene sales and divested product lines,
revenues increased 5 percent primarily due to higher selling prices,
particularly in the PCI and Specialty Plastics ("SP") segments.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
|
Third
Quarter
|
|
First
Nine Months
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
Change
|
|
2007
|
|
2006
|
|
Change
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross
Profit
|
$
|
310
|
$
|
316
|
|
(2)
%
|
$
|
923
|
$
|
997
|
|
(7)
%
|
As
a percentage of sales
|
|
17
%
|
|
16
%
|
|
|
|
17
%
|
|
17
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accelerated
depreciation included in cost of goods sold
|
|
9
|
|
--
|
|
|
|
37
|
|
--
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross
Profit excluding accelerated depreciation
|
|
319
|
|
316
|
|
1
%
|
|
960
|
|
997
|
|
(4)
%
|
As
a percentage of sales
|
|
18
%
|
|
16
%
|
|
|
|
17
%
|
|
17
%
|
|
|
Gross
profit for third quarter and first nine months 2007 decreased compared to
the
third quarter and first nine months 2006 due primarily to accelerated
depreciation costs of $9 million and $37 million, respectively, resulting
from
the scheduled shutdown of cracking units in Longview, Texas and of higher
cost
PET polymer assets in Columbia, South Carolina. The Company's first
nine months 2007 raw material and energy costs increased by approximately
$100
million.
|
Third
Quarter
|
|
First
Nine Months
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
Change
|
|
2007
|
|
2006
|
|
Change
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling,
General and
|
|
|
|
|
|
|
|
|
|
|
|
Administrative
Expenses
|
$
|
107
|
$
|
105
|
|
3
%
|
$
|
321
|
$
|
316
|
|
2
%
|
Research
and Development
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenses
|
|
43
|
|
40
|
|
7
%
|
|
116
|
|
126
|
|
(8)
%
|
|
$
|
150
|
$
|
145
|
|
4
%
|
$
|
437
|
$
|
442
|
|
(1)
%
|
As
a percentage of sales
|
|
8
%
|
|
7
%
|
|
|
|
8
%
|
|
8
%
|
|
|
Selling,
general and administrative ("SG&A") expenses for the third quarter and first
nine months 2007 increased compared to the comparable periods in 2006 due to
higher compensation expense.
Research
and development ("R&D") expenses increased $3 million in third quarter 2007
compared to third quarter 2006 primarily due to higher expenses for growth
initiatives in the SP segment. R&D expenses decreased $10 million in the
first nine months 2007 compared to first nine months 2006 primarily due to
decreases in the Performance Polymers segment resulting from the
commercialization of
ParaStar
next generation PET
resins
using
IntegRex
technology in the fourth quarter
2006.
Asset
Impairments and Restructuring Charges, Net
Asset
impairments and restructuring charges, net, totaled $120 million and $143
million for the third quarter and first nine months 2007, respectively,
primarily associated with the held for sale PET manufacturing facilities in
Mexico and Argentina and the sale of the San Roque, Spain PET manufacturing
facility. Asset impairments and restructuring charges, net, totaled
$13 million and $23 million in the third quarter and first nine months
2006. The Company continues to make progress on strategic actions for
the remaining PET manufacturing facilities outside the United States and does
not expect material asset impairments and restructuring charges related to
these
actions. For more information regarding asset impairments and
restructuring charges, primarily related to recent and pending divestitures,
see
the Performance Polymers segment discussion and Note 7 to the Company's
unaudited consolidated financial statements.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
Operating
Earnings
|
Third
Quarter
|
|
First
Nine Months
|
|
2007
|
|
2006
|
|
Change
|
|
2007
|
|
2006
|
|
Change
|
(Dollars
in millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
earnings
|
$
|
40
|
$
|
158
|
|
(75)
%
|
$
|
343
|
$
|
532
|
|
(36)%
|
Accelerated
depreciation included in cost of goods sold
|
|
9
|
|
--
|
|
|
|
37
|
|
--
|
|
|
Asset
impairments and restructuring charges
|
|
120
|
|
13
|
|
|
|
143
|
|
23
|
|
|
Operating
earnings excluding accelerated depreciation and asset impairment
and
restructuring charges
|
$
|
169
|
$
|
171
|
|
(1)
%
|
$
|
523
|
$
|
555
|
|
(6)
%
|
Interest
Expense, Net
|
Third
Quarter
|
|
First
Nine Months
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
Change
|
|
2007
|
|
2006
|
|
Change
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross
interest costs
|
$
|
31
|
$
|
28
|
|
10
%
|
$
|
89
|
$
|
84
|
|
6
%
|
Less: Capitalized
interest
|
|
3
|
|
2
|
|
|
|
8
|
|
5
|
|
|
Interest
expense
|
|
28
|
|
26
|
|
7
%
|
|
81
|
|
79
|
|
3
%
|
Interest
income
|
|
11
|
|
5
|
|
|
|
31
|
|
17
|
|
|
Interest
expense, net
|
$
|
17
|
$
|
21
|
|
(19)%
|
$
|
50
|
$
|
62
|
|
(19)%
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross
interest costs for the third quarter and first nine months 2007 were higher
compared to the third quarter and first nine months 2006 due to higher average
interest rates. Capitalized interest for the third quarter and first
nine months 2007 were higher compared to the third quarter and first nine months
2006 due to increased spending on capital projects during those
periods. Interest income for the third quarter and first nine months
2007 was higher compared to the third quarter and first nine months 2006 due
to
higher average cash balances and higher average interest rates.
For
2007,
the Company expects net interest expense to decrease compared to 2006 due to
higher interest income driven by higher invested cash balances.
Other
(Income) Charges, Net
|
Third
Quarter
|
|
First
Nine Months
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
Change
|
|
2007
|
|
2006
|
|
Change
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
(income)
|
$
|
(12)
|
$
|
(3)
|
|
>100
%
|
$
|
(18)
|
$
|
(10)
|
|
80
%
|
Other
charges
|
|
3
|
|
4
|
|
(25)
%
|
|
3
|
|
8
|
|
(63)
%
|
Other
(income) charges, net
|
$
|
(9)
|
$
|
1
|
|
>100
%
|
$
|
(15)
|
$
|
(2)
|
|
>100
%
|
Included
in other income are the Company’s portion of earnings from its investments, net
gains on foreign exchange transactions, and other non-operating income related
to the funding of Holston Defense Corporation's post-retirement
benefits. Included in other charges are net losses on foreign
exchange transactions and fees on securitized receivables.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
Provision
for Income Taxes
|
Third
Quarter
|
First
Nine Months
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
2007
|
|
2006
|
|
|
|
|
|
|
|
|
Provision
for
income
taxes
|
$
|
12
|
$
|
41
|
$
|
106
|
$
|
158
|
Effective
tax rate
|
|
40
%
|
|
30
%
|
|
35
%
|
|
34
%
|
The
third
quarter and first nine months 2007 effective tax rates reflect the Company's
normal tax rate on reported operating earnings before income tax, excluding
discrete items, of approximately 34 percent. The third quarter 2007
effective tax rate was negatively impacted by tax law changes in Europe due
to
German tax law changes resulting in a reduction in the value of deferred tax
assets.
The
third
quarter and first nine months 2006 effective tax rates reflect the Company's
expected normal tax rate on reported operating earnings before income tax,
excluding discrete items, of approximately 35 percent. The third
quarter and first nine months 2006 effective tax rates were positively impacted
by lower foreign earnings in favorable tax jurisdictions and the reversal of
foreign loss valuation allowances. The implementation of SFAS No. 123
Revised December 2004 ("SFAS No. 123(R)"), "Share-Based Payment", effective
January 1, 2006, did not have a material effect on the Company's effective
income tax rate in the third quarter and first nine months 2006.
Net
Earnings
|
|
|
|
|
|
|
|
|
Third
Quarter
|
|
First
Nine Months
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
|
2007
|
|
2006
|
|
|
|
|
|
|
|
|
|
Net
earnings
|
$
|
20
|
$
|
95
|
$
|
202
|
$
|
314
|
Accelerated
depreciation included in cost of goods sold, net of tax
|
|
6
|
|
--
|
|
24
|
|
--
|
Asset
impairments and restructuring charges, net of tax
|
|
80
|
|
8
|
|
96
|
|
17
|
Net
earnings excluding accelerated depreciation and asset impairment and
restructuring charges, net of tax
|
$
|
106
|
$
|
103
|
$
|
322
|
$
|
331
|
Revenues
and expenses not identifiable to an operating segment are not included in
segment operating results for either of the periods presented and are shown
in
Note 15, "Segment Information", as "other" revenues and operating losses in
this
Form 10-Q.
In
fourth
quarter 2006, certain product lines were transferred from the PCI segment to
the
Performance Polymers segment. Accordingly, the prior year's amounts
for sales and operating earnings have been adjusted to retrospectively apply
these changes to all periods presented.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
CASPI
Segment
|
|
Third
Quarter
|
|
First
Nine Months
|
|
|
|
|
|
Change
|
|
|
|
|
|
Change
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
$
|
|
%
|
|
2007
|
|
2006
|
|
$
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
|
$
|
368
|
$
|
367
|
$
|
1
|
|
--
%
|
$
|
1,089
|
$
|
1,078
|
$
|
11
|
|
1
%
|
|
Volume
effect
|
|
|
|
|
(22)
|
|
(6)%
|
|
|
|
|
|
(64)
|
|
(6)%
|
|
Price
effect
|
|
|
|
|
8
|
|
2
%
|
|
|
|
|
|
40
|
|
4
%
|
|
Product
mix effect
|
|
|
|
|
11
|
|
3
%
|
|
|
|
|
|
19
|
|
2
%
|
|
Exchange
rate effect
|
|
|
|
|
4
|
|
1
%
|
|
|
|
|
|
16
|
|
1
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
earnings
|
59
|
|
53
|
|
6
|
|
11
%
|
|
190
|
|
176
|
|
14
|
|
8
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Asset
impairments and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
restructuring
charges, net
|
(1)
|
|
--
|
|
(1)
|
|
|
|
(1)
|
|
8
|
|
(9)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
earnings excluding asset impairments and restructuring charges,
net
|
58
|
|
53
|
|
5
|
|
9
%
|
|
189
|
|
184
|
|
5
|
|
3
%
|
Sales
revenue increased $1 million in third quarter 2007 compared to third quarter
2006 and $11 million in the first nine months 2007 compared to first nine months
2006 as a favorable shift in product mix and higher selling prices were offset
by lower sales volume. The lower sales volume was primarily
attributed to the divestiture of the Company's
Epolene
product lines in
fourth quarter 2006. Excluding
Epolene
product lines
divested in fourth quarter 2006, sales revenue increased due to an increase
in
selling prices in response to higher raw material and energy costs.
Operating
earnings increased $6 million for third quarter 2007 compared to third quarter
2006 and $14 million for first nine months 2007 compared to first nine months
2006. Excluding asset impairments and restructuring charges of $(1)
million in third quarter 2007 and $(1) million and $8 million for the first
nine
months 2007 and 2006, respectively, operating earnings increased $5 million
for
both comparable periods. Increases in operating earnings are
primarily due to higher selling prices and an improved product mix that more
than offset higher raw material and energy costs. Asset impairments
and restructuring charges in 2006 were related to previously closed
manufacturing facilities.
Fibers
Segment
|
|
Third
Quarter
|
|
First
Nine Months
|
|
|
|
|
|
Change
|
|
|
|
|
|
Change
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
$
|
|
%
|
|
2007
|
|
2006
|
|
$
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
|
$
|
258
|
$
|
228
|
$
|
30
|
|
14
%
|
$
|
731
|
$
|
696
|
$
|
35
|
|
5
%
|
|
Volume
effect
|
|
|
|
|
6
|
|
3
%
|
|
|
|
|
|
(14)
|
|
(2)%
|
|
Price
effect
|
|
|
|
|
21
|
|
9
%
|
|
|
|
|
|
39
|
|
6
%
|
|
Product
mix effect
|
|
|
|
|
2
|
|
2
%
|
|
|
|
|
|
8
|
|
1
%
|
|
Exchange
rate effect
|
|
|
|
|
1
|
|
--
%
|
|
|
|
|
|
2
|
|
--
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
earnings
|
66
|
|
55
|
|
11
|
|
20
%
|
|
176
|
|
182
|
|
(6)
|
|
(3)
%
|
Sales
revenue increased $30 million in third quarter 2007 compared to third quarter
2006 and increased $35 million in the first nine months 2007 compared to
first
nine months 2006 due primarily to higher selling prices. Selling
prices increased primarily due to efforts to offset higher raw material and
energy costs, particularly for wood pulp, and favorable market conditions
for
acetate tow and acetyl chemical product lines related to competitor
outages.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
Operating
earnings increased $11 million for third quarter 2007 compared to third quarter
2006 reflecting improved results particularly for acetyl chemical and
acetate tow product lines. Operating earnings decreased $6 million
for first nine months 2007 compared to first nine months 2006.
PCI
Segment
|
|
Third
Quarter
|
|
First
Nine Months
|
|
|
|
|
|
Change
|
|
|
|
|
|
Change
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
$
|
|
%
|
|
2007
|
|
2006
|
|
$
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
|
$
|
509
|
$
|
437
|
$
|
72
|
|
17
%
|
$
|
1,559
|
$
|
1,260
|
$
|
299
|
|
24
%
|
|
Volume
effect
|
|
|
|
|
68
|
|
16
%
|
|
|
|
|
|
341
|
|
27
%
|
|
Price
effect
|
|
|
|
|
9
|
|
2
%
|
|
|
|
|
|
(36)
|
|
(3)
%
|
|
Product
mix effect
|
|
|
|
|
(6)
|
|
(1)
%
|
|
|
|
|
|
(12)
|
|
(1)
%
|
|
Exchange
rate effect
|
|
|
|
|
1
|
|
--
%
|
|
|
|
|
|
6
|
|
1
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
– contract ethylene sales
|
84
|
|
--
|
|
84
|
|
|
|
228
|
|
--
|
|
228
|
|
|
Sales
– divested product lines
|
--
|
|
38
|
|
(38)
|
|
|
|
--
|
|
97
|
|
(97)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
– excluding listed items
|
425
|
|
399
|
|
26
|
|
6
%
|
|
1,331
|
|
1,163
|
|
168
|
|
14
%
|
Volume
effect
|
|
|
|
|
(6)
|
|
(1)
%
|
|
|
|
|
|
101
|
|
8
%
|
Price
effect
|
|
|
|
|
29
|
|
7
%
|
|
|
|
|
|
66
|
|
6
%
|
Product
mix effect
|
|
|
|
|
2
|
|
--
%
|
|
|
|
|
|
(5)
|
|
--
%
|
Exchange
rate effect
|
|
|
|
|
1
|
|
--
%
|
|
|
|
|
|
6
|
|
--
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
earnings
|
50
|
|
22
|
|
28
|
|
>100
%
|
|
161
|
|
108
|
|
53
|
|
49
%
|
Operating
earnings (loss) – divested product lines
(1)
|
--
|
|
(11)
|
|
11
|
|
100
%
|
|
--
|
|
(8)
|
|
8
|
|
100
%
|
Operating
earnings – excluding divested product lines
|
50
|
|
33
|
|
17
|
|
52
%
|
|
161
|
|
116
|
|
45
|
|
39
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accelerated
depreciation included in cost of goods sold
|
2
|
|
--
|
|
2
|
|
|
|
16
|
|
--
|
|
16
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Asset
impairment and restructuring charges
|
(1)
|
|
11
|
|
(12)
|
|
|
|
(1)
|
|
11
|
|
(12)
|
|
|
Asset
impairment and restructuring charges -divested product lines
(1)
|
--
|
|
11
|
|
(11)
|
|
|
|
--
|
|
11
|
|
(11)
|
|
|
Asset
impairment and restructuring charges - excluding divested product
lines
|
(1)
|
|
--
|
|
(1)
|
|
|
|
(1)
|
|
--
|
|
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
earnings excluding certain items
(2)
|
51
|
|
33
|
|
18
|
|
55
%
|
|
176
|
|
119
|
|
57
|
|
48
%
|
Operating
earnings excluding certain items
(2)
–
divested
product lines
(1)
|
--
|
|
--
|
|
--
|
|
--
%
|
|
--
|
|
3
|
|
(3)
|
|
(100)%
|
Operating
earnings excluding certain items
(2)
–
excluding
divested product lines
|
51
|
|
33
|
|
18
|
|
55
%
|
|
176
|
|
116
|
|
60
|
|
52
%
|
|
(1)
Includes
allocated costs consistent with the Company’s historical practices, some
of which may remain and could be reallocated to the remainder of
the
segment and other segments.
|
|
(2)
Items
are
accelerated depreciation costs and asset impairment and restructuring
charges, net.
|
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
Sales
revenue increased $72 million in third quarter 2007 compared to third quarter
2006 and $299 million in the first nine months 2007 compared to first nine
months 2006 primarily due to contract ethylene sales under the transition
agreement resulting from the divestiture of the Performance Polymers segment's
PE business in the fourth quarter 2006. These sales were $84 million
and $228 million in third quarter and first nine months 2007, respectively.
Excluding the contract ethylene sales and revenue from divested product lines,
sales revenue for third quarter 2007 increased due to higher selling prices,
which were in response to higher raw material and energy costs. Excluding the
contract ethylene sales and revenue from divested product lines, sales revenue
for first nine months 2007 increased due to higher sales volume and increased
selling prices, which were attributed to favorable market conditions, primarily
for olefin-based derivative products in Asia Pacific and the United
States.
Excluding
accelerated depreciation of $2 million and asset impairments and restructuring
charges of $(1) million in third quarter 2007, operating earnings increased
$18
million attributed to strong demand, particularly for acetyl chemicals and
olefin-based derivative products in the United States and Asia
Pacific. The accelerated depreciation is related to the continuation
of the planned staged phase-out of older cracking units at the Company's
Longview, Texas facility.
Excluding
accelerated depreciation of $16 million and asset impairment and restructuring
charges of $(1) million in the first nine months 2007 and asset impairment
and
restructuring charges of $11 million in first nine months 2006, operating
earnings increased $57 million. The increase is due to higher selling
prices and increased sales volume, with contract ethylene sales having minimal
impact on operating earnings for the first nine months 2007 compared to first
nine months 2006. Selling prices increased in response to higher raw
material and energy costs. The accelerated depreciation is related to
the continuation of the planned staged phase-out of older cracking units at
the
Company's Longview, Texas facility.
In
the
fourth quarter 2006 the Company completed its divestiture of the PCI segment's
Batesville, Arkansas manufacturing facility and related assets and specialty
organic chemicals product lines. Sales revenue and operating earnings
attributed to the divested product lines were $97 million and $3 million,
respectively for first nine months 2006.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
Performance
Polymers Segment
|
|
Third
Quarter
|
|
First
Nine Months
|
|
|
|
|
|
Change
|
|
|
|
|
|
Change
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
$
|
|
%
|
|
2007
|
|
2006
|
|
$
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
|
$
|
461
|
$
|
727
|
$
|
(266)
|
|
(37)
%
|
$
|
1,480
|
$
|
2,068
|
$
|
(588)
|
|
(28)
%
|
|
Volume
effect
|
|
|
|
|
(254)
|
|
(35)
%
|
|
|
|
|
|
(603)
|
|
(29)
%
|
|
Price
effect
|
|
|
|
|
(26)
|
|
(4)
%
|
|
|
|
|
|
(20)
|
|
(1)
%
|
|
Product
mix effect
|
|
|
|
|
6
|
|
1
%
|
|
|
|
|
|
4
|
|
--
%
|
|
Exchange
rate effect
|
|
|
|
|
8
|
|
1
%
|
|
|
|
|
|
31
|
|
2
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
– divested PE product line
(1)
|
--
|
|
169
|
|
(169)
|
|
(100)
%
|
|
--
|
|
517
|
|
(517)
|
|
(100)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
–PET product lines
|
461
|
|
558
|
|
(97)
|
|
(17)
%
|
|
1,480
|
|
1,551
|
|
(71)
|
|
(5)%
|
Volume
effect
|
|
|
|
|
(85)
|
|
(15)
%
|
|
|
|
|
|
(86)
|
|
(6)%
|
Price
effect
|
|
|
|
|
(26)
|
|
(4)
%
|
|
|
|
|
|
(20)
|
|
(1)%
|
Product
mix effect
|
|
|
|
|
6
|
|
1
%
|
|
|
|
|
|
4
|
|
--
%
|
Exchange
rate effect
|
|
|
|
|
8
|
|
1
%
|
|
|
|
|
|
31
|
|
2
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PET
sales in Latin America from non-U.S. sites
(2)
|
91
|
|
136
|
|
(45)
|
|
(33)%
|
|
328
|
|
364
|
|
(36)
|
|
(10)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
–PET product lines excluding PET sales in Latin America from non-U.S.
sites
(2)
|
370
|
|
422
|
|
(52)
|
|
(12)%
|
|
1,152
|
|
1,187
|
|
(35)
|
|
(3)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
earnings (loss)
|
(134)
|
|
20
|
|
(154)
|
|
|
|
(198)
|
|
51
|
|
(249)
|
|
|
Operating
earnings – divested PE product line
(1)
(2)
|
--
|
|
15
|
|
(15)
|
|
|
|
--
|
|
53
|
|
(53)
|
|
|
Operating
earnings (loss) –PET product lines
|
(134)
|
|
5
|
|
(139)
|
|
|
|
(198)
|
|
(2)
|
|
(196)
|
|
|
Operating
loss - PET results in Latin America attributed to
non-U.S. sites
(2)
|
(121)
|
|
(4)
|
|
(117)
|
|
|
|
(127)
|
|
(9)
|
|
(118)
|
|
|
Operating
earnings (loss) –PET results excluding PET results in Latin America
attributed to non-U.S. sites
(2)
|
(13)
|
|
9
|
|
(22)
|
|
|
|
(71)
|
|
7
|
|
(78)
|
|
|
(1)
|
Divested
product line is the Polyethylene business located at the Longview,
Texas
site.
|
(2)
|
Sales
revenue and operating
results in Latin America from PET manufactured at non-U.S. sites,
including the Mexico and Argentina PET manufacturing facilities held
for
sale.
During the third quarter 2007, Eastman entered
into definitive agreements to sell its PET manufacturing facilities
in
Mexico and Argentina and the related businesses. Subject to
certain product-specific agreements associated with the sale of the
manufacturing facilities in Mexico and Argentina,
the
Company plans to continue to sell a limited set of PET products
manufactured in the U.S. in certain Latin American markets.
For more information, refer to Note 2 to the unaudited consolidated
financial statements.
|
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
Performance
Polymers Segment
|
|
Third
Quarter
|
|
First
Nine Months
|
|
|
|
|
|
Change
|
|
|
|
|
|
Change
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
$
|
|
%
|
|
2007
|
|
2006
|
|
$
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
earnings (loss) excluding items
(3)
|
(7)
|
|
20
|
|
(27)
|
|
|
|
(36)
|
|
51
|
|
(87)
|
|
|
Operating
earnings (loss) excluding items
(3)
–
divested PE product line
(1)
(2)
|
--
|
|
15
|
|
(15)
|
|
|
|
--
|
|
53
|
|
(53)
|
|
|
Operating
earnings (loss) excluding items
(3)
–PET
product
lines
|
(7)
|
|
5
|
|
(12)
|
|
|
|
(36)
|
|
(2)
|
|
(34)
|
|
|
Operating
earnings (loss) excluding items
(3)
–PET
results
in Latin America attributed to non-U.S. sites
(2)
|
(4)
|
|
(4)
|
|
--
|
|
|
|
(10)
|
|
(9)
|
|
(1)
|
|
|
Operating
earnings (loss) excluding items
(3)
–
PET
results excluding PET results in Latin America attributed to non-U.S.
sites
(2)
|
(3)
|
|
9
|
|
(12)
|
|
|
|
(26)
|
|
7
|
|
(33)
|
|
|
(1)
|
Divested
product line is the Polyethylene businesses located at the Longview,
Texas
site.
|
(2)
|
Sales
revenue and operating
results in Latin America from PET manufactured at non-U.S. sites,
including the Mexico and Argentina PET manufacturing facilities held
for
sale.
During the third quarter 2007, Eastman entered
into definitive agreements to sell its PET manufacturing facilities
in
Mexico and Argentina and the related businesses. Subject to
certain product-specific agreements associated with the sale of the
manufacturing facilities in Mexico and Argentina,
the
Company plans to continue to sell a limited set of PET products
manufactured in the U.S. in certain Latin American
markets.
For more information, refer to Note 2 to the
unaudited consolidated financial
statements.
|
(3)
|
Items
are accelerated
depreciation costs and asset impairment and restructuring charges,
net. In third quarter 2007, asset impairments and restructuring
charges of $120 million consist of $117 million relating to the Mexico
and
Argentina PET manufacturing facilities held for sale and $3 million
relating to other sites. Accelerated depreciation costs of $7
million relate to restructuring actions associated with higher cost
PET
polymer assets in Columbia, South Carolina. In first nine
months 2007, asset impairments and restructuring charges of $142
million
consist of $117 million relating to the Mexico and Argentina PET
manufacturing facilities held for sale and $25 million relating to
other
sites. Accelerated depreciation costs of $20 million relate to
restructuring actions associated with higher cost PET polymer assets
in
Columbia, South Carolina
.
|
Sales
revenue decreased $266 million in third quarter 2007 compared to third quarter
2006 due primarily to the divestiture of the PE product lines and the San Roque,
Spain PET manufacturing facility. For continuing product lines, sales
revenue decreased $97 million due to decreased volumes in Europe attributed
to
the sale of the San Roque, Spain PET manufacturing facility and operational
disruptions at the Argentina PET facility, partially offset by increased North
America sales volumes attributed to increased operating rates for the Company's
ParaStar
PET facility based on
IntegRex
technology.
Sales
revenue decreased $588 million in first nine months 2007 compared to first
nine
months 2006 due to the divested product lines and manufacturing assets mentioned
above. For continuing product lines, sales revenue decreased $71
million primarily due to decreased volumes in Europe attributed to the
divestiture of the San Roque, Spain PET manufacturing facility offset by
increased North America sales volumes attributed to operating rates for the
Company's
ParaStar
PET facility based on
IntegRex
technology.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
Excluding
asset impairments and restructuring charges of $120 million related primarily
to
an impairment for Mexico and Argentina PET manufacturing facilities held for
sale and accelerated depreciation costs of $7 million for restructuring actions
associated with higher cost PET polymer assets in Columbia, South Carolina,
operating results decreased $27 million for third quarter 2007 compared to
third
quarter 2006 primarily due to the divestiture of the PE product
lines. Excluding asset impairments and restructuring charges
operating results from continuing product lines decreased $12 million in third
quarter 2007 compared to third quarter 2006 as higher and continued volatile
raw
material and energy costs and low PET industry operating rates resulted in
compressed gross margins, particularly in North America. For
additional information on asset impairments and restructuring charges, refer
to
Note 7 to the notes to the unaudited consolidated financial
statements.
Excluding
asset impairments and restructuring charges of $142 million primarily for the
Mexico and Argentina PET manufacturing facilities held for sale and $20 million
of accelerated depreciation costs for restructuring actions associated with
higher cost PET polymer assets in Columbia, South Carolina, operating results
decreased $87 million for the first nine months 2007 compared to the first
nine
months 2006 primarily due to the divestiture of the PE product
lines. Excluding asset impairments and restructuring
charges, operating results from continuing product lines decreased
$34 million as higher and continued volatile raw material and energy costs
resulted in compressed gross margins, particularly in North
America. The results were also impacted by costs associated with the
new PET facility based on
IntegRex
technology becoming fully
operational and the timing of the commercial launch of
ParaStar
PET
produced in the
IntegRex
facility.
Production
began in November 2006 at the Company's new PET manufacturing facility utilizing
IntegRex
technology in Columbia, South
Carolina. Manufacturing
ParaStar
next generation PET resins,
the 350 thousand metric tons facility was fully operational in first quarter
of
2007. The Company plans to increase capacity at this facility to over
525 thousand metric tons of
ParaStar
next generation PET resins by the
end of 2008 and to reduce the cost structure at this facility by $30
million.
In
second
quarter 2007, the Company completed the sale of the San Roque, Spain PET
manufacturing facility. For the first nine months 2007, sales revenue
attributed to PET product manufactured at the San Roque PET site was $25
million, all of which was recorded in first quarter 2007, and for the third
quarter and first nine months 2006, sales revenue was $64 million and $158
million, respectively.
During
the third quarter 2007, the Company entered into definitive agreements to sell
Eastman's PET polymers production facilities in Mexico and Argentina and the
related businesses. The sale, which is subject to customary
approvals, includes Eastman's PET manufacturing facilities in Cosoleacaque,
Mexico, and Zarate, Argentina.
The
Company continues to pursue strategic actions for the remaining PET
manufacturing facilities located in Rotterdam, the Netherlands and Workington,
United Kingdom. The Company does not expect material asset
impairments and restructuring charges related to these actions.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
SP
Segment
|
|
Third
Quarter
|
|
First
Nine Months
|
|
|
|
|
|
Change
|
|
|
|
|
|
Change
|
(Dollars
in millions)
|
2007
|
|
2006
|
|
$
|
|
%
|
|
2007
|
|
2006
|
|
$
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales
|
$
|
217
|
$
|
207
|
$
|
10
|
|
5
%
|
$
|
644
|
$
|
596
|
$
|
48
|
|
8
%
|
|
Volume
effect
|
|
|
|
|
(1)
|
|
(1)
%
|
|
|
|
|
|
17
|
|
3
%
|
|
Price
effect
|
|
|
|
|
6
|
|
3
%
|
|
|
|
|
|
19
|
|
3
%
|
|
Product
mix effect
|
|
|
|
|
3
|
|
2
%
|
|
|
|
|
|
5
|
|
1
%
|
|
Exchange
rate effect
|
|
|
|
|
2
|
|
1
%
|
|
|
|
|
|
7
|
|
1
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
earnings
|
13
|
|
18
|
|
(5)
|
|
(28)
%
|
|
49
|
|
50
|
|
(1)
|
|
(2)
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accelerated
depreciation included in cost of goods sold
|
--
|
|
--
|
|
--
|
|
|
|
1
|
|
--
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Asset
impairments and restructuring charges, net
|
--
|
|
--
|
|
--
|
|
|
|
1
|
|
--
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
earnings excluding accelerated depreciation
|
13
|
|
18
|
|
(5)
|
|
(28)
%
|
|
51
|
|
50
|
|
1
|
|
2
%
|
Sales
revenue increased $10 million in third quarter 2007 compared to third quarter
2006 primarily due to higher selling prices to offset higher raw material and
energy costs and a favorable shift in product mix. Sales volume
decreased slightly as declines in demand for polyester product lines used in
photographic and optical films were mostly offset by higher volumes in
copolyester and cellulosic products.
Sales
revenue increased $48 million in the first nine months 2007 compared to the
first nine months 2006 primarily due to increased sales volume and higher
selling prices. The increased sales volume was primarily attributed
to continued market development efforts, particularly in copolyester product
lines. Selling prices increased to offset higher raw material and
energy costs.
Operating
earnings decreased $5 million for third quarter 2007 compared to third quarter
2006 due primarily to increased research and development costs related to
commercialization of high-temperature copolyester products,
Eastman
Tritan
copolyester.
Excluding
asset impairments and restructuring charges and accelerated depreciation costs,
operating earnings were similar for the first nine months 2007 compared to
first
nine months 2006 as increased sales volume and higher selling prices offset
higher raw material and energy costs. The 2007 operating results
included $1 million in asset impairment and restructuring costs primarily for
the Spain CHDM facility and $1 million of accelerated depreciation costs for
restructuring actions associated with higher cost PET polymer assets in
Columbia, South Carolina.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
Sales
Revenue
|
Third
Quarter
|
|
|
|
|
|
|
|
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
|
Change
|
|
Volume
Effect
|
|
Price
Effect
|
|
Product
Mix
Effect
|
|
Exchange
Rate
Effect
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
United
States and Canada
|
$
|
1,023
|
$
|
1,111
|
|
(8)
%
|
|
(9)
%
|
|
1
%
|
|
--
%
|
|
--
%
|
Europe,
Middle East, and Africa
|
|
349
|
|
371
|
|
(6)
%
|
|
(10)
%
|
|
(2)
%
|
|
2
%
|
|
4
%
|
Asia
Pacific
|
|
259
|
|
243
|
|
6
%
|
|
(4)
%
|
|
6
%
|
|
4
%
|
|
--
%
|
Latin
America
|
|
182
|
|
241
|
|
(24)
%
|
|
(25)
%
|
|
1
%
|
|
--
%
|
|
--
%
|
|
$
|
1,813
|
$
|
1,966
|
|
(8)
%
|
|
(10)
%
|
|
1
%
|
|
1
%
|
|
--
%
|
Sales
revenue in the United States and Canada decreased for third quarter 2007
compared to third quarter 2006 primarily due to lower sales volume attributed
to
divested product lines in the Performance Polymers, PCI and CASPI
segments. These volumes were partially offset by contract ethylene
sales in the PCI segment under the transition agreement resulting from the
divestiture of the Performance Polymers segment's PE business in fourth quarter
2006 and lower average selling prices in the PCI segment attributed to these
contract ethylene sales. Excluding divested product lines and
contract ethylene sales, sales revenue increased 1 percent primarily due to
sales volumes in the Performance Polymers segment and increased selling
prices.
Sales
revenue in Europe, Middle East and Africa decreased for third quarter 2007
compared to third quarter 2006, primarily due to sales volume, particularly
in
the Performance Polymers segment due to the divestiture of the San Roque, Spain
PET manufacturing facility.
Sales
revenue in Asia Pacific increased for third quarter 2007 compared to third
quarter 2006 primarily due to higher selling prices, particularly in the PCI
segment attributed to strong demand for olefin-based derivative products and
acetyl chemicals.
Sales
revenue in Latin America decreased for third quarter 2007 compared to third
quarter 2006 primarily due to lower sales volume, particularly in the
Performance Polymers segment. Excluding divested product lines,
sales revenue decreased 16 percent. During the third quarter 2007,
the Company entered into definitive agreements to sell its PET polymers
production facilities in Mexico and Argentina and the related businesses, which
will result in significantly lower sales revenue in Latin America in the
future. However, following the completion of the divestitures, and
subject to certain product-specific agreements associated with the sale of
the
manufacturing facilities in Mexico and Argentina,
the
Company plans to continue to sell a limited set of PET products manufactured
in
the U.S. in certain Latin American markets.
|
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
|
|
First
Nine Months
|
|
|
|
|
|
|
|
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
|
Change
|
|
Volume
Effect
|
|
Price
Effect
|
|
Product
Mix
Effect
|
|
Exchange
Rate
Effect
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
United
States and Canada
|
$
|
3,055
|
$
|
3,278
|
|
(7)
%
|
|
(5)
%
|
|
(2)
%
|
|
--
%
|
|
--
%
|
Europe,
Middle East, and Africa
|
|
1,098
|
|
1,080
|
|
2
%
|
|
(6)
%
|
|
1
%
|
|
1 %
|
|
6
%
|
Asia
Pacific
|
|
782
|
|
702
|
|
11
%
|
|
--
%
|
|
9
%
|
|
2 %
|
|
--
%
|
Latin
America
|
|
568
|
|
638
|
|
(11)
%
|
|
(13)
%
|
|
3
%
|
|
(1)
%
|
|
--
%
|
|
$
|
5,503
|
$
|
5,698
|
|
(3)
%
|
|
(6)
%
|
|
1
%
|
|
1
%
|
|
1
%
|
Sales
revenue in the United States and Canada decreased for the first nine months
2007
compared to the first nine months 2006 primarily due to lower sales volume
attributed to divested product lines in the Performance Polymers, PCI and CASPI
segments. These volumes were partially offset by contract ethylene
sales in the PCI segment under the transition agreement resulting from the
divestiture of the Performance Polymers segment's PE business in fourth quarter
2006 and lower average selling prices in the PCI segment attributed to these
contract ethylene sales. Excluding divested product lines and contract ethylene
sales, sales revenue increased 4 percent primarily due to sales volumes in
the
PCI segment and increased selling prices.
Sales
revenue in Europe, Middle East and Africa increased for the first nine months
2007 compared to the first nine months 2006, due to the effects of the exchange
rates, particularly in the Performance Polymers segment, increased selling
prices and favorable product mix, partially offset by lower sales volume,
particularly in the Performance Polymers segment due to the divestiture of
the
San Roque, Spain PET manufacturing facility.
Sales
revenue in Asia Pacific increased for the first nine months 2007 compared to
the
first nine months 2006 primarily due to higher selling prices, particularly
in
the PCI segment attributed to strong demand for olefin-based derivative products
and acetyl chemicals.
Sales
revenue in Latin America decreased for the first nine months 2007 compared
to
the first nine months 2006 primarily due to lower sales volume, particularly
in
the Performance Polymers segment. Excluding divested product
lines, sales revenue was flat. During the third quarter 2007, the
Company entered into definitive agreements to sell its PET polymers production
facilities in Mexico and Argentina and the related businesses, which will result
in significantly lower sales revenue in Latin America in the
future. However, following the completion of the divestitures, and
subject to certain product-specific agreements associated with the sale of
the
manufacturing facilities in Mexico and Argentina,
the
Company plans to continue to sell a limited set of PET products manufactured
in
the U.S. in certain Latin American markets.
With
a
substantial portion of sales to customers outside the United States, Eastman
is
subject to the risks associated with operating in international
markets. To mitigate its exchange rate risks, the Company frequently
seeks to negotiate payment terms in U.S. dollars. In addition, where
it deems such actions advisable, the Company engages in foreign currency hedging
transactions and requires letters of credit and prepayment for shipments where
its assessment of individual customer and country risks indicates their use
is
appropriate. For additional information, see Note 9 to the
consolidated financial statements in Part II, Item 8 and Part II, Item 7A of
the
Company’s 2006 Annual Report on Form 10-K and Forward-Looking Statements and
Risk Factors of this Quarterly Report on Form 10-Q.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
Cash
Flows
|
|
First
Nine Months
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
|
|
|
|
|
Net
cash provided by (used in)
|
|
|
|
|
Operating
activities
|
$
|
411
|
$
|
233
|
Investing
activities
|
|
(299)
|
|
(279)
|
Financing
activities
|
|
(270)
|
|
(50)
|
Effect
of exchange rate changes on cash and cash equivalents
|
|
--
|
|
2
|
Net
change in cash and cash equivalents
|
|
(
158)
|
|
( 94)
|
|
|
|
|
|
Cash
and cash equivalents at beginning of period
|
|
939
|
|
524
|
|
|
|
|
|
Cash
and cash equivalents at end of period
|
$
|
781
|
$
|
430
|
Cash
provided by operating activities increased $178 million in the first nine months
2007 compared to first nine months 2006 reflecting continued strong earnings
and
a smaller increase in working capital. In the first nine months 2006,
the Company's working capital increased, consistent with a more normal level,
following a reduction of working capital requirements in the fourth quarter
2005
due to the impact of the Gulf Coast hurricanes on sales volume, especially
in
the Performance Polymers segment. In the first nine months 2007, the working
capital has remained at a more normal level. The Company contributed
$100 million and $75 million to its U.S. defined benefit pension plans in the
first nine months 2007 and 2006, respectively.
Cash
used
in investing activities increased $20 million in the first nine months 2007
compared to first nine months 2006. During the first nine months
2007, the Company received net proceeds of approximately $42 million primarily
related to the sale of the San Roque, Spain PET manufacturing facility in the
Performance Polymer's segment. Additions to properties and equipment
increased $70 million in the first nine months 2007 consistent with the
Company's expected higher capital spending.
Cash
used
by financing activities totaled $270 million in the first nine months 2007
and
included cash paid for share repurchases totaling $300 million offset by cash
received from stock option exercises of $100 million. Cash used in financing
activities in the first nine months 2006 totaled $50
million. The payment of dividends is reflected in financing
activities in all periods.
Liquidity
At
September 30, 2007, the Company has credit facilities with various U.S. and
non-U.S. banks totaling approximately $890 million. These credit facilities
consist of a $700 million revolving credit facility (the "Credit Facility"),
expiring in April 2012, and a 132 million euro credit facility which expires
in
December 2011. Both of these credit facilities have options for a one
year extension. Borrowings under these credit facilities are subject to interest
at varying spreads above quoted market rates. These credit facilities
require facility fees on the total commitment that are based on the Company's
credit rating. In addition, these credit facilities contain a number
of covenants and events of default, including the maintenance of certain
financial ratios. The Company was in compliance with all such covenants for
all
periods presented. The Company's combined credit facility
borrowings at September 30, 2007 and December 31, 2006 were $187 million and
$185 million at weighted average interest rates of 4.76 percent and 4.00
percent, respectively.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
The
Credit Facility provides liquidity support for commercial paper borrowings
and
general corporate purposes. Accordingly, any outstanding commercial
paper borrowings reduce borrowings available under the Credit
Facility. Since the Credit Facility expires in April 2012, any
commercial paper borrowings supported by the Credit Facility are classified
as
long-term borrowings because the Company has the ability to refinance such
borrowings on a long-term basis.
For
more
information regarding interest rates, refer to Note 6 to the Company's unaudited
consolidated financial statements.
The
Company has effective shelf registration statements filed with the Securities
and Exchange Commission ("SEC") to issue a combined $1.1 billion of debt or
equity securities.
In
the
first quarter 2007, the Company announced its intention to repurchase up to
$300
million of its common shares. In the third quarter 2007, the Company
completed these share repurchases having purchased a total of approximately
4.6
million common shares for a total of $300 million. In October 2007,
the Board authorized an additional $700 million in share
repurchases. Repurchased shares may be used to meet common stock
requirements for compensation and benefit plans and other corporate
purposes.
The
Company contributed $100 million to its U.S. defined benefit pension plansin
the
first quarter 2007 and expects no further contributions to this plan during
2007.
Cash
flows from operations and the sources of capital described above are expected
to
be available and sufficient to meet foreseeable cash flow
requirements. However, the Company’s cash flows from operations can
be affected by numerous factors including risks associated with global
operations, raw material availability and cost, demand for and pricing of
Eastman’s products, capacity utilization, and other factors described under
"Forward-Looking Statements and Risk Factors" below. The Company
believes maintaining a financial profile consistent with an investment grade
company is important to its long term strategy and financial
flexibility.
Capital
Expenditures
Capital
expenditures were $346 million and $279 million for the first nine months 2007
and 2006, respectively. The Company expects capital spending in 2007
will be approximately $500 million which includes
an
expansion
of
acetate tow and copolyester intermediates, enhancements to benefit the PET
facilities in South Carolina, utilizing
IntegRex
technology, and
other targeted
growth
initiatives.
Commitments
At
September 30, 2007, the Company’s obligations related to notes and debentures
totaled approximately $1.4 billion to be paid over a period of up to 20
years. Other borrowings, related primarily to credit facility
borrowings, totaled approximately $200 million.
The
Company had various purchase obligations at September 30, 2007 totaling
approximately $2.2 billion over a period of approximately 15 years for
materials, supplies and energy incident to the ordinary conduct of business.
For
information regarding the Company's lease commitments, refer to Note 10 to
the
Company's unaudited consolidated financial statements.
In
addition, the Company had other liabilities at September 30, 2007 totaling
approximately $1.0 billion primarily related to pension, retiree medical, and
other post-employment obligations.
Off-Balance
Sheet and Other Financing Arrangements
If
certain operating leases are terminated by the Company, it guarantees a portion
of the residual value loss, if any, incurred by the lessors in disposing of
the
related assets. For information on the Company's residual value
guarantees, refer to Note 10 to the Company's unaudited consolidated
financial statements.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
Eastman
entered into an agreement in 1999 that allows it to generate cash by reducing
its working capital through the sale of undivided interests in certain domestic
trade accounts receivable under a planned continuous sale program to a third
party. For information on the Company's accounts receivable
securitization program, refer to Note 10 to the Company's unaudited consolidated
financial statements.
The
Company did not have any other material relationships with unconsolidated
entities or financial partnerships, including special purpose entities, for
the
purpose of facilitating off-balance sheet arrangements with contractually narrow
or limited purposes. Thus, Eastman is not materially exposed to any
financing, liquidity, market, or credit risk related to the above or any other
such relationships.
The
Company has evaluated material relationships including the guarantees related
to
the third-party borrowings of joint ventures and has concluded that the entities
are not Variable Interest Entities ("VIEs") or, in the case of Primester, a
joint venture that manufactures cellulose acetate at its Kingsport, Tennessee
plant, the Company is not the primary beneficiary of the VIE. As
such, in accordance with Financial Accounting Standards Board ("FASB")
Interpretation No. 46R ("FIN 46R"), "Consolidation of Variable Interest
Entities" the Company is not required to consolidate these
entities. In addition, the Company has evaluated long-term purchase
obligations with two entities that may be VIEs at September 30,
2007. These potential VIEs are joint ventures from which the Company
has purchased raw materials and utilities for several years and purchases
approximately $70 million of raw materials and utilities on an annual
basis. The Company has no equity interest in these entities and has
confirmed that one party to each of these joint ventures consolidates the
potential VIE. However, due to competitive and other reasons, the
Company has not been able to obtain the necessary financial information to
determine whether the entities are VIEs, and if one or both are VIEs, whether
or
not the Company is the primary beneficiary.
Guarantees
and claims also arise during the ordinary course of business from relationships
with suppliers, customers, and non-consolidated affiliates when the Company
undertakes an obligation to guarantee the performance of others if specified
triggering events occur. Non-performance under a contract could
trigger an obligation of the Company. These potential claims include actions
based upon alleged exposures to products, intellectual property and
environmental matters, and other indemnifications. The ultimate
effect on future financial results is not subject to reasonable estimation
because considerable uncertainty exists as to the final outcome of these
claims. However, while the ultimate liabilities resulting from such
claims may be significant to results of operations in the period recognized,
management does not anticipate they will have a material adverse effect on
the
Company's consolidated financial position or liquidity.
Treasury
Stock
In
the third quarter 2007, the Company
completed share repurchases authorized by the Board of
Directors in February
2007 having
purchased a total of approximately 4.6 million common shares for a total of
$300
million.
In
October 2007, the Board of Directors
authorized an additional $700 million for repurchase of the Company's
outstanding common stock at such times, in such amounts, and on such terms,
as
determined to be in the best interests of the Company. Repurchased shares may
be
used for such purposes or otherwise applied in such a manner as determined
to be
in the best interests of the Company.
Dividends
The
Company declared cash dividends of $0.44 per share in the third quarter 2007
and
2006 and $1.32 per share in the first nine months 2007 and
2006.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
In
September 2006, the FASB issued Statement of Financial Accounting Standards
("SFAS") No. 157, "Fair Value Measurements" ("SFAS No. 157"), which addresses
the measurement of fair value by companies when they are required to use a
fair
value measure for recognition or disclosure purposes under GAAP. SFAS
No. 157 provides a common definition of fair value to be used throughout GAAP
which is intended to make the measurement of fair value more consistent and
comparable and improve disclosures about those measures. SFAS No. 157
will be effective for an entity's financial statements issued for fiscal years
beginning after November 15, 2007. The Company is currently
evaluating the effect SFAS No. 157 will have on its consolidated financial
position, liquidity, or results of operations.
In
February, 2007, the FASB issued SFAS No. 159, "The Fair Value Option for
Financial Assets and Financial Liabilities—Including an amendment of FASB
Statement No. 115" ("SFAS No. 159"). SFAS No. 159 permits companies
to choose to measure many financial instruments and certain other items at
fair
value at specified election dates. Upon adoption, an entity shall
report unrealized gains and losses on items for which the fair value option
has
been elected in earnings at each subsequent reporting date. Most of
the provisions apply only to entities that elect the fair value
option. However, the amendment to SFAS No. 115, "Accounting for
Certain Investments in Debt and Equity Securities," applies to all entities
with
available for sale and trading securities. SFAS No. 159 will be
effective as of the beginning of an entity's first fiscal year that begins
after
November 15, 2007. The Company is currently evaluating the effect
SFAS No. 159 will have on its consolidated financial position, liquidity, or
results of operations.
For
2007,
the Company expects:
·
|
strong
volumes will be maintained due to continued economic strength, continued
substitution of Eastman products for other materials, and new applications
for existing products;
|
·
|
the
volatility of raw material and energy costs will continue and the
Company
will continue to pursue pricing strategies and ongoing cost control
initiatives to offset the effects on gross
profit;
|
·
|
a
staged phase-out of older cracking units in Texas and a planned shutdown
of higher cost PET assets in South Carolina will continue in 2007,
resulting in accelerated depreciation costs in 2007 of approximately
$50
million;
|
·
|
to
increase volumes in the PCI segment due to the transition agreement
pertaining to the polyethylene divestiture; the Company will supply
ethylene to the buyer, allowing both companies to optimize the value
of
their respective olefin businesses under various market
conditions;
|
·
|
net
interest expense to decrease compared with 2006 primarily due to
higher
interest income, driven by higher invested cash
balances;
|
·
|
the
effective tax rate to be approximately 34
percent;
|
·
|
that
acetate tow will have modest growth potential in future years and
expects
to continue to evaluate growth options in
Asia;
|
·
|
to
aggressively take action to improve the performance of its PET product
lines in the Performance Polymers segment, including starting up
the
Company's new PET facility utilizing
IntegRex
technology in
Columbia, South Carolina (which was fully operational in the first
quarter
2007), debottlenecking the new PET facility which will result in
additional capacity of 50 percent over planned capacity,
rationalizing 350 thousand metric tons of existing capacity in North
America, completing the sale of its Spain PET manufacturing facility
(which was completed in second quarter 2007), selling the Latin America
PET manufacturing facilities (which was agreed to in third quarter
2007)
and pursuing other strategic options for its remaining underperforming
PET
manufacturing facilities outside the United
States;
|
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
·
|
capital
expenditures to increase to approximately $500 million and exceed
estimated depreciation and amortization of approximately $335 million,
including accelerated depreciation costs of $50 million; in 2007,
the
Company plans to pursue expansion of acetate tow and copolyester
intermediates, enhancements to benefit the PET facilities in South
Carolina, utilizing
IntegRex
technology, and pursue other
targeted growth initiatives;
|
·
|
continues
to evaluate its portfolio, which could lead to further restructuring,
divestiture, or consolidation of product lines as it continues to
focus on
profitability;
|
·
|
to
contribute $100 million to the Company’s U.S. defined benefit pension
plans, all of which was contributed in the first quarter of 2007;
and
|
·
|
priorities
for use of available cash will be to pay the quarterly cash dividend,
fund
targeted growth initiatives and defined benefit pension plans, and
repurchase shares.
|
For
fourth quarter 2007, the Company expects normal seasonality will reduce demand
in most of its businesses and product lines sequentially. The Company
also expects continued volatility in its raw material and energy costs resulting
in similar results to fourth quarter 2006 excluding asset impairments and
restructuring charges related to ongoing strategic decisions in both
periods.
See
“Forward-Looking Statements and Risk Factors below.”
The
expectations under "Outlook" and certain other statements in this Quarterly
Report on Form 10-Q may be forward-looking in nature as defined in the Private
Securities Litigation Reform Act of 1995. These statements and other written
and
oral forward-looking statements made by the Company from time to time may relate
to, among other things, such matters as planned and expected capacity increases
and utilization; anticipated capital spending; expected depreciation and
amortization; environmental matters; legal proceedings; exposure to, and effects
of hedging of, raw material and energy costs, foreign currencies and interest
rates; global and regional economic, political, and business conditions;
competition; growth opportunities; supply and demand, volume, price, cost,
margin, and sales; earnings, cash flow, dividends and other expected financial
results and conditions; expectations, strategies, and plans for individual
assets and products, businesses and segments as well as for the whole of Eastman
Chemical Company; cash requirements and uses of available cash; financing plans;
pension expenses and funding; credit ratings; anticipated restructuring,
divestiture, and consolidation activities; cost reduction and control efforts
and targets; integration of acquired businesses; strategic initiatives and
development, production, commercialization, and acceptance of new products,
services and technologies and related costs; asset, business and product
portfolio changes; and expected tax rates and net interest
costs.
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
These
plans and expectations are based upon certain underlying assumptions, including
those mentioned with the specific statements. Such assumptions are in
turn based upon internal estimates and analyses of current market conditions
and
trends, management plans and strategies, economic conditions and other
factors. These plans and expectations and the assumptions underlying
them are necessarily subject to risks and uncertainties inherent in projecting
future conditions and results. Actual results could differ materially
from expectations expressed in the forward-looking statements if one or more
of
the underlying assumptions and expectations proves to be inaccurate or is
unrealized. In addition to the factors described in this report, the
following are some of the important factors that could cause the Company's
actual results to differ materially from those in any such forward-looking
statements:
·
|
The
Company is reliant on certain strategic raw materials and energy
commodities for its operations and utilizes risk management tools,
including hedging, as appropriate, to mitigate short-term market
fluctuations in raw material and energy costs. There can be no
assurance, however, that such measures will result in cost savings
or that
all market fluctuation exposure will be eliminated. In
addition, natural disasters, changes in laws or regulations, war
or other
outbreak of hostilities or terrorism or other political factors in
any of
the countries or regions in which the Company operates or does business
or
in countries or regions that are key suppliers of strategic raw materials
and energy commodities, or breakdown or degradation of transportation
infrastructure used for delivery of strategic raw materials and energy
commodities, could affect availability and costs of raw materials
and
energy commodities.
|
·
|
While
temporary shortages of raw materials and energy may occasionally
occur,
these items have historically been sufficiently available to cover
current
and projected requirements. However, their continuous
availability and price are impacted by natural disasters, plant
interruptions occurring during periods of high demand, domestic and
world
market and political conditions, changes in government regulation,
war or
other outbreak of hostilities or terrorism, and breakdown or degradation
of transportation infrastructure. Eastman’s operations or
products may, at times, be adversely affected by these
factors.
|
·
|
The
Company's competitive position in the markets in which it participates
is,
in part, subject to external factors in addition to those that the
Company
can impact. Natural disasters, pandemic illnesses, changes in
laws or regulations, war or other outbreak of hostilities or terrorism,
or
other political factors in any of the countries or regions in which
the
Company operates or does business or in countries or regions that
are key
suppliers of strategic raw materials, and breakdown or degradation
of
transportation infrastructure used for delivery of raw
materials and energy supplies to the Company and for delivery of
the
Company's products to customers, could negatively impact the Company’s
competitive position and its ability to maintain market
share. For example, supply and demand for certain of the
Company's products is driven by end-use markets and worldwide capacities
which, in turn, impact demand for and pricing of the Company's
products.
|
·
|
Limitation
of the Company's available manufacturing capacity due to significant
disruption in its manufacturing operations, including natural disasters,
pandemic illnesses, changes in laws or regulations, war or other
outbreak
of hostilities or terrorism or other political factors in any of
the
countries or regions in which the Company operates or does business,
or
breakdown or degradation of transportation infrastructure used for
delivery of raw materials and energy supplies to the Company
and for delivery of the Company's products to customers, could have
a
material adverse affect on sales revenue, costs and results of operations
and financial condition. Additionally, limitations of our
suppliers' and customers' available manufacturing capacity due to
the
factors described above could have a material adverse affect on sales
revenue, costs and results of operations and financial
condition.
|
·
|
The
Company has an extensive customer base; however, loss of, or material
financial weakness of, certain of the largest customers could adversely
affect the Company's financial condition and results of operations
until
such business is replaced and no assurances can be made that the
Company
would be able to regain or replace any lost
customers.
|
|
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
|
·
|
The
Company's competitive position has from time to time been adversely
impacted by low cost competitors in certain regions. The Company has
efforts underway to exploit growth opportunities in certain core
businesses by developing new products and technologies, expanding
into new
markets, and tailoring product offerings to customer
needs. Current examples include
IntegRex
technology
and new PET polymers products, such as
ParaStar
, and copolyester
product innovations, such as
Eastman
Tritan
copolyester. There can be no assurance that such efforts will result
in
financially successful commercialization of such products or acceptance
by
existing or new customers or new markets or that large capital projects
for such growth efforts can be completed within the time or at the
costs
projected due, among other things, to demand for and availability
of
construction materials and labor.
|
·
|
The
Company has made, and intends to continue making, strategic investments,
including
IntegRex
technology and coal gasification, and has
entered, and expects to continue to enter, into strategic alliances
in
technology, services businesses, and other ventures in order to build,
diversify, and strengthen certain Eastman capabilities, improve Eastman's
raw materials and energy cost and supply position, and maintain high
utilization of manufacturing assets. There can be no assurance
that such investments and alliances will achieve their underlying
strategic business objectives or that they will be beneficial to
the
Company's results of operations or that large capital projects for
such
growth efforts can be completed within the time or at the costs projected
due, among other things, to demand for and availability of construction
materials and labor.
|
·
|
In
addition to productivity and cost reduction initiatives, the Company
is
striving to improve margins on its products through price increases
where
warranted and accepted by the market; however, the Company's earnings
could be negatively impacted should such increases be unrealized,
not be
sufficient to cover increased raw material and energy costs, or have
a
negative impact on demand and volume. There can be no
assurances that price increases will be realized or will be realized
within the company's anticipated
timeframe.
|
·
|
The
Company has undertaken and expects to continue to undertake productivity
and cost reduction initiatives and organizational restructurings
to
improve performance and generate cost savings. There can be no
assurance that these will be completed as planned or beneficial or
that
estimated cost savings from such activities will be
realized.
|
·
|
The
Company's facilities and businesses are subject to complex health,
safety
and environmental laws and regulations, which require and will continue
to
require significant expenditures to remain in compliance with such
laws
and regulations currently and in the future. The Company's
accruals for such costs and associated liabilities are subject to
changes
in estimates on which the accruals are based. The amount
accrued reflects the Company’s assumptions about remediation requirements
at the contaminated site, the nature of the remedy, the outcome of
discussions with regulatory agencies and other potentially responsible
parties at multi-party sites, and the number and financial viability
of
other potentially responsible parties. Changes in the estimates
on which the accruals are based, unanticipated government enforcement
action, or changes in health, safety, environmental, chemical control
regulations and testing requirements could result in higher or lower
costs.
|
·
|
The
Company and its operations from time to time are parties to or targets
of
lawsuits, claims, investigations, and proceedings, including product
liability, personal injury, asbestos, patent and intellectual property,
commercial, contract, environmental, antitrust, health and safety,
and
employment matters, which are handled and defended in the ordinary
course
of business. The Company believes amounts reserved are adequate
for such pending matters; however, results of operations could be
affected
by significant litigation adverse to the
Company.
|
·
|
The
Company has deferred tax assets related to capital and operating
losses. The Company establishes valuation allowances to reduce
these deferred tax assets to an amount that is more likely than not
to be
realized. The Company’s ability to utilize these deferred tax
assets depends on projected future operating results, the reversal
of
existing temporary differences, and the availability of tax planning
strategies. Realization of these assets is expected to occur
over an extended period of time. As a result, changes in tax laws,
assumptions with respect to future taxable income, and tax planning
strategies could result in adjustments to these
assets.
|
|
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
|
·
|
Due
to the Company's global sales, earnings, and asset profile, it is
exposed
to volatility in foreign currency exchange rates and interest
rates. The Company may use derivative financial instruments,
including swaps, options and forwards, to mitigate the impact of
changes
in exchange rates and interest rates on its financial
results. However, there can be no assurance that these efforts
will be successful and operating results could be affected by significant
adverse changes in currency exchange rates or interest
rates.
|
The
foregoing list of important factors does not include all such factors nor
necessarily present them in order of importance. This disclosure,
including that under "Outlook" and "Forward-Looking Statements and Risk
Factors," and other forward-looking statements and related disclosures made
by
the Company in this Quarterly Report on Form 10-Q and elsewhere from time to
time, represents management's best judgment as of the date the information
is
given. The Company does not undertake responsibility for updating any
of such information, whether as a result of new information, future events,
or
otherwise, except as required by law. Investors are advised, however,
to consult any further public Company disclosures (such as in filings with
the
Securities and Exchange Commission or in Company press releases) on related
subjects.
There
are
no material changes to the quantitative and qualitative information about the
Company's market risks from that disclosed in Part II, Item 7A of the Company's
2006 Annual Report on Form 10-K.
Disclosure
Controls and Procedures
The
Company maintains a set of disclosure controls and procedures designed to ensure
that information required to be disclosed by the Company in reports that it
files or submits under the Securities Exchange Act of 1934 is recorded,
processed, summarized, and reported within the time periods specified in
Securities and Exchange Commission rules and forms. Disclosure
controls and procedures include, without limitation, controls and procedures
designed to ensure that information required to be disclosed by the Company
in
the reports that it files or submits under the Securities Exchange Act of 1934
is accumulated and communicated to the issuer's management, including its
principal executive and principal financial officers, or persons performing
similar functions, as appropriate to allow timely decisions regarding required
disclosure. An evaluation was carried out under the supervision and
with the participation of the Company's management, including the Chief
Executive Officer ("CEO") and Chief Financial Officer ("CFO"), of the
effectiveness of the Company’s disclosure controls and
procedures. Based on that evaluation, the CEO and CFO have concluded
that the Company's disclosure controls and procedures are effective as of
September 30, 2007.
Changes
in Internal Control Over Financial Reporting
There
has
been no change in the Company’s internal control over financial reporting that
occurred during the third quarter of 2007 that has materially affected, or
is
reasonably likely to materially affect, the Company’s internal control over
financial reporting.
PART
II. OTHER INFORMATION
General
From
time
to time, the Company and its operations are parties to, or targets of, lawsuits,
claims, investigations and proceedings, including product liability, personal
injury, asbestos, patent and intellectual property, commercial, contract,
environmental, antitrust, health and safety, and employment matters, which
are
being handled and defended in the ordinary course of business. While
the Company is unable to predict the outcome of these matters, it does not
believe, based upon currently available facts, that the ultimate resolution
of
any such pending matters, including the sorbates litigation and the asbestos
litigation, will have a material adverse effect on its overall financial
condition, results of operations or cash flows. However, adverse
developments could negatively impact earnings or cash flows in a particular
future period. For additional information about the sorbates and
asbestos litigation, refer to Note 16 to the Company's unaudited consolidated
financial statements.
Middelburg
(Netherlands) Environmental Proceeding
In
June
2005, Eastman Chemical Middelburg, B.V., a wholly owned subsidiary of the
Company, (the "Subsidiary") received a summons from the Middelburg (Netherlands)
District Court Office to appear before the economic magistrate of that District
and respond to allegations that the Subsidiary's manufacturing facility in
Middelburg has exceeded certain conditions in the permit that allows the
facility to discharge wastewater into the municipal wastewater treatment system.
The summons proposed penalties in excess of $100,000 as a result of the alleged
violations. A hearing in this matter took place on July 28, 2005, at which
time
the magistrate bifurcated the proceeding into two phases: a compliance phase
and
an economic benefit phase. With respect to the compliance phase, the magistrate
levied a fine of less than $100,000. With respect to the economic benefit phase,
where the prosecutor proposed a penalty in excess of $100,000, the district
court in November 2006 assessed against the Subsidiary a penalty of less than
$100,000. The prosecutor has appealed this ruling, and the appeal is
pending. This disclosure is made pursuant to SEC Regulation S-K, Item
103, Instruction 5.C., which requires disclosure of administrative proceedings
commenced under environmental laws that involve governmental authorities as
parties and potential monetary sanctions in excess of $100,000. The
Company believes that the ultimate resolution of this proceeding
will not have a material impact on the Company’s financial condition, results of
operations, or cash flows.
Jefferson
(Pennsylvania) Environmental Proceeding
In
December 2005, Eastman Chemical Resins, Inc., a wholly-owned subsidiary of
the
Company (the "ECR Subsidiary"), received a Notice of Violation ("NOV") from
the
United States Environmental Protection Agency's Region III Office ("EPA")
alleging that the ECR Subsidiary's West Elizabeth, Jefferson Borough, Allegheny
County, Pennsylvania manufacturing operation violated certain federally
enforceable local air quality regulations and certain provisions in a number
of
air quality-related permits. The NOV did not assess a civil penalty
and EPA has to date not proposed any specific civil penalty
amount. In October 2006, EPA referred the matter to the United States
Department of Justice's Environmental Enforcement Section
("DOJ"). Company representatives met with EPA and DOJ in November,
2006 and subsequent to that meeting the Company determined that it is not
reasonably likely that any civil penalty assessed by the EPA and DOJ will be
less than $100,000. While the Company intends to vigorously defend against
these
allegations, this disclosure is made pursuant to SEC Regulation S-K, Item 103,
Instruction 5.C., which requires disclosure of administrative proceedings
commenced under environmental laws that involve governmental authorities as
parties and potential monetary sanctions in excess of $100,000. The
Company believes that the ultimate resolution of this proceeding will not have
a
material impact on the Company's financial condition, results of operations,
or
cash flows.
For
identification and discussion of the most significant risks applicable to the
Company and its business, see Part I – Item 2 – Management's Discussion and
Analysis of Financial Condition and Results of Operations – Forward-Looking
Statements and Risk Factors of this Quarterly Report on Form 10-Q.
(c) Purchases
of Equity Securities by the Issuer
Period
|
Total
Number
of
Shares
Purchased
(1)
|
|
Average
Price Paid Per Share
(2)
|
|
Total
Number of Shares Purchased as Part of Publicly Announced
Plans
or
Programs
(3)
|
|
Approximate
Dollar
Value
(in millions) that May Yet Be Purchased Under the Plans or
Programs
(3)
|
July
1- 31, 2007
|
301,101
|
|
67.06
|
|
300,900
|
$
|
193
|
August
1-31, 2007
|
2,208,967
|
|
66.14
|
|
2,208,500
|
|
47
|
September
1-30, 2007
|
722,477
|
|
65.64
|
|
721,948
|
|
0
|
Total
|
3,232,545
|
$
|
66.11
|
|
3,231,348
|
|
|
(1)
|
Shares
repurchased under a publicly announced repurchase plan and shares
surrendered to the Company by employees to satisfy individual tax
withholding obligations upon vesting of previously issued shares
of
restricted common stock.
|
(2)
|
Average
price paid per share reflects the weighted average purchase price
paid
during the period for all share repurchases and shares surrendered
by
employee stockholders to satisfy individual tax withholding obligations
upon vesting of restricted common
stock.
|
(3)
|
On
February 20, 2007, the Board of Directors approved a new authorization
for
the repurchase of up to $300 million of the Company's outstanding
common
stock at such times, in such amounts, and on such terms, as determined
to
be in the best interests of the Company. Repurchased shares may
be used for compensation and benefit plans and other corporate
purposes. As of September 30, 2007, the Company has completed
the authorized share repurchases having purchased a total of 4,601,448
shares for a total amount of $300
million.
|
Exhibits
filed as part of this report are listed in the
Exhibit Index appearing on page 51.
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
|
|
|
Eastman
Chemical Company
|
|
|
|
|
|
|
|
|
|
|
|
|
Date: October
31, 2007
|
|
By:
|
/s/
Richard A. Lorraine
|
|
|
|
Richard
A. Lorraine
|
|
|
|
Senior
Vice President and Chief Financial
Officer
|
|
|
EXHIBIT
INDEX
|
|
Sequential
|
Exhibit
|
|
|
|
Page
|
Number
|
|
Description
|
|
Number
|
|
|
|
|
|
3.01
|
|
Amended
and Restated Certificate of Incorporation of Eastman Chemical Company,
as
amended (incorporated herein by reference to Exhibit 3.01 to Eastman
Chemical Company's Quarterly Report on Form 10-Q for the quarter
ended
June 30, 2001)
|
|
|
|
|
|
|
|
3.02
|
|
|
|
|
|
|
|
|
|
4.01
|
|
Form
of Eastman Chemical Company common stock certificate as amended February
1, 2001 (incorporated herein by reference to Exhibit 4.01 to Eastman
Chemical Company’s Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001)
|
|
|
|
|
|
|
|
4.02
|
|
Indenture,
dated as of January 10, 1994, between Eastman Chemical Company and
The
Bank of New York, as Trustee (the "Indenture") (incorporated herein
by
reference to Exhibit 4(a) to Eastman Chemical Company's Current Report
on
Form 8-K dated January 10, 1994 (the "8-K"))
|
|
|
|
|
|
|
|
4.03
|
|
Form
of 7 1/4% Debentures due January 15, 2024 (incorporated herein by
reference to Exhibit 4(d) to the 8-K)
|
|
|
|
|
|
|
|
4.04
|
|
Officers’
Certificate pursuant to Sections 201 and 301 of the Indenture
(incorporated herein by reference to Exhibit 4(a) to Eastman Chemical
Company's Current Report on Form 8-K dated June 8, 1994 (the "June
8-K"))
|
|
|
|
|
|
|
|
4.05
|
|
Form
of 7 5/8% Debentures due June 15, 2024 (incorporated herein by reference
to Exhibit 4(b) to the June 8-K)
|
|
|
|
|
|
|
|
4.06
|
|
Form
of 7.60% Debentures due February 1, 2027 (incorporated herein by
reference
to Exhibit 4.08 to Eastman Chemical Company's Annual Report on Form
10-K
for the year ended December 31, 1996 (the "1996 10-K"))
|
|
|
|
|
|
|
|
4.07
|
|
Form
of 7% Notes due April 15, 2012 (incorporated herein by reference
to
Exhibit 4.09 to Eastman Chemical Company's Quarterly Report on Form
10-Q
for the quarter ended March 31, 2002)
|
|
|
|
|
|
|
|
4.08
|
|
Officer's
Certificate pursuant to Sections 201 and 301 of the Indenture related to
7.60% Debentures due February 1, 2027 (incorporated herein by reference
to
Exhibit 4.09 to the 1996 10-K)
|
|
|
|
|
|
|
|
4.09
|
|
$200,000,000
Accounts Receivable Securitization agreement dated April 13, 1999
(amended
April 11, 2000), between the Company and Bank One, N.A., as agent.
Pursuant to Item 601(b)(4)(iii) of Regulation S-K, in lieu of filing
a
copy of such agreement, the Company agrees to furnish a copy of such
agreement to the Commission upon request
|
|
|
|
|
|
|
|
4.10
|
|
Amended
and Restated Credit Agreement, dated as of April 3, 2006 (the "Credit
Agreement") among Eastman Chemical Company, the Lenders named therein,
and
Citigroup Global Markets, Inc. and J. P. Morgan Securities Inc.,
as joint
lead arrangers (incorporated herein by reference to Exhibit 4.11
to
Eastman Chemical Company's Quarterly Report on Form 10-Q for the
quarter
ended June 30, 2006)
|
|
|
EASTMAN
CHEMICAL COMPANY BYLAWS
SECTION
I
Capital
Stock
Section
1.1. Certificates
. Every holder of stock in the
Corporation shall be entitled to have a certificate signed in the name of the
Corporation by the Chairman of the Board of Directors or the Vice Chairman
or a
Vice President, and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation certifying the number of shares
in
the Corporation owned by such holder. Any or all of the signatures on
the certificate may be a facsimile. In case any officer, transfer
agent, or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent, or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if such person were such officer, transfer agent, or
registrar at the date of issue.
Section
1.2. Record
Ownership
. A record of the name and address of the holder of
each certificate, the number of shares represented thereby and the date of
issue
thereof shall be made on the Corporation's books. The Corporation
shall be entitled to treat the holder of record of any share of stock as the
holder in fact thereof, and accordingly shall not be bound to recognize any
equitable or other claim to or interest in any share on the part of any other
person, whether or not it shall have express or other notice thereof, except
as
required by the laws of the State of Delaware.
Section
1.3. Transfer of Record Ownership
. Transfers of
stock shall be made on the books of the Corporation only by direction of the
person named in the certificate or such person's attorney, lawfully constituted
in writing, and only upon the surrender of the certificate therefor and a
written assignment of the shares evidenced thereby, which certificate shall
be
canceled before the new certificate is issued.
Section
1.4. Lost
Certificates
. Any person claiming a stock certificate in
lieu of one lost, stolen or destroyed shall give the Corporation an affidavit
as
to such person's ownership of the certificate and of the facts which go to
prove
its loss, theft or destruction. Such person shall also, if required
by policies adopted by the Board of Directors, give the Corporation a bond,
in
such form as may be approved by the Corporation, sufficient to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss of the certificate or the issuance of a new
certificate.
Section
1.5. Transfer Agents; Registrars; Rules Respecting
Certificates
. The Board of Directors may appoint, or
authorize any officer or officers to appoint, one or more transfer agents and
one or more registrars. The Board of Directors may make such further
rules and regulations as it may deem expedient concerning the issue, transfer
and registration of stock certificates of the Corporation.
Section
1.6. Record
Date
. The Board of Directors may fix in advance a future
date, not exceeding 60 days (nor, in the case of a stockholders' meeting, less
than ten days) preceding the date of any meeting of stockholders, payment of
dividend or other distribution, allotment of rights, or change, conversion
or
exchange of capital stock or for the purpose of any other lawful action, as
the
record date for determination of the stockholders entitled to notice of and
to
vote at any such meeting and any adjournment thereof, or to receive any such
dividend or other distribution or allotment of rights, or to exercise the rights
in respect of any such change, conversion or exchange of capital stock, or
to
participate in any such other lawful action, and in such case such stockholders
and only such stockholders as shall be stockholders of record on the date so
fixed shall be entitled to such notice of and to vote at such meeting and any
adjournment thereof, or to receive such dividend or other distribution or
allotment of rights, or to exercise such rights, or to participate in any such
other lawful action, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation after any such record date fixed as
aforesaid.
SECTION
II
Meetings
of Stockholders
Section
2.1. Annual
. The annual meeting of stockholders
for the election of directors and the transaction of such other proper business
shall be held on the first Thursday in May, unless otherwise specified by
resolution adopted by the Board of Directors, and at the time and place, within
or without the State of Delaware, as determined by the Board of
Directors.
Section
2.2. Special
. Special meetings of stockholders
for any purpose or purposes may be called only by the Board of Directors,
pursuant to a resolution adopted by a majority of the members of the Board
of
Directors then in office. Special meetings may be held at any place,
within or without the State of Delaware, as determined by the Board of
Directors. The only business which may be conducted at such a
meeting, other than procedural matters and matters relating to the conduct
of
the meeting, shall be the matter or matters described in the notice of the
meeting.
Section
2.3. Notice
. Notice of each meeting of stockholders, shall
be made in writing, or electronically to such stockholders as have consented
to
the receipt of such notice by electronic means, or by any such other means
permitted by the Delaware General Corporation Law. Such notice shall
state the date, time, place and, in the case of a special meeting, the purpose
thereof, shall be given as provided by law by the Secretary or an Assistant
Secretary not less than ten days nor more than 60 days before such meeting
(unless a different time is specified by law) to every stockholder entitled
by
law to notice of such meeting.
Section
2.4. List of Stockholders.
A complete list of the
stockholders entitled to vote at any meeting of stockholders, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder, shall be prepared by
the
Secretary. Such list shall be available for examination of any
stockholder, for any purpose germane to the meeting, either on a reasonably
accessible electronic network or, during normal business hours, at the
Corporation’s principal place of business, for at least ten days before the
meeting and at the place of the meeting during the whole time of the
meeting. In the event that such list is to be made available on an
electronic network, the notice of meeting given under Section 2.3 hereof shall
provide the information required to gain access to such list.
Section
2.5. Quorum
. The holders of shares of stock
entitled to cast a majority of the votes on the matters at issue at a meeting
of
stockholders, present in person or represented by proxy, shall constitute a
quorum, except as otherwise required by the Delaware General Corporation
Law. In the event of a lack of a quorum, the chairman of the meeting
or a majority in interest of the stockholders present in person or represented
by proxy may adjourn the meeting from time to time without notice other than
announcement at the meeting, until a quorum shall be obtained. At any
such adjourned meeting at which there is a quorum, any business may be
transacted that might have been transacted at the meeting originally
called.
Section
2.6. Organization
and
Procedure
. (a) The Chairman of the Board, or such
other officer of the Corporation designated by a majority of the directors
that
the Corporation would have if there were no vacancies on the Board of Directors
(the “Whole Board”), will call meetings of the stockholders to order and will
act as presiding officer thereof. Unless otherwise determined prior
to the meeting by a majority of the Whole Board, the presiding officer of the
meeting of the stockholders will have the right and the authority to determine
and maintain the rules, regulations and procedures for the proper conduct of
the
meeting, including, without limitation, restricting entry to the meeting after
it has commenced, maintaining order and the safety of those in attendance,
opening and closing the polls for voting, dismissing business or proposals
not
properly submitted, limiting the time allowed for discussion of the business
of
the meeting, restricting the persons (other than stockholders of the Corporation
or their duly appointed proxies) that may attend the meeting, and ascertaining
whether any stockholder or proxy holder may be excluded from the meeting based
upon any determination by the presiding officer, in his or her sole discretion,
that the stockholder or proxy holder is unduly disruptive or is likely to
disrupt the meeting. The Secretary of the Corporation shall act as
secretary, but in the absence of the Secretary, the presiding officer may
appoint a secretary.
(b) At
an annual meeting of the stockholders, only such business will be conducted
or
considered as is properly brought before the meeting. To be properly
brought before an annual meeting, business must be (i) specified in the notice
of meeting (or any supplement thereto) given in accordance with these bylaws,
(ii) brought before the meeting by the presiding officer or by or at the
direction of a majority of the Whole Board,
or
(iii)
otherwise properly requested to be brought before the meeting by a stockholder
of the Corporation in accordance with these bylaws.
(c) At
a special meeting of
stockholders, only such business may be conducted or considered as is properly
brought before the meeting. To be properly brought before a special
meeting, business must be (i) specified in the notice of the meeting (or any
supplement thereto) given in accordance with these bylaws or (ii) brought before
the meeting by the presiding officer or by or at the direction of a majority
of
the Whole Board. The determination of whether any business sought to
be brought before any annual or special meeting of the stockholders is properly
brought before such meeting will be made by the presiding officer of the
meeting. If the presiding officer determines that any business is not
properly brought before such meeting, he or she will so declare at the meeting
and any such business will not be conducted or considered.
Section
2.7. Stockholder Nominations and
Proposals
. (a) No proposal for a stockholder vote
shall be submitted by a stockholder (a "Stockholder Proposal") to the
Corporation's stockholders unless the stockholder submitting such proposal
(the
"Proponent") shall have filed a written notice setting forth with particularity
(i) the names and business addresses of the Proponent and all Persons (as such
term is defined in Article V of the Certificate of Incorporation) acting in
concert with the Proponent; (ii) the name and address of the Proponent and
the
Persons identified in clause (i), as they appear on the Corporation's books
(if
they so appear); (iii) the class and number of shares of the Corporation
beneficially owned by the Proponent and the Persons identified in clause (i);
(iv) a description of the Stockholder Proposal containing all material
information relating thereto; and (v) such other information as the Board of
Directors reasonably determines is necessary or appropriate to enable the Board
of Directors and stockholders of the Corporation to consider the Stockholder
Proposal. The presiding officer at any stockholders' meeting may
determine that any Stockholder Proposal was not made in accordance with the
procedures prescribed in these Bylaws or is otherwise not in accordance with
law, and if it is so determined, such officer shall so declare at the meeting
and the Stockholder Proposal shall be disregarded.
(b) Only
persons who are
selected and recommended by the Board of Directors or the committee of the
Board
of Directors designated to make nominations, or who are nominated by
stockholders in accordance with the procedures set forth in this Section 2.7,
shall be eligible for election, or qualified to serve, as
directors. Nominations of individuals for election to the Board of
Directors of the Corporation at any annual meeting or any special meeting of
stockholders at which directors are to be elected may be made by any stockholder
of the Corporation entitled to vote for the election of directors at that
meeting by compliance with the procedures set forth in this Section
2.7. Nominations by stockholders shall be made by written notice (a
"Nomination Notice"), which shall set forth (i) as to each individual nominated,
(A) the name, date of birth, business address and residence address of such
individual; (B) the business experience during the past five years of such
nominee, including his or her principal occupations and employment during such
period, the name and principal business of any corporation or other organization
in which such occupations and employment were carried on, and such other
information as to the nature of his or her responsibilities
and
level
of professional competence as may be sufficient to permit assessment of his
or
her prior business experience; (C) whether the nominee is or has ever been
at
any time a director, officer or owner of 5% or more of any class of capital
stock, partnership interests or other equity interest of any corporation,
partnership or other entity; (D) any directorships held by such nominee in
any
company with a class of securities registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended, or subject to the requirements
of
Section 15(d) of such Act or any company registered as an investment company
under the Investment Company Act of 1940, as amended; (E) whether, in the last
five years, such nominee has been convicted in a criminal proceeding or has
been
subject to a judgment, order, finding or decree of any federal, state or other
governmental entity, concerning any violation of federal, state or other law,
or
any proceeding in bankruptcy, which conviction, order, finding, decree or
proceeding may be material to an evaluation of the ability or integrity of
the
nominee; and (F) all information relevant to a determination of the nominee's
status as to "independence," including references to the criteria established
by
the New York Stock Exchange (or any other exchange or quotation system on which
the Corporation's equity securities are then listed or quoted) and the
Corporation's Corporate Governance Guidelines, in each case as in effect at
the
time of such Stockholder Nomination; and (ii) as to the Person submitting the
Nomination Notice and any Person acting in concert with such Person, (x) the
name and business address of such Person, (y) the name and address of such
Person as they appear on the Corporation's books (if they so appear), and (z)
the class and number of shares of the Corporation that are beneficially owned
by
such Person. A written consent to being named in a proxy statement as
a nominee, and to serve as a director if elected, signed by the nominee, shall
be filed with any Nomination Notice. If the presiding officer at any
stockholders' meeting determines that a nomination was not made in accordance
with the procedures prescribed by these Bylaws, he shall so declare to the
meeting and the defective nomination shall be disregarded.
(c) In
the case of an annual
meeting of stockholders, Nomination Notices and Stockholder Proposals shall
be
delivered to the Secretary at the principal executive office of the Corporation
not less than 45 days prior to the date on which the notice of the immediately
preceding year's annual meeting of stockholders was first sent to the
stockholders of the Corporation. In the case of a special meeting of
stockholders, Nomination Notices and Stockholder Proposals shall be delivered
to
the Secretary at the principal executive office of the Corporation no later
than
the close of business on the 15th day following the day on which notice of
the
date of a special meeting of stockholders was given.
Section
2.8. Voting.
Unless otherwise provided in a resolution or resolutions providing
for
any class or series of Preferred Stock pursuant to Article IV of the Certificate
of Incorporation or by the Delaware General Corporation Law, each stockholder
shall be entitled to one vote, in person or by proxy, for each share held of
record by such stockholder who is entitled to vote generally in the election
of
directors. Each stockholder voting by proxy shall grant such
authority in writing, by electronic or telephonic transmission or communication,
or by any such other means permitted by the Delaware General Corporation
Law. All questions, including elections for the Board of Directors,
shall be decided by a majority of the votes cast, except as otherwise required
by the Delaware General Corporation Law or as provided for in the Certificate
of
Incorporation or these Bylaws.
Abstentions
shall not be considered to be votes cast. For purposes of this Bylaw, a majority
of votes cast shall mean that the number of shares voted "for" a director's
election exceeds 50% of the number of votes cast with respect to that director's
election or, in the case where the number of nominees exceeds the number of
directors to be elected, cast with respect to election of directors generally.
Votes cast shall include votes to withhold authority in each case and exclude
abstentions with respect to that director's election, or, in the case where
the
number of nominees exceeds the number of directors to be elected, abstentions
with respect to election of directors generally.
If
a
nominee for director who is an incumbent director is not elected and no
successor has been elected at such meeting, the director shall promptly tender
his or her resignation to the Board of Directors. The Nominating and Corporate
Governance Committee of the Board of Directors shall make a recommendation
to
the Board of Directors as to whether to accept or reject the tendered
resignation, or whether other action should be taken. The Board of Directors
shall act on the tendered resignation, taking into account the Nominating and
Corporate Governance Committee's recommendation, and publicly disclose (by
a
press release, a filing with the Securities and Exchange Commission, or other
broadly disseminated means of communication) its decision regarding the tendered
resignation and the rationale for the decision within 90 days from the date
of
the certification of the election results. The Nominating and Corporate
Governance Committee in making its recommendation, and the Board of Directors
in
making its decision, may each consider any factors or other information that
it
considers appropriate and relevant. The director who tenders his or her
resignation will not participate in the recommendation of the Nominating and
Corporate Governance Committee or the decision of the Board of Directors with
respect to his or her resignation. If such incumbent director's resignation
is
not accepted by the Board of Directors, such director shall continue to serve
until the next annual meeting of stockholders at which the class in which he
or
she is serving is nominated and re-elected and until his or her successor is
duly elected, or his or her earlier resignation and removal. If a director's
resignation is accepted by the Board of Directors pursuant to this Bylaw, or
if
a nominee for director is not elected and the nominee is not an incumbent
director, then the Board of Directors, in its sole discretion, may fill any
resulting vacancy or may decrease the size of the Board of Directors pursuant
to
the Delaware General Corporation Law and the Certificate of Incorporation and
these Bylaws of the Company.
Section
2.9. Inspectors
. The Board of Directors by
resolution shall, in advance of any meeting of stockholders, appoint one or
more
inspectors, which inspector or inspectors may include individuals who serve
the
Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives of the Corporation, to act at the meeting
and make a written report thereof. One or more persons may be
designated by the Board of Directors as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the chairman of the meeting shall appoint
one
or more inspectors to act at the meeting. Each inspector, before
discharging
his
or
her duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by the
Delaware General Corporation Law.
SECTION
III
Board
of Directors
Section
3.1.
Number
and
Qualifications.
The business and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors. The
number of directors constituting the Board of Directors shall be as authorized
from time to time exclusively by a vote of a majority of the members of the
Board of Directors then in office. The maximum number of consecutive
three-year terms of office that may be served by any director is three, and
for
purposes of calculating such maximum number of terms there shall not be counted
as a three-year term any service during a partial term for which such director
is serving or during any initial term; provided, however, that the Board of
Directors is authorized in circumstances it deems appropriate to nominate and
thereby render eligible a person for a fourth or subsequent consecutive
three-year term. These term limits shall not apply to a Chief Executive Officer
of the Corporation who is also a member of the Board of
Directors.
Notwithstanding the foregoing, (i) a person who is not
serving as a director shall not be eligible for nomination, appointment, or
election if such person has or will have reached age 70 on the date of his
or
her appointment or election; and (ii) any director reaching the age of 70 during
any term of office shall continue to be qualified to serve as a director only
until the next annual meeting of stockholders following his or her 70th
birthday, provided, however, that the Board of Directors is authorized, in
circumstances it deems appropriate and by unanimous approval of all of the
directors then in office (excepting the director whose qualification is the
subject of the action), to render a director then in office eligible
to serve until the next annual meeting of stockholders following his or her
71st
birthday.
Section
3.2. Resignation
. A director may resign at any
time by giving notice, in writing, by electronic transmission or by any other
means permitted by the Delaware General Corporation Law, to the Chairman of
the
Board or to the Secretary. Unless otherwise stated in such notice of
resignation, the acceptance thereof shall not be necessary to make it effective;
and such resignation shall take effect at the time specified therein or, in
the
absence of such specification, it shall take effect upon the receipt
thereof.
Section
3.3. Regular
Meetings
. Regular meetings of the Board of Directors may be
held without further notice at such time as shall from time to time be
determined by the Board of Directors. Unless otherwise determined by
the Board of Directors, the locations of the regular meetings of the Board
of
Directors shall be in Kingsport, Tennessee. A meeting of the Board of
Directors for the election of officers and the transaction of such other
business as may come before it may be held without notice immediately following
the annual meeting of stockholders.
Section
3.4. Special
Meetings
. Special meetings of the Board of Directors may be
called by the Chairman of the Board, or the Vice Chairman or at the request
in
writing of one third of the members of the Board of Directors then in
office.
Section
3.5. Notice
of Special Meetings
. Notice of the date, time and place of
each special meeting shall be mailed by regular mail to each director at his
designated address at least six days before the meeting; or sent by overnight
courier to each director at his designated address at least two days before
the
meeting (with delivery scheduled to occur no later than the day before the
meeting); or given orally by telephone or other means, or by telegraph or
telecopy, or by any other means comparable to any of the foregoing, to each
director at his designated address at least 24 hours before the meeting;
provided, however, that if less than five days' notice is provided and one
third
of the members of the Board of Directors then in office object in writing prior
to or at the commencement of the meeting, such meeting shall be postponed until
five days after such notice was given pursuant to this sentence (or such shorter
period to which a majority of those who objected in writing agree), provided
that notice of such postponed meeting shall be given in accordance with this
Section 3.5. The notice of the special meeting shall state the
general purpose of the meeting, but other routine business may be conducted
at
the special meeting without such matter being stated in the notice.
Section
3.6. Place
of Meetings
. The Board of Directors may hold their meetings
and have an office or offices inside or outside of the State of
Delaware.
Section
3.7. Telephonic Meeting and Participation
. Any or
all of the directors may participate in a meeting of the Board of Directors
or
any committee thereof by conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation shall constitute presence in person at the
meeting.
Section
3.8. Action by Directors Without a
Meeting
. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken
at
any meeting of the Board of Directors, or of any committee thereof, may be
taken
without a meeting if all members of the Board or of such committee, as the
case
may be, consent thereto in writing, by electronic transmission, or by any other
means permitted by the Delaware General Corporation Law, and the writing or
writings or, if the consent action is taken by electronic transmission, paper
reproductions of such electronic transmissions, are filed with the minutes
of
proceedings of the Board or committee.
Section
3.9. Quorum
and Adjournment
. A majority of the directors then holding
office shall constitute a quorum. The vote of the majority of the
directors present at a meeting at which a quorum is present shall be the act
of
the Board of Directors. Whether or not a quorum is present to conduct
a meeting, any meeting of the Board of Directors (including an adjourned
meeting) may be adjourned by a majority of the directors present, to reconvene
at a specific time and place. It shall not be necessary to give to
the directors present at the adjourned meeting notice of the reconvened meeting
or of the business to be transacted, other than by announcement at the meeting
that was adjourned; provided, however, notice of such
reconvened
meeting, stating the date, time, and place of the reconvened meeting, shall
be
given to the directors not present at the adjourned meeting in accordance with
the requirements of Section 3.5 hereof.
Section
3.10. Organization
. The Chairman of the Board,
or, in the absence of the Chairman of the Board, the Vice Chairman, or in the
absence of the Vice Chairman, a member of the Board selected by the members
present, shall preside at meetings of the Board. The Secretary of the
Corporation shall act as secretary, but in the absence of the Secretary, the
presiding officer may appoint a secretary.
Section
3.11. Compensation of Directors
. Directors shall
receive such compensation for their services as the Board of Directors may
determine. Any director may serve the Corporation in any other
capacity and receive compensation therefor.
Section
3.12. Presumption of Assent
. A director of the
Corporation who is present at a meeting of the Board of Directors when a vote
on
any matter is taken is deemed to have assented to the action taken unless he
votes against or abstains from the action taken, or unless at the beginning
of
the meeting or promptly upon arrival the director objects to the holding of
the
meeting or transacting specified business at the meeting. Any such
dissenting votes, abstentions or objections shall be entered in the minutes
of
the meeting.
SECTION
IV
Committees
Section
4.1. Committees
. The Board of Directors may, by
resolutions passed by a majority of the members of the Board of Directors,
designate members of the Board of Directors to constitute other committees
which
shall in each case consist of such number of directors, and shall have and
may
execute such powers as may be determined and specified in the respective
resolutions appointing them. Any such committee may fix its rules of
procedure, determine its manner of acting and the time and place, whether within
or without the State of Delaware, of its meetings and specify what notice
thereof, if any, shall be given, unless the Board of Directors shall otherwise
by resolution provide. Unless otherwise provided by the Board of
Directors or such committee, the quorum, voting and other procedures shall
be
the same as those applicable to actions taken by the Board of
Directors. A majority of the members of the Board of Directors then
in office shall have the power to change the membership of any such committee
at
any time, to fill vacancies therein and to discharge any such committee or
to
remove any member thereof, either with or without cause, at any
time.
SECTION
V
Officers
Section
5.1. Designation.
The officers of the Corporation
shall be a Chairman of the Board of Directors, a Chief Executive Officer, a
Chief Financial Officer, a Treasurer, a Controller, and a Secretary, and such
other officers as the Board of Directors may elect or appoint, or provide for
the appointment of, as may from time to time appear necessary or advisable
in
the conduct of the business and affairs of the Corporation. Any
number of offices may be held by the same persons, except that the Chairman
of
the Board must be a director of the Corporation and may also be the Chief
Executive Officer.
Section
5.2. Election Term.
At its first meeting after
each annual meeting of stockholders, the Board of Directors shall elect the
officers or provide for the appointment thereof. Subject to Section
5.3 and Section 5.4 hereof, the term of each officer elected by the Board of
Directors shall be until the first meeting of the Board of Directors following
the next annual meeting of stockholders and until such officer’s successor is
chosen and qualified.
Section
5.3. Resignation.
Any officer may resign at any
time by giving written notice to the Secretary. Unless otherwise
stated in such notice of resignation, the acceptance thereof shall not be
necessary to make it effective; and such resignation shall take effect at the
time specified therein or, in the absence of such specification, it shall take
effect upon the receipt thereof.
Section
5.4. Removal.
Any officer may be removed at any
time with or without cause by affirmative vote of a majority of the members
of
the Board of Directors then in office. Any officer appointed by
another officer may be removed with or without cause by such officer or the
Chief Executive Officer.
Section
5.5. Vacancies.
A vacancy in any office may be
filled for the unexpired portion of the term by the Board of Directors or,
in
the case of offices held by officers who may be appointed by other officers,
by
any officer authorized to appoint such officer.
Section
5.6. Chief Executive Officer.
The Chief Executive
Officer shall be responsible for carrying out the policies adopted by the Board
of Directors.
Section
5.7. Chairman of the Board.
The Chairman of the
Board shall have such powers and perform such duties as may be provided for
herein and as may be incident to the office and as may be assigned by the Board
of Directors.
Section
5.8. Chief Financial Officer.
The Chief Financial
Officer shall act in an executive financial capacity, and assist the Chief
Executive Officer in the general supervision of the Corporation’s financial
policies and affairs, and shall perform all acts incident to the position of
Chief Financial Officer, subject to the control of the Board of
Directors.
Section
5.9. Treasurer.
The Treasurer shall have charge
of all funds of the Corporation and shall perform all acts incident to the
position of Treasurer, subject to the control of the Board of
Directors.
Section
5.10. Controller.
The Controller shall serve as
principal accounting officer of the Corporation, having the custody and
operation of the accounting books and records of the Corporation, and shall
perform all acts incident to the position of Controller, subject to the control
of the Board of Directors.
Section
5.11. Secretary.
The Secretary shall keep the
minutes, and give notices, of all meetings of stockholders and directors and
of
such committees as directed by the Board of Directors. The Secretary
shall have charge of such books and papers as the Board of Directors may
require. The Secretary (or any Assistant Secretary) is authorized to
certify copies of extracts from minutes and of documents in the Secretary’s
charge and anyone may rely on such certified copies to the same effect as if
such copies were originals and may rely upon any statement of fact concerning
the Corporation certified by the Secretary (or any Assistant
Secretary). The Secretary shall perform all acts incident to the
office of Secretary, subject to the control of the Board of
Directors.
Section
5.12. Compensation of Officers.
The officers of
the Corporation shall receive such compensation for their services as the Board
of Directors or the appropriate committee thereof may determine. The
Board of Directors may delegate its authority to determine compensation to
designated officers of the Corporation.
Section
5.13. Execution of Instruments.
Checks, notes,
drafts, other commercial instruments, assignments, guarantees of signatures
and
contracts (except as otherwise provided herein or by law) shall be executed
by
the Chief Executive Officer or other officers or employees or agents, in any
such case as the Board of Directors may direct or authorize.
Section
5.14. Mechanical Endorsements.
The Chief
Executive Officer, the Secretary, or other authorized officers may authorize
any
endorsement on behalf of the Corporation to be made by such mechanical means
or
stamps as any of such officers may deem appropriate.
SECTION
VI
Indemnification
Section
6.1. Indemnification Provisions in Certificate of
Incorporation
. The provisions of this Section VI are
intended to supplement Article VII of the Certificate of Incorporation pursuant
to Sections 7.2 and 7.3 thereof. To the extent that this Section VI
contains any provisions inconsistent with said Article VII, the provisions
of
the Certificate of Incorporation shall govern. Terms defined in such
Article VII shall have the same meaning in this Section VI.
Section
6.2. Indemnification of Employees
. The
Corporation shall indemnify and advance expenses to its employees to the same
extent as to its directors and officers, as set forth in the Certificate of
Incorporation and in this Section VI of the Bylaws of the
Corporation.
Section
6.3. Undertakings for Advances of Expenses
. If
and to the extent the Delaware General Corporation Law requires, an advancement
by the Corporation of expenses incurred by an indemnitee pursuant to clause
(iii) of the last sentence of Section 7.1 of the Certificate of Incorporation
(hereinafter an "advancement of expenses") shall be made only upon delivery
to
the Corporation of an undertaking (hereinafter an "undertaking"), by or on
behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under Article
VII
of the Certificate of Incorporation or otherwise.
Section
6.4. Claims
for Indemnification
. If a claim for indemnification under
Section 7.1 of the Certificate of Incorporation is not paid in full by the
Corporation within 60 days after it has been received in writing by the
Corporation, except in the case of a claim for an advancement of expenses,
in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or
in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be entitled to
be
paid also the expense of prosecuting or defending such suit. In any
suit brought by the indemnitee to enforce a right to indemnification hereunder
(but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and in any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of
an
undertaking the Corporation shall be entitled to recover such expenses only
upon
a final adjudication that, the indemnitee has not met the applicable standard
of
conduct set forth in Section 145 of the Delaware General Corporation Law (or
any
successor provision or provisions). Neither the failure of the
Corporation (including the Board of Directors, independent legal counsel, or
its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of
conduct
set forth in Section 145 of the Delaware General Corporation Law (or any
successor provision or provisions), nor an actual determination by the
Corporation (including the Board of Directors, independent legal counsel, or
its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to have or retain such
advancement of expenses, under Article VII of the Certificate of Incorporation
or this Section VI or otherwise, shall be on the Corporation.
Section
6.5. Insurance
. The Corporation may maintain
insurance, at its expense, to protect itself and any director, trustee, officer,
employee or agent of the Corporation or another enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
Section
6.6. Severability
. In the event that any of the
provisions of this Section VI (including any provision within a single section,
paragraph or sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, the remaining provisions are severable
and shall remain enforceable to the full extent permitted by law.
SECTION
VII
Miscellaneous
Section
7.1. Seal
. The Corporation shall have a suitable
seal, containing the name of the Corporation. The Secretary shall be
in charge of the seal and may authorize one or more duplicate seals to be kept
and used by any other officer or person.
Section
7.2. Waiver
of Notice
. Whenever any notice is required to be given, a
waiver thereof in writing, signed by the person or persons entitled to the
notice, whether before or after the time stated therein shall be deemed
equivalent thereto. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends
a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called
or
convened.
Section
7.3. Voting
of Stock Owned by the Corporation
. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the Chairman of the Board, the Vice Chairman,
any
Vice President or such officers or employees or agents as the Board of Directors
or any of such designated officers may direct. Any such officer may,
in the name of and on behalf of the Corporation, take all such action as any
such officer may deem advisable to vote in person or by proxy at any meeting
of
security holders of any corporation in which the Corporation may own securities
and at any such meeting shall possess and may exercise any and all rights and
powers incident to the ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may from time to time confer like
powers upon any other person or persons.
SECTION
VIII
Amendment
of Bylaws
Section
8.1. Power
to Amend.
Except as otherwise provided by law or by the
certificate of incorporation or these bylaws, these bylaws or any of them may
be
amended in any respect or repealed at any time, either (i) at any meeting of
stockholders, subject to these bylaws,
provided
that any amendment or
supplement proposed to be acted upon at any such meeting has been described
in
reasonable detail in the notice of such meeting, or (ii) at any meeting of
the
Board of Directors,
provided
in all events that any action relating to
the last sentence of Section 3.1 hereof concerning the age 70 qualification
limitation on Board service shall require the vote of 100% of the directors
then
in office, and
provided
further in all events that no amendment to any
by-law that conflicts or varies with, or frustrates the purposes or effect
of,
any provision of the certificate of incorporation or other provisions of these
bylaws may be adopted (including, without limitation, any bylaw the purpose
or
effect of which is to require approvals of matters by supermajority vote of
the
Board of Directors or a committee) without amendment of such provision of the
certificate of incorporation or other provision of the bylaws in accordance
with
applicable law and, to the extent otherwise applicable, these
bylaws.
Section
8.2. Approval of Amendments.
Notwithstanding the
foregoing and anything contained in these bylaws to the contrary, these bylaws
may not be amended, supplemented, or repealed by the stockholders, and no
provision inconsistent in intent, operation, or effect therewith may be adopted
by the stockholders, without the affirmative vote of the holders of at least
80%
of the stock of the Corporation of any class or series entitled to vote
generally in the election of the directors of the Board of Directors, voting
together as a single class. Notwithstanding anything contained in
these bylaws to the contrary, the affirmative vote of the holders of at least
80% of the stock of the Corporation of any class or series entitled to vote
generally in the election of the directors of the Board of Directors, voting
together as a single class, is required to amend, supplement or repeal, or
to
adopt any provisions inconsistent with, this section.
1.1.
GENERAL
. The purpose of the Eastman Chemical
Company 2007 Omnibus Long-Term Compensation Plan (the “Plan”) is to promote the
success, and enhance the value, of Eastman Chemical Company (the “Company”), by
linking the personal interests of employees, officers, and directors of the
Company or any Affiliate (as defined below) to those of Company stockholders
and
by providing such persons with an incentive for outstanding performance.
The
Plan is further intended to provide flexibility to the Company in its ability
to
motivate, attract, and retain the services of employees, officers, and directors
upon whose judgment, interest, and special effort the successful conduct
of the
Company’s operation is largely dependent. Accordingly, the Plan permits the
grant of incentive awards from time to time to selected employees, officers,
and
directors of the Company and its Affiliates.
2.1.
DEFINITIONS
. When a word or
phrase appears in this Plan with the initial letter capitalized, and the
word or
phrase does not commence a sentence, the word or phrase shall generally be
given
the meaning ascribed to it in this Section or in Section 1.1 unless a
clearly different meaning is required by the context. The following words
and
phrases shall have the following meanings:
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(a)
“Affiliate”
means (i) any Subsidiary or Parent, or (ii) an entity that
directly or through one or more intermediaries controls, is controlled
by
or is under common control with, the Company, as determined by the
Committee.
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(b)
“Award”
means any Option, Stock Appreciation Right, Restricted Stock Award,
Restricted Stock Unit Award, Deferred Stock Unit Award, Performance
Award,
Dividend Equivalent Award, or Other Stock-Based Award awarded or
granted
to a Participant under the Plan.
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(c)
“Award
Notice”
means a written document, in such form as the Committee
prescribes from time to time, setting forth the terms and conditions
of an
Award. Award Notices may be in the form of individual award notices,
agreements or certificates or a program document describing the terms
and
provisions of an Award or series of Awards under the Plan. The Committee
may provide for the use of electronic, internet or other non-paper
Award
Notices, and the use of electronic, internet or other non-paper means
for
the acceptance thereof and actions thereunder by a
Participant.
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(d)
“Beneficial
Owner”
shall have the meaning given such term in Rule 13d-3 of
the General Rules and Regulations under the
1934 Act.
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(e)
“Board”
means the Board of Directors of the
Company.
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(f)
“Cause”
as a reason for a Participant’s termination of employment shall have the
meaning assigned such term in the employment, severance or similar
agreement, if any, between such Participant and the Company or an
Affiliate, provided, however that if there is no such employment,
severance or similar agreement in which such term is defined, and
unless
otherwise defined in the applicable Award Notice, “Cause” shall mean any
of the following acts by the Participant, as determined by the Committee:
gross neglect of duty, prolonged absence from duty without the consent
of
the Company, material breach by the Participant of any published
Company
code of conduct or code of ethics; or willful misconduct, misfeasance
or
malfeasance of duty which is reasonably determined to be detrimental
to
the Company. With respect to a Participant’s termination of directorship,
“Cause” means an act or failure to act that constitutes cause for removal
of a director under applicable Delaware law. The determination of
the
Committee as to the existence of “Cause” shall be conclusive on the
Participant and the Company.
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(g)
“Change
in Control”
means and includes the occurrence of any one of the
following events:
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(i) individuals who, on the Effective Date, constitute the Board of
Directors of the Company (the “Incumbent Directors”) cease for any reason
to constitute at least a majority of such Board, provided that any
person
becoming a director after the Effective Date and whose election or
nomination for election was approved by a vote of at least a majority
of
the Incumbent Directors then on the Board shall be an Incumbent Director;
provided, however, that no individual initially elected or nominated
as a
director of the Company as a result of an actual or threatened election
contest with respect to the election or removal of directors (“Election
Contest”) or other actual or threatened solicitation of proxies or
consents by or on behalf of any Person other than the Board (“Proxy
Contest”), including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest, shall be deemed an
Incumbent
Director; or
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(ii) any person becomes a Beneficial Owner, directly or indirectly,
of either (A) 35% or more of the then-outstanding shares of Stock or
(B) securities of the Company representing 35% or more of the
combined voting power of the Company’s then outstanding securities
eligible to vote for the election of directors (the “Company Voting
Securities”); provided, however, that for purposes of this
subsection (ii), the following acquisitions of Stock or Company
Voting Securities shall not constitute a Change in Control: (w) an
acquisition directly from the Company, (x) an acquisition by the
Company or a Subsidiary, (y) an acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any
Subsidiary, or (z) an acquisition pursuant to a Non-Qualifying
Transaction (as defined in
subsection (iii) below); or
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(iii) the consummation of a reorganization, merger, consolidation,
statutory share exchange or similar form of corporate transaction
involving the Company or a Subsidiary (a “Reorganization”), or the sale or
other disposition of all or substantially all of the Company’s assets (a
“Sale”) or the acquisition of assets or stock of another corporation or
other entity (an “Acquisition”), unless immediately following such
Reorganization, Sale or Acquisition: (A) all or substantially all of
the individuals and entities who were the Beneficial Owners, respectively,
of the outstanding Stock and outstanding Company Voting Securities
immediately prior to such Reorganization, Sale or Acquisition beneficially
own, directly or indirectly, more than 50% of, respectively, the
then
outstanding shares of common stock and the combined voting power
of the
then outstanding voting securities entitled to vote generally in
the
election of directors, as the case may be, of the entity resulting
from
such Reorganization, Sale or Acquisition (including, without limitation,
an entity which as a result of such transaction owns the Company
or all or
substantially all of the Company’s assets or stock either directly or
through one or more subsidiaries, the “Surviving Entity”) in substantially
the same proportions as their ownership, immediately prior to such
Reorganization, Sale or Acquisition, of the outstanding Stock and
the
outstanding Company Voting Securities, as the case may be, and (B) no
person (other than (x) the Company or any Subsidiary, (y) the
Surviving Entity or its ultimate parent entity, or (z) any employee
benefit plan (or related trust) sponsored or maintained by any of
the
foregoing) is the Beneficial Owner, directly or indirectly, of 35%
or more
of the total common stock or 35% or more of the total voting power
of the
outstanding voting securities eligible to elect directors of the
Surviving
Entity, and (C) at least a majority of the members of the board of
directors of the Surviving Entity were Incumbent Directors at the
time of
the Board’s approval of the execution of the initial agreement providing
for such Reorganization, Sale or Acquisition (any Reorganization,
Sale or
Acquisition which satisfies all of the criteria specified in (A),
(B) and (C) above shall be deemed to be a “Non-Qualifying
Transaction”); or
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(iv) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
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(h)
“Change-in-Control
Price”
means the highest closing price (or, if the Shares are not
traded on an Exchange, the highest last sale price or closing “asked”
price) per Share paid for the purchase of Stock in a national securities
market during the ninety (90) day period ending on the date the
Change in Control occurs.
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(i)
“Change
in
Ownership”
means a Change in Control that results directly or
indirectly in the Stock (or the stock of any successor to the Company
received in exchange for Stock) ceasing to be publicly traded in
a
national securities market.
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(j)
“Code”
means the U.S. Internal Revenue Code of 1986, as amended from time to
time. For purposes of this Plan, references to sections of the Code
shall
be deemed to include references to any applicable regulations thereunder
and any successor or similar provision, and will also include any
proposed, temporary or final regulations, or any other guidance,
promulgated with respect to such Section by the U.S. Department of
the Treasury or Internal Revenue Service.
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(k)
“Committee”
means the committee or committees of the Board described in
Article 4.
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(l)
“Company”
means Eastman Chemical Company, a Delaware corporation, or any successor
corporation.
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(m)
“Continuous
Status as a Participant”
means the absence of any interruption or
termination of service as an employee, officer, or director of the
Company
or any Affiliate, as applicable; provided, however, that for purposes
of
an Incentive Stock Option “Continuous Status as a Participant” means the
absence of any interruption or termination of service as an employee
of
the Company or any Parent or Subsidiary, as applicable, pursuant
to
applicable tax regulations. Continuous Status as a Participant shall
not
be considered interrupted in the following cases: (ii) a Participant
transfers employment between the Company and an Affiliate or between
Affiliates, or (ii) in the discretion of the Committee as specified
at or prior to such occurrence, in the case of a spin-off, sale or
disposition of the Participant’s employer from the Company or any
Affiliate, or (iii) any leave of absence authorized in writing by the
Company prior to its commencement; provided, however, that for purposes
of
Incentive Stock Options, no such leave may exceed 90 days, unless
reemployment upon expiration of such leave is guaranteed by statute
or
contract. If reemployment upon expiration of a leave of absence approved
by the Company is not so guaranteed, on the 91st day of such leave
any Incentive Stock Option held by the Participant shall cease to
be
treated as an Incentive Stock Option and shall be treated for tax
purposes
as a Nonstatutory Stock Option. Whether military, government or other
service or other leave of absence shall constitute a termination
of
employment shall be determined in each case by the Committee for
executive
officers, or the Committee’s delegate for other employees, and any
determination by the Committee or the Committee’s delegate shall be final
and conclusive.
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(n)
“Covered
Employee”
means a covered employee as defined in Code
Section 162(m)(3).
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(o)
“Deferred
Stock Unit”
means a right granted to a Participant under
Article 9 to receive Shares of Stock (or the equivalent value in cash
or other property if the Committee so provides) at a future time
as
determined by the Committee, or as determined by the Participant
within
guidelines established by the Committee in the case of voluntary
deferral
elections, which right may be subject to certain restrictions but
is not
subject to risk of forfeiture.
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(p)
“Disability”
of a Participant means that the Participant (i) is unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result
in death or can be expected to last for a continuous period of not
less
than 12 months, or (ii) is, by reason of any medically
determinable physical or mental impairment which can be expected
to result
in death or can be expected to last for a continuous period of not
less
than 12 months, receiving income replacement benefits for a period of
not less than three months under an accident and health plan covering
employees of the Participant’s employer. If the determination of
Disability relates to an Incentive Stock Option, Disability means
Permanent and Total Disability as defined in Section 22(e)(3) of the
Code. In the event of a dispute, the determination whether a Participant
is Disabled will be made by the Committee for executive officers,
or the
Committee’s delegate for other employees, and may be supported by the
advice of a physician competent in the area to which such Disability
relates.
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(q)
“Dividend
Equivalent”
means a right granted to a Participant under
Article 12.
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(r)
“Effective
Date”
has the meaning assigned such term in
Section 3.1.
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(s)
“Eligible
Participant”
means an employee, officer, or director of the Company
or any Affiliate.
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(t)
“Exchange”
means the New York Stock Exchange or any national securities exchange
on
which the Stock may from time to time be listed or
traded.
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(u)
“Fair
Market Value,”
on any date, means (i) if the Stock is listed on
a securities exchange, the closing sales price on such exchange or
over
such system on such date or, in the absence of reported sales on
such
date, the closing sales price on the immediately preceding date on
which
sales were reported, or (ii) if the Stock is not listed on a
securities exchange, the mean between the bid and offered prices
as quoted
by Nasdaq for such date, provided that if it is determined that the
fair
market value is not properly reflected by such Nasdaq quotations,
Fair
Market Value will be determined by such other method as the Committee
determines in good faith to be reasonable and in compliance with
Code
Section 409A.
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(v)
“Full
Value Award”
means an Award other than in the form of an Option or
SAR, and which is settled by the issuance of Stock.
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(w)
“Grant
Date”
of an Award means the first date on which all necessary corporate
action
has been taken to approve the grant of the Award as provided in the
Plan,
or such later date as is determined and specified as part of that
authorization process. Notice of the grant shall be provided to the
grantee within a reasonable time after the Grant Date.
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(x)
“Incentive
Stock
Option”
means an Option that is intended to be an incentive stock
option and meets the requirements of Section 422 of the Code or any
successor provision.
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(y)
“Independent
Directors”
means those members of the Board of Directors who qualify
at any given time as “independent” directors under Section 303A of
the New York Stock Exchange Listed Company Manual, “non-employee”
directors under Rule 16b-3 of the 1934 Act, and “outside”
directors under Section 162(m) of the Code.
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(z)
“Non-Employee
Director”
means a director of the Company who is not a common law
employee of the Company or an Affiliate.
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(aa)
“Nonstatutory
Stock Option”
means an Option that is not an Incentive Stock
Option.
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(bb)
“Option”
means a right granted to a Participant under Article 7 of the Plan to
purchase Stock at a specified price during specified time periods.
An
Option may be either an Incentive Stock Option or a Nonstatutory
Stock
Option.
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(cc)
“Other
Stock-Based Award”
means a right, granted to a Participant under
Article 13 that relates to or is valued by reference to Stock or
other Awards relating to Stock.
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(dd)
“Parent”
means a corporation, limited liability company, partnership or other
entity which owns or beneficially owns a majority of the outstanding
voting stock or voting power of the Company. Notwithstanding the
above,
with respect to an Incentive Stock Option, Parent shall have the
meaning
set forth in Section 424(e) of the
Code.
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(ee)
“Participant”
means
a person who, as an employee, officer, or director of the Company
or any
Affiliate, has been granted an Award under the Plan; provided that
in the
case of the death or Disability of a Participant, the term “Participant”
refers to the Participant’s estate or other legal representative acting in
a fiduciary capacity on behalf of the Participant under applicable
state
law and court supervision.
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(ff)
“Performance
Award”
means an Award under Article 10 herein and subject to the
terms of this Plan, denominated in Shares, the value of which at
the time
it is payable is determined as a function of the extent to which
corresponding performance criteria have been achieved.
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(gg)
“Person”
means any individual, entity or group, within the meaning of
Section 3(a)(9) of the 1934 Act and as used in
Section 13(d)(3) or 14(d)(2) of the 1934 Act.
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(hh)
“Plan”
means
this Eastman Chemical Company 2007 Omnibus Long-Term Compensation
Plan, as
amended from time to time.
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(ii)
“Prior
Plans”
means the Company’s 1994 Omnibus Long-Term Compensation Plan,
1997 Omnibus Long-Term Compensation Plan, 2002 Omnibus Long-Term
Compensation Plan, 1996 Non-Employee Director Stock Option Plan,
1994 Director Long-Term Compensation Plan, 1999 Director
Long-Term Compensation Plan and 2002 Director Long-Term Compensation
Plan.
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(jj)
“Qualified
Performance-Based Award”
means an Award that is either
(i) intended to qualify for the Section 162(m) Exemption and is
made subject to performance goals based on Qualified Business Measures
as
set forth in Section 11.2, or (ii) an Option or SAR having an
exercise price equal to or greater than the Fair Market Value of
the
underlying Stock as of the Grant Date.
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(kk)
“Qualified
Business Measures”
means one or more of the business measures listed
in Section 11.2 upon which performance goals for certain Qualified
Performance-Based Awards may be established by the
Committee.
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(ll)
“Restricted
Stock Award”
means Stock granted to a Participant under
Article 9 that is subject to certain restrictions and to risk of
forfeiture.
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(mm)
“Restricted
Stock Unit Award”
means the right granted to a Participant under
Article 9 to receive shares of Stock (or the equivalent value in cash
or other property if the Committee so provides) in the future, which
right
is subject to certain restrictions and to risk of
forfeiture.
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(nn)
“Section 162(m)
Exemption”
means the exemption from the limitation on deductibility
imposed by Section 162(m) of the Code that is set forth in
Section 162(m)(4)(C) of the Code or any successor provision
thereto.
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(oo)
“Shares”
means shares of the Company’s Stock. If there has been an adjustment or
substitution pursuant to Article 15, the term “Shares” shall also
include any shares of stock or other securities that are substituted
for
Shares or into which Shares are adjusted pursuant to
Article 15.
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(pp)
“Stock”
means the $0.01 par value common stock of the Company and such other
securities of the Company as may be substituted for Stock pursuant
to
Article 15.
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(qq)
“Stock
Appreciation Right”
or
“SAR”
means a right granted to a
Participant under Article 8 to receive a payment equal to the excess
of the Fair Market Value of a Share as of the date of exercise of
the SAR
over the base price of the SAR, all as determined pursuant to
Article 8.
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(rr)
“Subsidiary”
means any corporation, limited liability company, partnership or
other
entity, domestic or foreign, of which a majority of the outstanding
voting
stock or voting power is beneficially owned directly or indirectly
by the
Company. Notwithstanding the above, with respect to an Incentive
Stock
Option, Subsidiary shall have the meaning set forth in Section 424(f)
of the Code.
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(ss)
“1933 Act”
means the Securities Act of 1933, as amended from time to
time.
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(tt)
“1934 Act”
means the Securities Exchange Act of 1934, as amended from time to
time.
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3.1.
EFFECTIVE DATE
. The Plan shall
be effective as of the date it is approved by the stockholders of the Company
(the “Effective Date”).
3.2.
TERMINATION OF PLAN
. The Plan
shall terminate on the fifth anniversary of the Effective Date unless earlier
terminated as provided herein. The termination of the Plan on such date shall
not affect the validity of any Award outstanding on the date of termination,
which shall continue to be governed by the applicable terms and conditions
of
this Plan.
4.1.
COMMITTEE
. The Plan shall be
administered by a Committee appointed by the Board (which Committee shall
consist of at least two directors) or, at the discretion of the Board from
time
to time, the Plan may be administered by the Board. It is intended that at
least
two of the directors appointed to serve on the Committee shall be Independent
Directors and that any such members of the Committee who do not so qualify
shall
abstain from participating in any decision to make or administer Awards that
are
made to Eligible Participants who at the time of consideration for such Award
(i) are persons subject to the short-swing profit rules of Section 16
of the 1934 Act, or (ii) are reasonably anticipated to become Covered
Employees during the term of the Award. However, the mere fact that a Committee
member shall fail to qualify as an Independent Director or shall fail to
abstain
from such action shall not invalidate any Award made by the Committee which
Award is otherwise validly made under the Plan. The members
of
the
Committee shall be appointed by, and may be changed at any time and from
time to
time in the discretion of, the Board. Unless and until changed by the Board,
the
Compensation and Management Development Committee of the Board is designated
as
the Committee to administer the Plan, and in the case of Awards to Non-Employee
Directors, the Nominating and Corporate Governance Committee of the Board
is
designated as the Committee to administer the Plan. The Board may reserve
to
itself any or all of the authority and responsibility of the Committee under
the
Plan or may act as administrator of the Plan for any and all purposes. To
the
extent the Board has reserved any authority and responsibility or during
any
time that the Board is acting as administrator of the Plan, it shall have
all
the powers of the Committee hereunder, and any reference herein to the Committee
(other than in this Section 4.1) shall include the Board. To the extent any
action of the Board under the Plan conflicts with actions taken by the
Committee, the actions of the Board shall control.
4.2.
ACTION AND INTERPRETATIONS BY THE
COMMITTEE
. For purposes of administering the Plan, the Committee may
from time to time adopt rules, regulations, guidelines and procedures for
carrying out the provisions and purposes of the Plan and make such other
determinations, not inconsistent with the Plan, as the Committee may deem
appropriate. The Committee’s interpretation of the Plan, any Awards granted
under the Plan, any Award Notice and all decisions and determinations by
the
Committee with respect to the Plan are final, binding, and conclusive on
all
parties. Each member of the Committee is entitled to, in good faith, rely
or act
upon any report or other information furnished to that member by any officer
or
other employee of the Company or any Affiliate, the Company’s or an Affiliate’s
independent certified public accountants, Company counsel or any executive
compensation consultant or other professional retained by the Company or
the
Committee to assist in the administration of the Plan.
4.3.
AUTHORITY OF COMMITTEE
. Except
as provided in Section 4.1 and 4.5 hereof, the Committee has the exclusive
power, authority and discretion to:
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(a) Grant Awards;
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(b) Designate Participants;
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(c) Determine the type or types of Awards to be granted to each
Participant;
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(d) Determine the number of Awards to be granted and the number of
Shares or dollar amount to which an Award will relate;
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(e) Determine the terms and conditions of any Award granted under the
Plan;
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(f) Accelerate the vesting, exercisability or lapse of restrictions
of any outstanding Award, subject to and in accordance with
Article 11 or 14;
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(g) Determine whether, to what extent, and under what circumstances
an Award may be settled in, or the exercise price of an Award may
be paid
in, cash, Stock, other Awards, or other property, or an Award may
be
canceled, forfeited, or surrendered;
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(h) Prescribe the form of each Award Notice, which need not be
identical for each Participant;
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(i) Decide all other matters that must be determined in connection
with an Award;
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(j) Establish, adopt or revise any rules, regulations, guidelines or
procedures as it may deem necessary or advisable to administer the
Plan;
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(k) Make all other decisions and determinations that may be required
under the Plan or as the Committee deems necessary or advisable to
administer the Plan;
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(l) Amend the Plan or any Award Notice as provided
herein; and
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(m) Adopt such modifications, procedures, and subplans as may be
necessary or desirable to comply with provisions of the laws of
non-U.S. jurisdictions in which the Company or any Affiliate may
operate, in order to assure the viability of the benefits of Awards
granted to participants located in such other jurisdictions and to
meet
the objectives of the Plan.
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Notwithstanding the foregoing, Awards to Non-Employee Directors hereunder
shall
be made only in accordance with the terms, conditions and parameters of a
subplan to this Plan, program, or policy for the compensation of Non-Employee
Directors adopted by the Board as in effect from time to time, and the Committee
may not make grants hereunder to Non-Employee Directors outside of the terms
of
such a Subplan, program, or policy.
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(a)
Administrative Duties
. The Committee may delegate to one
or more of its members or to one or more officers of the Company
or an
Affiliate or to one or more agents or advisors such administrative
duties
or powers as it may deem advisable, and the Committee or any individuals
to whom it has delegated duties or powers as aforesaid may employ
one or
more individuals to render advice with respect to any responsibility
the
Committee or such individuals may have under this Plan.
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(b)
Special Committee
. The Board may, by resolution,
expressly delegate to a special committee, consisting of one or more
directors who are also officers of the Company, the authority, within
specified parameters as to the number and terms of Awards, to
(i) designate officers and/or employees of the Company or any of its
Affiliates to be recipients of Awards under the Plan, and (ii) to
determine the number of such Awards to be received by any such
Participants; provided, however, that such delegation of duties and
responsibilities to an officer of the Company may not be made with
respect
to the grant of Awards to eligible participants (a) who are subject
to Section 16(a) of the 1934 Act at the Grant Date, or
(b) who as of the Grant Date are reasonably anticipated to be become
Covered Employees during the term of the Award. The acts of such
delegates
shall be treated hereunder as acts of the Board and such delegates
shall
report regularly to the Board and the Committee regarding the delegated
duties and responsibilities and any Awards so
granted.
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4.5.
AWARD NOTICES
. Each Award
shall be evidenced by an Award Notice. Each Award Notice shall include such
provisions, not inconsistent with the Plan, as may be specified by the
Committee.
SHARES
SUBJECT TO THE PLAN
5.1.
NUMBER OF SHARES
. Subject to
adjustment as provided in Section 5.2 and Article 15, the aggregate
number of Shares reserved and available for issuance pursuant to Awards granted
under the Plan shall be 4,100,000, which shall consist of a number of Shares
not
previously authorized for issuance under any plan. The maximum number of
Shares
that may be issued upon exercise of Incentive Stock Options granted under
the
Plan shall be 4,100,000.
5.2.
SHARE COUNTING
. Shares covered
by an Award shall be removed from the Plan share reserve as of the date of
grant, but shall be added back to the Plan share reserve in accordance with
this
Section 5.2.
(a) To
the extent that an Award is canceled, terminates, expires, is forfeited or
lapses for any reason, any unissued or forfeited Shares subject to the Award
will again be available for issuance pursuant to Awards granted under the
Plan.
(b) Shares
subject to Awards settled in cash will again be available for issuance pursuant
to Awards granted under the Plan.
(c) Shares
withheld from an Award or tendered to the Company by a Participant to satisfy
minimum tax withholding requirements with respect to an Award will again
be
available for issuance pursuant to Awards granted under the
Plan.
(d) If the exercise price of an Option is satisfied by tendering Shares to
the Company (by either actual delivery or attestation), such tendered Shares
will again be available for issuance pursuant to Awards granted under the
Plan.
(e) To the extent that the full number of Shares subject to an Option or
SAR is not issued upon exercise of the Option or SAR for any reason, including
by reason of net-settlement of the Award, the Shares underlying the Award
in
excess of the number of Shares actually issued and delivered to the Participant
will again be available for issuance pursuant to Awards granted under the
Plan.
(f) Substitute Awards granted pursuant to Section 14 of the Plan
shall not count against the Shares otherwise available for issuance under
the
Plan under Section 5.1.
5.3.
STOCK DISTRIBUTED
. Any Stock
distributed pursuant to an Award may consist, in whole or in part, of authorized
and unissued Stock, treasury Stock or Stock purchased on the open
market.
5.4.
LIMITATION ON AWARDS
.
Notwithstanding any provision in the Plan to the contrary (but subject to
adjustment as provided in Article 15):
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(a)
Options
. The maximum aggregate number of Shares subject
to Options granted under the Plan in any 12-month period to any one
Participant shall be 400,000.
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(b)
SARs
. The maximum number of Shares subject to Stock
Appreciation Rights granted under the Plan in any 12-month period
to any
one Participant shall be 400,000.
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(c)
Restricted Stock or Restricted Stock Units
. The maximum
aggregate grant of performance-based Awards of Restricted Stock or
Restricted Stock Units under the Plan in any 12-month period to any
one
Participant shall be 250,000.
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(d)
Performance Awards
. The maximum aggregate number of
Shares that a Participant may receive in any 12-month period under
a
Performance Award under the Plan shall be 250,000 Shares, determined
as of the date of vesting or payout, as applicable.
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(e)
Other Stock-Based Awards
. The maximum aggregate grant
with respect to Other Stock-Based Awards under the Plan in any 12-month
period to any one Participant shall be
250,000 Shares.
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5.5.
MINIMUM VESTING REQUIREMENTS
.
Except in the case of substitute Awards granted pursuant to Section 14.8 or
Awards granted as an inducement to join the Company or an Affiliate as a
new
employee to replace forfeited awards from a former employer, Full-Value Awards
granted under the Plan to an employee or officer shall either (i) be
subject to a minimum vesting period of three years (which may include graduated
vesting within such three-year period), or one year if the vesting is based
on
performance criteria other than continued service, or (ii) be granted
solely in exchange for foregone cash compensation. Notwithstanding the
foregoing, (i) the minimum-vesting restrictions of this Section 5.5
shall not apply with respect to a maximum of 5% of the Shares authorized
to be
issued under the Plan, and (ii) the Committee may permit acceleration of
vesting of any Full Value Awards in the event of the Participant’s death,
Disability, or Retirement, or a Change in Control.
6.1.
GENERAL
. Awards may be granted
only to Eligible Participants. Incentive Stock Options may be granted to
only to
Eligible Participants who are employees of the Company or a Parent or Subsidiary
as defined in Section 424(e) and (f) of the Code. Eligible
Participants who are employees of an Affiliate may only be granted Options
or
SARs to the extent that the Affiliate is part of: (i) the Company’s
controlled group of corporations, or (ii) a trade or business under common
control with the Company, as of the Grant Date, as determined within the
meaning
of Code Section 414(b) or 414(c), and substituting for this purpose
ownership of at least 50% (or 20% in the case of an Option or SAR granted
to an
employee of a joint venture partner based on “legitimate business criteria”
within the meaning of Code Section 409A), of the Affiliate to determine the
members of the controlled group of corporations and the entities under common
control.
7.1.
GENERAL
. The Committee is
authorized to grant Options to Participants on the following terms and
conditions:
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(a)
EXERCISE PRICE
. The exercise price per Share under an
Option shall be determined by the Committee, provided that the exercise
price for any Option (other than an Option issued as a substitute
Award
pursuant to Section 14.8) shall not be less than the Fair Market
Value as of the Grant Date.
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(b)
PROHIBITION ON REPRICING
. Except as otherwise provided
in Article 15, the exercise price of an Option may not be reduced,
directly or indirectly by cancellation and regrant or otherwise,
without
the prior approval of the stockholders of the Company.
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(c)
TIME AND CONDITIONS OF EXERCISE
. The Committee shall
determine the time or times at which an Option may be exercised in
whole
or in part, subject to Section 7.1(e). The Committee shall also
determine the performance or other conditions, if any, that must
be
satisfied before all or part of an Option may be exercised or
vested.
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(d)
PAYMENT
. The Committee shall determine the methods by
which the exercise price of an Option may be paid, the form of payment,
including, without limitation, cash, Shares, or other property (including
“brokered or other cashless exercise” arrangements), and the methods by
which Shares shall be delivered or deemed to be delivered to
Participants.
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(e)
EXERCISE TERM
. Except for Nonstatutory Options granted
to Participants outside the United States, no Option granted under
the
Plan shall be exercisable for more than ten years from the Grant
Date.
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(f)
NO DEFERRAL FEATURE
. No Option shall provide for any
feature for the deferral of compensation other than the deferral
of
recognition of income until the later of the exercise or disposition
of
the Option, or the time the Stock acquired pursuant to the exercise
of the
Option first becomes substantially vested.
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(g)
OTHER TERMS
. All Options shall be evidenced by an
Award Notice. Subject to the limitations of this Article 7, the
terms, methods of exercise, methods of settlement, form of consideration
payable in settlement, and any other terms and conditions of any
Option
shall be determined by the Committee at the time of the grant of
the
Option and shall be reflected in the Award
Notice.
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7.2.
INCENTIVE STOCK OPTIONS
. The
terms of any Incentive Stock Options granted under the Plan must comply with
the
requirements of Section 422 of the Code. If all of the requirements of
Section 422 of the Code are not met, the Option shall automatically become
a Nonstatutory Stock Option.
STOCK
APPRECIATION RIGHTS
8.1.
GRANT OF STOCK APPRECIATION
RIGHTS
.
The Committee is authorized to grant Stock
Appreciation Rights to Participants on the following terms and
conditions:
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(a)
STAND-ALONE AND TANDEM STOCK APPRECIATION
RIGHTS
.
Stock Appreciation Rights granted under the Plan
may, in the discretion of the Committee, be granted either alone
or in
tandem with an Option granted under the Plan.
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(b)
RIGHT TO PAYMENT
.
Upon the exercise of a SAR,
the Participant to whom it is granted has the right to receive, for
each
Share with respect to which the SAR is being exercised, the excess,
if
any, of:
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(1) The Fair Market Value of one Share on the date of exercise;
over
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(2) The base price of the SAR as determined by the Committee, which
shall not be less than the Fair Market Value of one Share on the
Grant
Date.
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(c)
PROHIBITION ON REPRICING
.
Except as otherwise
provided in Article 15, the base price of a SAR may not be reduced,
directly or indirectly by cancellation and regrant or otherwise,
without
the prior approval of the stockholders of the Company.
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(d)
EXERCISE TERM
.
Except for SARs granted to
Participants outside the United States, no SAR shall be exercisable
for
more than ten years from the Grant Date.
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(e)
NO DEFERRAL FEATURE
.
No SAR shall provide for
any feature for the deferral of compensation other than the deferral
of
recognition of income until the later of the exercise of the SAR,
or the
time any Stock acquired pursuant to the exercise of the SAR first
becomes
substantially vested.
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(f)
OTHER TERMS
.
All SARs shall be evidenced by an
Award Notice. Subject to the limitations of this Article 8, the
terms, methods of exercise, methods of settlement, form of consideration
payable in settlement, and any other terms and conditions of any
SAR shall
be determined by the Committee at the time of the grant of the Award
and
shall be reflected in the Award Notice.
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RESTRICTED
STOCK, RESTRICTED STOCK UNITS
9.1.
GRANT OF RESTRICTED STOCK, RESTRICTED
STOCK UNITS AND DEFERRED STOCK UNITS
.
The Committee is
authorized to make Awards of Restricted Stock, Restricted Stock Units or
Deferred Stock Units to Participants in such amounts and subject to such
terms
and conditions as may be selected by the Committee. An Award of Restricted
Stock, Restricted Stock Units or Deferred Stock Units shall be evidenced by an
Award Notice setting forth the terms, conditions, and restrictions applicable
to
the Award.
9.2.
ISSUANCE AND
RESTRICTIONS
.
Restricted Stock, Restricted Stock Units or
Deferred Stock Units shall be subject to such restrictions on transferability
and other restrictions
as
the
Committee may impose (including, without limitation, limitations on the right
to
vote Restricted Stock or the right to receive dividends on the Restricted
Stock). These restrictions may lapse separately or in combination at such
times,
under such circumstances, in such installments, upon the satisfaction of
performance goals or otherwise, as the Committee determines at the time of
the
grant of the Award or thereafter. Except as otherwise provided in an Award
Notice or any special Plan document governing an Award, the Participant shall
have all of the rights of a stockholder with respect to the Restricted Stock,
and the Participant shall have none of the rights of a stockholder with respect
to Restricted Stock Units or Deferred Stock Units until such time as Shares
of
Stock are paid in settlement of the Restricted Stock Units or Deferred Stock
Units. Unless otherwise provided in the applicable Award Agreement, Awards
of
Restricted Stock will be entitled to full dividend rights, and any dividends
paid thereon will be paid or distributed to the holder no later than the
15th day of the 3rd month following the later of (i) the calendar
year in which the corresponding dividends were paid to stockholders, or
(ii) the first calendar year in which the Participant’s right to such
dividends is no longer subject to a substantial risk of
forfeiture.
9.3.
FORFEITURE
.
Except as
otherwise determined by the Committee at the time of the grant of the Award
or
thereafter, upon termination of Continuous Status as a Participant during
the
applicable restriction period or upon failure to satisfy a performance goal
during the applicable restriction period, Restricted Stock or Restricted
Stock
Units that are at that time subject to restrictions shall be
forfeited.
9.4.
DELIVERY OF RESTRICTED
STOCK
.
Shares of Restricted Stock shall be delivered to the
Participant at the time of grant either by book-entry registration or by
delivering to the Participant, or a custodian or escrow agent (including,
without limitation, the Company or one or more of its employees) designated
by
the Committee, a stock certificate or certificates registered in the name
of the
Participant. If physical certificates representing shares of Restricted Stock
are registered in the name of the Participant, such certificates must bear
an
appropriate legend referring to the terms, conditions, and restrictions
applicable to such Restricted Stock.
10.1.
GRANT OF PERFORMANCE
AWARDS
.
The Committee is authorized to grant Performance
Awards to Participants on such terms and conditions as may be selected by
the
Committee. The Committee shall have the complete discretion to determine
the
number of Performance Awards granted to each Participant, subject to
Section 5.4, and to designate the provisions of such Performance Awards as
provided in Section 4.3. All Performance Awards shall be evidenced by an
Award Notice or a written program established by the Committee, pursuant
to
which Performance Awards are awarded under the Plan under uniform terms,
conditions and restrictions set forth in such written
program.
10.2.
PERFORMANCE GOALS
.
The Committee may establish performance goals for Performance Awards which
may
be based on any criteria selected by the Committee. Such performance goals
may
be described in terms of Company-wide objectives or in terms of objectives
that
relate to the performance of the Participant, an Affiliate or a division,
region, department or function within the Company or an Affiliate, and may
relate to relative performance as compared to an outside reference or peer
group. If the Committee determines that a change in the business, operations,
corporate structure or capital structure of the Company or the manner in
which
the Company or an Affiliate conducts its business, or other events
or
circumstances
render performance goals to be unsuitable, the Committee may modify such
performance goals in whole or in part, as the Committee deems appropriate.
If a
Participant is promoted, demoted or transferred to a different business unit
or
function during a performance period, the Committee may determine that the
performance goals or performance period are no longer appropriate and may
(i) adjust, change or eliminate the performance goals or the applicable
performance period as it deems appropriate to make such goals and period
comparable to the initial goals and period, or (ii) make a cash payment to
the participant in an amount determined by the Committee. The foregoing two
sentences shall not apply with respect to a Performance Award that is intended
to be a Qualified Performance-Based Award if the recipient of such award
(a) was a Covered Employee on the date of the modification, adjustment,
change or elimination of the performance goals or performance period, or
(b) in the reasonable judgment of the Committee, may be a Covered Employee
on the date the Performance Award is expected to be paid.
10.3.
RIGHT TO PAYMENT
.
The grant of a Performance Award to a Participant will entitle the Participant
to receive at a specified later time a specified number of Shares if the
performance goals established by the Committee are achieved and the other
terms
and conditions thereof are satisfied. The Committee shall set performance
goals
and other terms or conditions to payment of the Performance Awards in its
discretion which, depending on the extent to which they are met, will determine
the number or value of the Performance Awards that will be paid to the
Participant.
QUALIFIED
PERFORMANCE-BASED AWARDS
11.1.
OPTIONS AND STOCK APPRECIATION
RIGHTS
.
The provisions of the Plan are intended to ensure that
all Options and Stock Appreciation Rights granted hereunder to any Covered
Employee shall qualify for the Section 162(m) Exemption; provided that the
exercise or base price of such Award is not less than the Fair Market Value
of
the Shares on the Grant Date.
11.2.
OTHER AWARDS
.
When
granting any other Award, the Committee may designate such Award as a Qualified
Performance-Based Award, based upon a determination that the recipient is
or may
be a Covered Employee with respect to such Award, and the Committee wishes
such
Award to qualify for the Section 162(m) Exemption. If an Award is so
designated, the Committee shall establish performance goals for such Award,
within the time period prescribed by Section 162(m) of the Code, based on
one or more of the following Qualified Business Measures, which performance
goals may be expressed in terms of Company-wide objectives or in terms of
objectives that relate to the performance of an Affiliate or a division,
region,
department or function within the Company or an Affiliate:
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(a) Net earnings or net income (before or after
taxes);
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(b) Earnings per share;
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(c) Net sales or revenue growth;
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(d) Net operating profit;
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(e) Return measures (including, but not limited to, return on assets,
capital, invested capital, equity, sales, or
revenue);
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(f) Cash flow (including, but not limited to, operating cash
flow, free cash flow, cash flow return on equity, and cash flow return
on
investment);
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(g) Earnings before or after taxes, interest, depreciation, and/or
amortization;
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(h) Gross or operating margins;
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(i) Productivity ratios;
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(j) Share price (including, but not limited to, growth measures and
total stockholder return);
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(k) Expense targets;
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(l) Margins;
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(m) Operating efficiency;
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(n) Market share;
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(o) Customer satisfaction;
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(p) Working capital targets;
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(q) Economic value added or EVA
®
(net
operating profit after tax minus the sum of capital multiplied by
the cost
of capital); and
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(r) Operating Earnings.
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Performance goals with respect to the foregoing Qualified Business Measures
may
be specified in absolute terms, in percentages, or in terms of growth from
period to period or growth rates over time, as well as measured relative
to the
performance of a group of comparator companies, or a published or special
index,
or a stock market index, that the Committee deems appropriate. Any member
of a
comparator group or index that disappears during a measurement period shall
be
disregarded for the entire measurement period. Performance Goals need not
be
based upon an increase or positive result under a business criterion and
could
include, for example, the maintenance of the status quo or the limitation
of
economic losses (measured, in each case, by reference to a specific business
criterion).
11.3.
PERFORMANCE GOALS
.
Each Qualified Performance-Based Award (other than a market-priced Option
or
SAR) shall be earned, vested and payable (as applicable) only upon the
achievement of performance goals established by the Committee based upon
one or
more of the Qualified Business Measures, together with the satisfaction of
any
other conditions, such as continued employment, as the Committee may determine
to be appropriate; provided, however, that the Committee may provide, either
in
connection with the grant thereof or by amendment thereafter, that achievement
of such performance goals will be waived, in whole or in part, upon (i) the
termination of employment of a Participant by reason of death, Retirement
or
Disability, or (ii) the occurrence of a Change in Control. Performance
periods established by the Committee for any such Qualified Performance-Based
Award may be as short as three months and may be any longer
period.
11.4.
INCLUSIONS AND EXCLUSIONS FROM
PERFORMANCE MEASURES
.
The Committee may provide in any
Qualified Performance-Based Award that any evaluation of performance may
include
or exclude any of the following events that occurs during a Performance Period:
(a) asset write-downs, (b) litigation or claim judgments or
settlements, (c) the effect of changes in tax laws, accounting principles,
or other laws or provisions affecting reported results, (d) any
reorganization and restructuring programs, (e) extraordinary nonrecurring
items as described in Accounting Principles Board Opinion No. 30 and/or in
management’s discussion and analysis of financial condition and results of
operations appearing in the Company’s annual report to stockholders for the
applicable year or in the quarterly report on Form 10-Q for the applicable
quarter, (f) acquisitions or divestitures, and (g) foreign exchange
gains and losses. To the extent such inclusions or exclusions affect Awards
to
Covered Employees, they shall be prescribed in a form that meets the
requirements of Code Section 162(m) for deductibility.
11.5.
CERTIFICATION OF PERFORMANCE
GOALS
.
Any payment of a Qualified Performance-Based Award
granted with performance goals pursuant to Section 11.3 above shall be
conditioned on the written certification of the Committee in each case that
the
performance goals and any other material conditions were satisfied. Except
as
specifically provided in Section 11.3, no Qualified Performance-Based Award
held by a Covered Employee or by an employee who in the reasonable judgment
of
the Committee may be a Covered Employee on the date of payment, may be amended,
nor may the Committee exercise any discretionary authority it may otherwise
have
under the Plan with respect to a Qualified Performance-Based Award under
the
Plan, in any manner to waive the achievement of the applicable performance
goal
based on Qualified Business Measures or to increase the amount payable pursuant
thereto or the value thereof, or otherwise in a manner that would cause the
Qualified Performance-Based Award to cease to qualify for the
Section 162(m) Exemption. The Committee shall retain the discretion to
adjust such Awards downward, either on a formula or discretionary basis or
any
combination, as the Committee determines.
11.6.
AWARD LIMITS
.
Section 5.4 sets forth the maximum number of Shares or dollar value that
may be granted in any one-year period to a Participant in designated forms
of
Qualified Performance-Based Awards.
12.1.
GRANT OF DIVIDEND
EQUIVALENTS
.
The Committee is authorized to grant Dividend
Equivalents to Participants subject to such terms and conditions as may be
selected by the Committee. Dividend Equivalents shall entitle the Participant
to
receive payments equal to dividends with respect to all or a portion of the
number of Shares subject to an Award, as determined by the Committee. The
Committee may provide that Dividend Equivalents be paid or distributed when
accrued or be deemed to have been reinvested in additional Shares, or otherwise
reinvested. Unless otherwise provided in the applicable Award Agreement,
Dividend Equivalents will be paid or distributed no later than the 15
th
day of
the
3
rd
month
following the later of (i) the calendar year in which the corresponding
dividends were paid to stockholders, or (ii) the first calendar year in
which the Participant’s right to such Dividends Equivalents is no longer subject
to a substantial risk of forfeiture.
STOCK
OR
OTHER STOCK-BASED AWARDS
13.1.
GRANT OF STOCK OR OTHER STOCK-BASED
AWARDS
.
The Committee is authorized, subject to limitations
under applicable law, to grant to Participants such other Awards that are
payable in, valued in whole or in part by reference to, or otherwise based
on or
related to Shares, as deemed by the Committee to be consistent with the purposes
of the Plan, including without limitation Shares awarded purely as a “bonus” and
not subject to any restrictions or conditions, convertible or exchangeable
debt
securities, other rights convertible or exchangeable into Shares, and Awards
valued by reference to book value of Shares or the value of securities of
or the
performance of specified Parents or Subsidiaries. The Committee shall determine
the terms and conditions of such Awards.
PROVISIONS
APPLICABLE TO AWARDS
14.1.
PAYMENT OF AWARDS
.
Payment of Awards shall be made in Stock, except that in special circumstances
where deemed necessary or expedient, the Committee may in its discretion
provides that an Award may be made settled in cash or any other form of
property. In addition, payment of Awards may include such terms, conditions,
restrictions and/or limitations, if any, as the Committee deems appropriate,
including, restrictions on transfer and forfeiture provisions. Further, payment
of Awards may be made in the form of a lump sum, or in installments, as
determined by the Committee; provided, however, that no payment of Awards
shall
be made earlier than the first date that such payment may be made without
causing the Participant to incur an excise tax under Section 409A of the
Code.
14.2.
LIMITS ON TRANSFER
.
No right or interest of a Participant in any unexercised or restricted Award
may
be pledged, encumbered, or hypothecated to or in favor of any party other
than
the Company or an Affiliate, or shall be subject to any lien, obligation,
or
liability of such Participant to any other party other than the Company or
an
Affiliate. No unexercised or restricted Award shall be assignable or
transferable by a Participant other than by will or the laws of descent and
distribution; provided, however, that the Committee may (but need not) permit
other transfers (other than transfers for value) where the Committee concludes
that such transferability (i) does not result in accelerated taxation,
(ii) does not cause any Option intended to be an Incentive Stock Option to
fail to be described in Code Section 422(b), and (iii) is otherwise
appropriate and desirable, taking into account any factors deemed relevant,
including without limitation, state or federal tax or securities laws applicable
to transferable Awards.
14.3.
STOCK TRADING
RESTRICTIONS
.
All Stock issuable under the Plan is subject to
any stop-transfer orders and other restrictions as the Committee deems necessary
or advisable to comply with federal or state securities laws, rules and
regulations and the rules of any national securities exchange or automated
quotation system on which the Stock is listed, quoted, or traded. The Committee
may place legends on any Stock certificate or issue instructions to the transfer
agent to reference restrictions applicable to the Stock.
14.4.
ACCELERATION UPON TERMINATION OF
SERVICE
.
If a person’s Continuous Status as a Participant
terminates for a reason other than death, Disability, retirement, or any
other
approved reason, all unexercised, unearned, and/or unpaid Awards, including
without limitation, Awards earned but not yet paid, all unpaid dividends
and
Dividend Equivalents, and all interest accrued on the foregoing shall be
canceled or forfeited, as the case may be, unless the
applicable
Award
Notice provides otherwise. Subject to Sections 11.3 and 17.3, the Committee
shall have the authority to promulgate rules and regulations to
(i) determine what events constitute retirement or termination for an
approved reason for purposes of the Plan, and (ii) determine the treatment
of a Participant under the Plan in the event of such Participant’s death,
Disability, retirement or termination for an approved reason.
14.5.
CHANGE IN
OWNERSHIP
.
(a)
Vesting
and Lapse of Restrictions
.
Upon a Change in Ownership,
(i) the terms of this Section 14.5 shall immediately become operative,
without further action or consent by any person or entity, (ii) all of the
conditions, restrictions, and limitations in effect on any unexercised,
unearned, unpaid and/or deferred Awards, or any other outstanding Award,
shall
immediately lapse as of effective date of the Change in Ownership; (iii) no
other terms, conditions, restrictions and/or limitations shall be imposed
upon
any Awards on or after such date, and in no event shall an Award be forfeited
on
or after such date; and (iv) subject to Section 14.5(c) below, all
unexercised, unvested, unearned and/or unpaid Awards, or any other outstanding
Awards, shall automatically become one hundred percent (100%) vested
immediately. Any Awards shall thereafter continue or lapse in accordance
with
the other provisions of the Plan and the Award Notice. To the extent that
this
provision causes Incentive Stock Options to exceed the dollar limitation
set
forth in Code Section 422(d), the excess Options shall be deemed to be
Nonstatutory Stock Options.
(b)
Dividends and Dividend Equivalents
.
Upon a
Change in Ownership, all unpaid dividends and Dividend Equivalents and all
interest accrued thereon, if any, shall be treated and paid under this
Section 14.5 in the identical manner and time as the Award with respect to
which such dividends or dividend equivalents have been credited. For example,
if
upon a Change in Ownership, an Award under this Section 14.5 is to be paid
in a prorated fashion, all unpaid dividends and Dividend Equivalents with
respect to such Award shall be paid according to the same formula used to
determine the amount of such prorated Award.
(c)
Treatment
of Performance Awards
.
If a Change in Ownership occurs during
the term of one or more performance periods under outstanding Performance
Awards
(“current performance periods”) the term of each current performance period
shall be treated as terminating upon the date of the Change in Ownership,
and
for each such current performance period and each completed performance period
for which the Committee has not on or before such date made a determination
as
to whether and to what degree the performance objectives for such period
have
been attained (hereinafter a “completed performance period”), the payout
opportunities shall be deemed to have been met as of the Change in Ownership
based upon (A) an assumed achievement of all relevant performance goals at
the “target” level if the Change in Ownership occurs during the first half of
the applicable performance period, or (B) the actual level of achievement
of all relevant performance goals against target, calculated as of the end
of
the last calendar quarter prior to the Change in Ownership, if the Change
in
Ownership occurs during the second half of the applicable performance period.
If
a Participant is participating in one or more performance periods, he or
she
shall be considered to have earned and, therefore, be entitled to receive,
a
prorated portion of the Performance Awards for each such performance period,
calculated as set forth above. Such prorated portion shall be determined
based
on the total number of whole and partial years (with each partial year being
treated as a whole year) that have elapsed as of the Change in Ownership
since
the beginning of the performance period, divided by the total number of years
in
such performance period.
(d)
Valuation
and Payment
of Awards
.
Upon a Change in Ownership, each Participant,
whether or not still employed by the Company or an Affiliate, shall be paid,
in
a single lump-sum cash payment, as soon as practicable but not later than
seventy-five (75) days after the effective date of the Change in Ownership
(unless a later date is required by Section 17.3 hereof)), the value of all
of
such Participant’s outstanding and/or deferred Awards (including those earned as
a result of the application of Section 14.5(c) above). For purposes of
calculating the cash-out value of Awards for purposes of this Section 14.5,
the Change-in-Control Price shall be used as the Fair Market Value of the
Shares
as of the date of the Change in Ownership.
(e)
Legal
Fees
.
The Company shall pay all reasonable legal fees and
related expenses incurred by a Participant in seeking to obtain or enforce
any
payment, benefit or right such Participant may be entitled to under the Plan
after a Change in Ownership; provided, however, the Participant shall be
required to repay any such amounts to the Company to the extent a court of
competent jurisdiction issues a final and non-appealable order setting forth
the
determination that the position taken by the Participant was frivolous or
advanced in bad faith.
(f)
Adjustment
to Provisions
.
Notwithstanding that a Change in Ownership has
occurred, the Committee may elect to deal with Awards in a manner different
from
that contained in this Section 14.5, in which case the provisions of this
Section 14.5 shall not apply and such alternate terms shall apply. Such
Committee action shall be effective only if it is made by the Committee prior
to
the occurrence of an event that otherwise would be or probably will lead
to a
Change in Ownership or after such event if made by the Committee a majority
of
which is composed of directors who were members of the Board immediately
prior
to the event that otherwise would be or probably will lead to a Change in
Ownership.
14.6.
CHANGE IN
CONTROL
.
(a)
Eligibility
.
All Participants shall be eligible for the treatment afforded by this
Section 14.6 if their employment or directorship terminates within two
years following a Change in Control, unless the termination is due to
(i) death, (ii) Disability, (iii) Cause, (iv) resignation
other than (A) resignation from a declined reassignment to a job that is
not reasonably equivalent in responsibility or compensation (as defined in
the
Company’s termination allowance plan, if any), or that is not in the same
geographic area (as defined in the Company’s termination allowance plan, if
any), or (B) resignation within thirty (30) days following a reduction
in base pay, or (v) retirement entitling the Participant to benefits under
his or her employer’s retirement plan.
(b)
Vesting
and Lapse of
Restrictions
.
If a Participant is eligible for treatment under
this Section 14.6, (i) all of the conditions, restrictions, and
limitations in effect on any of such Participant’s unexercised, unearned, unpaid
and/or deferred Awards (or any other of such Participant’s outstanding Awards)
shall immediately lapse as of the date of termination of employment or
directorship; (ii) no other terms, conditions, restrictions and/or
limitations shall be imposed upon any of such Participant’s Awards on or after
such date, and in no event shall any of such Participant’s Awards be forfeited
on or after such date; and (iii) subject to Section 14.6(c) below, all
of such Participant’s unexercised, unvested, unearned and/or unpaid Awards (or
any other of such Participant’s outstanding Awards) shall automatically become
one hundred percent (100%) vested immediately upon termination of employment
or
directorship. Any Awards shall thereafter continue or lapse in accordance
with
the other provisions of the Plan and the Award Notice. To the extent that
this
provision causes Incentive Stock Options to exceed the dollar limitation
set
forth in Code Section 422(d), the excess Options shall be deemed to be
Nonstatutory Stock Options.
(c)
Dividends
and Dividend
Equivalents
.
All unpaid dividends and Dividend Equivalents and
all interest accrued thereon, if any, shall be treated and paid under this
Section 14.6 in the identical manner and time as the Award with respect to
which such dividends or dividend equivalents have been credited. For example,
if
an Award is to be paid under this Section 14.6 in a prorated fashion, all
unpaid dividends and Dividend Equivalents with respect to such Award shall
be
paid according to the same formula used to determine the amount of such prorated
Award.
(d)
Treatment
of Performance Awards
.
If a Participant holding Performance
Awards is terminated under the conditions above, the provisions of this
Section 14.6 shall determine the manner in which such Performance Awards
shall be paid to such Participant. For purposes of making such payment, each
current performance period shall be treated as terminating upon the date
of the
Participant’s termination, and for each such current performance period and each
completed performance period for which the Committee has not on or before
such
date made a determination as to whether and to what degree the performance
objectives for such period have been attained, the payout opportunities shall
be
deemed to have been met as of the date of termination based upon (A) an
assumed achievement of all relevant performance goals at the “target” level if
the date of termination occurs during the first half of the applicable
performance period, or (B) the actual level of achievement of all relevant
performance goals against target, calculated as of the end of the last calendar
quarter prior to the date of termination, if the termination occurs during
the
second half of the applicable performance period. If a Participant is
participating in one or more performance periods, he or she shall be considered
to have earned and, therefore, be entitled to receive, a prorated portion
of the
Performance Awards for each such performance period, calculated as set forth
above. Such prorated portion shall be determined based on the total number
of
whole and partial years (with each partial year being treated as a whole
year)
that have elapsed as of the date of termination since the beginning of the
performance period, divided by the total number of years in such performance
period.
(e)
Valuation
and Payment
of Awards.
If a Participant is eligible for treatment under this
Section 14.6, such Participant shall be paid, in a single lump-sum cash
payment, as soon as practicable but not later than seventy-five (75) days
after
the date of such Participant’s termination (unless a later date is required by
Section 17.3 hereof), the value of all of such Participant’s outstanding and/or
deferred Awards (including those earned as a result of the application of
Section 14.6(c) above). For purposes of calculating the cash-out value of
Awards for purposes of this Section 14.6, the Change-in-Control Price shall
be used as the Fair Market Value of the Shares as of the date of
termination.
(f)
Legal
Fees.
The Company shall pay all reasonable legal fees and related expenses incurred
by
a Participant in seeking to obtain or enforce any payment, benefit or right
such
Participant may be entitled to under the Plan after a Change in Control;
provided, however, the Participant shall be required to repay any such amounts
to the Company to the extent a court of competent jurisdiction issues a final
and non-appealable order setting forth the determination that the position
taken
by the Participant was frivolous or advanced in bad faith.
(g)
Adjustment
to
Provisions.
Notwithstanding that a Change in Control has occurred, the
Committee may elect to deal with Awards in a manner different from that
contained in this Section 14.6, in which case the provisions of this
Section 14.6 shall not apply and such alternate terms shall apply. Such
Committee action shall be effective only if it is made by the Committee prior
to
the occurrence of an event that otherwise would be or probably will lead
to a
Change in Control or after such event if made by the Committee a majority
of
which is composed of
directors
who were members of the Board immediately prior to the event that otherwise
would be or probably will lead to a Change in
Control.
14.7.
FORFEITURE
EVENTS.
(a) The
Committee may specify in an Award Notice that the Participant’s rights, payments
and benefits with respect to an Award shall be subject to reduction,
cancellation, forfeiture or recoupment upon the occurrence of certain specified
events, in addition to any otherwise applicable vesting or performance
conditions of an Award. Such events shall include, but shall not be limited
to,
termination of employment for cause, violation of material Company or Affiliate
policies, breach of non-competition, confidentiality or other restrictive
covenants that may apply to the Participant, or other conduct by the Participant
that is detrimental to the business or reputation of the Company or any
Affiliate.
(b) If
the Company is required to prepare an accounting restatement due to the material
noncompliance of the Company, as a result of misconduct, with any financial
reporting requirement under the securities laws, if a Participant knowingly
or
grossly negligently engaged in the misconduct, or knowingly or grossly
negligently failed to prevent the misconduct, or if the Participant is one
of
the individuals subject to automatic forfeiture under Section 304 of the
Sarbanes-Oxley Act of 2002, the Participant shall reimburse the Company the
amount of any payment in settlement of an Award earned or accrued during
the
12-month period following the first public issuance or filing with the United
States Securities and Exchange Commission (whichever just occurred) of the
financial document embodying such financial reporting
requirement.
14.8.
SUBSTITUTE AWARDS.
The
Committee may grant Awards under the Plan in substitution for stock and
stock-based awards held by employees of another entity who become employees
of
the Company or an Affiliate as a result of a merger or consolidation of the
former employing entity with the Company or an Affiliate or the acquisition
by
the Company or an Affiliate of property or stock of the former employing
corporation. The Committee may direct that the substitute Awards be granted
on
such terms and conditions as the Committee considers appropriate in the
circumstances.
CHANGES
IN CAPITAL STRUCTURE
15.1.
MANDATORY ADJUSTMENTS.
In the
event of a nonreciprocal transaction between the Company and its stockholders
that causes the per-share value of the Stock to change (including, without
limitation, any stock dividend, stock split, spin-off, rights offering, or
large
nonrecurring cash dividend), the authorization limits under Section 5.1 and
5.4 shall be adjusted proportionately, and the Committee shall make such
adjustments to the Plan and Awards as it deems necessary, in its sole
discretion, to prevent dilution or enlargement of rights immediately resulting
from such transaction. Action by the Committee may include: (i) adjustment
of the number and kind of shares that may be delivered under the Plan;
(ii) adjustment of the number and kind of shares subject to outstanding
Awards; (iii) adjustment of the exercise price of outstanding Awards or the
measure to be used to determine the amount of the benefit payable on an Award;
and (iv) any other adjustments that the Committee determines to be
equitable. Without limiting the foregoing, in the event of a subdivision
of the
outstanding Stock (stock-split), a declaration of a dividend payable in Shares,
or a combination or consolidation of the outstanding Stock into a lesser
number
of Shares, the authorization limits under Section 5.1 and 5.4 shall
automatically be adjusted proportionately, and the Shares then subject to
each
Award shall automatically, without the necessity for any additional action
by
the Committee, be adjusted proportionately without any change in the aggregate
purchase price therefor.
15.2
DISCRETIONARY ADJUSTMENTS.
Upon the occurrence or in anticipation of any corporate event or transaction
involving the Company (including, without limitation, any merger,
reorganization, recapitalization, combination or exchange of shares, or any
transaction described in Section 15.1), the Committee may, in its sole
discretion, provide (i) that Awards will be settled in cash rather than
Stock, (ii) that Awards will become immediately vested and exercisable and
will expire after a designated period of time to the extent not then exercised,
(iii) that Awards will be assumed by another party to a transaction or
otherwise be equitably converted or substituted in connection with such
transaction, (iv) that outstanding Awards may be settled by payment in cash
or cash equivalents equal to the excess of the Fair Market Value of the
underlying Stock, as of a specified date associated with the transaction,
over
the exercise price of the Award, (v) that performance targets and
performance periods for Performance Awards will be modified, consistent with
Code Section 162(m) where applicable, or (vi) any combination of the
foregoing. The Committee’s determination need not be uniform and may be
different for different Participants whether or not such Participants are
similarly situated.
15.3
GENERAL.
Any discretionary
adjustments made pursuant to this Article 15 shall be subject to the
provisions of Section 16.2. To the extent that any adjustments made
pursuant to this Article 15 cause Incentive Stock Options to cease to
qualify as Incentive Stock Options, such Options shall be deemed to be
Nonstatutory Stock Options.
AMENDMENT,
MODIFICATION AND TERMINATION
16.1.
AMENDMENT, MODIFICATION AND
TERMINATION.
The Board may, at any time and from time to time, amend,
modify or terminate the Plan without stockholder approval; provided, however,
that if an amendment to the Plan would, in the reasonable opinion of the
Board,
either (i) materially increase the number of Shares available under the
Plan, (ii) expand the types of awards under the Plan, (iii) materially
expand the class of participants eligible to participate in the Plan,
(iv) materially extend the term of the Plan, or (v) otherwise
constitute a material change requiring stockholder approval under applicable
laws, policies or regulations or the applicable listing or other requirements
of
an Exchange, then such amendment shall be subject to stockholder approval;
and
provided, further, that the Board may condition any other amendment or
modification on the approval of stockholders of the Company for any reason,
including by reason of such approval being necessary or deemed advisable
(i) to comply with the listing or other requirements of an Exchange, or
(ii) to satisfy any other tax, securities or other applicable laws,
policies or regulations.
16.2.
AWARDS PREVIOUSLY
GRANTED
.
At any time and from time to time, the Board may
amend, modify or terminate any outstanding Award without approval of the
Participant; provided, however:
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(a) Subject
to the terms of the applicable Award Notice, such amendment, modification
or termination shall not, without the Participant’s consent, reduce or
diminish the value of such Award determined as if the Award had been
exercised, vested, cashed in or otherwise settled on the date of
such
amendment or termination (with the per-share value of an Option or
SAR for
this purpose being calculated as the excess, if any, of the Fair
Market
Value as of the date of such amendment or termination over the exercise
or
base price of such Award);
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(b) The
original term of an Option or SAR may not be extended without the
prior
approval of the stockholders of the Company;
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(c) Except
as otherwise provided in Article 15, the exercise price of an Option
or SAR may not be reduced, directly or indirectly, without the prior
approval of the stockholders of the Company; and
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(d) No
termination, amendment, or modification of the Plan shall adversely
affect
any Award previously granted under the Plan, without the written
consent
of the Participant affected thereby. An outstanding Award shall not
be
deemed to be “adversely affected” by a Plan amendment if such amendment
would not reduce or diminish the value of such Award determined as
if the
Award had been exercised, vested, cashed in or otherwise settled
on the
date of such amendment (with the per-share value of an Option or
SAR for
this purpose being calculated as the excess, if any, of the Fair
Market
Value as of the date of such amendment over the exercise or base
price of
such Award).
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16.3.
COMPLIANCE
AMENDMENTS
.
Notwithstanding anything in the Plan or
in any Award Notice to the contrary, the Board may amend the Plan or an Award
Notice, to take effect retroactively or otherwise, as deemed necessary or
advisable for the purpose of conforming the Plan or Award Notice to any present
or future law relating to plans of this or similar nature (including, but
not
limited to, Section 409A of the Code), and to the administrative
regulations and rulings promulgated thereunder. By accepting an Award under
this
Plan, a Participant agrees to any amendment made pursuant to this
Section 16.3 to any Award granted under the Plan without further
consideration or action.
17.1.
RIGHTS
OF PARTICIPANTS
.
(a) No
Participant or any Eligible Participant shall have any claim to be granted
any
Award under the Plan. Neither the Company, its Affiliates nor the Committee
is
obligated to treat Participants or Eligible Participants uniformly, and
determinations made under the Plan may be made by the Committee selectively
among Eligible Participants who receive, or are eligible to receive, Awards
(whether or not such Eligible Participants are similarly
situated).
(b) Nothing in the Plan, any Award Notice or any other document or
statement made with respect to the Plan, shall interfere with or limit in
any
way the right of the Company or anyAffiliate to terminate any Participant’s
employment or status as an officer, or any Participant’s service as a director,
at any time, nor confer upon any Participant any right to continue as an
employee, officer, or director of the Company or any Affiliate, whether for
the
duration of a Participant’s Award or otherwise.
(c) Neither
an Award nor any benefits arising under this Plan shall constitute an employment
contract with the Company or any Affiliate and, accordingly, subject to
Article 16, this Plan and the benefits hereunder may be terminated at any
time in the sole and exclusive discretion of the Committee without giving
rise
to any liability on the part of the Company or an of its
Affiliates.
(d) No
Award gives a Participant any of the rights of a stockholder of the Company
unless and until Shares are in fact issued to such person in connection with
such Award.
17.2.
WITHHOLDING
.
The Company or any Affiliate shall have the authority and the right to deduct
or
withhold, or require a Participant to remit to the Company, an amount sufficient
to satisfy federal, state, and local taxes, domestic or foreign, (including
the
Participant’s FICA obligation) required by law to be withheld with respect to
any exercise, lapse of restriction or other taxable event arising as a result
of
the Plan. With respect to withholding required upon any taxable event under
the
Plan, the Committee may, at the time the Award is granted or thereafter,
require
or permit that any such withholding requirement be satisfied, in whole or
in
part, by withholding from the Award Shares having a Fair Market Value on
the
date of withholding equal to the minimum amount (and not any greater amount)
required to be withheld for tax purposes, all in accordance with such procedures
as the Committee establishes. All such elections shall be subject to any
restrictions or limitations that the Committee, in its sole discretion, deems
appropriate.
17.3.
SPECIAL
PROVISIONS RELATED TO SECTION 409A OF THE
CODE
.
(a) Notwithstanding
anything in the Plan or in any Award Notice to the contrary, to the extent
that
any amount or benefit that would constitute “deferred compensation” for purposes
of Section 409A of the Code would otherwise be payable or distributable
under the Plan or any Award Notice by reason of the occurrence of a Change
in
Control, Change in Ownership, or the Participant’s Disability or separation from
service, such amount or benefit will not be payable or distributable to the
Participant by reason of such circumstance unless (i) the circumstances
giving rise to such Change in Control, Change in Ownership, Disability or
separation from service meet the description or definition of “change in control
event”, “disability” or “separation from service”, as the case may be, in
Section 409A of the Code and applicable proposed or final regulations, or
(ii) the payment or distribution of such amount or benefit would be exempt
from the application of Section 409A of the Code by reason of the
short-term deferral exemption or otherwise. This provision does not prohibit
the
vesting of any Award or the vesting of any right to eventual payment or
distribution of any amount or benefit under the Plan or any Award
Notice.
(b)
Notwithstanding anything in Plan or in any Award Notice to the contrary,
if any amount or benefit that would constitute non-exempt “deferred
compensation” for purposes of Section 409A of the Code would otherwise be
payable or distributable under this Plan or any Award Notice by reason
of
a Participant’s separation from service during a period in which the
Participant is a Specified Employee (as defined below), then if and
to the
extent necessary to comply with Code Section
409A:
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(i)
if
the payment or distribution is payable in a lump sum, the Participant’s right to
receive payment or distribution of such non-exempt deferred compensation will
be
delayed
until
earlier of the Participant’s death or the first day of the seventh month
following the Participant’s separation from service (subject to exceptions
specified in the final regulations under Code Section 409A); and
(ii)
if
the payment or distribution is payable over time, the amount of such non-exempt
deferred compensation that would otherwise be payable during the six-month
period immediately following the Participant’s separation from service will be
accumulated and the Participant’s right to receive payment or distribution of
such accumulated amount will be delayed until the earlier of the Participant’s
death or the first day of the seventh month following the Participant’s
separation from service (subject to exceptions specified in the final
regulations under Code Section 409A), whereupon the accumulated amount will
be
paid or distributed to the Participant and the normal payment or distribution
schedule for any remaining payments or distributions will resume.
For
purposes of this Plan, the term “Specified Employee” has the meaning given such
term in Code Section 409A and the final regulations thereunder,
provided,
however
, that, as permitted in such final regulations, the Company’s
Specified Employees and its application of the six-month delay rule of Code
Section 409A(a)(2)(B)(i) shall be determined in accordance with rules adopted
by
the Board, which shall be applied consistently with respect to all nonqualified
deferred compensation arrangements of the Company, including this
Plan.
17.4.
UNFUNDED STATUS OF
AWARDS
.
The Plan is intended to be an “unfunded” plan for
incentive and deferred compensation. With respect to any payments not yet
made
to a Participant pursuant to an Award, nothing contained in the Plan or any
Award Notice shall give the Participant any rights that are greater than
those
of a general creditor of the Company or any Affiliate. This Plan is not intended
to be subject to ERISA. Participants shall have no right, title, or interest
whatsoever in or to any investments that the Company and/or its Affiliates
may
make to aid it in meeting its obligations under this Plan. Nothing contained
in
this Plan, and no action taken pursuant to its provisions, shall create or
be
construed to create a trust of any kind, or a fiduciary relationship between
the
Company and any Participant, beneficiary, legal representative, or any other
individual.
17.5.
RELATIONSHIP TO OTHER
BENEFITS
.
No payment under the Plan shall be taken into
account in determining any benefits under any pension, retirement, savings,
profit sharing, group insurance, welfare or benefit plan of the Company or
any
Affiliate unless provided otherwise in such other plan.
17.6.
EXPENSES
.
The expenses of
administering the Plan shall be borne by the Company and its
Affiliates.
17.7.
TITLES AND HEADINGS
.
The
titles and headings of the Sections in the Plan are for convenience of reference
only, and in the event of any conflict, the text of the Plan, rather than
such
titles or headings, shall control.
17.8.
GENDER AND NUMBER
.
Except
where otherwise indicated by the context, any masculine term used herein
also
shall include the feminine; the plural shall include the singular and the
singular shall include the plural.
17.9.
FRACTIONAL SHARES
.
No
fractional Shares shall be issued and the Committee shall determine, in its
discretion, whether cash shall be given in lieu of fractional Shares or whether
such fractional Shares shall be eliminated by rounding up or
down.
17.10.
UNCERTIFICATED SHARES
.
To
the extent that this Plan provides for issuance of certificates to reflect
the
transfer of Shares, the transfer of such Shares may be effected on a
noncertificated basis, to the extent not prohibited by applicable law or
the
rules of any Exchange.
17.11.
GOVERNMENT
AND OTHER REGULATIONS
.
(a) Notwithstanding any other provision of the Plan, no Participant who
acquires Shares pursuant to the Plan may, during any period of time that
such
Participant is an affiliate of the Company (within the meaning of the rules
and
regulations of the Securities and Exchange Commission under the 1933 Act),
sell such Shares, unless such offer and sale is made (i) pursuant to an
effective registration statement under the 1933 Act, which is current and
includes the Shares to be sold, or (ii) pursuant to an appropriate
exemption from the registration requirement of the 1933 Act, such as that
set forth in Rule 144 promulgated under the
1933 Act.
(b) Notwithstanding any other provision of the Plan, if at any time the
Committee shall determine that the registration, listing or qualification
of the
Shares covered by an Award upon any Exchange or under any foreign, federal,
state or local law or practice, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in connection
with, the granting of such Award or the purchase or receipt of Shares
thereunder, no Shares may be purchased, delivered or received pursuant to
such
Award unless and until such registration, listing, qualification, consent
or
approval shall have been effected or obtained free of any condition not
acceptable to the Committee. Any Participant receiving or purchasing Shares
pursuant to an Award shall make such representations and agreements and furnish
such information as the Committee may request to assure compliance with the
foregoing or any other applicable legal requirements. The Company shall not
be
required to issue or deliver any certificate or certificates for Shares under
the Plan prior to the Committee’s determination that all related requirements
have been fulfilled. The Company shall in no event be obligated to register
any
securities pursuant to the 1933 Act or applicable state or foreign law or
to take any other action in order to cause the issuance and delivery of such
certificates to comply with any such
17.12.
GOVERNING LAW
.
To
the extent not governed by federal law, the Plan and all Award Notices shall
be
construed in accordance with and governed by the laws of the State of
Delaware.
17.13.
ADDITIONAL
PROVISIONS
.
Each Award Notice may contain such other terms and
conditions as the Committee may determine; provided that such other terms
and
conditions are not inconsistent with the provisions of the
Plan.
17.14.
NO LIMITATIONS ON RIGHTS OF
COMPANY
.
The grant of any Award shall not in any way affect
the right or power of the Company to make adjustments, reclassification or
changes in its capital or business structure or to merge, consolidate, dissolve,
liquidate, sell or transfer all or any part of its business or assets. The
Plan
shall not restrict the authority of the Company, for proper corporate purposes,
to draft or assume awards, other than under the Plan, to or with respect
to any
person. If the Committee so directs, the Company may issue or
transfer
Shares
to
an Affiliate, for such lawful consideration as the Committee may specify,
upon
the condition or understanding that the Affiliate will transfer such Shares
to a
Participant in accordance with the terms of an Award granted to such Participant
and specified by the Committee pursuant to the provisions of the
Plan.
17.15.
INDEMNIFICATION
.
Each person who is
or shall have been a member of the Committee, or of the Board, or an officer
of
the Company to whom authority was delegated in accordance with Article 4
shall be indemnified and held harmless by the Company against and from any
loss,
cost, liability, or expense that may be imposed upon or reasonably incurred
by
him or her in connection with or resulting from any claim, action, suit,
or
proceeding to which he or she may be a party or in which he or she may be
involved by reason of any action taken or failure to act under the Plan and
against and from any and all amounts paid by him or her in settlement thereof,
with the Company’s approval, or paid by him or her in satisfaction of any
judgment in any such action, suit, or proceeding against him or her, provided
he
or she shall give the Company an opportunity, at its own expense, to handle
and
defend the same before he or she undertakes to handle and defend it on his
or
her own behalf, unless such loss, cost, liability, or expense is a result
of his
or her own willful misconduct or except as expressly provided by statute.
The
foregoing right of indemnification shall not be exclusive of any other rights
of
indemnification to which such persons may be entitled under the Company’s
charter or bylaws, by contract, as a matter of law, or otherwise, or any
power
that the Company may have to indemnify them or hold them
harmless.
EASTMAN
CHEMICAL COMPANY
2002
OMNIBUS LONG-TERM COMPENSATION PLAN
1.
Purpose
The
purpose of the Plan is to provide motivation to Employees of the Company and
its
Subsidiaries to put forth maximum efforts toward the continued growth,
profitability, and success of the Company and its Subsidiaries by providing
incentives to such Employees through the ownership and performance of Common
Stock of the Company. Toward this objective, the Committee may grant stock
options, stock appreciation rights (“SARs”), Stock Awards, performance shares,
and/or other incentive awards to Employees of the Company and its Subsidiaries
on the terms and subject to the conditions set forth in the Plan.
2.
Definitions
2.1 “Award”
means any form of stock option, SAR, Stock Award, performance shares, or other
incentive award granted under the Plan, whether singly, in combination, or
in
tandem, to a Participant by the Committee pursuant to such terms, conditions,
restrictions and/or limitations, if any, as the Committee may establish by
the
Award Notice or otherwise.
2.2 “Award
Notice” means a written notice from the Company to a Participant that
establishes the terms, conditions, restrictions, and/or limitations applicable
to an Award in addition to those established by the Plan and by the Committee’s
exercise of its administrative powers.
2.3 “Board”
means the Board of Directors of the Company.
2.4 “Change
In Control” means a change in control of the Company of a nature that would be
required to be reported (assuming such event has not been “previously reported”)
in response to Item 1(a) of a Current Report on Form 8-K, as in effect on
December 31, 2001, pursuant to Section 13 or 15(d) of the Exchange Act; provided
that, without limitation, a Change In Control shall be deemed to have occurred
at such time as (i) any “person” within the meaning of Section 14(d) of the
Exchange Act, other than the Company, a Subsidiary, or any employee benefit
plan(s) sponsored by the Company or any Subsidiary, is or has become the
“beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, directly or
indirectly, of 25% or more of the combined voting power of the outstanding
securities of the Company ordinarily having the right to vote in the election
of
directors; provided, however, that the following will not constitute a Change
In
Control: any acquisition by any corporation if, immediately following such
acquisition, more than 75% of the outstanding securities of the acquiring
corporation ordinarily having the right to vote in the election of directors
is
beneficially owned by all or substantially all of those persons who, immediately
prior to such acquisition, were the beneficial owners of the
outstanding
securities of the Company ordinarily having the right to vote in the election
of
directors, or (ii) individuals who constitute the Board on January 1, 2002
(the
“Incumbent Board”) have ceased for any reason to constitute at least a majority
thereof, provided that: any person becoming a director subsequent to January
1,
2002 whose election, or nomination for election by the Company’s stockholders,
was approved by a vote of at least three-quarters (3/4) of the directors
comprising the Incumbent Board (either by a specific vote or by approval of
the
proxy statement of the Company in which such person is named as a nominee for
director without objection to such nomination) shall be, for purposes of the
Plan, considered as though such person were a member of the Incumbent Board,
(iii) upon approval by the Company’s stockholders of a reorganization, merger or
consolidation, other than one with respect to which all or substantially all
of
those persons who were the beneficial owners, immediately prior to such
reorganization, merger or consolidation, of outstanding securities of the
Company ordinarily having the right to vote in the election of directors own,
immediately after such transaction, more than 75% of the outstanding securities
of the resulting corporation ordinarily having the right to vote in the election
of directors; or (iv) upon approval by the Company’s stockholders of a complete
liquidation and dissolution of the Company or the sale or other disposition
of
all or substantially all of the assets of the Company other than to a
Subsidiary.
2.5 “Change
In Control Price” means the highest closing price (or, if the shares
are not traded on an exchange, the highest last sale price or closing “asked”
price) per share paid for the purchase of Common Stock in a national securities
market during the ninety (90) day period ending on the date the Change In
Control occurs.
2.6 “Change
In Ownership” means a Change In Control that results directly or indirectly in
the Common Stock (or the stock of any successor to the Company received in
exchange for Common Stock) ceasing to be publicly traded in a national
securities market.
2.7 “Code”
means the Internal Revenue Code of 1986, as amended from time to
time.
2.8 “Committee”
means the Compensation and Management Development Committee of the Board or
such
other committee, designated by the Board, authorized to administer the Plan
under Section 3 hereof. The Committee shall consist of not less than two
members. It is intended that the directors appointed to serve on the Committee
shall be “non-employee directors” (within the meaning of Rule 16b-3 under the
Exchange Act) and “outside directors” (within the meaning of Code Section 162(m)
and the regulations thereunder). However, the mere fact that a Committee member
shall fail to qualify under either of the foregoing requirements shall not
invalidate any Award made by the Committee which Award is otherwise validly
made
under the Plan.
2.9 “Common
Stock” means the $.01 par value common stock of the Company.
2.10 “Company”
means Eastman Chemical Company.
2.11 “Covered
Employee” means an individual defined in Code Section 162(m)(3).
2.12 “Disability”
has the same meaning as provided in the long-term disability plan or policy
maintained by the Company or if applicable, most recently maintained, by the
Company or if applicable, a Subsidiary, for the Participant, whether or not
such
Participant actually receives disability benefits under such plan or policy.
If
no long-term disability plan or policy was ever maintained on behalf of
Participant or if the determination of Disability relates to an Incentive Stock
Option, Disability means Permanent and Total Disability as defined in Section
22(e)(3) of the Code. In the event of a dispute, the determination whether
a
Participant has suffered a Disability will be made by the Committee and may
be
supported by the advice of a physician competent in the area to which such
Disability relates.
2.13 “Employee”
means an employee of the Company or a Subsidiary.
2.14 “Exchange
Act” means the Securities and Exchange Act of 1934, as amended.
2.15 “Fair
Market Value” means the closing price of the shares of Common Stock on the New
York Stock Exchange on the day on which such value is to be determined or,
if no
shares were traded on such day, on the next preceding day on which shares were
traded; provided, however, that if at any relevant time the shares of Common
Stock are not traded on the New York Stock Exchange, the “Fair Market Value”
shall be determined by reference to the closing price of the shares of Common
Stock on another national securities exchange, if applicable, or if the shares
are not traded on an exchange but are traded in the over-the-counter market,
by
reference to the last sale price or the closing “asked” price of the shares in
the over-the-counter market as reported by the National Association of
Securities Dealers Automatic Quotation System (NASDAQ) or other national
quotation service.
2.16 “Participant”
means any individual to whom an Award has been granted by the Committee under
the Plan.
2.17 “Plan”
means the Eastman Chemical Company 2002 Omnibus Long-Term Compensation
Plan.
2.18 “Qualified
Performance-Based Award” means (i) any stock option or SAR granted under the
Plan, or (ii) any other Award that is intended to qualify for the Section 162(m)
Exemption and is made subject to performance goals based on Qualified
Performance Measures as set forth in Section 12.
2.19 “Qualified
Performance Measures” means one or more of the performance measures listed in
Section 12(b) upon which performance goals for certain Qualified
Performance-Based Awards may be established by the Committee.
2.20 “SAR”
is an Award that shall entitle the recipient to receive a payment equal to
the
appreciation in value of a stated number of shares of Common Stock from the
price established in the Award to the market value of such number of shares
of
Common Stock on the date of exercise.
2.21 “Section
162(m) Exemption” means the exemption from the limitation
on deductibility imposed by Section 162(m) of the Code that is set
forth in Section 162(m)(4)(C) of the Code or any successor provision
thereto.
2.22 “Section
16 Insider” means a Participant who is subject to the reporting requirements of
Section 16 of the Exchange Act with respect to the Company.
2.23 “Stock
Award” means an Award granted pursuant to Section 10 hereof in the form of
shares of Common Stock, restricted shares of Common Stock and/or Units of Common
Stock.
2.24 “Subsidiary”
means a corporation or other business entity in which the Company directly
or
indirectly has an ownership interest of eighty percent (80%) or
more.
2.25 “Unit”
means a bookkeeping entry used by the Company to record and account
for the grant of the following Awards until such time as the Award is paid,
canceled, forfeited or terminated, as the case may be: Units of Common Stock,
SARs and performance shares that are expressed in terms of Units of Common
Stock.
3.
Administration
The
Plan
shall be administered by the Committee. The Committee shall have the authority
to: (a) interpret the Plan; (b) establish such rules and regulations as it
deems
necessary for the proper operation and administration of the Plan; (c) select
Employees to become Participants and receive Awards under the Plan; (d)
determine the form of an Award, whether a stock option, SAR, Stock Award,
performance share, or other incentive award established by the Committee, the
number of shares or Units subject to the Award, all the terms, conditions,
restrictions and/or limitations, if any, of an Award, including the time and
conditions of exercise or vesting, and the terms of any Award Notice; (e)
determine whether Awards should be granted singly, in combination or in tandem;
(f) grant waivers of Plan terms, conditions, restrictions and limitations;
(g)
accelerate the vesting, exercise or payment of an Award or the performance
period of an Award in the event of a Participant’s termination of employment or
when such action or actions would be in the best interest of the Company; (h)
establish such other types of Awards, besides those specifically enumerated
in
Section 2.1 hereof, which the Committee determines are consistent with the
Plan’s purpose; and (i) take any and all other action it deems necessary or
advisable for the proper operation or administration of the Plan. In addition,
in order to enable Employees who are foreign nationals or are employed outside
the United States or both to receive Awards under the Plan, the Committee may
adopt such amendments, procedures, regulations, subplans and the like as are
necessary or advisable, in the opinion
of
the
Committee, to effectuate the purposes of the Plan. Subject to Section 23, the
Committee shall also have the authority to grant Awards in replacement of Awards
previously granted under the Plan or any other executive compensation plan
of
the Company or a Subsidiary. All determinations of the Committee
shall be made by a majority of its members, and its determinations shall be
final, binding and conclusive.
The
Committee, in its discretion, may delegate its authority and duties under the
Plan to the Chief Executive Officer and/or to other senior officers of the
Company under such conditions and/or limitations as the Committee may establish;
provided, however, that only the Committee may select, grant, and establish
the
terms of Awards to Section 16 Insiders or Covered Employees.
4.
Eligibility
Any
Employee is eligible to become a Participant in the Plan.
5.
Shares Available
The
maximum number of shares of Common Stock that shall be available for grant
of
Awards under the Plan (including incentive stock options) during its term shall
not exceed 7,500,000, provided that the maximum number of shares of Common
Stock
available for grant of Stock Awards or performance shares under the Plan during
its term shall not exceed 1,500,000. (Such amounts shall be subject to
adjustment as provided in Section 18.) Any shares of Common Stock related to
Awards that are settled in cash in lieu of Common Stock shall be available
again
for grant under the Plan. Similarly, any shares of Common Stock related to
Awards that terminate by expiration, forfeiture, cancellation or otherwise
without the issuance of such shares or are exchanged with the Committee’s
permission for Awards not involving Common Stock, shall be available again
for
grant under the Plan. Further, any shares of Common Stock that are used by
a
Participant for the full or partial payment to the Company of the purchase
price
of Common Stock upon exercise of a stock option, or for withholding taxes due
as
a result of such exercise, shall again be available for Awards under the Plan.
Notwithstanding any provision in the Plan to the contrary, the maximum number
of
shares of Common Stock with respect to one or more options and/or SARs that
may
be granted during any one calendar year under the Plan to any one Participant
shall be 300,000. The maximum fair market value of any Awards (other than
options and SARs) that may be received by a Participant (less any consideration
paid by the Participant for such Award) during any one calendar year under
the
Plan shall be the equivalent value of 200,000 shares of Common Stock as of
the
first business day of such calendar year. The shares of Common Stock available
for issuance under the Plan may be authorized and unissued shares or treasury
shares.
6.
Effective Date; Term
The
Plan
shall become effective as of the date upon which it is approved by the
stockholders of the Company. No Awards shall be exercisable or payable before
the Plan
shall
have become effective. Awards shall not be granted pursuant to the Plan after
May 2, 2007.
7.
Participation
The
Committee shall select, from time to time, Participants from those Employees
who, in the opinion of the Committee, can further the Plan’s
purposes. Once a Participant is so selected, the Committee shall
determine the type or types of Awards to be made to the Participant and shall
establish in the related Award Notices the terms, conditions, restrictions
and/or limitations, if any, applicable to the Awards in addition to those set
forth in the Plan and the administrative rules and regulations issued by the
Committee.
8.
Stock Options
(a)
Grants
. Awards may be granted in the form of stock options.
These stock options may be incentive stock options within the meaning of Section
422 of the Code, other tax-qualified stock options, or non-qualified stock
options (i.e., stock options that are not incentive or other tax-qualified
stock
options), or a combination of any of the above.
(b)
Terms
and Conditions of Options
. An option shall be exercisable in
whole or in such installments and at such times as may be determined by the
Committee. The Committee shall also determine the performance or other
conditions, if any, that must be satisfied before all or part of an option
may
be exercised. The price at which Common Stock may be purchased upon exercise
of
a stock option shall be established by the Committee, but such price shall
not
be less than one hundred percent (100%) of the Fair Market Value of the Common
Stock on the date of the stock option’s grant. Each stock option shall expire
not later than ten years from its date of grant, or, in the case of stock
options granted in countries outside the U.S., not later than ten years and
six
months from the date of grant, to the extent that such term complies with local
country tax, legal, or accounting requirements.
(c)
Restrictions Relating to Incentive Stock Options
. Stock
options issued in the form of incentive stock options shall, in addition to
being subject to all applicable terms, conditions, restrictions and/or
limitations established by the Committee, comply with Section 422 of the Code.
Accordingly, the aggregate market value (determined at the time the option
was
granted) of the Common Stock with respect to which incentive stock options
are
exercisable for the first time by a Participant during any calendar year (under
the Plan or any other plan of the Company or any of its Subsidiaries) shall
not
exceed $100,000 (or such other limit as may be required by the Code). Each
incentive stock option shall expire not later than ten years from its date
of
grant.
(d)
Additional Terms and Conditions
. The Committee may, by way of
the Award Notice or otherwise, establish such other terms, conditions,
restrictions and/or limitations, if any, of any stock option Award, provided
they are not inconsistent with the Plan. Without limiting the generality of
the
foregoing, options may provide for the automatic granting of new options at
the
time of exercise.
(e)
Exercise
. The Committee shall determine the methods by which
the exercise price of an option may be paid, the form of payment, including,
without limitation, cash, shares of Common Stock, or other property (including
“cashless exercise” arrangements), and the methods by which shares of Common
Stock shall be delivered or deemed to be delivered by Participants.
9.
Stock Appreciation Rights
(a)
Grants
. Awards may be granted in the form of SARs. An SAR may
be granted in tandem with all or a portion of a related stock option under
the
Plan (“Tandem SARs”), or may be granted separately (“Freestanding SARs”). A
Tandem SAR may be granted either at the time of the grant of the related stock
option or at any time thereafter during the term of the stock option. In the
case of SARs granted in tandem with stock options granted prior to the grant
of
such SARs, the appreciation in value is the difference between the option price
of such related stock option and the Fair Market Value of the Common Stock
on
the date of exercise.
(b)
Terms and Conditions of Tandem SARs
. A Tandem SAR shall be
exercisable to the extent, and only to the extent, that the related stock option
is exercisable, and the “exercise price” of such an SAR (the base from which the
value of the SAR is measured at its exercise) shall be the option price under
the related stock option. If a related stock option is exercised as to some
or
all of the shares covered by the Award, the related Tandem SAR, if any, shall
be
canceled automatically to the extent of the number of shares covered by the
stock option exercise. Upon exercise of a Tandem SAR as to some or all of the
shares covered by the Award, the related stock option shall be canceled
automatically to the extent of the number of shares covered by such
exercise.
(c)
Terms and Conditions of Freestanding SARs
. Freestanding SARs
shall be exercisable in whole or in such installments and at such times as
may
be determined by the Committee. Freestanding SARs shall have a term specified
by
the Committee, in no event to exceed ten years. The exercise price of a
Freestanding SAR shall also be determined by the Committee; provided, however,
that such price shall not be less than one hundred percent (100%) of the Fair
Market Value of the Common Stock on the date of the Freestanding SAR grant. The
Committee also shall determine the performance or other conditions, if any,
that
must be satisfied before all or part of a Freestanding SAR may be
exercised.
(d)
Deemed Exercise
. The Committee may provide that an SAR shall
be deemed to be exercised at the close of business on the scheduled expiration
date of such SAR if at such time the SAR by its terms remains exercisable and,
if so exercised, would result in a payment to the holder of such
SAR.
(e)
Additional Terms and Conditions
. The Committee may, by way of
the Award Notice or otherwise, determine such other terms, conditions,
restrictions and/or limitations, if any, of any SAR Award, provided they are
not
inconsistent with the Plan.
10.
Stock Awards
(a)
Grants
. Awards may be granted in the form of Stock Awards.
Stock Awards shall be awarded in such numbers and at such times during the
term
of the Plan as the Committee shall determine. Stock Awards may be actual shares
of Common Stock or the economic equivalent thereof (“Stock Award
Units”).
(b)
Award Restrictions
. Stock Awards shall be subject to such
terms, conditions, restrictions, and/or limitations, if any, as the Committee
deems appropriate including, without limitation, restrictions on transferability
and continued employment of the Participant. The Committee shall also determine
the performance or other conditions, if any, that must be satisfied before
all
or part of the applicable restrictions lapse.
(c)
Rights as Stockholder
. During the period in which any
restricted shares of Common Stock are subject to restrictions imposed pursuant
to Section 10(b), the Committee may, in its discretion, grant to the Participant
to whom such restricted shares have been awarded all or any of the rights of
a
stockholder with respect to such shares, including, without limitation, the
right to vote such shares and to receive dividends. Any dividends
accruing on an Award of restricted stock shall be paid or distributed to the
Participant no later than the 15
th
day of
the 3
rd
month following
the later of (i) the calendar year in which the corresponding dividends were
paid to shareholders, or (ii) the first calendar year in which the Participant’s
right to such dividends is no longer subject to a substantial risk of
forfeiture.
(d)
Evidence of Award
. Any Stock Award granted under the Plan may
be evidenced in such manner as the Committee deems appropriate, including,
without limitation, book-entry registration or issuance of a stock certificate
or certificates.
11.
Performance Shares
(a)
Grants
. Awards may be granted in the form of performance
shares. Performance shares, as that term is used in the Plan, shall refer to
shares of Common Stock or Units which are expressed in terms of Common
Stock.
(b)
Performance Criteria
. Performance shares shall be contingent
upon the attainment during a performance period of certain performance
objectives. The length of the performance period, the performance objectives
to
be achieved during the performance period, and the measure of whether and to
what degree such objectives have been attained shall be conclusively determined
by the Committee in the exercise of its absolute discretion. Performance
objectives may be revised by the Committee, at such times as it deems
appropriate during the performance period, in order to take into consideration
any unforeseen events or changes in circumstances.
(c)
Additional Terms and Conditions
. The Committee may, by way of
the Award Notice or otherwise, determine such other terms, conditions,
restrictions and/or limitations, if any, of any Award of performance shares,
provided they are not inconsistent with the Plan.
12.
Performance Goals for Certain Section 162(m) Awards
(a)
The
provisions of the Plan are intended to ensure that all stock options and SARs
granted hereunder to any Covered Employee qualify for the Section 162(m)
Exemption.
(b)
When
granting any Award other than stock options or SARs, the Committee may designate
such Award as a Qualified Performance-Based Award, based upon a determination
that the recipient is or may be a Covered Employee with respect to such Award,
and the Committee wishes such Award to qualify for the Section 162(m) Exemption.
If an Award is so designated, the Committee shall establish performance goals
for such Award within the time period prescribed by Section 162(m) of the Code
based on one or more of the following Qualified Performance Measures, which
may
be expressed in terms of Company-wide objectives or in terms of objectives
that
relate to the performance of a Subsidiary or a division, region, department
or
function within the Company or a Subsidiary: (1) return on capital, equity,
or
assets (including economic value created), (2) productivity, (3) cost
improvements, (4) cash flow, (5) sales revenue growth, (6) net income, earnings
per share, or earnings from operations, (7) quality, (8) customer satisfaction,
or (9) stock price or total stockholder return. Measurement of the Company’s
performance against the goals established by the Committee shall be objectively
determinable, and to the extent such goals are expressed in standard accounting
terms, performance shall be measured according to generally accepted accounting
principles as in existence on the date on which the performance goals are
established and without regard to any changes in such principles after such
date.
(c)
Each
Qualified Performance-Based Award (other than a stock option or SAR) shall
be
earned, vested and payable (as applicable) only upon the achievement of
performance goals established by the Committee based upon one or more of the
Qualified Performance Measures, together with the satisfaction of any other
conditions, such as continued employment, as the Committee may determine to
be
appropriate; provided that (i) the Committee may provide, either in connection
with the grant of an Award or by
amendment
thereafter, that achievement of such performance goals will be waived upon
the
death or Disability of the Participant, and (ii) the provisions of Sections
25
and 26 shall apply notwithstanding this sentence.
(d)
Any
payment of a Qualified Performance-Based Award granted with performance goals
shall be conditioned on the written certification of the Committee in each
case
that the performance goals and any other material conditions were satisfied.
Except as specifically provided in Subsection (c), no Qualified
Performance-Based Award may be amended, nor may the Committee exercise any
discretionary authority it may otherwise have under the Plan with respect to
a
Qualified Performance-Based Award under the Plan, in any manner to waive the
achievement of the applicable performance goal based on Qualified Performance
Measures or to increase the amount payable pursuant thereto or the value
thereof, or otherwise in a manner that would cause the Qualified
Performance-Based Award to cease to qualify for the Section 162(m)
Exemption.
13.
Payment of Awards
At
the
discretion of the Committee, payment of Awards may be made in cash, Common
Stock, a combination of cash and Common Stock, or any other form of property
as
the Committee shall determine. 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. Further, payment
of
Awards may be made in the form of a lump sum, or in installments, as determined
by the Committee.
14.
Dividends and Dividend Equivalents
If
an
Award is granted in the form of a Stock Award, stock option, or performance
share, or in the form of any other stock-based grant, the Committee may choose,
at the time of the grant of the Award or any time thereafter up to the time
of
the Award’s payment, to include as part of such Award an entitlement to receive
dividends or dividend equivalents, subject to such terms, conditions,
restrictions and/or limitations, if any, as the Committee may
establish. All dividends or dividend equivalents that are not paid
currently may, at the Committee’s discretion, accrue interest, be reinvested in
additional shares of Common Stock or, in the case of dividends or dividend
equivalents credited in connection with performance shares, be credited as
additional performance shares and paid to the Participant if and when, and
to
the extent that, payment is made pursuant to such
Award. Notwithstanding the foregoing, any dividends or dividend
equivalents accruing on an Award shall be paid or distributed to the Participant
no later than the 15
th
day of
the 3
rd
month following
the later of (i) the calendar year in which the corresponding dividends were
paid to shareholders, or (ii) the first calendar year in which the Participant’s
right to such dividends or dividend equivalents is no longer subject to a
substantial risk of forfeiture.
15.
Deferral
of Awards
No
Option
or SAR shall provide for any feature for the deferral of compensation other
than
the deferral of recognition of income until the exercise or disposition of
the
Option or SAR
.
At the discretion of the Committee, payment of a Stock Award, performance
share, dividend, dividend equivalent, or any portion thereof may be deferred
by
a Participant until such time as the Committee may establish. All such deferrals
shall be accomplished by the delivery of a written, irrevocable election by
the
Participant on a form provided by the Company. All deferrals shall be made
in
accordance with administrative guidelines established by the Committee to ensure
that such deferrals comply with all applicable requirements of Section 409A
of
the Code and its regulations. Deferred payments shall be paid in a lump sum
or
installments, as determined by the Committee. The Committee may also credit
interest, at such rates to be determined by the Committee, on cash payments
that
are deferred and credit dividends or dividend equivalents on deferred payments
denominated in the form of Common Stock. The Committee may also, in its
discretion, require deferral of payment of any Award (other than an Option
or
SAR) or portion thereof if payment of the Award would, or could in the
reasonable estimation of the Committee, result in the Participant receiving
compensation in excess of the maximum amount deductible by the Company under
the
Code.
16.
Termination of Employment
If
a
Participant’s employment with the Company or a Subsidiary terminates for a
reason other than death, Disability, retirement, or any other approved reason,
all unexercised, unearned, and/or unpaid Awards, including without limitation,
Awards earned but not yet paid, all unpaid dividends and dividend equivalents,
and all interest accrued on the foregoing shall be canceled or forfeited, as
the
case may be, unless the Participant’s Award Notice provides otherwise. Subject
to Section 30, the Committee shall have the authority to promulgate rules and
regulations to (i) determine what events constitute Disability, retirement
or
termination for an approved reason for purposes of the Plan, and (ii) determine
the treatment of a Participant under the Plan in the event of such Participant’s
death, Disability, retirement or termination for an approved
reason.
17.
Nonassignability
No
Awards
(other than unrestricted Stock Awards) or any other payment under the Plan
shall
be subject in any manner to alienation, anticipation, sale, transfer (except
by
will or the laws of descent and distribution), assignment, pledge, or
encumbrance; provided, however, that the Committee may (but need not) permit
other transfers where the Committee concludes that such transferability (i)
does
not result in accelerated taxation, (ii) does not cause any option intended
to
be an incentive stock option to fail to be described in Code Section 422(b),
and
(iii) is otherwise appropriate and desirable, taking into account any state
or
federal securities laws applicable to transferable Awards. During the lifetime
of the Participant no Award shall be payable to or exercisable by anyone other
than the Participant to whom it was granted, other than (a) in the case of
a
permanent
Disability
involving a mental incapacity or (b) in the case of an Award transferred in
accordance with the preceding sentence.
18.
Changes in Capital Structure
(a)
Mandatory
Adjustments
. In the event of a nonreciprocal transaction between
the Company and its stockholders that causes the per-share value of the Common
Stock to change (including, without limitation, any stock dividend, stock split,
spin-off, rights offering, or large nonrecurring cash dividend), the share
authorization limits under Section 5 shall be adjusted proportionately, and
the
Committee shall make such adjustments to the Plan and Awards as it deems
necessary, in its sole discretion, to prevent dilution or enlargement of rights
immediately resulting from such transaction. Action by the Committee
may include: (i) adjustment of the number and kind of shares that may be
delivered under the Plan; (ii) adjustment of the number and kind of shares
subject to outstanding Awards; (iii) adjustment of the exercise price of
outstanding Awards or the measure to be used to determine the amount of the
benefit payable on an Award; and (iv) any other adjustments that the Committee
determines to be equitable. Without limiting the foregoing, in the
event of a subdivision of the outstanding Common Stock (stock-split), a
declaration of a dividend payable in shares of Common Stock, or a combination
or
consolidation of the outstanding Common Stock into a lesser number of shares,
the shares then subject to each Award shall, without the necessity for any
additional action by the Committee, be adjusted proportionately without any
change in the aggregate purchase price therefor.
(b)
Discretionary
Adjustments
. Upon the occurrence or in anticipation of any
corporate event or transaction involving the Company (including, without
limitation, any merger, combination or exchange of shares, or any transaction
described in Subsection 18(a), the Committee may, in its sole discretion,
provide (i) that Awards will be settled in cash rather than Common Stock, (ii)
that Awards will become immediately vested and exercisable and will expire
after
a designated period of time to the extent not then exercised, (iii) that Awards
will be assumed by another party to a transaction or otherwise be equitably
converted or substituted in connection with such transaction, (iv) that
outstanding Awards may be settled by payment in cash or cash equivalents equal
to the excess of the Fair Market Value of the underlying Common Stock, as of
a
specified date associated with the transaction, over the exercise price of
the
Award, (v) that performance targets and performance periods for performance
Awards will be modified, consistent with Code Section 162(m) where applicable,
or (vi) any combination of the foregoing. The Committee’s
determination need not be uniform and may be different for different
Participants whether or not such Participants are similarly
situated.
(c)
General
. Any
discretionary adjustments made pursuant to this Section 18 shall be subject
to
the provisions of Section 23. To the extent that any adjustments made
pursuant to this Section 18 cause incentive stock options to cease to qualify
as
such under applicable provisions of the Code, such options shall be deemed
to be
non-qualified stock options.
19.
Withholding Taxes
The
Company shall have the power and the right to deduct or withhold, or require
a
Participant to remit to the Company, an amount sufficient to satisfy Federal,
state, and local taxes (including the Participant’s FICA obligation) required by
law to be withheld with respect to any taxable event arising as a result of
this
Plan. With respect to withholding required upon any taxable event hereunder,
the
Company may elect in its discretion, and Participants may elect, subject to
the
approval of the Committee, to satisfy the withholding requirement, in whole
or
in part, by withholding or having the Company withhold shares of Common Stock
having a Fair Market Value on the date the tax is to be determined equal to
the
minimum statutory total tax which could be imposed on the transaction. All
elections by Participants shall be irrevocable, made in writing, and signed
by
the Participant.
20.
Noncompetition; Confidentiality
A
Participant will not, without the written consent of the Company, either during
his or her employment by the Company or thereafter, disclose to anyone or make
use of any confidential information which he or she has acquired during his
or
her employment relating to any of the business of the Company, except as such
disclosure or use may be required in connection with his or her work as an
employee of Company. During Participant’s employment by Company, and for a
period of two years after the termination of such employment, he or she will
not, either as principal, agent, consultant, employee or otherwise, engage
in
any work or other activity in competition with the Company in the field or
fields in which he or she has worked for the Company. The agreement in this
Section applies separately in the United States and in other countries but
only
to the extent that its application shall be reasonably necessary for the
protection of the Company. Unless the Award Notice specifies otherwise, a
Participant shall forfeit all rights under this Plan to any unexercised or
unpaid Awards or to the deferral of any Award, dividend, or dividend equivalent,
if, in the determination of the Committee, the Participant has violated the
Agreement set forth in this Section 20, and in that event any further payment,
deferral of payment, or other action with respect to any Award, dividend, or
dividend equivalent shall be made or taken, if at all, in the sole discretion
of
the Committee. For purposes of this Section 20, “Company” shall include any
Subsidiary employing the Participant.
21.
Regulatory Approvals and Listings
Notwithstanding
anything contained in the Plan to the contrary, the Company shall have no
obligation to issue or deliver certificates of Common Stock evidencing Stock
Awards or any other Award resulting in the payment of Common Stock prior to
(a)
the obtaining of any approval from any governmental agency which the Company
shall, in its sole discretion, determine to be necessary or advisable, (b)
the
admission of such shares to listing on the stock exchange on which the Common
Stock may be listed, and (c) the completion of any registration or other
qualification of said shares under any State or
Federal
law or ruling of any governmental body that the Company shall, in its sole
discretion, determine to be necessary or advisable.
22.
Plan Amendment
Except
as
provided in Section 25 and Section 26, the Board or the Committee may, at any
time and from time to time, suspend, amend, modify, or terminate the Plan
without stockholder approval; provided, however, that if an amendment to the
Plan would, in the reasonable opinion of the Board or the Committee, either
(i)
materially increase the benefits accruing to Participants, (ii) materially
increase the number of shares of Common Stock issuable under the Plan, or (iii)
materially modify the requirements for eligibility, then such amendment shall
be
subject to stockholder approval; and provided, further, that the Board or
Committee may condition any amendment or modification on the approval of
stockholders of the Company if such approval is necessary or deemed advisable
to
(i) permit Awards made hereunder to be exempt from liability under Section
16(b)
of the Exchange Act, (ii) to comply with the listing or other requirements
of a
stock exchange, or (iii) to satisfy any other tax, securities or other
applicable laws, policies or regulations.
23.
Award Amendments
Except
as
provided in Section 25 or Section 26, the Committee may amend, modify or
terminate any outstanding Award without approval of the Participant; provided,
however:
(a)
subject to the terms of the applicable Award Notice, such amendment,
modification or termination shall not, without the Participant’s consent, reduce
or diminish the value of such Award determined as if the Award had been
exercised, vested, cashed in (at the spread value in the case of stock options
or SARs) or otherwise settled on the date of such amendment or
termination;
(b)
the
original term of any stock option or SAR may not be extended without the prior
approval of the stockholders of the Company;
(c)
except as otherwise provided in Section 18, the exercise price of any stock
option or SAR may not be reduced, directly or indirectly, without the prior
approval of the stockholders of the Company; and
(d)
no
termination, amendment, or modification of the Plan shall adversely affect
any
Award previously granted under the Plan, without the written consent of the
Participant affected thereby.
24.
Governing Law
The
Plan
shall be governed by and construed in accordance with the laws of the State
of
Delaware, except as superseded by applicable Federal law.
25.
Change In Ownership
(a)
Background
. Upon a Change In Ownership: (i) the terms of this
Section 25 shall immediately become operative, without further action or consent
by any person or entity; (ii) all conditions, restrictions, and limitations
in
effect on any unexercised, unearned, unpaid, and/or deferred Award, or any
other
outstanding Award, shall immediately lapse as of the date of such event; (iii)
no other terms, conditions, restrictions and/or limitations shall be imposed
upon any Awards on or after such date, and in no circumstance shall an Award
be
forfeited on or after such date; and (iv) all unexercised, unvested, unearned,
and/or unpaid Awards or any other outstanding Awards shall automatically become
one hundred percent (100%) vested immediately.
(b)
Dividends and Dividend Equivalents
. Upon a Change In
Ownership, all unpaid dividends and dividend equivalents and all interest
accrued thereon, if any, shall be treated and paid under this Section 25 in
the
identical manner and time as the Award with respect to which such dividends
or
dividend equivalents have been credited. For example, if upon a Change In
Ownership, an Award under this Section 25 is to be paid in a prorated fashion,
all unpaid dividends and dividend equivalents with respect to such Award shall
be paid according to the same formula used to determine the amount of such
prorated Award.
(c)
Treatment of Performance Shares
. If a Change In Ownership
occurs during the term of one or more performance periods for which the
Committee has granted performance shares (hereinafter a “current performance
period”), the term of each such current performance period shall immediately
terminate upon the occurrence of such event. Upon a Change In Ownership, for
each current performance period and each completed performance period for which
the Committee has not on or before such date made a determination as to whether
and to what degree the performance objectives for such period have been attained
(hereinafter a “completed performance period”), it shall be assumed that the
performance objectives have been attained at a level of one hundred percent
(100%) or the equivalent thereof.
A
Participant in one or more current performance periods shall be considered
to
have earned and, therefore, be entitled to receive, a prorated portion of the
Awards previously granted for each such performance period. Such prorated
portion shall be determined by multiplying the number of performance shares
granted to the Participant by a fraction, the numerator of which is the total
number of whole and partial years (with each partial year being treated as
a
whole year) that have elapsed since the beginning of the performance period,
and
the denominator of which is the total number of years in such performance
period.
A
Participant in one or more completed performance periods shall be considered
to
have earned and, therefore, be entitled to receive all the performance shares
previously granted during each such performance period.
(d)
Valuation of Awards
. Upon a Change In Ownership, all
outstanding Units of Common Stock, Freestanding SARs, stock options (including
incentive stock options), and performance shares (including those earned as
a
result of the application of Subsection 25(c) above) and all other outstanding
stock-based Awards, shall be valued and cashed out on the basis of the Change
In
Control Price.
(e)
Payment of Awards
. Upon a Change In Ownership, any
Participant, whether or not still employed by the Company or a Subsidiary,
shall
be paid, in a single lump sum cash payment, as soon as practicable but in no
event later than 75 days after the Change In Ownership (unless a later date
is
required by Section 30(b) hereof), the value of all of such Participant’s
outstanding Units of Common Stock, Freestanding SARs, stock options (including
incentive stock options), and performance shares (including those earned as
a
result of Subsection 25(c) above), and all other outstanding Awards, including
those granted by the Committee pursuant to its authority under Subsection 3(h)
hereof.
For
purposes of making any payment, the value of all Awards that are stock based
shall be determined by the Change In Control Price.
(f)
Deferred Awards
. Upon a Change in Ownership, all Awards
deferred by a Participant under Section 15 hereof, but for which such
Participant 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 90
days
after the Change In Ownership (unless a later date is required by Section 30(b)
hereof). For purposes of making any payment, the value of all Awards that are
stock based shall be determined by the Change In Control Price.
(g)
Miscellaneous
. Upon a Change In Ownership, (i) the provisions
of Sections 16 and 20 (solely as such Section relates to noncompetition and
not
as such Section relates to confidentiality) shall become null and void and
of no
further force and effect; and (ii) no action, including, without 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
Ownership.
(h)
Legal Fees
. The Company shall pay all reasonable legal fees
and related expenses incurred by a Participant in seeking to obtain or enforce
any payment, benefit or right such Participant may be entitled to under the
Plan
after a Change In Ownership; provided, however, the Participant shall be
required to repay any such amounts to the Company to the extent a court of
competent jurisdiction issues a final and non-appealable order setting forth
the
determination that the position taken by the Participant was frivolous or
advanced in bad faith.
(i)
Adjustment to Provisions
. Notwithstanding that a Change in
Ownership has occurred, the Committee may elect to deal with Awards in a manner
different from that contained in this Section 25, in which case the provisions
of this Section 25 shall not apply and such alternate terms shall apply. Such
Committee action shall be effective only if it is
made
by
the Committee prior to the occurrence of an event that otherwise would be or
probably will lead to a Change in Ownership or after such event if made by
the
Committee a majority of which is composed of directors who were members of
the
Board immediately prior to the event that otherwise would be or probably will
lead to a Change in Ownership.
26.
Change In Control
.
(a)
Background
. All Participants shall be eligible for the
treatment afforded by this Section 26 if their employment terminates within
two
years following a Change In Control, unless the termination is due to (i) death,
(ii) Disability, (iii) Cause, (iv) resignation other than (A) resignation from
a
declined reassignment to a job that is not reasonably equivalent in
responsibility or compensation (as defined in the Company’s termination
allowance plan, if any), or that is not in the same geographic area (as defined
in the Company’s termination allowance plan, if any), or (B) resignation within
30 days following a reduction in base pay, or (v) retirement entitling the
Participant to benefits under his or her employer’s retirement
plan.
For
purposes hereof, “Cause” means (a) the continued failure by an Employee to
substantially perform such Employee’s duties of employment after warnings
identifying the lack of substantial performance are communicated to the Employee
by the employer to identify the manner in which the employer believes that
the
Employee has not substantially performed such duties, or (b) the engaging by
an
Employee in illegal conduct that is materially and demonstrably injurious to
the
Company or a Subsidiary.
(b)
Vesting and Lapse of Restrictions
. If a Participant is
eligible for treatment under this Section 26, (i) all of the conditions,
restrictions, and limitations in effect on any of such Participant’s
unexercised, unearned, unpaid and/or deferred Awards (or any other of such
Participant’s outstanding Awards) shall immediately lapse as of the date of
termination of employment; (ii) no other terms, conditions, restrictions and/or
limitations shall be imposed upon any of such Participant’s Awards on or after
such date, and in no event shall any of such Participant’s Awards be forfeited
on or after such date; and (iii) all of such Participant’s unexercised,
unvested, unearned and/or unpaid Awards (or any other of such Participant’s
outstanding Awards) shall automatically become one hundred percent (100%) vested
immediately upon termination of employment.
(c)
Dividends and Dividend Equivalents
. If a Participant is
eligible for treatment under this Section 26, all of such Participant’s unpaid
dividends and dividend equivalents and all interest accrued thereon, if any,
shall be paid under this Section 26 in the identical manner and time as the
Award with respect to which such dividend or dividend equivalents have been
credited. For example, if upon a Change In Control, an Award under this Section
26 is to be paid in a prorated fashion, all unpaid dividends and dividend
equivalents with respect to such Award shall be paid according to the same
formula used to determine the amount of such prorated Award.
(d)
Treatment of Performance Shares
. If a Participant holding
performance shares is terminated under the conditions described in Subsection
(a) above, the provisions of this Subsection (d) shall determine the manner
in
which such performance shares shall be paid to such Participant. For purposes
of
making such payment, each current performance period, as that term is defined
in
Subsection 25(c) hereof, shall be treated as terminating upon the date of the
Participant’s termination of employment, and for each such current performance
period and each completed performance period, as that term is defined in
Subsection 25(c) hereof, it shall be assumed that the performance objectives
have been attained at a level of one hundred percent (100%) or the equivalent
thereof. If the Participant is participating in one or more current performance
periods, he or she shall be considered to have earned and, therefore, be
entitled to receive that prorated portion of the Awards previously granted
for
each such performance period, as determined in accordance with the formula
established in Subsection 25(c) hereof. A Participant in one or more completed
performance periods shall be considered to have earned and, therefore, be
entitled to receive all the performance shares previously granted during each
performance period.
(e)
Valuation of Awards
. If a Participant is eligible for
treatment under this Section 26, such Participant’s Awards shall be valued and
cashed out in accordance with the provisions of Subsection 25(d)
hereof.
(f)
Payment of Awards
. If a Participant is eligible for treatment
under this Section 26, such Participant shall be paid, in a single lump-sum
cash
payment, as soon as practicable but in no event later than 75 days after the
date of such Participant’s termination of employment (unless a later date is
required by Section 30(b) hereof), the value of all of such Participant’s
outstanding Units of Common Stock, Freestanding SARs, stock options (including
incentive stock options), and performance shares (including those earned as
a
result of Subsection 26(d) above), and all of such Participant’s other
outstanding Awards. For purposes of making any payment, the value of all Awards
that are stock based shall be determined by the Change In Control
Price.
(g)
Deferred Awards
. If a Participant is eligible for treatment
under this Section 26, all of the deferred Awards for which such Participant
has
not received payment as of the date of such Participant’s termination of
employment shall be paid in a single lump-sum cash payment as soon as
practicable, but in no event later than 90 days after the date of such
Participant’s termination (unless a later date is required by Section 30(b)
hereof). For purposes of making any payment, the value of all Awards that are
stock based shall be determined by the Change In Control Price.
(h)
Miscellaneous
. Upon a Change In Control, (i) the provisions of
Sections 16 and 20 (solely as such Section relates to noncompetition and not
as
such Section relates to confidentiality) shall become null and void and of
no
force and effect insofar as they apply to a Participant who has been terminated
under the conditions described in Subsection (a) above; and (ii) no action,
including, without limitation, the amendment, suspension or termination of
the
Plan, shall be taken that would affect the rights of such 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 the Change In Control or to which
such Participant may become entitled as a result of such Change In
Control.
(i)
Legal Fees
. The Company shall pay all reasonable legal fees
and related expenses incurred by a Participant in seeking to obtain or enforce
any payment, benefit or right such Participant may be entitled to under the
Plan
after a Change In Control; provided, however, the Participant shall be required
to repay any such amounts to the Company to the extent a court of competent
jurisdiction issues a final and non-appealable order setting forth the
Determination that the position taken by the Participant was frivolous or
advanced in bad faith.
(j)
Adjustment to Provisions
. Notwithstanding that a Change In
Control has occurred, the Committee may elect to deal with Awards in a manner
different from that contained in this Section 26, in which case the provisions
of this Section 26 shall not apply and such alternate terms shall apply. Such
Committee action shall be effective only if it is made by the Committee prior
to
the occurrence of an event that otherwise would be or probably will lead to
a
Change In Control or after such event if made by the Committee a majority of
which is composed of directors who were members of the Board immediately prior
to the event that otherwise would be or probably will lead to a
Change In Control.
27.
No
Right to Employment or Participation
Participation
in the Plan shall not give any Participant any right to remain in the employ
of
the Company or any Subsidiary. The Company or, in the case of employment with
a
Subsidiary, the Subsidiary, reserves the right to terminate the employment
of
any Participant at any time. Further, the adoption of the Plan shall not be
deemed to give any Employee or any other individual any right to be selected
as
a Participant or to be granted an Award.
28.
No
Right, Title, or Interest in Company Assets
No
Participant shall have any rights as a stockholder as a result of participation
in the Plan until the date of issuance of a stock certificate in such
Participant’s name, and, in the case of restricted shares of Common Stock, such
rights are granted to the Participant under Subsection 10(c) hereof. To the
extent any person acquires a right to receive payments from the Company under
the Plan, such rights shall be no greater than the rights of an unsecured
creditor of the Company.
29.
Securities Laws
With
respect to Section 16 Insiders, transactions under this Plan are intended to
comply with all applicable conditions of Rule 16b-3 or its successors under
the
Exchange Act. To the extent any provision of the Plan or action by the Committee
fails so to comply, it shall
be
deemed
null and void, to the extent permitted by law and deemed advisable by the
Committee.
30.
Special Provisions related to Section 409A of the Code
(a)
Notwithstanding anything in the Plan or in any Award Notice to the contrary,
to
the extent that any amount or benefit that would constitute non-exempt “deferred
compensation” for purposes of Section 409A of the Code would otherwise be
payable or distributable under the Plan or any Award Notice by reason of the
occurrence of a Change In Control, Change In Ownership, or the Participant’s
Disability or separation from service, such amount or benefit will not be
payable or distributable to the Participant by reason of such circumstance
unless (i) the circumstances giving rise to such Change In Control, Change
In Ownership, Disability or separation from service meet any description or
definition of “change in control event”, “disability” or “separation from
service”, as the case may be, in Section 409A of the Code and applicable
regulations
(without giving
effect to any elective provisions that may be available under such
definition)
, or (ii) the payment or distribution of such amount or
benefit would be exempt from the application of Section 409A of the Code by
reason of the short-term deferral exemption or otherwise. This
provision does not prohibit the vesting of any Award. If this
provision prevents the payment or distribution of any amount or benefit under
the Plan or any Award Notice, such payment or distribution shall be made on
the
next earliest payment or distribution date or event specified in the Award
Notice that is permissible under Section 409A.
(b)
If
any one or more Awards granted under the Plan to a Participant could qualify
for
any separation pay exemption described in Treas. Reg. Section 1.409A-1(b)(9),
but such Awards in the aggregate exceed the dollar limit permitted for the
separation pay exemptions, the Company (acting through the Committee or the
Head
of Human Resources) shall determine which Awards or portions thereof will be
subject to such exemptions.
(c)
Notwithstanding anything in the Plan or in any Award Notice to the contrary,
if
any amount or benefit that would constitute non-exempt “deferred compensation”
for purposes of Section 409A of the Code would otherwise be payable or
distributable under this Plan or any Award Notice by reason of a Participant’s
separation from service during a period in which the Participant is a Specified
Employee (as defined below), then, subject to any permissible acceleration
of
payment by the Committee under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic
relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment
of
employment taxes):
(i)
if
the payment or distribution is payable in a lump sum, the Participant’s right to
receive payment or distribution of such non-exempt deferred compensation will
be
delayed until the earlier of the Participant’s death or the first day of the
seventh month following the Participant’s separation from service (subject to
exceptions specified in the final regulations under Code Section 409A);
and
(ii)
if
the payment or distribution is payable over time, the amount of such non-exempt
deferred compensation that would otherwise be payable during the six-month
period immediately following the Participant’s separation from service will be
accumulated and the Participant’s right to receive payment or distribution of
such accumulated amount will be delayed until the earlier of the Participant’s
death or the first day of the seventh month following the Participant’s
separation from service (subject to exceptions specified in the final
regulations under Code Section 409A), whereupon the accumulated amount will
be
paid or distributed to the Participant and the normal payment or distribution
schedule for any remaining payments or distributions will resume.
For
purposes of this Plan, the term “Specified Employee” has the meaning given such
term in Code Section 409A and the final regulations thereunder,
provided,
however
, that, as permitted in such final regulations, the Company’s
Specified Employees and its application of the six-month delay rule of Code
Section 409A(a)(2)(B)(i) shall be determined in accordance with rules adopted
by
the Board, which shall be applied consistently with respect to all nonqualified
deferred compensation arrangements of the Company, including this
Plan.
(d) Eligible Participants who are service providers to a Subsidiary may be
granted Options or SARs under this Plan only if the Subsidiary qualifies as
an
“eligible issuer of service recipient stock” within the meaning of
§1.409A-1(b)(5)(iii)(E) of the final regulations under Code Section
409A.
EASTMAN
CHEMICAL COMPANY
1997
OMNIBUS LONG-TERM COMPENSATION PLAN
TABLE
OF
CONTENTS
Section
|
Title
|
Page
|
1.
|
Purpose
|
1
|
2.
|
Definitions
|
1
|
3.
|
Administration
|
3
|
4.
|
Eligibility
|
3
|
5.
|
Shares
Available
|
3
|
6.
|
Effective
Date; Term
|
4
|
7.
|
Participation
|
4
|
8.
|
Stock
Options
|
4
|
9.
|
Stock
Appreciation Rights
|
5
|
10.
|
Stock
Awards
|
5
|
11.
|
Performance
Shares
|
6
|
12.
|
Performance
Goals for Certain Section 162(m) Awards
|
6
|
13.
|
Payment
of Awards
|
7
|
14.
|
Dividends
and Dividend Equivalents
|
7
|
15.
|
Deferral
of Awards
|
7
|
16.
|
Termination
of Employment
|
7
|
17.
|
Nonassignability
|
8
|
18.
|
Adjustment
of Shares Available
|
8
|
19.
|
Withholding
Taxes
|
9
|
20.
|
Noncompetition;
Confidentiality
|
9
|
21.
|
Regulatory
Approvals and Listings
|
9
|
22.
|
Amendment
|
10
|
23.
|
Governing
Law
|
10
|
24.
|
Change
In Ownership
|
10
|
25.
|
Change
In Control
|
11
|
26.
|
No
Right, Title, or Interest in CompanyAssets
|
13
|
27.
|
Securities
Laws
|
13
|
28.
|
Special
Provisions related to Section 409A of the Code
|
14
|
1997
OMNIBUS LONG-TERM COMPENSATION PLAN
1.
Purpose
The
purpose of the Plan is to provide motivation to Employees of the Company and
its
Subsidiaries to put forth maximum efforts toward the continued growth,
profitability, and success of the Company and its Subsidiaries by providing
incentives to such Employees through the ownership and performance of Common
Stock of the Company. Toward this objective, the Committee may grant
stock options, stock appreciation rights ("SARs"), Stock Awards, performance
shares, and/or other incentive awards to Employees of the Company and its
Subsidiaries on the terms and subject to the conditions set forth in the
Plan. The Committee may at any time unilaterally amend any
unexercised, unearned, or unpaid Award, including, without limitation, Awards
earned but not yet paid, to the extent it deems appropriate; provided, however,
that any such amendment which, in the opinion of the Committee, is adverse
to
the Participant shall require the Participant's
consent. Participation in the Plan shall not give any Participant any
right to remain in the employ of the Company or any Subsidiary. The
Company or, in the case of employment with a Subsidiary, the Subsidiary,
reserves the right to terminate the employment of any Participant at any
time. Further, the adoption of the Plan shall not be deemed to give
any Employee or any other individual any right to be selected as a Participant
or to be granted an Award.
2.
Definitions
2.1 "Award"
means any form of stock option, SAR, Stock Award, performance shares, or other
incentive award granted under the Plan, whether singly, in combination, or
in
tandem, to a Participant by the Committee pursuant to such terms, conditions,
restrictions and/or limitations, if any, as the Committee may establish by
the
Award Notice or otherwise.
2.2 "Award
Notice" means a written notice from the Company to a Participant that
establishes the terms, conditions, restrictions, and/or limitations applicable
to an Award in addition to those established by the Plan and by the Committee's
exercise of its administrative powers.
2.3 "Board"
means the Board of Directors of the Company.
2.4 "Change
In Control" means a change in control of the Company of a nature that would
be
required to be reported (assuming such event has not been "previously reported")
in response to Item 1(a) of a Current Report on Form 8-K, as in effect on
December 31, 1996, pursuant to Section 13 or 15(d) of the Exchange Act;
provided that, without limitation, a Change In Control shall be deemed to have
occurred at such time as (i) any "person" within the meaning of Section 14(d)
of
the Exchange Act, other than the Company, a Subsidiary, or any employee benefit
plan(s) sponsored by the Company or any Subsidiary, is or has become the
"beneficial owner," as defined in Rule 13d-3 under the Exchange Act, directly
or
indirectly, of 25% or more of the combined voting power of the outstanding
securities of the Company ordinarily having the right to vote in the election
of
directors; provided, however, that the following will not constitute a Change
In
Control: any acquisition by any corporation if, immediately following such
acquisition, more than 75% of the outstanding securities of the acquiring
corporation ordinarily having the right to vote in the election of directors
is
beneficially owned by all or substantially all of those persons who, immediately
prior to such acquisition, were the beneficial owners of the outstanding
securities of the Company ordinarily having the right to vote in the election
of
directors, or (ii) individuals who constitute the Board on January 1, 1997
(the
"Incumbent Board") have ceased for any reason to constitute at least
a majority thereof, provided that: any person becoming a director subsequent
to
January 1, 1997 whose election, or nomination for election by the Company's
shareowners, was approved by a vote of at least
three-quarters
(3/4) of the directors comprising the Incumbent Board (either by a specific
vote
or by
approval
of the proxy statement of the Company in which such person is named as a nominee
for director without objection to such nomination) shall be, for purposes of
the
Plan, considered as though such person were a member of the Incumbent Board,
(iii) upon approval by the Company's shareowners of a reorganization, merger
or
consolidation, other than one with respect to which all or substantially all
of
those persons who were the beneficial
owners,
immediately prior to such reorganization, merger or consolidation, of
outstanding securities of the Company ordinarily having the right to vote in
the
election of directors own, immediately after such transaction, more than 75%
of
the outstanding securities of the resulting corporation ordinarily having the
right to vote in the election of directors; or (iv) upon approval by the
Company's shareowners of a complete liquidation and dissolution of the Company
or the sale or other disposition of all or substantially all of the assets
of
the Company other than to a Subsidiary.
2.5 "Change
In Control Price" means the highest closing price (or, if the shares are not
traded on an exchange, the highest last sale price or closing "asked" price)
per
share paid for the purchase of Common Stock in a national securities market
during the ninety (90) day period ending on the date the Change In Control
occurs.
2.6 "Change
In Ownership" means a Change In Control that results directly or indirectly
in
the Common Stock (or the stock of any successor to the Company received in
exchange for Common Stock) ceasing to be publicly traded in a national
securities market.
2.7 "Code"
means the Internal Revenue Code of 1986, as amended from time to
time.
2.8 "Committee"
means the Compensation and Management Development Committee of the Board or
such
other committee, designated by the Board, authorized to administer the Plan
under Section 3 hereof. The Committee shall consist of not less than
two members, each of whom shall be both a "non-employee director" as such term
is defined in Rule 16b-3 under the Exchange Act or any successor rule, and
an "outside director" as that term is used in Code Section 162(m) and the
regulations promulgated thereunder.
2.9 "Common
Stock" means the $.01 par value common stock of the Company.
2.10 "Company"
means Eastman Chemical Company.
2.11 "Covered
Employee" means an individual defined in Code
Section 162(m)(3).
2.12 "Employee"
means an employee of the Company or a Subsidiary.
2.13 "Exchange
Act" means the Securities and Exchange Act of 1934, as amended.
2.14 "Fair
Market Value" means the closing price of the shares of Common Stock on the
New
York Stock Exchange on the day on which such value is to be determined or,
if no
shares were traded on such day, on the next preceding day on which shares were
traded; provided, however, that if at any relevant time the shares of Common
Stock are not traded on the New York Stock Exchange, the "Fair Market Value"
shall be determined by reference to the closing price of the shares of Common
Stock on another national securities exchange, if applicable, or if the shares
are not traded on an exchange but are traded in the over-the-counter market,
by
reference to the last sale price or the closing "asked" price of the shares
in
the over-the-counter market as reported by the National Association of
Securities Dealers Automatic Quotation System (NASDAQ) or other national
quotation service.
2.15 "Participant"
means any individual to whom an Award has been granted by the Committee under
the Plan.
2.16 "Plan"
means the Eastman Chemical Company 1997 Omnibus Long-Term Compensation
Plan.
2.17 "SAR"
is an Award that shall entitle the recipient to receive a payment equal to
the
appreciation in value of a stated number of shares of Common Stock from the
price established in the Award to the market value of such number of shares
of
Common Stock on the date of exercise.
2.18 "Section
16 Insider" means a Participant who is subject to the reporting requirements
of
Section 16 of the Exchange Act with respect to the Company.
2.19 "Stock
Award" means an Award granted pursuant to Section 10 hereof in the form of
shares of Common Stock, restricted shares of Common Stock and/or Units of Common
Stock.
2.20 "Subsidiary"
means a corporation or other business entity in which the Company directly
or
indirectly has an ownership interest of 80 percent or more.
2.21 "Unit"
means a bookkeeping entry used by the Company to record and account for the
grant of the following Awards until such time as the Award is paid, canceled,
forfeited or terminated, as the case may be: Units of Common Stock, SARs and
performance shares that are expressed in terms of Units of Common
Stock.
3.
Administration
The
Plan
shall be administered by the Committee. The Committee shall have the
authority to: (a) interpret the Plan; (b) establish such rules and regulations
as it deems necessary for the proper operation and administration of the Plan;
(c) select Employees to become Participants and receive Awards under the Plan;
(d) determine the form of an Award, whether a stock option, SAR, Stock Award,
performance share, or other incentive award established by the Committee, the
number of shares or Units subject to the Award, all the terms, conditions,
restrictions and/or limitations, if any, of an Award, including the time and
conditions of exercise or vesting, and the terms of any Award Notice; (e)
determine whether Awards should be granted singly, in combination or in tandem;
(f) grant waivers of Plan terms, conditions, restrictions and limitations;
(g)
accelerate the vesting, exercise or payment of an Award or the performance
period of an Award when such action or actions would be in the best interest
of
the Company; (h) establish such other types of Awards, besides those
specifically enumerated in Section 2.1 hereof, which the Committee determines
are consistent with the Plan's purpose; and (i) take any and all other action
it
deems necessary or advisable for the proper operation or administration of
the
Plan. In addition, in order to enable Employees who are foreign
nationals or are employed outside the United States or both to receive Awards
under the Plan, the Committee may adopt such amendments, procedures,
regulations, subplans and the like as are necessary or advisable, in the opinion
of the Committee, to effectuate the purposes of the Plan. The
Committee shall also have the authority to grant Awards in replacement of Awards
previously granted under the Plan or any other executive compensation plan
of
the Company or a Subsidiary. All determinations of the Committee shall be made
by a majority of its members, and its determinations shall be final, binding
and
conclusive.
The
Committee, in its discretion, may delegate its authority and duties under the
Plan to the Chief Executive Officer and/or to other senior officers of the
Company under such conditions and/or limitations as the Committee may establish;
provided, however, that only the Committee may select, grant, and establish
the
terms of Awards to Section 16 Insiders or Covered Employees.
4.
Eligibility
Any
Employee is eligible to become a Participant in the Plan.
5.
Shares
Available
The
maximum number of shares of Common Stock that shall be available for grant
of
Awards under the Plan (including incentive stock options) during its term shall
not exceed 7,000,000, provided that the maximum number of shares of Common
Stock
available for grant of Stock Awards under the Plan during its term shall not
exceed 3,500,000. (Such amounts shall be subject to adjustment as
provided in Section 18.) Any shares of Common Stock related to Awards
that are settled in cash in lieu of Common Stock shall be available again for
grant under the Plan. Similarly, any shares of Common Stock related
to Awards that terminate by expiration, forfeiture, cancellation or otherwise
without the issuance of such shares or are exchanged with the Committee's
permission for Awards not involving Common Stock, shall be available again
for
grant under the Plan. Further, any shares of Common Stock that are
used by a Participant for the full or partial payment to the Company of the
purchase price of Common Stock upon exercise of a stock option, or for
withholding taxes due as a result of such exercise, shall again be available
for
Awards under the Plan. Notwithstanding any provision in the Plan to
the contrary, the maximum number of shares
of
Common
Stock with respect to one or more options and/or SARs that may be granted during
any one calendar year under the Plan to any one Covered Employee shall be
200,000. The maximum fair market value of any Awards (other than
options and SARs) that may be received by a Covered Employee (less any
consideration paid by the Participant for such Award) during any one calendar
year under the Plan shall be $5,000,000. The shares of Common Stock
available for issuance under the Plan may be authorized and unissued shares
of
treasury shares.
6.
Effective
Date; Term
The
Plan
shall become effective as of the date upon which it is approved by the
shareowners of the Company. No Awards shall be exercisable or payable
before the Plan shall have become effective. Awards shall not be
granted pursuant to the Plan after April 30, 2002.
7.
Participation
The
Committee shall select, from time to time, Participants from those Employees
who, in the opinion of the Committee, can further the Plan's
purposes. Once a Participant is so selected, the Committee shall
determine the type or types of Awards to be made to the Participant and shall
establish in the related Award Notices the terms, conditions, restrictions
and/or limitations, if any, applicable to the Awards in addition to those set
forth in the Plan and the administrative rules and regulations issued by the
Committee.
8.
Stock
Options
(a)
Grants
. Awards
may be granted in the form of stock options. These stock options may
be incentive stock options within the meaning of Section 422 of the Code, other
tax-qualified stock options, or non-qualified stock options (
i.e.
, stock
options that are not incentive or other tax-qualified stock options), or a
combination of any of the above.
(b)
Terms
and Conditions of Options
. An option shall be exercisable in
whole or in such installments and at such times as may be determined by the
Committee. The Committee shall also determine the performance or
other conditions, if any, that must be satisfied before all or part of an option
may be exercised. The price at which Common Stock may be purchased
upon exercise of a stock option shall be established by the Committee, but
such
price shall not be less than 50 percent of the Fair Market Value of the Common
Stock, as determined by the Committee, on the date of the stock option's
grant.
(c)
Restrictions
Relating to Incentive Stock Options
. Stock options issued in the
form of incentive stock options shall, in addition to being subject to all
applicable terms, conditions, restrictions and/or limitations established by
the
Committee, comply with Section 422 of the Code. Accordingly, the
aggregate market value (determined at the time the option was granted) of the
Common Stock with respect to which incentive stock options are exercisable
for
the first time by a Participant during any calendar year (under the Plan or
any
other plan of the Company or any of its Subsidiaries) shall not exceed $100,000
(or such other limit as may be required by the Code). Further, the
per-share option price of an incentive stock option shall not be less than
100
percent of the Fair Market Value of the Common Stock on the date of
grant. Also, each incentive stock option shall expire not later than
ten years from its date of grant.
(d)
Additional
Terms and Conditions
. The Committee may, by way of the Award
Notice or otherwise, establish such other terms, conditions, restrictions and/or
limitations, if any, of any stock option Award, provided they are not
inconsistent with the Plan. Without limiting the generality of the
foregoing, options may provide for the automatic granting of new options at
the
time of exercise.
(e)
Exercise
. Upon
exercise, the exercise price of a stock option may be paid in cash, shares
of
Common Stock, shares of restricted Common Stock, a combination of the foregoing,
or such other consideration as the Committee may deem
appropriate. The Committee shall establish appropriate methods for
accepting Common Stock, whether restricted or unrestricted, and may impose
such
conditions as it deems appropriate on the use of such Common Stock to exercise
a
stock option.
9.
Stock
Appreciation Rights
(a)
Grants
. Awards
may be granted in the form of SARs. An SAR may be granted in tandem
with all or a portion of a related stock option under the Plan ("Tandem SARs"),
or may be granted separately ("Freestanding SARs"). A Tandem SAR may
be granted either at the time of the grant of the related stock option or at
any
time thereafter during the term of the stock option. In the case of
SARs granted in tandem with stock options granted prior to the grant of such
SARs, the appreciation in value is the difference between the option price
of
such related stock option and the Fair Market Value of the Common Stock on
the
date of exercise.
(b)
Terms
and Conditions of Tandem SARs
. A Tandem SAR shall be exercisable
to the extent, and only to the extent, that the related stock option is
exercisable, and the "exercise price" of such an SAR (the base from which the
value of the SAR is measured at its exercise) shall be the option price under
the related stock option. However, at no time shall a Tandem SAR be
issued if the option price of its related stock option is less than 50 percent
of the Fair Market Value of the Common Stock, as determined by the Committee,
on
the date of the Tandem SAR grant. If a related stock option is
exercised as to some or all of the shares covered by the Award, the related
Tandem SAR, if any, shall be canceled automatically to the extent of the number
of shares covered by the stock option exercise. Upon exercise of a
Tandem SAR as to some or all of the shares covered by the Award, the related
stock option shall be canceled automatically to the extent of the number of
shares covered by such exercise.
(c)
Terms
and Conditions of Freestanding SARs
. Freestanding SARs shall be
exercisable in whole or in such installments and at such times as may be
determined by the Committee. Freestanding SARs shall have a term
specified by the Committee, in no event to exceed ten years. The
exercise price of a Freestanding SAR shall also be determined by the Committee;
provided, however, that such price shall not be less than 50 percent of the
Fair
Market Value of the Common Stock, as determined by the Committee, on the date
of
the Freestanding SAR grant. The Committee also shall determine the
performance or other conditions, if any, that must be satisfied before all
or
part of a Freestanding SAR may be exercised.
(d)
Deemed
Exercise
. The Committee may provide that an SAR shall be deemed
to be exercised at the close of business on the scheduled expiration date of
such SAR if at such time the SAR by its terms remains exercisable and, if so
exercised, would result in a payment to the holder of such SAR.
(e)
Additional
Terms and Conditions
. The Committee may, by way of the Award
Notice or otherwise, determine such other terms, conditions, restrictions and/or
limitations, if any, of any SAR Award, provided they are not inconsistent with
the Plan.
10.
Stock
Awards
(a)
Grants
. Awards
may be granted in the form of Stock Awards. Stock Awards shall be
awarded in such numbers and at such times during the term of the Plan as the
Committee shall determine. Stock Awards may be actual shares of
Common Stock or the economic equivalent thereof ("Stock Award
Units").
(b)
Award
Restrictions
. Stock Awards shall be subject to such terms,
conditions, restrictions, and/or limitations, if any, as the Committee deems
appropriate including, without limitation, restrictions on transferability
and
continued employment of the Participant. The Committee shall also
determine the performance or other conditions, if any, that must be satisfied
before all or part of the applicable restrictions lapse. The
Committee may modify or accelerate the delivery of a Stock Award under such
circumstances as it deems appropriate.
(c)
Rights
as Shareowner
. During the period in which any restricted shares
of Common Stock are subject to restrictions imposed pursuant to Section 10(b),
the Committee may, in its discretion, grant to the Participant to whom such
restricted shares have been awarded all or any of the rights of a shareowner
with respect to such shares, including, without limitation, the right to vote
such shares and to receive dividends. Any dividends accruing on an
Award of restricted stock shall be paid or distributed to the Participant no
later than the 15
th
day of
the 3
rd
month following
the later of (i) the calendar year in which the corresponding dividends were
paid to shareholders, or (ii) the first calendar year in which the Participant’s
right to such dividends is no longer subject to a substantial risk of
forfeiture.
(d)
Evidence
of Award
. Any Stock Award granted under the Plan may be evidenced
in such manner as the Committee deems appropriate, including, without
limitation, book-entry registration or issuance of a stock certificate or
certificates.
11.
Performance
Shares
(a)
Grants
. Awards
may be granted in the form of performance shares. Performance shares,
as that term is used in the Plan, shall refer to shares of Common Stock or
Units
which are expressed in terms of Common Stock.
(b)
Performance
Criteria
. Performance shares shall be contingent upon the
attainment during a performance period of certain performance
objectives. The length of the performance period, the performance
objectives to be achieved during the performance period, and the measure of
whether and to what degree such objectives have been attained shall be
conclusively determined by the Committee in the exercise of its absolute
discretion. Performance objectives may be revised by the Committee, at such
times as it deems appropriate during the performance period, in order to take
into consideration any unforeseen events or changes in
circumstances.
(c)
Additional
Terms and Conditions
. The Committee may, by way of the Award
Notice or otherwise, determine such other terms, conditions, restrictions and/or
limitations, if any, of any Award of performance shares, provided they are
not
inconsistent with the Plan.
12.
|
Performance
Goals for Certain Section 162(m)
Awards
|
The
Committee may (but need not) determine that, in order to meet the
"performance-based" award criteria of Code Section 162(m) and the
regulations thereunder, any Award granted pursuant to this Plan to a Participant
(including, but not limited to, Participants who are Covered Employees) shall
be
determined solely on the basis of one or more of the following measures of
corporate performance, alone or in combination, for the Company as a
whole: (a) return on capital, equity, or assets (including
economic value created), (b) productivity, (c) cost improvements,
(d) cash flow, (e) sales revenue growth, (f) net income, earnings
per share, or earnings from operations, (g) quality, (h) customer
satisfaction, or (i) stock price or total shareowner
return. Measurement of the Company's performance against the goals
established by the Committee shall be objectively determinable, and to the
extent such goals are expressed in standard accounting terms, performance shall
be measured according to generally accepted accounting principles as in
existence on the date on which the performance goals are established and without
regard to any changes in such principles after such date. The
Committee shall have the right for any reason to reduce (but not increase)
any
such Award, notwithstanding the achievement of a specified goal. If
an Award is made on such basis, the Committee shall establish goals prior to
the
beginning of the period to which such performance goal relates (or such later
date as may be permitted under Code Section 162(m) or the regulations
thereunder). Any payment of an Award granted with performance goals
under this Section 12 shall be conditioned on the written certification of
the Committee in each case that the performance goals and any other material
conditions were satisfied.
13.
Payment
of Awards
At
the
discretion of the Committee, payment of Awards may be made in cash, Common
Stock, a combination of cash and Common Stock, or any other form of property
as
the Committee shall determine. 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. Further, payment of Awards may be made in the form of a
lump sum, or in installments, as determined by the Committee.
14.
Dividends
and Dividend Equivalents
If
an
Award is granted in the form of a Stock Award, stock option, or performance
share, or in the form of any other stock-based grant, the Committee may choose,
at the time of the grant of the Award or any time thereafter up to the time
of
the Award's payment, to include as part of such Award an entitlement to receive
dividends or dividend equivalents, subject to such terms, conditions,
restrictions and/or limitations, if any, as the Committee may
establish. All dividends or dividend equivalents that are not paid
currently may, at the Committee's discretion, accrue interest, be reinvested
in
additional shares of Common Stock or, in the case of dividends or dividend
equivalents credited in connection with performance shares, be credited as
additional performance shares and paid to the Participant if and when, and
to
the extent that, payment is made pursuant to such
Award. Notwithstanding the foregoing, any dividends or dividend
equivalents accruing on an Award shall be paid or distributed to the Participant
no later than the 15
th
day of
the 3
rd
month following
the later of (i) the calendar year in which the corresponding dividends were
paid to shareholders, or (ii) the first calendar year in which the Participant’s
right to such dividends or dividend equivalents is no longer subject to a
substantial risk of forfeiture.
15.
Deferral
of Awards
No
Option
or SAR shall provide for any feature for the deferral of compensation other
than
the deferral of recognition of income until the exercise or disposition of
the
Option or SAR. At the discretion of the Committee, payment of a Stock Award,
performance share, dividend, dividend equivalent, or any portion thereof may
be
deferred by a Participant until such time as the Committee may
establish. All such deferrals shall be accomplished by the delivery
of a written, irrevocable election by the Participant on a form provided by
the
Company. All deferrals shall be made in accordance with administrative
guidelines established by the Committee to ensure that such deferrals comply
with all applicable requirements of Section 409A of the Code and its
regulations. Deferred payments shall be paid in a lump sum or
installments, as determined by the Committee. The Committee may also
credit interest, at such rates to be determined by the Committee, on cash
payments that are deferred and credit dividends or dividend equivalents on
deferred payments denominated in the form of Common Stock. The
Committee may also, in its discretion, require deferral of payment of any Award
(other than an Option or SAR) or portion thereof if payment of the Award would,
or could in the reasonable estimation of the Committee, result in the
Participant receiving compensation in excess of the maximum amount deductible
by
the Company under the Code.
16.
Termination
of Employment
If
a
Participant's employment with the Company or a Subsidiary terminates for a
reason other than death, disability entitling the Participant to benefits under
the Company's long-term disability plan, retirement, or any other approved
reason, all unexercised, unearned, and/or unpaid Awards, including without
limitation, Awards earned but not yet paid, all unpaid dividends and dividend
equivalents, and all interest accrued on the foregoing shall be canceled or
forfeited, as the case may be, unless the Participant's Award Notice provides
otherwise. Subject to Section 30, the Committee shall have the
authority to promulgate rules and regulations to (i) determine what events
constitute disability, retirement or termination for an approved reason for
purposes of the Plan, and (ii) determine the treatment of a Participant under
the Plan in the event of such Participant's death, disability, retirement or
termination for an approved reason.
17.
Nonassignability
No
Awards
(other than unrestricted Stock Awards) or any other payment under the Plan
shall
be subject in any manner to alienation, anticipation, sale, transfer (except
by
will or the laws of descent and distribution), assignment, pledge, or
encumbrance; provided, however, that the Committee may (but need not) permit
other transfers where the Committee concludes that such transferability
(i) does not result in accelerated taxation, (ii) does not cause any
option intended to be an incentive stock option to fail to be described in
Code
Section 422(b), and (iii) is otherwise appropriate and desirable,
taking into account any state or federal securities laws applicable to
transferable Awards. During the lifetime of the Participant no Award
shall be payable to or exercisable by anyone other than the Participant to
whom
it was granted, other than (a) in the case of a permanent disability
involving a mental incapacity or (b) in the case of an Award transferred in
accordance with the preceding sentence.
18. Changes
in Capital Structure
(a) Mandatory
Adjustments. In the event of a nonreciprocal transaction between the
Company and its stockholders that causes the per-share value of the Common
Stock
to change (including, without limitation, any stock dividend, stock split,
spin-off, rights offering, or large nonrecurring cash dividend), the share
authorization limits under Section 5 shall be adjusted proportionately, and
the
Committee shall make such adjustments to the Plan and Awards as it deems
necessary, in its sole discretion, to prevent dilution or enlargement of rights
immediately resulting from such transaction. Action by the Committee
may include: (i) adjustment of the number and kind of shares that may be
delivered under the Plan; (ii) adjustment of the number and kind of shares
subject to outstanding Awards; (iii) adjustment of the exercise price of
outstanding Awards or the measure to be used to determine the amount of the
benefit payable on an Award; and (iv) any other adjustments that the Committee
determines to be equitable. Without limiting the foregoing, in the
event of a subdivision of the outstanding Common Stock (stock-split), a
declaration of a dividend payable in shares of Common Stock, or a combination
or
consolidation of the outstanding Common Stock into a lesser number of shares,
the shares then subject to each Award shall, without the necessity for any
additional action by the Committee, be adjusted proportionately without any
change in the aggregate purchase price therefor.
(b) Discretionary
Adjustments. Upon the occurrence or in anticipation of any corporate
event or transaction involving the Company (including, without limitation,
any
merger, combination or exchange of shares, or any transaction described in
Subsection 18(a), the Committee may, in its sole discretion, provide (i) that
Awards will be settled in cash rather than Common Stock, (ii) that Awards will
become immediately vested and exercisable and will expire after a designated
period of time to the extent not then exercised, (iii) that Awards will be
assumed by another party to a transaction or otherwise be equitably converted
or
substituted in connection with such transaction, (iv) that outstanding Awards
may be settled by payment in cash or cash equivalents equal to the excess of
the
Fair Market Value of the underlying Common Stock, as of a specified date
associated with the transaction, over the exercise price of the Award, (v)
that
performance targets and performance periods for performance Awards will be
modified, consistent with Code Section 162(m) where applicable, or (vi) any
combination of the foregoing. The Committee’s determination need not
be uniform and may be different for different Participants whether or not such
Participants are similarly situated.
(c) General. Any
discretionary adjustments made pursuant to this Section 18 shall be subject
to
the provisions of Section 23. To the extent that any adjustments made
pursuant to this Section 18 cause incentive stock options to cease to qualify
as
such under applicable provisions of the Code, such options shall be deemed
to be
non-qualified stock options.
19.
Withholding
Taxes
The
Company shall have the power and the right to deduct or withhold, or require
a
Participant to remit to the Company, an amount sufficient to satisfy Federal,
state, and local taxes (including the Participant's FICA obligation) required
by
law to be withheld with respect to any taxable event arising as a result of
this
Plan. With respect to withholding required upon any taxable event
hereunder, the Company may elect in its discretion, and Participants may elect,
subject to the approval of the Committee, to satisfy the withholding
requirement, in whole or in part, by withholding or having the Company withhold
shares of Common Stock having a Fair Market Value on the date the tax is to
be
determined equal to the minimum statutory total tax which could be imposed
on
the transaction. All elections by Participants shall be irrevocable,
made in writing, and signed by the Participant.
20.
Noncompetition;
Confidentiality
A
Participant will not, without the written consent of the Company, either during
his or her employment by the Company or thereafter, disclose to anyone or make
use of any confidential information which he or she has acquired during his
or
her employment relating to any of the business of the Company, except as such
disclosure or use may be required in connection with his or her work as an
employee of Company. During Participant's employment by Company, and
for a period of two years after the termination of such employment, he or she
will not, either as principal, agent, consultant, employee or otherwise, engage
in any work or other activity in competition with the Company in the field
or
fields in which he or she has worked for the Company. The agreement
in this Section applies separately in the United States and in other countries
but only to the extent that its application shall be reasonably necessary for
the protection of the Company. Unless the Award Notice specifies
otherwise, a Participant shall forfeit all rights under this Plan to any
unexercised or unpaid Awards or to the deferral of any Award, dividend, or
dividend equivalent, if, in the determination of the Committee the Participant,
has violated the Agreement set forth in this Section 20, and in that event
any
further payment, deferral of payment, or other action with respect to any Award,
dividend, or dividend equivalent shall be made or taken, if at all, in the
sole
discretion of the Committee. For purposes of this Section 20,
"Company" shall include any Subsidiary employing the Participant.
21.
Regulatory
Approvals and Listings
Notwithstanding
anything contained in the Plan to the contrary, the Company shall have no
obligation to issue or deliver certificates of Common Stock evidencing Stock
Awards or any other Award resulting in the payment of Common Stock prior to
(a)
the obtaining of any approval from any governmental agency which the Company
shall, in its sole discretion, determine to be necessary or advisable, (b)
the
admission of such shares to listing on the stock exchange on which the Common
Stock may be listed, and (c) the completion of any registration or other
qualification of said shares under any State or Federal law or ruling of any
governmental body that the Company shall, in its sole discretion, determine
to
be necessary or advisable.
22.
Amendment
The
Board
or the Committee may, at any time and from time to time, suspend, amend,
modify,
or terminate the Plan without shareowner approval; provided, however, that
the
Board or Committee may condition any amendment or modification on the approval
of shareowners of the Company if such approval is necessary or deemed advisable
with respect to tax, securities, or other applicable laws, policies, or
regulations.
23.
Governing
Law
The
Plan
shall be governed by and construed in accordance with the laws of the State
of
Delaware, except as superseded by applicable Federal law.
24.
Change
In Ownership
(a)
Background
. Upon
a Change In Ownership: (i) the terms of this Section 24 shall
immediately become operative, without further action or consent by any person
or
entity; (ii) all conditions, restrictions, and limitations in effect on any
unexercised, unearned, unpaid, and/or deferred Award, or any other outstanding
Award, shall immediately lapse as of the date of such event; (iii) no other
terms, conditions, restrictions and/or limitations shall be imposed upon any
Awards on or after such date, and in no circumstance shall an Award be forfeited
on or after such date; and (iv) all unexercised, unvested, unearned, and/or
unpaid Awards or any other outstanding Awards shall automatically become one
hundred percent (100%) vested immediately.
(b)
Dividends
and Dividend Equivalents
. Upon a Change In Ownership, all unpaid
dividends and dividend equivalents and all interest accrued thereon, if any,
shall be treated and paid under this Section 24 in the identical manner and
time
as the Award with respect to which such dividends or dividend equivalents have
been credited. For example, if upon a Change In Ownership, an Award
under this Section 24 is to be paid in a prorated fashion, all unpaid dividends
and dividend equivalents with respect to such Award shall be paid according
to
the same formula used to determine the amount of such prorated
Award.
(c)
Treatment
of Performance Shares
. If a Change In Ownership occurs during the
term of one or more performance periods for which the Committee has granted
performance shares (hereinafter a "current performance period"), the term of
each such current performance period shall immediately terminate upon the
occurrence of such event. Upon a Change In Ownership, for each current
performance period and each completed performance period for which the Committee
has not on or before such date made a determination as to whether and to what
degree the performance objectives for such period have been attained
(hereinafter a "completed performance period"), it shall be assumed that the
performance objectives have been attained at a level of one hundred percent
(100%) or the equivalent thereof.
A
Participant in one or more current
performance periods shall be considered to have earned and, therefore, be
entitled to receive, a prorated portion of the Awards previously granted for
each such performance period. Such prorated portion shall be
determined by multiplying the number of performance shares granted to the
Participant by a fraction, the numerator of which is the total number of whole
and partial years (with each partial year being treated as a whole year) that
have elapsed since the beginning of the performance period, and the denominator
of which is the total number of years in such performance period.
A
Participant in one or more
completed performance periods shall be considered to have earned and, therefore,
be entitled to receive all the performance shares previously granted during
each
such performance period.
(d)
Valuation
of Awards
. Upon a Change In Ownership, all outstanding Units of
Common Stock, Freestanding SARs, stock options (including incentive stock
options), and performance shares (including those earned as a result of the
application of Subsection 24(c) above) and all other outstanding stock-based
Awards, including those granted by the Committee pursuant to its authority
under
Subsection 3(h) hereof, shall be valued and cashed out on the basis of the
Change In Control Price.
(e)
Payment
of Awards
. Upon a Change In Ownership, any Participant, whether
or not still employed by the Company or a Subsidiary, shall be paid, in a single
lump sum cash payment, as soon as practicable but in no event later than 75
days
after the Change In Ownership (unless a later date is required by Section 30(b)
hereof), the value of all of such Participant's outstanding Units of Common
stock, Freestanding SARs, stock options (including incentive stock options),
and
performance shares (including those earned as a result of Subsection 24(c)
above), and all other outstanding Awards, including those granted by the
Committee pursuant to its authority under Subsection 3(h) hereof. For
purposes of making any payment, the value of all Awards that are stock based
shall be determined by the Change In Control Price.
(f)
Deferred
Awards
. Upon a Change in Ownership, all Awards deferred by a
Participant under Section 15 hereof, but for which such Participant 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 90 days after the
Change In Ownership (unless a later date is required by Section 30(b)
hereof). For purposes of making any payment, the value of all Awards
that are stock based shall be determined by the Change In Control
Price.
(g)
Miscellaneous
. Upon
a Change In Ownership, (i) the provisions of Sections 16 and 20 (solely as
such
Section relates to noncompetition and not as such Section relates to
confidentiality) and the third sentence of Section 1 hereof shall become null
and void and of no further force and effect; and (ii) no action, including,
without 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 Ownership.
(i)
Legal
Fees
. The Company shall pay all reasonable legal fees and related
expenses incurred by a Participant in seeking to obtain or enforce any payment,
benefit or right such Participant may be entitled to under the Plan after a
Change In Ownership; provided, however, the Participant shall be required to
repay any such amounts to the Company to the extent a court of competent
jurisdiction issues a final and non-appealable order setting forth the
determination that the position taken by the Participant was frivolous or
advanced in bad faith.
(j)
Adjustment
to Provisions
. Notwithstanding that a Change in Ownership has
occurred, the Committee may elect to deal with Awards in a manner different
from
that contained in this Section 24, in which case the provisions of this Section
24 shall not apply and such alternate terms shall apply. Such
Committee action shall be effective only if it is made by the Committee prior
to
the occurrence of an event that otherwise would be or probably will lead to
a
Change in Ownership or after such event if made by the Committee a majority
of
which is composed of directors who were members of the Board immediately prior
to the event that otherwise would be or probably will lead to a Change in
Ownership.
25.
Change
In Control
.
(a)
Background
. All
Participants shall be eligible for the treatment afforded by this Section 25
if
their employment terminates within two years following a Change In Control,
unless the termination is due to (i) death, (ii) disability entitling the
Participant to benefits under the employer's long-term disability plan, (iii)
Cause, (iv) resignation other than (A) resignation from a declined reassignment
to a job that is not reasonably equivalent in responsibility or compensation
(as
defined in the Company's termination allowance plan, if any), or that is not
in
the same geographic area (as defined in the Company's termination allowance
plan, if any), or (B) resignation within 30 days following a reduction in base
pay, or (v) retirement entitling the Participant to benefits under his or her
employer's retirement plan.
For
purposes hereof, "Cause" means
(a) the continued failure by an Employee to substantially perform such
Employee's duties of employment after warnings identifying the lack of
substantial performance are communicated to the Employee by the employer to
identify the manner in which the employer believes that the Employee has not
substantially performed such duties, or (b) the engaging by an Employee in
illegal conduct that is materially and demonstrably injurious to the Company
or
a Subsidiary.
(b)
Vesting
and Lapse of Restrictions
. If a Participant is eligible for
treatment under this Section 25, (i) all of the conditions, restrictions, and
limitations in effect on any of such Participant's unexercised, unearned, unpaid
and/or deferred Awards (or any other of such Participant's outstanding Awards)
shall immediately lapse as of the date of termination of employment; (ii) no
other terms, conditions, restrictions and/or limitations shall be imposed upon
any of such Participant's Awards on or after such date, and in no event shall
any of such Participant's Awards be forfeited on or after such date; and (iii)
all of such Participant's unexercised, unvested, unearned and/or unpaid Awards
(or any other of such Participant's outstanding Awards) shall automatically
become one hundred percent (100%) vested immediately upon termination of
employment.
(c)
Dividends
and Dividend Equivalents
. If a Participant is eligible for
treatment under this Section 25,
all
of
such Participant's unpaid dividends and dividend equivalents and all interest
accrued thereon, if any, shall be paid under this Section 25 in the identical
manner and time as the Award with respect to which such dividend or dividend
equivalents have been credited. For example, if upon a Change In
Control, an Award under this Section 25 is to be paid in a prorated
fashion, all unpaid dividends and dividend equivalents with respect to such
Award shall be paid according to the same formula used to determine the amount
of such prorated Award.
(d)
Treatment
of Performance Shares
. If a Participant holding performance
shares is terminated under the conditions described in Subsection (a) above,
the
provisions of this Subsection (d) shall determine the manner in which such
performance shares shall be paid to such Participant. For purposes of
making such payment, each current performance period, as that term is defined
in
Subsection 24(c) hereof, shall be treated as terminating upon the date of the
Participant's termination of employment, and for each such current performance
period and each completed performance period, as that term is defined in
Subsection 24(c) hereof, it shall be assumed that the performance objectives
have been attained at a level of one hundred percent (100%) or the equivalent
thereof. If the Participant is participating in one or more current
performance periods, he or she shall be considered to have earned and,
therefore, be entitled to receive that prorated portion of the Awards previously
granted for each such performance period, as determined in accordance with
the
formula established in Subsection 24(c) hereof. A Participant in
one or more completed performance periods shall be considered to have earned
and, therefore, be entitled to receive all the performance shares previously
granted during each performance period.
(e)
Valuation
of Awards
. If a Participant is eligible for treatment under this
Section 25, such Participant's Awards shall be valued and cashed out in
accordance with the provisions of Subsection 24(d) hereof.
(f)
Payment
of Awards
. If a Participant is eligible for treatment under this
Section 25, such Participant shall be paid, in a single lump-sum cash payment,
as soon as practicable but in no event later than 75 days after the date of
such
Participant's termination of employment (unless a later date is required by
Section 30(b) hereof), the value of all of such Participant's outstanding Units
of Common Stock, Freestanding SARs, stock options (including incentive stock
options), and performance shares (including those earned as a result of
Subsection 25(d) above), and all of such Participant's other outstanding Awards,
including those granted by the Committee pursuant to its authority under
Subsection 3(h) hereof. For purposes of making any payment, the value
of all Awards that are stock based shall be determined by the Change In Control
Price.
(g)
Deferred
Awards
. If a Participant is eligible for treatment under this
Section 25, all of the deferred Awards for which such Participant has not
received payment as of the date of such Participant's termination of employment
shall be paid in a single lump-sum cash payment as soon as practicable, but
in
no event later than 90 days after the date of such Participant's termination
(unless a later date is required by Section 30(b) hereof). For purposes of
making any payment, the value of all Awards that are stock based shall be
determined by the Change In Control Price.
(h)
Miscellaneous
. Upon
a Change In Control, (i) the provisions of Sections 16 and 20 (solely as such
Section relates to noncompetition and not as such Section relates to
confidentiality) and the third sentence of Section 1 hereof shall become null
and void and of no force and effect insofar as they apply to a Participant
who
has been terminated under the conditions described in Subsection (a) above;
and (ii) no action, including, without limitation, the amendment, suspension
or
termination of the Plan, shall be taken that would affect the rights of such
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 the
Change In Control or to which such Participant may become entitled as a result
of such Change In Control.
(i)
Legal
Fees
. The Company shall pay all reasonable legal fees and related
expenses incurred by a Participant in seeking to obtain or enforce any payment,
benefit or right such Participant may be entitled to under the Plan after a
Change In Control; provided, however, the Participant shall be required to
repay
any such amounts to the Company to the extent a court of competent jurisdiction
issues a final and non-appealable order setting forth the determination that
the
position taken by the Participant was frivolous or advanced in bad
faith.
(j)
Adjustment
to Provisions
. Notwithstanding that a Change in Control has
occurred, the Committee may elect to deal with Awards in a manner different
from
that contained in this Section 25, in which case the provisions of this
Section 25 shall not apply and such alternate terms shall
apply. Such Committee action shall be effective only if it is made by
the Committee prior to the occurrence of an event that otherwise would be or
probably will lead to a Change In Control or after such event if made by the
Committee a majority of which is composed of directors who were members of
the
Board immediately prior to the event that otherwise would be or probably will
lead to a Change In Control.
26.
No
Right, Title, or Interest in Company Assets
No
Participant shall have any rights as a shareowner as a result of participation
in the Plan until the date of issuance of a stock certificate in such
Participant's name, and, in the case of restricted shares of Common Stock,
such
rights are granted to the Participant under Subsection 10(c)
hereof. To the extent any person acquires a right to receive payments
from the Company under the Plan, such rights shall be no greater than the rights
of an unsecured creditor of the Company.
27.
Securities
Laws
With
respect to Section 16 Insiders, transactions under this Plan are intended to
comply with all applicable conditions of Rule 16b-3 or its successors under
the
Exchange Act. To the extent any provision of the Plan or action by
the Committee fails so to comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Committee.
28.
Special Provisions related to Section 409A of the Code
(a)
Notwithstanding anything in the Plan or in any Award Notice to the contrary,
to
the extent that any amount or benefit that would constitute “deferred
compensation” for purposes of Section 409A of the Code would otherwise be
payable or distributable under the Plan or any Award Notice by reason the
occurrence of a Change In Control, Change In Ownership, or the Participant’s
Disability or separation from service, such amount or benefit will not be
payable or distributable to the Participant by reason of such circumstance
unless (i) the circumstances giving rise to such Change In Control, Change
In Ownership, Disability or separation from service meet the description
or
definition of “change in control event”, “disability” or “separation from
service”, as the case may be, in Section 409A of the Code and applicable
regulations, or (ii) the payment or distribution of such amount or benefit
would be exempt from the application of Section 409A of the Code by reason
of the short-term deferral exemption or otherwise. This provision
does not prohibit the vesting of any Award or the vesting of any right to
eventual payment or distribution of any amount or benefit under the Plan
or any
Award Notice.
(b)
Notwithstanding anything in Plan or in any Award Notice to the contrary,
if any
amount or benefit that would constitute non-exempt “deferred compensation” for
purposes of Section 409A of the Code would otherwise be payable or distributable
under this Plan or any Award Notice by reason of a Participant’s separation from
service during a period in which the Participant is a Specified Employee
(as
defined below), then if and to the extent necessary to comply with Code Section
409A:
(i)
if
the payment or distribution is payable in a lump sum, the Participant’s right to
receive payment or distribution of such non-exempt deferred compensation
will be
delayed until earlier of the Participant’s death or the first day of the seventh
month following the Participant’s separation from service (subject to exceptions
specified in the final regulations under Code Section 409A); and
(ii)
if
the payment or distribution is payable over time, the amount of such non-exempt
deferred compensation that would otherwise be payable during the six-month
period immediately following the Participant’s separation from service will be
accumulated and the Participant’s right to receive payment or distribution of
such accumulated amount will be delayed until the earlier of the Participant’s
death or the first day of the seventh month following the Participant’s
separation from service (subject to exceptions specified in the final
regulations under Code Section 409A), whereupon the accumulated amount will
be
paid or distributed to the Participant and the normal payment or distribution
schedule for any remaining payments or distributions will resume.
For
purposes of this Plan, the term “Specified Employee” has the meaning given such
term in Code Section 409A and the final regulations thereunder,
provided,
however
, that, as permitted in such final regulations, the Company’s
Specified Employees and its application of the six-month delay rule of Code
Section 409A(a)(2)(B)(i) shall be determined in accordance with rules adopted
by
the Board, which shall be applied consistently with respect to all nonqualified
deferred compensation arrangements of the Company, including this
Plan.
AMENDED
AND RESTATED
(As
Amended and Restated Effective as of August 1, 2007)
EASTMAN
CHEMICAL COMPANY
AMENDED
AND RESTATED
EASTMAN
EXECUTIVE DEFERRED COMPENSATION PLAN
Section
|
Title
|
Page
|
Preamble
|
|
1
|
Section
1.
|
Definitions
|
1
|
Section
2.
|
Deferral
of Compensation
|
5
|
Section
3.
|
Time
of Election of Deferral
|
6
|
Section
4.
|
Hypothetical
Investments
|
6
|
Section
5.
|
Deferrals
and Crediting Amounts to Accounts
|
7
|
Section
6.
|
Deferral
Period
|
7
|
Section
7.
|
Investment
in the Stock Account and Transfers Between Accounts
|
8
|
Section
8.
|
Payment
of Deferred Compensation
|
10
|
Section
9.
|
Payment
of Deferred Compensation After Death
|
13
|
Section
10.
|
Acceleration
of Payment for Hardship
|
13
|
Section
11.
|
Non-Competition
and Non-Disclosure Provision
|
14
|
Section
12.
|
Participant's
Rights Unsecured
|
15
|
Section
13.
|
No
Right to Continued Employment
|
15
|
Section
14.
|
Statement
of Account
|
15
|
Section
15.
|
Deductions
|
15
|
Section
16.
|
Administration
|
15
|
Section
17.
|
Amendment
|
16
|
Section
18.
|
Governing
Law
|
16
|
Section
18.
|
Governing
Law
|
16
|
Section
19.
|
Change
in Control
|
16
|
Section
20.
|
Compliance
with SEC Regulations
|
17
|
Section
21.
|
Successors
and Assigns
|
17
|
AMENDED
AND RESTATED
EASTMAN
EXECUTIVE DEFERRED COMPENSATION PLAN
Preamble
.
The Amended and
Restated Eastman Executive Deferred Compensation Plan is an unfunded,
nonqualified deferred compensation arrangement for eligible employees of Eastman
Chemical Company ("the Company") and certain of its
subsidiaries. Under the Plan, each Eligible Employee is annually
given an opportunity to defer payment of part of his or her cash
compensation.
This
Plan
originally was adopted effective January 1, 1994, amended and restated effective
as of August 1, 2002 and subsequently amended and restated again effective
as of
August 1, 2007 in order to comply with Section 409A of the Internal Revenue
Code
of 1986, as amended.
Section
1
.
Definitions
.
"Account"
means the EDCP Account. The EDCP Account is further sub-divided into
an Interest Account and a Stock Account, and if applicable, each Interest
Account and Stock Account is further sub-divided into a Grandfathered Account
and a Non-Grandfathered Account.
"Board"
means the Board of Directors of
the Company.
|
"Change
In Control" means a change in control of the Company of a nature
that
would be required to be reported (assuming such event has not been
"previously reported") in response to Item 1 (a) of a Current Report
on
Form 8-K, as in effect on December 31, 2001, pursuant to Section
13 or
15(d) of the Exchange Act; provided that, without limitation, a Change
In
Control shall be deemed to have occurred at such time as (i) any
"person"
within the meaning of Section 14(d) of the Exchange Act, other than
the
Company, a subsidiary of the Company, or any employee benefit plan(s)
sponsored by the Company or any subsidiary of the Company, is or
has
become the "beneficial owner," as defined in Rule 13d-3 under the
Exchange
Act, directly or indirectly, of 25% or more of the combined voting
power
of the outstanding securities of the Company ordinarily having the
right
to vote at the election of directors; provided, however, that the
following will not constitute a Change In Control: any acquisition
by any
corporation if, immediately following such acquisition, more than
75% of
the outstanding securities of the acquiring corporation ordinarily
having
the right to vote in the election of directors is beneficially owned
by
all or substantially all of those persons who, immediately prior
to such
acquisition, were the beneficial owners of the outstanding securities
of
the Company ordinarily having the right to vote in the election of
directors, or (ii) individuals who constitute the Board on January
1, 2002
(the "Incumbent Board") have ceased for any reason to constitute
at least
a majority thereof, provided that: any person becoming a director
subsequent to January 1, 2002 whose election, or nomination for election
by the Company's
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stockholders,
was approved by a vote of at least three-quarters (3/4) of the directors
comprising the Incumbent Board (either by a specific vote or by approval of
the
proxy statement of the Company in which such person is named as a nominee for
director without objection to such nomination) shall be, for purposes of the
Plan, considered as though such person were a member of the Incumbent Board,
(iii) upon approval by the Company's stockholders of a reorganization, merger
or
consolidation, other than one with respect to which all or substantially all
of
those persons who were the beneficial owners, immediately prior to such
reorganization, merger or consolidation, of outstanding securities of the
Company ordinarily having the right to vote in the election of directors own,
immediately after such transaction, more than 75% of the outstanding securities
of the resulting corporation ordinarily having the right to vote in the election
of directors; or (iv) upon approval by the Company's stockholders of a complete
liquidation and dissolution of the Company or the sale or other disposition
of
all or substantially all of the assets of the Company other than to a subsidiary
of the Company.
“Class
Year” means each calendar year. Notwithstanding the foregoing, the
“2004 Class Year” includes all amounts deferred into the Plan in 2004 and in any
calendar years prior to 2004.
“Code”
means
the Internal Revenue Code
of 1986, as amended.
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"Common
Stock" means the $.01 par value common stock of the
Company.
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"Company"
means Eastman Chemical Company.
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"Compensation
Committee" shall mean the Compensation and Management Development
Committee of the Board.
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"Deferrable
Amount" means, for a given fiscal year of the Company, an amount equal to the
sum of the Eligible Employee's (i) annual base cash compensation; (ii) annual
cash payments under the Company's Unit Performance Plan and any sales incentive
plan of the Company in which an Eligible Employee participates; (iii) stock
and
stock-based awards under the Omnibus Plan which, under the terms of the Omnibus
Plan and the award, are payable in cash and required or allowed to be deferred
into this Plan; (iv) signing bonus and/or retention bonus, if any, received
in
connection with his or her initial employment with the Company or the
acquisition by the Company of such person's previous employer; and (v) special
awards of $15,000 or more, such as special awards under the Company’s
Employee/Team Recognition Program and Chairman & CEO’s Award
Program. In each case, however, the Deferrable Amount shall not
include any amount that must be withheld from the Eligible Employee's wages
for
income or employment tax purposes.
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“Disability”
means the Participant (i) is, by reason of any medically determinable
physical or mental impairment that can be expected to result in death
or
can be expected to last for a continuous period of not less than
12
months, receiving income replacement benefits for a period of not
less
than 3 months under the Applicable Disability Plan (as defined below),
or
(ii) qualifies for Social Security disability benefits. The
“Applicable Disability Plan” shall be the group long-term disability
insurance plan offered by the Company to the Participant at the time
of
the determination. If no group long-term disability insurance
plan is being offered to the Participant at the time of such
determination, the Participant shall be required to satisfy clause
(ii) in
order to be declared Disabled for purposes of this
Plan.
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“EIP/ESOP”
means the Eastman Investment and Employee Stock Ownership Plan.
"Eligible
Employee" means a U.S.-based employee of the Company or any of its U.S.
Subsidiaries who at any time has a salary grade classification of SG-49/SG-105
or above. Any employee who becomes eligible to participate in this
Plan and in a future year does not qualify as an Eligible Employee because
of a
change in position level shall nevertheless be eligible to participate in such
year.
"Enrollment
Period" means the period designated by Global Benefits each year, provided
however, that such period shall end on or before the last business day of each
year.
"Excess
Compensation” means the excess, if any, of (1) an Employee's "Company
Compensation" as defined in the EIP/ESOP, over (2) the applicable dollar amount
under Section 401(a)(17) of the Internal Revenue Code of 1986, as amended,
which
applies to the EIP/ESOP for a given plan year of the EIP/ESOP.
"Exchange
Act" means the Securities Exchange Act of 1934, as amended.
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“Grandfathered
Account” means the value of the Account of each Participant on December
31, 2004, including (i) the amount of the Participant’s ESOP or RSC
allocation for 2004, if any, even if such amount had not been credited
to
a Participant’s Account as of December 31, 2004, and (ii) any earnings
accruing to the Participant’s Grandfathered Account. For
purposes of this Plan, no part of the Participant’s Grandfathered Account
shall be subject to Code Section 409A, including the 6 month delay
for
payments to Specified Employees under Section 8.3 of this
Plan. For purposes of this Plan, the “Non-Grandfathered
Account” shall equal the Participant’s Account balance on the date of the
Participant’s Termination of Employment, minus the amount of the
Participant’s Grandfathered Account. The Non-Grandfathered
Account shall be subject to Code Section
409A.
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“Hardship”
means an emergency event beyond the Participant’s control which would cause the
Participant severe financial hardship if the payment of amounts from his or
her
Accounts were not approved. Any distribution for Hardship shall be
limited to amounts in a Participant’s Grandfathered Account.
“Initial
Enrollment Period” means, for an Eligible Employee who is newly employed by the
Company, the period beginning prior to such date of employment and ending 30
days after the date of employment. For a person who becomes an
employee of the Company or a U.S. Subsidiary through an acquisition by the
Company of such person's previous employer, "Initial Enrollment Period" with
respect to deferral of any signing bonus or retention bonus payable to such
person shall mean the period beginning prior to such date of acquisition, and
ending 30 days after such date of acquisition.
"Interest
Account" means the account established by the Company for each Participant
for
compensation deferred or Excess Contribution amounts credited pursuant to this
Plan and which shall bear interest as described in Section 4.1
below. The maintenance of individual Interest Accounts is for
bookkeeping purposes only. If applicable, each Interest Account shall
be further sub-divided into a Grandfathered Account and Non-Grandfathered
Account.
"Interest
Rate" means the monthly average of bank prime lending rates to most favored
customers as published in The Wall Street Journal, such average to be determined
as of the last day of each month.
"Market
Value" means the closing price of the shares of Common Stock on the New York
Stock Exchange on the day on which such value is to be determined or, if no
such
shares were traded on such day, said closing price on the next business day
on
which such shares are traded, provided, however, that if at any relevant time
the shares of Common Stock are not traded on the New York Stock Exchange, then
"Market Value" shall be determined by reference to the closing price of the
shares of Common Stock on another national securities exchange, if applicable,
or if the shares are not traded on an exchange but are traded in the
over-the-counter market, by reference to the last sale price or the closing
"asked" price of the shares in the over-the-counter market as reported by the
National Association of Securities Dealers Automated Quotation System (NASDAQ)
or other national quotation service.
"Omnibus
Plan" means the Eastman Chemical Company 1994 Omnibus Long-Term Compensation
Plan or any successor plan to the Omnibus Plan providing for awards of stock
and
stock-based compensation to Company employees.
"Participant"
means an Eligible Employee who (i) elects for one or more years to defer
compensation pursuant to this Plan; or (ii) receives an ESOP allocation under
Section 2.2 of this Plan.
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"Plan"
means this Amended and Restated Eastman Executive Deferred Compensation
Plan.
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"Section
16 Insider" means a Participant who is, with respect to the Company,
subject to the reporting requirements of Section 16 of the Exchange
Act.
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“Specified
Employee” has the meaning given such term in Code Section 409A and the final
regulations thereunder (“Final 409A Regulations”), provided, however, that as
permitted in the Final 409A Regulations, the Company’s Specified Employees and
its application of the six-month delay rule of Code Section 409A(a)(2)(B)(i)
shall be determined in accordance with a policy adopted by the Compensation
Committee, which shall be applied consistently with respect to all nonqualified
deferred compensation arrangements of the Company, including this
Plan.
"Stock
Account" means the account established by the Company for each Participant,
the
performance of which shall be measured by reference to the Market Value of
Common Stock. The maintenance of individual Stock Accounts is for
bookkeeping purposes only. If applicable, each Stock Account shall be
further sub-divided into a Grandfathered Account and Non-Grandfathered
Account.
“Termination
of Employment” means a separation from service under Code Section 409A and the
Final 409A Regulations.
“Unforeseeable
Emergency” means severe financial hardship of the Participant resulting from an
illness or accident of the Participant, the Participant’s spouse, the
Participant’s beneficiary or a dependent (as defined in Section 152 of the Code
without regard to Section 152(b)(1), (b)(2), and (d)(1)(B)), loss of the
Participant’s property due to casualty (including the need to rebuild a home not
otherwise covered by insurance), or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control
of
the Participant. Except as otherwise provided herein, the purchase of
a home and the payment of college tuition are not unforeseeable emergencies.
Any
distribution for an Unforeseeable Emergency shall be limited to amounts in
a
Participant’s Non-Grandfathered Account.
"U.S.
Subsidiaries" means the United States subsidiaries of the Company listed on
Schedule A.
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"Valuation
Date" means each business day.
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Section
2
.
Deferral
of Compensation; Allocations
.
Section
2.1
. An Eligible Employee may elect to defer receipt of all or
any portion of his or her Deferrable Amount to the Interest Account and/or
Stock
Account
within
such person's EDCP Account. A Participant may make deferrals under
this Plan regardless of whether the Participant elects deferrals under the
EIP/ESOP. If an Eligible Employee terminates employment with the
Company or any of its U.S. Subsidiaries, any previous deferral election with
respect to a payment or award under the Company's Unit Performance Plan, the
Company's Omnibus Plan, and any sales incentive plan of the Company in which
an
Eligible Employee participates, shall remain in effect with respect to such
items of compensation payable after termination of employment.
Section
2.2
. For
any Plan Year in which an Eligible Employee has Excess Compensation, then at
such time, if any, as the Company makes a contribution to the EIP/ESOP with
respect to such Plan Year, the Company shall credit to the Eligible Employee's
Stock Account within his EDCP Account under this Plan, an amount equal to the
product of (1) the amount of such Eligible Employee's Excess Compensation
multiplied by (2) the ESOP or RSC Payout Percentage.
Section
3
.
Deferral
Elections.
An
Eligible Employee who wishes to defer compensation must irrevocably elect to
do
so during the applicable Enrollment Period. The Enrollment Period shall end
prior to the first day of the service year with respect to the applicable
Deferrable Amount., The “service year” is the Eligible Employee’s taxable year
in which the services related to the Deferrable Amount will be performed by
the
Eligible Employee. Elections shall be made annually for each Class
Year.
Notwithstanding
the foregoing, (i) in the first year in which a person becomes an Eligible
Employee by reason of being employed by the Company, the Eligible Employee
may
elect to defer receipt of all or any portion of his or her Deferrable Amount
earned for services to be performed subsequent to such election, provided that
such election is made no later than the end of the Initial Enrollment Period;
(ii) in the first year in which a person becomes an Eligible Employee through
an
acquisition by the Company of such person's previous employer, the Eligible
Employee may elect to defer receipt of all or any portion of his or her signing
bonus and/or retention bonus paid to such Eligible Employee by the Company,
provided that (x) the deferred amount represents compensation for services
to be
performed subsequent to such election, and (y) such election is made no later
than the end of the Initial Enrollment Period.
Section
4
.
Hypothetical
Investments
.
Section
4. 1
.
Interest Accounts
. Amounts in a
Participant's Interest Accounts are hypothetically invested in an interest
bearing account which bears interest computed at the Interest Rate, compounded
monthly.
Section
4.2
.
Stock Accounts
. Amounts in a Participant's
Stock Accounts are hypothetically invested in units of Common
Stock. Amounts deferred into Stock Accounts are recorded as units of
Common Stock, and fractions thereof with one unit equating to a single share
of
Common Stock. Thus, the value of one unit
shall
be
the Market Value of a single share of Common Stock. The use of units
is merely a bookkeeping convenience; the units are not actual shares of Common
Stock. The Company will not reserve or otherwise set aside any Common
Stock for or to any Stock Account.
Section
5
.
Deferrals and Crediting Amounts to
Accounts
.
Section
5.1
.
Manner of Electing Deferral
. An Eligible
Employee may elect to defer compensation by completing the deferral election
process established by Global Benefits. Each Eligible Employee
shall elect, in the manner specified by Global Benefits (i) the amount and
sources of Deferrable Amount to be deferred; (ii) whether deferral of annual
base cash compensation is to be at the same rate throughout the year, or at
different rates for each calendar quarter of the year; and (iii) the portion
of
the deferral to be credited to the Participant's Interest Account and Stock
Account respectively. An election to defer compensation shall be
irrevocable following the end of the applicable Enrollment Period, but the
portion of the deferral to be credited to the Participant's Interest Account
and
Stock Account, respectively, may be reallocated by the Participant in the manner
specified by Global Benefits or its authorized designee through and including
the business day immediately preceding the date on which the deferred amount
is
credited to the Participant's Accounts pursuant to Section 5.2.
Section
5.2
.
Crediting of Amounts to Accounts
. Except
as otherwise provided in this Section with respect to Section 16 Insiders,
amounts to be deferred each Class Year shall be credited to the Participant's
Interest Account and/or Stock Account, as applicable, within the EDCP Account
as
of the date such amounts are otherwise payable. An ESOP or RSC
allocation which is made pursuant to Section 2.2 shall be credited to the
Participant's Stock Account within the EDCP Account as of the date the Company
makes the contribution to the EIP/ESOP which triggers the ESOP or RSC allocation
under this Plan. Notwithstanding the foregoing, for each Section 16 Insider,
each and every Deferrable Amount, when initially credited to the Participant's
EDCP Account, shall be held in a Participant's Interest Account until the next
date that dividends are paid on Common Stock (see Section 7.6 of the Plan),
and
on such date the Deferrable Amount that would have been initially credited
to
the Participant's Stock Account but for this sentence shall be transferred,
together with allocable interest thereon, to the Participant's Stock Account,
provided that such transfer shall be subject to the restrictions set forth
in
Section 7.2.
Section
6
.
Deferral Period
. Subject to Sections 9, 10, and 19
hereof, the amounts credited to a Participant's Accounts and earnings thereon
will be deferred until the Participant dies, becomes Disabled or has a
Termination of Employment with the Company or any of its U.S.
Subsidiaries. Any such election shall be made during the applicable
Enrollment Period on the deferred compensation form referenced in Section 5
above. The payment of a Participant's Account shall be governed by
Sections 8, 9, 10, and 19, as applicable.
Section
7
.
Investment in the Stock Account and Transfers Between
Accounts
.
Section
7.1
.
Election Into the Stock Account
. Amounts
to be credited to a Participant's Stock Account, whether by reason of a deferral
election by the Participant or an ESOP allocation by the Company, shall be
credited, as of the date described in Section 5.2, with that number of units
of
Common Stock, and fractions thereof, obtained by dividing the dollar amount
to
be credited into the respective Stock Account by the Market Value of the Common
Stock as of such date.
Section
7.2
.
Transfers Between Accounts
. Except as
otherwise provided in this Section, a Participant may direct that all or any
portion, designated as a whole dollar amount, of the existing balance of his
or
her Interest or Stock Account be transferred to the other Account, effective
as
of (i) the date such election is made, if and only if such election is made
prior to the close of trading on the New York Stock Exchange on a day on which
the Common Stock is traded on the New York Stock Exchange, or (ii) if such
election is made after the close of trading on the New York Stock Exchange
on a
given day or at any time on a day on which no sales of Common Stock are made
on
the New York Stock Exchange, then on the next business day on which the Common
Stock is traded on the New York Stock Exchange (the date described in (i) or
(ii), as applicable, is referred to hereinafter as the election's "Effective
Date").
Such
election shall be made in the manner specified by the Committee or its
authorized designee; provided however, that a Section 16 Insider may only elect
to transfer between his or her Accounts if he or she has made no election within
the previous six months to effect an "opposite way" fund-switching (
i.e
.,
transfer out versus transfer in) transfer into or out of the Stock Account
or
the Eastman Stock Funds of the Eastman Investment and Employee Stock Ownership
Plan, or any other "opposite way" intra-plan transfer or plan distribution
involving a Company equity securities fund which constitutes a "Discretionary
Transaction" as defined in Rule 16b-3 under the Exchange Act.
A Participant's election to transfer less than all of the
funds in his or her Interest Accounts to his or her Stock Accounts shall be
applied pro rata to the Interest Account in the Participant's EDCP
Account.. The same procedure shall be followed if the Participant
elects to transfer less than all of the funds in his or her Stock Accounts
to
his or her Interest Accounts.
In
addition, and notwithstanding the foregoing, a Section 16 Insider's Deferrable
Amount that is initially allocated to his or her Interest Account as provided
in
Section 5.2, shall be transferred, following such initial allocation, from
the
Participant's Interest Account to his or her Stock Account in the manner
provided in Section 5.2.
Section
7.3
.
Transfer Into the Stock Account
. If a
Participant elects pursuant to Section 7.2 to transfer an amount from his or
her
Interest Accounts to his or her
Stock
Accounts, then, effective as of the election's Effective Date, his or her Stock
Accounts shall be credited with that number of units of Common Stock; and
fractions thereof, obtained by dividing the dollar amount elected to be
transferred by the Market Value of the Common Stock on the Valuation Date
immediately preceding the election's Effective Date; and (ii) his or her
Interest Accounts shall be reduced by the amount elected to be
transferred.
Section
7.4
.
Transfer Out of the Stock Account
. If a
Participant elects pursuant to Section 7.2 to transfer an amount from his or
her
Stock Accounts to his or her Interest Account, effective as of the election's
Effective Date; (i) his or her Interest Accounts shall be credited with a dollar
amount equal to the amount obtained by multiplying the number of units to be
transferred by the Market Value of the Common Stock on the Valuation Date
immediately preceding the election's Effective Date; and (ii) his or her Stock
Accounts shall be reduced by the number of units elected to be
transferred.
Section
7.5
.
Dividend Equivalents
. Effective as of the
payment date for each cash dividend on the Common Stock, the Stock Accounts
of
each Participant who had a balance in his or her Stock Accounts on the record
date for such dividend shall be credited with a number of units of Common Stock,
and fractions thereof, obtained by dividing (i) the aggregate dollar amount
of
such cash dividend payable in respect of such Participant's Stock Accounts
(determined by multiplying the dollar value of the dividend paid upon a single
share of Common Stock by the number of units of Common Stock held in the
Participant's Stock Accounts on the record date for such dividend); by (ii)
the
Market Value of the Common Stock on the Valuation Date immediately preceding
the
payment date for such cash dividend.
Section
7.6
.
Stock Dividends
. Effective as of the
payment date for each stock dividend on the Common Stock, additional units
of
Common Stock shall be credited to the Stock Accounts of each Participant who
had
a balance in his or her Stock Accounts on the record date for such
dividend. The number of units that shall be credited to the Stock
Account of such a Participant shall equal the number of shares of Common Stock
and fractions thereof, which the Participant would have received as stock
dividends had he or she been the owner on the record date for such stock
dividend of the number of shares of Common Stock equal to the number of units
credited to his or her Stock Accounts on such record date.
Section
7.7
.
Recapitalization
. If, as a result of a
recapitalization of the Company, the outstanding shares of Common Stock shall
be
changed into a greater number or smaller number of shares, the number of units
credited to a Participant's Stock Accounts shall be appropriately adjusted
on
the same basis.
Section
7.8
.
Distributions
. Amounts in respect of units
of Common Stock may only be distributed out of the Stock Accounts by transfer
to
the Interest Accounts (pursuant to Sections 7.2 and 7.4 or 7.10) or withdrawal
from the Stock Accounts
(pursuant
to Sections 8, 9, 10, or 19), and shall be distributed in cash. The
number of units to be distributed from a Participant's Stock Accounts shall
be
valued by multiplying the number of such units by the Market Value of the Common
Stock as of the Valuation Date immediately preceding the date such distribution
is to occur. Pending the complete distribution under Section 8.2 or
liquidation under Section 7.10 of the Stock Accounts of a Participant who has
terminated his or her employment with the Company or any of its U.S.
Subsidiaries, the Participant shall continue to be able to make elections
pursuant to Sections 7.2, 7.3, and 7.4 and his or her Stock Accounts shall
continue to be credited with additional units of Common Stock pursuant to
Sections 7.5, 7.6, and 7.7.
Section
7.9
.
Responsibility for Investment
Choices
. Each Participant is solely responsible for any decision
to defer compensation into his or her EDCP Stock Account, and to retain in
his
or her ESOP Stock Account any amounts credited thereto, and to transfer amounts
to and from his or her Stock Accounts. Each Participant accepts all investment
risks entailed by such decision, including the risk of loss and a decrease
in
the value of the amounts he or she elects to transfer into his or her Stock
Accounts.
Section
7.10
.
No Reinvestment in Stock Accounts after Termination of
Employment
. Once a Participant has had a Termination of
Employment with the Company and all of its U.S. Subsidiaries, a Participant
may,
until his Account is fully distributed and pursuant to the rules of this Plan,
elect to liquidate units of the Stock Accounts and transfer such value to the
Interest Accounts, but the Participant may not transfer any funds from the
Interest Accounts into the Stock Accounts. For purposes of valuing
the units of Common Stock subject to such a transfer, the approach described
in
Section 7.8 shall be used.
Section
8
.
Payment of Deferred Compensation
.
Section
8.1
.
Background
. No withdrawal may be made from
a Participant's Accounts except as provided in this Section 8 and Sections
9,
10, and 19.
Section
8.2
.
Manner of Payment
. Payment of a
Participant's Account shall be made in a single lump sum or annual installments,
as elected by the Participant pursuant to this Section 8 for each Class
Year. The maximum number of annual installments is
ten. The minimum annual installment payment permitted from the EDCP
Account under such election (determined based on the value of the Participant's
Accounts as of the last Valuation Date of the calendar year in which the
Participant terminates employment, and disregarding any earnings under this
Plan
after such date) shall be one thousand dollars ($1,000); this minimum shall
be
applied by dividing by $1,000 the value of the Participant's Account as of
the
last Valuation Date of the calendar year in which the Participant terminates
employment, and the result, rounded down to the next largest whole number,
shall
be
the
maximum number of annual installments permitted. All payments from
the Plan shall be made in cash.
Section
8.3
.
Timing of Payments
.
(a) Payments
shall commence in the year elected by the Participant pursuant to this Section
8, up through the tenth year following the year in which the Participant dies,
becomes Disabled or has a Termination of Employment from the Company or any
of
its U.S. Subsidiaries, but in no event may a Participant elect to have payments
commence later than the year the Participant reaches age 71. Payments
shall commence no earlier than January 1 of the year elected by the Participant
and no later than the fifth business day in March of such year.
(b) If
a Participant is a Specified Employee on the date of his or her Termination
of
Employment from the Company, and payment is due from this Plan on account of
Termination of Employment (but not death or Disability) and payment
is due in a lump sum, the Participant’s right to receive such payment will be
delayed until the earlier of the Participant’s death or the first day of the
seventh month following the Participant’s Termination of Employment (subject to
the exceptions specified in the Final 409A Regulations). This Section
8.3(b) shall not apply to any portion of the Participant’s Grandfathered
Account.
(c) If
a Participant is a Specified Employee on the date of his or her Termination
of
Employment from the Company, and payment(s) are due from this Plan on account
of
Termination of Employment (but not death or Disability) and payments are due
in
installments, the Participant’s right to begin to receive such payments will be
delayed until the earlier of the Participant’s death or the first day of the
seventh month following the Participant’s Termination of Employment (subject to
the exceptions specified in the Final 409A Regulations) whereupon the
accumulated installment payments will be paid and distributed to the Participant
(without interest) and the normal payment schedule for any remaining installment
payments will resume. This Section 8.3(c) shall not apply to any
portion of the Participant’s Grandfathered Account.
Section
8.4
.
Valuation
. The amount of each
payment shall be equal to the value, as of the preceding Valuation Date, of
the
Participant's Accounts, divided by the number of remaining payments to be
paid. If payment of a Participant's Accounts is to be paid in
installments and the Participant has a balance in his or her Stock Account
at
the time of the payment of an installment, the amount that shall be distributed
from his or her Stock Account shall be the amount obtained by multiplying the
total amount of the installment determined in accordance with the immediately
preceding sentence by the percentage obtained by dividing the balance in the
Stock Account as of the immediately preceding Valuation Date by the total value
of the Participant's Accounts as of such date. Similarly, in such
case, the amount that shall be distributed from the Participant's Interest
Account
shall
be
the amount obtained by multiplying the total amount of the installment
determined in accordance with the first sentence of this Section 8.4 by the
percentage obtained by dividing the balance in the Interest Account as of the
immediately preceding Valuation Date by the total value of the Participant's
Accounts as of such date.
Section
8.5
.
Participant Payment Elections
. Except as
provided in Section 8.6, an election by a Participant concerning the method
of
payment under Section 8.2 or the commencement of payments under Section 8.3
must
be made at least one (1) year before the Participant's Termination of
Employment, and must be made on forms provided by the Company. If a
Participant does not have a valid election in force at the time of Termination
of Employment, then (i) if the value of his aggregate Accounts as of the last
Valuation Date of the calendar year in which he terminates employment is less
than ten thousand dollars ($10,000), then his Accounts shall be paid in a single
lump sum; (ii) if the aggregate value of his Accounts as of the last Valuation
Date of the calendar year in which he terminates employment is ten thousand
dollars ($10,000) or more, then his Accounts shall be paid in ten (10) annual
installments; and (iii) regardless of whether payment is made in a single lump
sum or installments, payment shall commence by the fifth business day in March
following the calendar year in which the Participant terminates employment
subject to the provisions of Section 8.3(b) and Section 8.3(c) of the
Plan.
Section
8.6.
Special Payment Election Rules
.
(a) Notwithstanding
Sections 8.2, 8.3, and 8.5, if a Participant terminates employment less than
one
(1) year after the date he first becomes eligible to participate in this Plan,
then an election made by the Participant under this Section 8 no later than
thirty (30) days after the date he first becomes eligible to participate in
this
Plan shall be valid.
(b)
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The
timing of a distribution of a Participant’s Non-Grandfathered Account may
not be accelerated, except in the event of an Unforeseeable Emergency
or
other permissible acceleration of distribution under Treas. Reg.
Section
1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts
of
interest), (j)(4)(vi) (payment of employment taxes), (j)(4)(vii)
(payment
upon income inclusion under Section 409A), (j)(4)(ix) (plan terminations
and liquidation), (j)(4)(xi) (payment of state, local or foreign
taxes),
(j)(4)(xiii) (certain offsets) and (i)(4)(xiv) (bona fide
disputes). Any change which delays the timing of distributions
or changes the form of distributions from a Participant’s
Non-Grandfathered Account may only be made by a written agreement
signed
by the Company's Vice President, Human Resources and the Participant
and
only if the following requirements are
met:
|
(i) Any
election to
change the time and form of distribution may nottake effect until at least
12
months after the date on which the election ismade;
(ii) Other
than in the event
of death, the first payment with respect tosuch election must be deferred for
a
period of at least 5 years from the datesuch paymentotherwise would have been
made; and
(iii) Any
election related to a payment to be made at a specified time may not be made
less than 12 months prior to the date of the first scheduled
payment.
Section
9
.
Payment of Deferred Compensation After
Death
. If a Participant dies prior to complete payment of his or
her Accounts, the balance of such Accounts, valued as of the Valuation Date
immediately preceding the date payment is made, shall be paid in a single,
lump
sum Payment to: (i) the beneficiary or contingent beneficiary
designated by the Participant in accordance with procedures established by
Global Benefits, or the absence of a valid designation of a
beneficiary or contingent beneficiary, (ii) the Participant's estate within
30
days after appointment of a legal representative of the deceased
Participant.
Section
10
.
Acceleration of Payment for Hardship or Unforeseeable
Emergency
.
Section
10.1
. Hardship
or Unforeseeable Emergency. Hardship distributions shall be limited
to amounts in a Participant’s Grandfathered Account and distributions for an
Unforeseeable Emergency shall be limited to amounts in a Participant’s
Non-Grandfathered Account. Upon written approval from the Company's Vice
President, Human Resources, with respect to Participants other than executive
officers of the Company, and by the Compensation Committee, with respect to
Participants who are executive officers of the Company, and subject to the
restrictions in the next two sentences, a Participant, whether or not he or
she
is still employed by the Company or any of its U.S. Subsidiaries, may be
permitted to receive all or part of his or her Accounts if the Company's
Vice
President,
Human Resources, or the Compensation Committee, as applicable, determines that
the Participant has suffered a Hardship or Unforeseeable
Emergency. The amount distributed may not exceed the amount necessary
to satisfy the Hardship or Unforeseeable Emergency plus amounts necessary to
pay
taxes reasonably anticipated as a result of the distribution, after taking
into
account the extent to which such Hardship or Unforeseeable Emergency is or
may
be relieved through reimbursement or compensation by insurance or otherwise
by
liquidation of the Participant’s assets (to the extent the liquidation of such
assets would not itself cause severe financial hardship).
Section
10.2
.
Other
Payments
. Any participant in the Plan may at his or her
discretion withdraw at any time all or part of that person's Grandfathered
Account Balance under the Plan; provided, if this option is exercised the
individual will forfeit to the Corporation 10% of his or her aggregate
Grandfathered Account Balance, and will not be permitted to make deferrals
to or
receive ESOP or RSC allocations under this plan for a period of 36 months
beginning on the first day of the plan year following the plan year which
includes the date any payment to a Participant is made under this
section.
Section
10.3
.
Accelerated
Payment
. If under the Eastman Executive Deferred Compensation Plan one-half
or more of the Participants with a Grandfathered Account, or one-fifth or more
of the Participants with a Grandfathered Account with one-half or more of the
value of all benefits owed exercise their option for immediate distribution
in
any consecutive six-month period, this will trigger immediate payment to all
Participants of all benefits owed under the terms of the Plan from Grandfathered
Accounts, immediate payout under this section will not involve reduction of
the
amounts paid to Participants as set forth in section 10.2. Any
individual that has been penalized in this six-month period for electing
immediate withdrawal will be paid that penalty, and continuing participation
will be allowed, if payout to all Participants under this section
occurs. Solely for purposes of this Section 10.3, “benefits” shall
refer to amounts held in Grandfathered Accounts under the Plan.
Section
10.4
.
Section
16 Insiders
. A Section 16 Insider may only receive a withdrawal
from his or her Stock Account pursuant to this Section 10 if he or she has
made
no election within the previous six months to effect a fund-switching transfer
into the Stock Account or the Eastman Stock Fund of the Eastman Investment
Plan
or any other "opposite way" intra-plan transfer into a Company equity securities
fund which constitutes a "Discretionary Transaction" as defined in Rule 16b-3
under the Exchange Act. If such a distribution occurs while the
Participant is employed by the Company or any of its U.S. Subsidiaries, any
election to defer compensation for the year in which the Participant receives
a
withdrawal shall be ineffective as to compensation earned for the pay period
following the pay period during which the withdrawal is made and thereafter
for
the remainder of such year and shall be ineffective as to any other compensation
elected to be deferred for such year.
Section
10.5
.
EDCP
Elections
. A Participant's election to withdraw less than all of
the funds in his or her Account under Sections 10.1 or 10.2 above shall be
applied pro rata to all of the Participant's sub-accounts under the Plan (i.e.,
to the two investment accounts under the EDCP Account.
Section
11
.
Non-Competition and Non-Disclosure Provision
.
Participant will not, without the written consent of the Company, either during
his or her employment by Company or any of its U.S. Subsidiaries or thereafter,
disclose to anyone or make use of any confidential information which he or
she
has acquired during his or her employment relating to any of the business of
the
Company or any of its subsidiaries, except as such disclosure or use may be
required in connection with his or her work as an employee of Company or any
of
its U.S. Subsidiaries. During Participant's employment by the Company
or any of its U.S. Subsidiaries, and for a period of two years after the
termination of such employment, he or she will not, without the written consent
of the Company, either as principal, agent, consultant, employee or otherwise,
engage in any work or other activity in competition with the Company in the
field or fields in which he or she has worked for the Company or any of its
U.S.
Subsidiaries. The agreement in this Section 11 applies separately in
the United States and in other countries but only to the extent that its
application shall be reasonably necessary for the protection of the Company.
If
the Participant does not comply with the terms of this Section 11, the Company's
Vice President, Total Rewards, with respect to Participants other than executive
officers of the Company, or the Compensation Committee, with respect to
executive officers of the Company may, in his or its sole discretion, direct
the
Company to pay to the Participant the balance credited to the portion of his
or
her Interest Accounts and/or Stock Accounts that consists of the Grandfathered
Account portion.
Section
12
.
Participant's Rights Unsecured
. The
benefits payable under this Plan shall be paid by the Company each year out
of
its general assets. To the extent a Participant acquires the right to
receive a payment under this Plan, such right shall be no greater than that
of
an unsecured general creditor of the Company. No amount payable under
this Plan may be assigned, transferred, encumbered or subject to any legal
process for the payment of any claim against a Participant. No
Participant shall have the right to exercise any of the rights or privileges
of
a shareowner with respect to the units credited to his or her Stock
Accounts.
Section
13
.
No Right to Continued Employment
. Participation in the
Plan shall not give any employee any right to remain in the employ of the
Company or any of its U.S. Subsidiaries. The Company and each
employer U S. Subsidiary reserve the right to terminate any Participant at
any
time.
Section
14
.
Statement of Account
. Statements will be made
available no less frequently than annually to each Participant or his or her
estate showing the value of the Participant's Accounts.
Section
15
.
Deductions
. The Company will withhold to the extent
required by law an applicable income and other taxes from amounts deferred
or
paid under the Plan.
Section
16
.
Administration
.
Section
16.1
.
Responsibility
. Except as expressly
provided otherwise herein, the Compensation Committee shall have total and
exclusive responsibility to control, operate, manage and administer the Plan
in
accordance with its terms.
Section
16.2
.
Authority of the Compensation
Committee
. The Compensation Committee shall have all the
authority that may be necessary or helpful to enable it to discharge its
responsibilities with respect to the Plan. Without limiting the
generality of the preceding sentence, the Compensation Committee shall have
the
exclusive right to interpret the Plan, to determine eligibility for
participation in the Plan, to decide all questions concerning eligibility for
and the amount of benefits payable under the Plan, to construe any ambiguous
provision of the Plan, to correct any default, to supply any omission, to
reconcile any inconsistency, and to decide any and all questions arising in
the
administration, interpretation, and application of the Plan.
Section
16.3
.
Discretionary Authority
. The Compensation
Committee shall have full discretionary authority in all matters related to
the
discharge of its responsibilities and the exercise of its authority under the
Plan including, without limitation, its construction of the terms of the Plan
and its determination of eligibility for participation and benefits under the
Plan. It is the intent that the decisions of the Compensation
Committee and its action with respect to the Plan shall be final and binding
upon all persons having or claiming to have any right or interest in or under
the Plan and that no such decision or action shall be modified upon judicial
review unless such decision or action is proven to be arbitrary or
capricious.
Section
16.4
.
Authority of Vice President Total
Rewards
. Where expressly provided for under Sections 8, 10 and
11, the authority of the Compensation Committee is delegated to the Company's
Vice President, Human Resources, and to that extent the provisions of Section
16.1 through 16.3 above shall be deemed to apply to such Vice
President.
Section
16.5
.
Delegation of Authority
. The Compensation
Committee may provide additional delegation of some or all of its authority
under the Plan to any person or persons provided that any such delegation be
in
writing.
Section
17
.
Amendment
. The Board may suspend or
terminate the Plan at any time. Notwithstanding the foregoing,
termination with respect to the portion of the Plan that includes the
Non-Grandfathered Accounts must comply with the requirements of Treas. Reg.
Section 1.409A-3(j)(4)(ix). In addition, the Board may, from time to
time, amend the Plan in any manner without shareowner approval; provided
however, that the Board may condition any amendment on the approval of
shareowners if such approval is necessary or advisable with respect to tax,
securities, or other applicable laws. However, no amendment, modification,
or
termination shall, without the consent of a Participant,
adversely
affect such Participant's accruals in his or her Accounts as of the date of
such
amendment, modification, or termination.
Section
18
.
Governing Law
. The Plan shall be construed, governed
and enforced in accordance with the law of Tennessee, except as such laws are
preempted by applicable federal law.
Section
19
.
Change in Control
.
Section
19.1
.
Background
. The terms of this Section 19
shall immediately become operative, without further action or consent by any
person or entity, upon a Change in Control, and once operative shall supersede
and control over any other provisions of this Plan.
Section
19.2
.
Amendment On or After Change in
Control
. On or after a Change in Control, 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 this Plan with respect to the balance in the Participant's Accounts
without the written consent of the Participant, or, if the Participant is
deceased, the Participant's beneficiary under this Plan (if any).
Section
19.3
.
Attorney
Fees.
The Company shall pay all reasonable legal fees and related
expenses incurred by a Participant in seeking to obtain or enforce any payment,
benefit or right such participant may be entitled to under the Plan after a
Change in Control; provided, however, the Participant shall be required to
repay
any such amounts to the Company to the extent a court of competent jurisdiction
issues a final and non-appealable order setting forth the determination that
the
position taken by the Participant was frivolous or advanced in bad
faith. For purposes of this Section 19.3, the legal fees and related
expenses must be incurred by the Participant within 5 years of the date the
Change in Control occurs. All reimbursements must be paid to the
Participant by the Company no later than the end of the tax year following
the
tax year in which the expense is incurred.
Section
20
.
Compliance with SEC Regulations
. It is the
Company's intent that the Plan comply in all respects with Rule 16b-3 of the
Exchange Act, and any regulations promulgated thereunder. If any
provision of the Plan is found not to be in compliance with such rule, the
provision shall be deemed null and void. All transactions under the Plan,
including, but not by way of limitation, a Participant's election to defer
compensation under Section 7 and withdrawals in the event of a Hardship or
Unforeseeable Emergency under Section 10, shall be executed in accordance with
the requirements of Section 16 of the Exchange Act, as amended and any
regulations promulgated thereunder. To the extent that any of the
provisions contained herein do not conform with Rule 16b-3 of the Exchange
Act
or any amendments thereto or any successor regulation, then the Committee may
make such modifications so as to conform the Plan to the Rule's
requirements.
Section
21
.
Successors and Assigns
. This Plan shall be binding
upon the successors and assigns of the parties hereto.
SCHEDULE
A
Name
of
Subsidiary
Effective
Date
Holston
Defense
Corporation January
1, 1994
|
McWhorter
Technologies, Inc.
|
Effective
as of the date of acquisition by the Company, with respect to signing
and
retention bonuses, and effective as of January 1, 2001, with respect
to
other deferrable amounts
|
Eastman
Chemical Resins,
Inc. July
1, 2001
Eastman
Chemical
Technology [date]
[confirm]
Corporation
Eastman
Ethylene
Polymers [date][confirm]
Company
Eastman
Gasification
Services [date]
[confirm]
Company
Eastman
SE,
Inc.
[date]
[confirm]
FOURTH
AMENDED AND RESTATED
Preamble
. The
Fourth Amended and Restated Eastman Directors' Deferred Compensation Plan is
an
unfunded, non-qualified deferred compensation arrangement for non-employee
members of the Board of Directors of Eastman Chemical Company (the "Company").
Under the Plan, each Eligible Director is annually given an opportunity to
elect
to defer payment of part of his or her compensation for serving as a Director.
This Plan originally was adopted effective January 1, 1994, was amended and
restated effective as of December 1, 1994, as of May 2, 1996, and October 10,
1996 and is further amended and restated effective as of August 1, 2007 in
order
to comply with Section 409A of the Internal Revenue Code of 1986, as
amended.
Section
1
.
Definitions
.
"Account"
means the Interest Account or
the Stock Account. If applicable,
the
Interest Account and the Stock
Account are each further sub-divided into aGrandfathered Account and a
Non-Grandfathered Account.
"Board"
means the Board of Directors of
the Company.
|
"Change
In Control" means a change in control of the Company of a nature
that
would be required to be reported (assuming such event has not been
previously reported") in response to Item l(a) of a Current Report
on Form
8-K, as in effect on December 31, 2001, pursuant to Section 13 or
15(d) of
the Exchange Act; provided that, without limitation, a Change In
Control
shall be deemed to
have
occurred
at such time as
(i) any "person" within the meaning of Section
14(d)
of the Exchange Act, other than the Company, a
subsidiary of the Company, or any employee benefit plan(s) sponsored
by
the Company or any subsidiary of the Company, is or has become the
"beneficial owner," as defined in Rule l3d-3 under the Exchange Act,
directly or indirectly, of 25% or more of the combined voting power
of the
outstanding securities of the Company ordinarily having the right
to vote
at the election of directors; provided, however, that the following
will
not constitute a Change In Control: any acquisition by any corporation
if,
immediately following such acquisition, more than 75% of the outstanding
securities of the acquiring corporation ordinarily having the right
to
vote in the election of directors is beneficially owned by all or
substantially all of those persons who, immediately prior to such
acquisition, were the beneficial owners of the outstanding securities
of
the Company ordinarily having the right to vote in the election of
directors; or (ii) individuals who constitute the Board on January
1, 2002
(the "Incumbent Board") have ceased for any reason to constitute
at least
a majority thereof, provided that: any person becoming a director
subsequent to January 1, 2002 whose election, or nomination for election
by the Company's shareowners, was approved by a vote of at least
three-quarters (3/4) of the directors comprising the Incumbent Board
(either by a specific vote or by approval of the proxy statement
of the
Company in which such person is named as a nominee for director without
objection to such nomination) shall be, for purposes of the Plan,
considered as though such person were a member of the Incumbent Board;
or
(iii) upon approval by the Company's shareowners of a reorganization,
merger or consolidation, other than one with
respect
to which all or substantially all of those persons who were the beneficial
owners, immediately prior to such reorganization, merger or consolidation,
of outstanding securities of the Company ordinarily having the right
to
vote in the election of directors own, immediately after such transaction,
more than 75% of the outstanding securities of the resulting corporation
ordinarily having the right to vote in the election of directors;
or (iv)
upon approval by the Company's stockholders of a complete liquidation
and
dissolution of the Company or the sale or other disposition of all
or
substantially all of the assets of the Company other than to a subsidiary
of the Company.
|
"Nominating
and Corporate Governance Committee" means the Nominating and Corporate
Governance Committee of the Board.
“Class
Year” means each calendar year. Notwithstanding the foregoing,
the “2004 Class Year” includes all amounts deferred into the Plan in 2004 and in
any calendar years prior to 2004.
“Code”
means
the Internal Revenue Code
of 1986, as amended.
"Common
Stock" means the $.01 par value common stock of the Company.
"Company"
means Eastman Chemical Company.
"Deferrable
Amount" means an amount equal to the sum of the Eligible Director's cash
compensation, including retainer, meeting fees, and any other compensation
otherwise payable in cash.
"Eligible
Director" means a member of the Board of Directors of the Company who is not
an
employee of the Company or any subsidiary of the Company.
"Enrollment
Period" means the period designated by Global Benefits or the Nominating and
Corporate Governance Committee each year; provided however, that such period
shall end on or before December 31 of each year
"Exchange
Act" means the Securities Exchange Act of 1934, as amended.
|
“Grandfathered
Account” means the value of the Interest Account and Stock Account of each
Participant on December 31, 2004, including (i) any amounts the
Participant is entitled to receive during 2004 that have not be credited
to a Participant’s Interest Account or Stock Account as of December 31,
2004, and (ii) any earnings accruing to the Participant’s Grandfathered
Account. For purposes of this Plan, no portion of a
Participant’s Grandfathered Account shall be subject to Code Section
409A. For purposes of this Plan, the “Non-Grandfathered
Account” shall equal the value of the Participant’s Interest Account and
Stock Account on the date of the Participant’s Termination of Employment,
minus the amount of the Participant’s Grandfathered
Account. The Non-Grandfathered Account shall be subject to Code
Section 409A.
|
|
“Hardship”
means an emergency event beyond the Participant’s control which would
cause the Participant severe financial hardship if the payment of
amounts
from his or her Interest Account or Stock Account were not
approved. Any distribution for Hardship shall be limited to
distributions from the Participant’s Grandfathered
Account.
|
"Interest
Account" means the account established by the Company for each Participant
for
compensation deferred pursuant to this Plan and which shall bear interest as
described in Section 4.1 below. The maintenance of individual Interest Accounts
is for bookkeeping purposes only. If applicable, each Interest
Account shall be further sub-divided into a Grandfathered Account and
Non-Grandfathered Account.
"Interest
Rate" means the monthly average of bank prime lending rates to most favored
customers as published in
The
Wall Street Journal,
such average to be determined as of the last
day of each month.
"Market
Value" means the closing price of the shares of Common Stock on the New York
Stock Exchange on the day on which such value is to be determined or, if no
such
shares were traded on such day, said closing price on the next business day
on
which such shares are traded; provided, however, that if at any relevant time
the shares of Common Stock are not traded on the New York Stock Exchange, then
"Market Value" shall be determined by reference to the closing price of the
shares of Common Stock on another national securities exchange, if applicable,
or if the shares are not traded on an exchange but are traded in the
over-the-counter market, by reference to the last sale price or the closing
"asked" price of the shares in the over-the-counter market as reported by the
National Association of Securities Dealers Automated Quotation System (NASDAQ)
or other national quotation service.
"Plan"
means this Fourth Amended and Restated Eastman Directors' Deferred Compensation
Plan.
"Participant"
means an Eligible Director who elects for one or more years to defer
compensation pursuant to this Plan.
"Stock
Account" means the account established by the Company for each Participant,
the
performance of which shall be measured by reference to the Market Value of
Common Stock. The maintenance of individual Stock Accounts is for bookkeeping
purposes only. If applicable, each Stock Account shall be further
sub-divided into a Grandfathered Account and Non-Grandfathered
Account.
“Unforeseeable
Emergency” means severe financial hardship of the Participant resulting from an
illness or accident of the Participant, the Participant’s spouse, the
Participant’s beneficiary or a dependent (as defined in Section 152 of the Code
without regard go Section 152(b)(1), (b)(2) and (d)(1)(B), loss of the
Participant’s property due to casualty (including the need to rebuild a home not
otherwise covered by insurance), or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control
of
the Participant. Except as otherwise provided herein, the purchase
of
a home
and the payment of college tuition are not unforeseeable
emergencies. Any distribution for an Unforeseeable Emergency shall be
limited to amounts in a Participant’s Non-Grandfathered Account.
"Valuation
Date" means each business day.
Section
2
.
Deferral
of Compensation
. An Eligible Director may elect to defer receipt of all or
any portion of his or her Deferrable Amount to his or her Interest Account
and/or Stock Account. No deferral shall be made of any compensation payable
after termination of the Eligible Director's service on the Board.
Section
3
.
Time
of Election of Deferral
. An Eligible Director who wishes to defer
compensation must irrevocably elect to do so during the applicable Enrollment
Period. The Enrollment Period shall end prior to the first day of the service
year with respect to the applicable Deferrable Amount. The “service
year” is the Eligible Director’s taxable year in which the services related to
the Deferrable mount will be performed by the Eligible
Director. Elections shall be made annually for each Class
Year.
Section
4
.
Hypothetical
Investments.
Section
4.
1
.
Interest
Account
. Amounts in a Participant's Interest Account are hypothetically
invested in an interest bearing account which bears interest computed at the
Interest Rate, compounded monthly.
|
Section
4.2
.
Stock Account
. Amounts in a
Participant's Stock Account are hypothetically invested in units
of Common
Stock. Amounts deferred into a Stock Account are recorded as units
of
Common Stock, and fractions thereof, with one unit equating to a
single
share of Common Stock. Thus, the value of one unit shall be the Market
Value of a single share of Common Stock. The use of units is merely
a
bookkeeping convenience; the units are not actual shares of Common
Stock.
The Company will not reserve or otherwise set aside any Common Stock
for
or to any Stock Account. The maximum number of Common Stock units
that may
be hypothetically purchased by deferral of compensation to Stock
Accounts
under this Plan is 80,000.
|
Section
5.
Deferrals
and Crediting Amounts to Accounts
.
Section
5.
1
.
Manner
of Electing Deferral
. An Eligible Director may elect to defer compensation
for each Class Year by completing the deferral election process established
by
Global Benefits. Each Eligible Director shall elect, in the
manner specified by Global Benefits: (i) the amount of Deferrable Amount to
be
deferred; and (ii) the portion of the deferral to be credited to the
Participant's Interest Account and Stock Account, respectively. An election
to
defer compensation shall be irrevocable following the end of the applicable
Enrollment Period, but the portion of the deferral to be credited to the
Participant's Interest Account and Stock Account, respectively, may be
reallocated by the Participant in the manner specified by the Nominating and
Corporate Governance Committee or its authorized designee through and including
the business day immediately preceding the date
on
which
the deferred amount is credited to the Participant's Accounts pursuant to
Section 5.2.
Section
5.2
.
Crediting of Amounts to Accounts
. Except
as otherwise provided in this Section, amounts to be deferred each Class Year
shall be credited to the Participant's Interest Account and/or Stock Account,
as
applicable, as of the date such amounts are otherwise payable. In the
event that the Participant has failed to make an election, amounts to be
deferred each Class Year shall be credited to the Participant’s Interest
Account. Notwithstanding the foregoing, each and every Deferrable Amount, when
initially credited to the Participant’s Account, shall be held in a
Participant’s Interest Account until the next date that dividends are paid on
Common Stock (see Section 7.6 of the Plan); and on such date the Deferrable
Amount that would have been initially credited to the Participant’s Stock
Account but for this sentence shall be transferred, together with allocable
interest thereon, to the Participant’s Stock Account, provided that such
transfer shall be subject to the restrictions set forth in Section
7.2.
Section
6
.
Deferral
Period
. Subject to Sections 9, 10 and 17 hereof, the
compensation which a Participant elects to defer under this Plan shall be
deferred until the Participant dies or ceases to serve as a member of the Board.
Any such election shall be made during the applicable Enrollment Period on
the
deferred compensation form referenced in Section 5 above. The payment of a
Participant's account shall be governed by Sections 8, 9, 10 and 17, as
applicable.
Section
7
.
Investment
in the Stock Account and Transfers Between Accounts
.
Section
7.
1
.
Election
Into the Stock Account
. If a Participant elects to defer compensation into
his or her Stock Account, his or her Stock Account shall be credited, as of
the
date described in Section 5.2, with that number of units of Common Stock, and
fractions thereof, obtained by dividing the dollar amount to be deferred into
the Stock Account by the Market Value of the Common Stock as of such
date.
Section
7.2
.
Transfers Between Accounts
. Except as
otherwise provided in this Section, a Participant may direct that all or any
portion, designated as a whole dollar amount, of the existing balance of one
of
his or her Accounts be transferred to his or her other Account, effective as
of
(i) the date such election is made, if and only if such election is made prior
to the close of trading on the New York Stock Exchange on a day on which the
Common Stock is traded on the New York Stock Exchange, or (ii) if such election
is made after the close of trading on the New York Stock Exchange on a given
day
or at any time on a day on which no sales of Common Stock are made on the New
York Stock Exchange, then on the next business day on which the Common Stock
is
traded on the New York Stock Exchange (the date described in (i) or (ii), as
applicable, is referred to hereinafter as the election's "Effective Date").
Such
election shall be made in the manner specified by the Nominating and Corporate
Governance Committee or its authorized designee; provided, however, that a
Participant may only elect to transfer between his or her Accounts if he or
she
has made no election within the previous six months to effect an "opposite
way"
fund-switching (
i.e.
transfer out versus transfer in) transfer into or
out of the Stock Account or any other "opposite way" intraplan transfer or
plan
distribution involving a Company equity securities
fund
which constitutes a "Discretionary Transaction" as defined in Rule 16b-3 under
the Exchange Act.
In
addition, and notwithstanding the foregoing, a Participant’s Deferrable Amount
that is initially allocated to his or her Interest Account as provided in
Section 5.2, shall be transferred, following such initial allocation, from
the
Participant’s Interest Account to his or her Stock Account in the manner
provided in Section 5.2.
Section
7.3
.
Transfer
Into the Stock Account.
If a Participant elects pursuant to
Section 7.2 to transfer an amount from his or her Interest Account to his or
her
Stock Account, effective as of the election's Effective Date, (i) his or her
Stock Account shall be credited with that number of units of Common Stock,
and
fractions thereof, obtained by dividing the dollar amount elected to be
transferred by the Market Value of the Common Stock on the Valuation Date
immediately preceding the election's Effective Date; and (ii) his or her
Interest Account shall be reduced by the amount elected to be
transferred.
Section
7.4
.
Transfer
Out of the Stock Account.
If a Participant elects pursuant to Section 7.2 to
transfer an amount from his or her Stock Account to his or her Interest Account,
effective as of the election's Effective Date, (i) his or her Interest Account
shall be credited with a dollar amount equal to the amount obtained by
multiplying the number of units to be transferred by the Market Value of the
Common Stock on the Valuation Date immediately preceding the election's
Effective Date; and (ii) his or her Stock Account shall be reduced by the number
of units elected to be transferred.
Section
7.5
.
Dividend
Equivalents.
Effective as of the payment date for each cash
dividend on the Common Stock, the Stock Account of each Participant who had
a
balance in his or her Stock Account on the record date for such dividend shall
be credited with a number of units of Common Stock, and fractions thereof,
obtained by dividing (i) the aggregate dollar amount of such cash dividend
payable in respect of such Participant's Stock Account (determined by
multiplying the dollar value of the dividend paid upon a single share of Common
Stock by the number of units of Common Stock held in the Participant's Stock
Account on the record date for such dividend); by (ii) the Market Value of
the
Common Stock on the Valuation Date immediately preceding the payment date for
such cash dividend.
Section
7.6
.
Stock
Dividends.
Effective as of the payment date for each stock
dividend on the Common Stock, additional units of Common Stock shall be credited
to the Stock Account of each Participant who had a balance in his or her Stock
Account on the record date for such dividend. The number of units that shall
be
credited to the Stock Account of such a Participant shall equal the number
of
shares of Common Stock, and fractions thereof, which the Participant would
have
received as stock dividends had he or she been the owner on the record date
for
such stock dividend of the number of shares of Common Stock equal to the number
of units credited to his or her Stock Account on such record date.
Section
7.7
.
Recapitalization
.
If, as a result of a recapitalization of the Company, the outstanding shares
of
Common Stock shall be changed into a greater number or smaller
number
of
shares, the number of units credited to a Participant's Stock Account shall
be
appropriately adjusted on the same basis.
Section
7.8
.
Distributions
. Amounts
in respect of units of Common Stock may only be distributed out of the Stock
Account by transfer to the Interest Account (pursuant to Sections 7.2 and 7.4
or
7.10) or withdrawal from the Stock Account (pursuant to Section 8, 9, 10, or
17), and shall be distributed in cash. The number of units to be distributed
from a Participant's Stock Account shall be valued by multiplying the number
of
such units by the Market Value of the Common Stock as of the Valuation Date
immediately preceding the date such distribution is to occur.
Section
7.9
.
Responsibility
for Investment Choices
. Each Participant is solely responsible
for any decision to defer compensation into his or her Stock Account and to
transfer amounts to and from his or her Stock Account and accepts all investment
risks entailed by such decision, including the risk of loss and a decrease
in
the value of the amounts he or she elects to defer into his or her Stock
Account.
Section
7.
10.
Liquidation
of Stock Account.
Upon the date that a Participant ceases to
serve on the Board, the entire balance, if any, of the Participant's Stock
Account shall automatically be transferred to his or her Interest Account.
For
purposes of valuing the units of Common Stock subject to such a transfer, the
approach described in Section 7.8 shall be used.
Section
8
.
Payment
of Deferred Compensation
.
Section
8. 1. Background
. No withdrawal may be made from a Participant's Account
except as provided in this Section 8 and Sections 9, 10 and 17.
Section
8.2. Manner of Payment
. Payment of a Participant's Account shall be made in
a single lump sum or annual installments as elected by each Participant pursuant
to this Section 8 for each Class Year. The maximum number of annual
installments is ten. All payments from the Plan shall be made in
cash.
Section
8.3.
Timing
of Payments
.
(a) Payments
shall commence in any year elected by the Participant pursuant to this Section
8, up through the tenth year following the year in which the Participant ceases
to be a member of the Board for any reason, but in no event may a Participant
elect to have payment commence later than the year the Participant reaches
age
71. Payments shall commence no earlier than January 1 of the year elected by
the
Participant and no later than the fifth business day in March of such
year.
(b) The
timing of the distribution of a Participant’s Non-Grandfathered Account may not
be accelerated, except in the event of an Unforeseeable Emergency or other
permissible acceleration of distribution under Treas. Reg. Section
1.409A-3(j)(4)(ii) (domestic relations order) or (j)(4)(iii) (conflicts of
interest). Any change which delayes the timing of the
distributions
or changes the form of distribution from the Participant’s Non-Grandfathered
Account may only be made by a written agreement signed by the Nominating and
Corporate Governance Committee and the Participant and only if the following
requirements are met:
(i) Any
election to change the time and form of distribution may not take
effect
until at least 12 months after
the date on which the election is made;
(ii) Other
than in the event of death, the first payment with respect to such
election
must be deferred for a
period of at least five years from the date
such
payment would otherwise be made;
and
(iii) Any
election related to a payment to be made at a specified time may
not
be
made less than 12 months prior to
the date of the first scheduledpayment.
Section
8.4
.
Valuation
. The
amount of each payment shall be equal to the value, of the preceding Valuation
Date, of the Participant's Account, divided by the number of installments
remaining to be paid.
Section
9
.
Payment of Deferred Compensation After
Death.
If a Participant dies prior to complete payment of his or
her Accounts, the balance of such Accounts, valued as of the Valuation Date
immediately preceding the date payment is made, shall be paid in a single,
lump-sum payment to: (i) the beneficiary or contingent beneficiary designated
by
the Participant on forms supplied by the Nominating and Corporate Governance
Committee; or, in the absence of a valid designation of a beneficiary or
contingent beneficiary, (ii) the Participant's estate within 30 days after
appointment of a legal representative of the deceased Participant.
Section
10
.
Acceleration of Payment in Certain
Circumstances
.
Section
10.1
.
|
Acceleration
of Payment for Hardship or Unforeeseeable
Emergency
. Hardship distributions shall be limited to
amounts in a Participant’s Grandfathered Account and distributions for an
Unforeseeable Emergency shall be limited to amounts in a Participant’s
Non-Grandfathered Account. Upon written approval from the Compensation
Committee, a Participant may be permitted to receive all or part
of his or
her Accounts if the Compensation Committee determines that the Participant
has suffered a Hardship or Unforeseeable Emergency. The amount
distributed may not exceed the amount necessary to satisfy the Hardship
or
Unforeseeable Emergency plus amounts necessary to pay taxes reasonably
anticipated as a result of the distribution, after taking into account
the
extent to which such Hardship or Unforeseeable Emergency is or may
be
relieved through reimbursement or compensation by insurance or otherwise
by liquidation of the Participant’s assets (to the extent liquidation of
such assets would not itself cause severe financial
hardship.
|
Section
10.2
.
|
Payment
to Individuals
|
Any
participant in the Eastman Directors Deferred Compensation Plan may
at his
or her discretion withdraw at any time all or part of that person's
Grandfathered Account balance under the Plan; provided, if this option
is
exercised
the
individual will forfeit to the Company 10% of his or her account
balance,
and will not be permitted to participate in this Plan for a period
of 36
months from date any payment to a Participant is made under this
section.
|
Section
10.3
.
|
Accelerated
Payment
|
If
under Eastman Directors Deferred Compensation Plan one-half or more
of the
Participants with a Grandfathered Account or one-fifth or more of
the
Participants with Grandfathered Accounts totalling one-half or more
of the
value of all benefits owed, exercise their option for immediate
distribution in any consecutive six-month period this will trigger
immediate payment to all Participants of all benefits owed under
the terms
of the Plan from the Grandfathered Accounts, immediate payout under
this
section will not involve reduction of the amounts paid to Participants
as
set forth in section 10.2. Any individual that has been
penalized in this six-month period for electing immediate withdrawal
will
be paid that penalty, and continuing participation will be allowed,
if
payout to all Participants under this section occurs. Solely
for purposes of this Section 10.3, “benefits” shall refer to amounts held
in Grandfathered Accounts under the
Plan.
|
|
Section
10.4
.
Payments to "Insiders" under Exchange Act Section
16
. A Section 16 Insider may only receive a withdrawal from
the Grandfathered Account portion of his or her Stock Account pursuant
to
this Section 10 if he or she has made no election within the previous
six
months to effect a fund-switching transfer into the Stock Account
or the
Eastman Stock Fund of the Eastman Investment and Employee Stock Ownership
Plan or any other "opposite way" intra-plan transfer into a Company
equity
securities fund which constitutes a "Discretionary Transaction" as
defined
in Rule 16b-3 under the Exchange Act. If such a distribution
occurs while the Participant is employed by the Company or any of
its U.S.
Subsidiaries, any election to defer compensation for the year in
which the
Participant receives a withdrawal shall be ineffective as to compensation
earned for the pay period following the pay period during which the
withdrawal is made and thereafter for the remainder of such year
and shall
be ineffective as to any other compensation elected to be deferred
for
such year.
|
Section
11
.
Participant's
Rights Unsecured
. The benefits payable under this Plan shall be paid by the
Company each year out of its general assets. To the extent a Participant
acquires the right to receive a payment under this Plan, such right shall be
no
greater than that of an unsecured general creditor of the Company. No amount
payable under this Plan may be assigned, transferred, encumbered or subject
to
any legal process for the payment of any claim against a Participant. No
Participant shall have the right to exercise any of the rights or privileges
of
a shareowner with respect to units credited to his or her Stock
Account.
Section
12
.
No
Right to Continued Service
. Participation in the Plan shall not
give any Participant any right to remain a member of the Board.
Section
13
.
Statement
of Account
. Statements will be made available no less frequently
than annually to each Participant or his or her estate showing the value of
the
Participant's Accounts.
Section
14
.
Deductions
.
The Company will withhold to the extent required by law all applicable income
and other taxes from amounts deferred or paid under the Plan.
Section
15
.
Administration
.
Section
15.1
.
Responsibility
. Except
as expressly provided otherwise herein, the Nominating and Corporate Governance
Committee shall have total and exclusive responsibility to control, operate,
manage and administer the Plan in accordance with its terms.
Section
15.2
.
Authority
of the Nominating and Corporate Governance Committee
. The
Nominating and Corporate Governance Committee shall have all the authority
that
may be necessary or helpful to enable it to discharge its responsibilities
with
respect to the Plan. Without limiting the generality of the preceding sentence,
the Nominating and Corporate Governance Committee shall have the exclusive
right: to interpret the Plan, to determine eligibility for participation in
the
Plan, to decide all questions concerning eligibility for and the amount of
benefits payable under the Plan, to construe any ambiguous provision of the
Plan, to correct any default, to supply any omission, to reconcile any
inconsistency, and to decide any and all questions arising in the
administration, interpretation, and application of the Plan.
Section
15.3
.
Discretionary
Authority
. The Nominating and Corporate Governance Committee
shall have full discretionary authority in all matters related to the discharge
of its responsibilities and the exercise of its authority under the Plan
including, without limitation, its construction of the terms of the Plan and
its
determination of eligibility for participation and benefits under the Plan.
It
is the intent that the decisions of the Nominating and Corporate Governance
Committee and its action with respect to the Plan shall be final and binding
upon all persons having or claiming to have any right or interest in or under
the Plan and that no such decision or action shall be modified upon judicial
review unless such decision or action is proven to be arbitrary or
capricious.
Section
15.4
.
Delegation
of Authority
. The Nominating and Corporate Governance Committee
may delegate some or all of its authority under the Plan to any person or
persons provided that any such delegation be in writing.
Section
15.5
.
Restriction
on Authority of the Nominating and Corporate Governance
Committee
. Under any circumstances where the Nominating and
Corporate Governance Committee is authorized to make a discretionary decision
concerning a payment of any type under this Plan to a member of such Committee,
the member of the Committee who is to receive such payment shall take no part
in
the deliberations or have any voting or other power with respect to such
decision.
Section
16
.
Amendment
. The
Board may suspend or terminate the Plan at any time. Notwithstanding the
foregoing, termination with respect to the portion of the Plan that includes
the
Non-Grandfathered Accounts must comply with the requirements of Treas. Reg.
Section 1.409A-3(j)(4)(ix). In addition, the Board may, from time to
time, amend the Plan in any
manner
without shareowner approval; provided, however, that the Board may condition
any
amendment on the approval of shareowners if such approval is necessary or
advisable with respect to tax, securities, or other applicable laws. No
amendment, modification, or termination shall, without the consent of a
Participant, adversely affect such Participant's accruals in his or her Accounts
as of the date of such amendment, modification, or termination.
Section
17
.
Change
in Control
.
Section
17.1
.
Background
. The
terms of this Section 17 shall immediately become operative, without further
action or consent by any person or entity, upon a Change in Control, and once
operative shall supersede and control over any other provisions of this
Plan.
Section
17.2
.
|
Acceleration
of Payment Upon Change in Control
. Upon the occurrence of a
Change in Control, each Participant, whether or not he or she is
still a
Director, shall be paid in a single, lump-sum cash payment the balance
of
his or her Accounts as of the Valuation Date immediately preceding
the
date payment is made. Such payment shall be made as soon as practicable,
but in no event later than 90 days after the date of the Change in
Control.
|
Section
17.3
.
|
Amendment
On or After Change in Control
. On or after a Change in Control, 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 this Plan with respect to
the
balance in the Participant's
Accounts.
|
Section
17.4
.
Attorney
Fees
. The
Corporation shall pay all reasonable legal fees and related expenses incurred
by
a participant in seeking to obtain or enforce any payment, benefit or right
such
participant may be entitled to under the plan after a Change in Control;
provided, however, the Participant shall be required to repay any such amounts
to the Corporation to the extent a court of competent jurisdiction issues a
final and non-appealable order setting forth the determination that the position
taken by the participant was frivolous or advanced in bad faith. For
purposes of this Section 17.43, the legal fees and related expenses must be
incurred by the Participant within 5 years of the date the Change in Control
occurs. All reimbursements must be paid to the Participant by the
Corporation no later than the end of the tax year following the tax year in
which the expense is incurred.
Section
18
.
Governing
Law
. The Plan shall be construed, governed and enforced in
accordance with the law of Tennessee, except as such laws are preempted by
applicable federal law.
Section
19
.
Successors
and Assigns
. This Plan shall be binding upon the successors and
assigns of the parties hereto.
Section
20
.
Compliance
with SEC Regulations
. It is the Company's intent that the Plan
comply in all respects with Rule 16b-3 of the Exchange Act, and any regulations
promulgated thereunder. If any provision of the Plan is found not to be in
compliance with such rule, the
provision
shall be deemed null and void. All transactions under the Plan, including,
but
not by way of limitation, a Participant's election to defer compensation under
Section 7 and withdrawals in the event of Hardship or Unforeseeable
Emergency under Section 10, shall be executed in accordance with the
requirements of Section 16 of the Exchange Act, as amended and any regulations
promulgated thereunder. To the extent that any of the provisions contained
herein do not conform with Rule 16b-3 of the Exchange Act or any amendments
thereto or any successor regulation, then the Nominating and Corporate
Governance Committee may make such modifications so as to conform the Plan
to
the Rule's requirements.
AMENDED
AND RESTATED
Amended
and Restated Effective January 1, 2008
EASTMAN
EXCESS RETIREMENT INCOME PLAN
Amended
and Restated Effective January 1, 2008
TABLE
OF CONTENTS
ARTICLE
ONE
|
Purpose
of Plan
|
3
|
ARTICLE
TWO
|
Definitions
|
3
|
ARTICLE
THREE
|
Eligibility
|
4
|
ARTICLE
FOUR
|
Benefits
|
4
|
ARTICLE
FIVE
|
Administration
|
5
|
ARTICLE
SIX
|
Amendment
and Termination
|
6
|
ARTICLE
SEVEN
|
Miscellaneous
|
6
|
EASTMAN
EXCESS RETIREMENT INCOME PLAN
ARTICLE
ONE
Purpose
of Plan
1.1
|
This
Plan implements the intent of providing retirement benefits by
means of
both a funded and an unfunded plan. This Plan is an excess benefit
plan as
defined in Section 3(36) of the Employee Retirement Income Security
Act of
1974 and is designed to provide retirement benefits payable out
of the
general assets of the Company where benefits cannot be paid under
the
Funded Plan because of Code Section 415 and the provisions of the
Funded
Plan which implement such Section.
|
The
prior
Plan was initially adopted effective January l, 1994. This Plan is amended
and
restated effective January 1, 2002 and subsequently amended and
restated again effective as of January 1, 2008 in order to comply
with Section 409A of the Internal Revenue Code of 1986, as amended.
.
ARTICLE
TWO
Definitions
"Code"
shall mean the Internal Revenue Code of 1986, as amended from time to
time.
"Company"
shall mean Eastman Chemical Company, and any subsidiary and/or affiliated
corporation which is a participating employer under the Funded Plan, except
where a specific reference is made to a particular corporation.
"Compensation
Committee" shall mean the Compensation and Management Development Committee
of
the Board of Directors of the Company.
"Effective
Date" shall mean January 1, 1994. The Effective Date of this amended
and restated Plan document is January 1, 2008.
"Employee"
or "Participant" shall mean a participant in the Funded Plan.
“Five-Payment
Lump Sum” shall mean the automatic form of payment for a Participant’s benefit
under the Plan. For purposes of calculating the Present Value of the
Participant’s benefit under this Plan on the date of his Termination of
Employment the Participant’s benefit shall be converted on an actuarially
equivalent basis (calculated using the actuarial assumptions and methodologies
that would be used by the Funded Plan) to five equal annual installments
commencing on the first day of the seventh month following the Participant’s
Termination of Employment date and payable on each of the four anniversaries
thereafter.
"Funded
Plan" shall mean the Eastman Retirement Assistance Plan.
"Plan"
shall mean this Eastman Excess Retirement Income Plan.
"Present
Value" shall mean the actuarial present value of the Participant's benefit
under
this Plan. Present Value for purposes of this Plan shall be
calculated using the actuarial assumptions and methodologies that would be
used
by the Funded Plan to determine a single lump sum payment on the date of
the
Participant's Termination of Employment.
“Termination
of Employment” means a separation from service under Code Section 409A and the
Final 409A Regulations.
ARTICLE
THREE
Eligibility
3.1
|
All
Employees eligible to receive a benefit from the Funded Plan shall
be
eligible to receive a benefit under this Plan if their benefit
cannot be
fully provided by the Funded Plan due to the benefit limitations
imposed
by Code Section 415. Employees who are not eligible to
participate in the Funded Plan are not eligible to participate
in this
Plan.
|
ARTICLE
FOUR
Benefits
4.1
|
Benefits
due under this Plan shall be paid (i) as soon as practicable, but
no later
than the first day of the second month following the Participant’s death,
or (ii) on the first day of the seventh month following the
date of the Participant’s Termination of Employment. Benefits due under
the Plan shall be paid in the form of a Five-Payment Lump Sum unless
the
Participant has made the election described in Section 4.2 of this
Plan If the Employee is deceased, the person who shall receive
payment under this Plan (if any), shall be the same person who
would be
entitled to receive survivor benefits with respect to the Employee
under
the Funded Plan. Benefits will be paid to the
Participant’s beneficiary under the Funded Plan in the form of a
Five-Payment Lump Sum unless the Participant made the election
described
in Section 4.2 of this Plan prior to his
death.
|
4.2
|
Special
One-Time Election.
|
(a)
|
During
the period beginning November 12, 2007 and ending December 7, 2007
(the
“Election
|
Period”)
each Participant who is eligible to participate in the Eastman
Executive Deferred
|
Compensation
Plan (“EDCP”) as of November 1, 2007 shall have the
|
opportunity
to elect, in the manner provided by the Company, to have the Present
Value
of his benefit under this Plan, if any, transferred to the EDCP
on the
date of his Termination of Employment (the “Transferred
Benefit”). In order for such election to be
effective:
|
(i)
|
The
Participant shall also be required to elect the form of payment
applicable
to his
|
Transferred
Benefit from the payment options available under the EDCP as of
January
1,
|
2007;
and
|
(ii)
|
The
Participant must acknowledge and agree that the election described
in
paragraph (a)
|
is
irrevocable.
|
|
The
election described above will not be available to any Participant
whose
benefitcommencement date under the Funded Plan is in 2007 or whose
Termination of Employment fromthe Company occurs in
2007.
|
(b)
|
In
the event that a Participant fails to elect the form of payment
applicable
to his Transferred
|
Benefit
from the payment options available under the EDCP as of January
1, 2007,
the
|
Participant’s
benefit shall be paid to him in accordance with Section 4.1 of
this
Plan.
|
|
(c)
|
Payment
from the EDCP of the Participant’s Transferred Benefit shall begin on the
first day of the
|
7
th
month
following the date of the Participant’s Termination of Employment or as
soon as
|
practicable,
but no later than, the first day of the second month following
the
Participant’s death..
|
|
(d)
|
If
the Participant makes such a timely election, then upon his Termination
of
Employment, neither the Participant nor his beneficiaries shall
have any
further right to benefits of any kind under this Plan, and the
payment of
such benefits shall be governed solely by the
EDCP.
|
(e) The
election described in paragraph (a) will not be available to any Participant
who
is not eligibleto participate in the EDCP on November 1, 2007 according to
records maintained by theCompany.
4.3
|
The
benefit payable under this Plan shall be the amount of the retirement
income benefit to which an Employee would otherwise be entitled
under the
Funded Plan, if the provisions of Code Section 415, as expressed
in the
Funded Plan, were disregarded; less the retirement income benefit
to which
the Employee is entitled under the Funded
Plan.
|
The
"retirement income benefit to which the Participant is entitled under the
Funded
Plan" generally means the benefits actually payable to the Participant under
the
Funded Plan; provided, however, that where the benefits actually payable
to the
Participant under the Funded Plan are reduced on account of a payment of
all or
a portion of the Participant’s benefits to a third party on behalf of or with
respect to an Employee (pursuant, for example, to a qualified domestic relations
order), the "retirement income benefit to which the Participant is entitled
under the Funded Plan" shall be deemed to mean the benefit that would have
been
actually payable but for such payment to a third party.
4.4
|
If
an Employee's benefit from the Funded Plan is subject to an actuarial
reduction because of the time when payment commences, his benefit
from
this Plan shall be actuarially reduced on the same
basis.
|
4.5
|
If
the Present Value of the Participant’s benefit under this Plan on the date
of his Termination of Employment is $5,000 or less, the Participant’s
benefit shall be automatically paid to him in a single lump sum
on the
first day of the 7
th
month
following the date of his Termination of
Employment.
|
4.6
|
The
benefits payable under this Plan shall be paid by the Company out
of its
general assets. To the extent an Employee acquires the right to
receive a
payment under this Plan, such right shall be no greater than that
of an
unsecured general creditor of the Company. No amount payable under
this
Plan may be assigned, transferred, encumbered or subject to any
legal
process for the payment of any claim against an
Employee.
|
ARTICLE
FIVE
Administration
5.1
|
Responsibility
. Except
as expressly provided otherwise herein, the Senior Vice President,
Human
Resources, Communications, and Public Affairs shall have total
and
exclusive responsibility to control, operate, manage and administer
the
Plan in accordance with its terms.
|
5.2
|
Authority
of
Senior Vice President, Human Resources, Communications,
and
Public Affairs
. The Senior Vice President, Human Resources
Communications, and Public Affairs shall have all the authority
that may
be necessary or helpful to enable him to discharge his responsibilities
with respect to the Plan.. Without limiting the generality of the
preceding sentence, such Senior Vice President, Human Resources,
Communications, and Public Affairs shall have the exclusive right:
to
interpret the Plan, to determine eligibility for participation
in the
Plan, to answer all question concerning eligibility for and
the
|
amount
of
benefits payable under the Plan, to construe any ambiguous provision of the
Plan, to correct any default, to supply any omission, to reconcile any
inconsistency, and to answer any and all questions arising in the
administration, interpretation, and application of the Plan. However, see
Section 5.5.
5.3
|
Discretionary
Authority
. The Senior Vice President, Human Resources, Communications,
and Public Affairs shall have full discretionary authority in all
matters
related to the discharge of his responsibilities and the exercise
of his
authority under the Plan including, without limitation, his construction
of the terms of the Plan and his determination of eligibility for
participation and benefits under the Plan. It is the intent of
Plan that
the decisions of such Senior Vice President, Human Resources,
Communications, and Public Affairs and his action with respect
to the Plan
shall be final and binding upon all persons having or claiming
to have any
right or interest in or under the Plan and that no such decision
or action
shall be modified upon judicial review unless such decision or
action is
proven to be arbitrary or capricious. Notwithstanding anything
to the
contrary in this Article Five, the Senior Vice President, Human
Resources,
Communications, and Public Affairs shall not have the authority
to make
any decision or resolve any issue that directly affects his own
participation or benefits under this Plan, and instead such decision
or
resolution shall be reserved to the Compensation
Committee.
|
5.4
|
Delegation
of Authority
. The Senior Vice President, Human Resources
Communications, and Public Affairs
may delegate some
or all of his authority under the Plan to any person or persons
provided
that any such delegation be in
writing.
|
5.5
|
Authority
of Compensation Committee
.
Under Section 4.1 of this Plan,
decisions concerning payment of benefits to executive officers
shall be
made by the Compensation Committee of the Board of Directors, and
to that
extent the provisions of 5.1 through 5.4 above shall be deemed
to apply to
such Committee.
|
ARTICLE
SIX
Amendment
and Termination
6.1
|
While
the Company intends to maintain this Plan in conjunction with the
Funded
Plan under present business conditions, the Company, acting through
the
Compensation Committee, reserves the right to amend and/or terminate
it at
any time for whatever reasons it may deem
advisable. Notwithstanding the foregoing, termination of this
Plan must comply with the requirements of Treas. Reg. Section
1.409A-3(j)(4)(ix).
|
6.2
|
Notwithstanding
the preceding Section, however, the Company hereby makes a contractual
commitment to pay the benefits accrued under this Plan as of the
date of
such amendment or termination to the extent it is financially capable
of
meeting such obligation.
|
ARTICLE
SEVEN
Miscellaneous
7.1
|
Nothing
contained in this Plan shall be construed as a contract of employment
between the Company and an Employee, or as a right of an Employee
to be
continued in the employment of the Company, or as a limitation
of the
right of the Company to discharge any of its Employees, with or
without
cause.
|
7.2
|
This
Plan shall be governed by the laws of the State of Tennessee, except
to
the extent preempted by federal
law.
|
7.3 This
Plan shall be binding upon the successors and assigns of the parties
hereto.
7.4
|
The
Company will withhold to the extent required by law all applicable
income
and other taxes from amounts accrued or paid under the
Plan.
|
AMENDED
AND RESTATED
EASTMAN
UNFUNDED RETIREMENT INCOME PLAN
Amended
and Restated Effective January 1, 2008
EASTMAN
UNFUNDED RETIREMENT INCOME PLAN
Amended
and Restated Effective January 1, 2008
TABLE
OF CONTENTS
EASTMAN
UNFUNDED RETIREMENT INCOME PLAN
ARTICLE
ONE
Purpose
of Plan
1.1
|
This
Plan implements the intent of providing retirement benefits by means
of
both a funded and unfunded plan. This Plan is maintained primarily
for the
purpose of providing deferred compensation for a select group of
management or highly compensated employees as described in Section
201(2)
of the Employee Retirement Income Security Act of 1974 and is designed
to
provide retirement benefits payable out of the general assets of
the
Company where benefits cannot be paid under the Funded Plan because
of
Code Section 401(a)(17) or Code Section 415 and the provisions of
the
Funded Plan which implement such Sections and/or because deferred
compensation is ignored in defining compensation for purposes of
calculating benefits under the Funded
Plan.
|
The
prior
Plan was initially adopted effective January 1, 1994. This Plan is amended,
renamed and restated effective January 1, 2002 and subsequently amended and
restated again effective as of January 1, 2008 in order to comply with Section
409A of the Internal Revenue Code of 1986, as amended.
ARTICLE
TWO
Definitions
|
"Code"
shall mean the Internal Revenue Code of 1986, as amended from time
to
time.
|
"Company"
shall mean Eastman Chemical Company, and any subsidiary and/or affiliated
corporation which is a participating employer under the Funded Plan, except
where a specific reference is made to a particular corporation.
"Compensation
Committee" shall mean the Compensation and Management Development Committee
of
the Board of Directors of the Company.
"Effective
Date" shall mean January 1, 1994. The Effective Date of this amended
and restated Plan document is January 1, 2008.
"Employee"
or "Participant" shall mean a participant in the Funded Plan.
“Five-Payment
Lump Sum” shall mean the automatic form of payment for a Participant’s benefit
under the Plan. For purposes of calculating the Present Value of the
Participant’s benefit under this Plan on the date of his Termination of
Employment the Participant’s benefit shall be converted on an actuarially
equivalent basis (calculated using the actuarial assumptions and methodologies
that would be used by the Funded Plan) to five equal annual installments
commencing on the first day of the seventh month following the Participant’s
Termination of Employment date and payable on each of the four anniversaries
thereafter.
"Funded
Plan" shall mean the Eastman Retirement Assistance Plan.
"Plan"
shall mean this Eastman Unfunded Retirement Income Plan.
"Present
Value" shall mean the actuarial present-value of the Participant's benefit
under
this Plan. Present Value for purposes of this Plan shall be calculated using
the
actuarial assumptions and methodologies that
would
be
used by the Funded Plan to determine a single lump sum payment on the date
of
the Participant's Termination of Employment.
“Termination
of Employment” means a separation from service under Code Section 409A and the
Final 409A Regulations.
ARTICLE
THREE
Eligibility
3.1
|
All
Employees eligible to receive a benefit from the Funded Plan shall
be
eligible to receive a benefit under this Plan if they have deferred
any
portion of their compensation otherwise payable by the Company pursuant
to
a duly authorized and executed deferred compensation agreement or
plan
and/or their benefit cannot be fully provided by the Funded Plan
due to
the benefit limitations imposed by Code Section 401(a)(17) or Code
Section
415.
Employees
who are not eligible to participate in the Funded Plan are not eligible
to
participate in this Plan.
|
ARTICLE
FOUR
Benefits
4.1
|
Benefits
due under this Plan shall be paid (i) as soon as practicable, but
no later
than the first day of the second month following the Participant’s death,
or (ii) on the first day of the seventh month following the date
of the
Participant’s Termination of Employment. Benefits due under the
Plan shall be paid in the form of a Five-Payment Lump Sum unless
the
Participant has made the election described in Section 4.2 of this
Plan, If the Employee is deceased, the person who shall receive
payment under this Plan (if any), shall be the same person who would
be
entitled to receive survivor benefits with respect to the Employee
under
the Funded Plan. Benefits will be paid to the Participant’s
beneficiary under the Funded Plan in the form of a Five-Payment Lump
Sum
unless the Participant made the election described in Section 4.2
of the
Plan prior to his death.
|
4.2
|
Special
One-Time Election.
|
(a)
|
During
the period beginning November 13, 2007 and ending December 7, 2007
(the
“Election
|
Period”)
each Participant who is eligible to participate in the Eastman Executive
Deferred
|
Compensation
Plan (“EDCP”) as of November 1, 2007 shall have the
|
opportunity
to elect, in the manner provided by the Company, to have the Present
Value
of his benefit under this Plan, if any, transferred to the EDCP on
the
date of his Termination of Employment (the “Transferred
Benefit”). In order for such election to be
effective:
|
(i)
|
The
Participant shall also be required to elect the form of payment applicable
to his
|
Transferred
Benefit from the payment options available under the EDCP as of January
1,
|
2007;
and
|
(ii)
|
The
Participant must acknowledge and agree that the election described
in
paragraph (a)
|
is
irrevocable.
|
|
The
election described above will not be available to any Participant
whose
benefitcommencement date under the Funded Plan is in 2007 or whose
Termination of Employment fromthe Company occurs in
2007.
|
(b)
|
In
the event that a Participant fails to elect the form of payment applicable
to his Transferred
|
Benefit
from the payment options available under the EDCP as of January 1,
2007,
the
|
Participant’s
benefit shall be paid to him in accordance with Section 4.1 of this
Plan.
|
|
(c)
|
Payment
from the EDCP of the Participant’s Transferred Benefit shall begin on the
first day of the
|
7
th
month
following the date of the Participant’s Termination of Employment or as
soon as
|
practicable,
but no later than, the first day of the second month following the
Participant’s death..
|
|
(d)
|
If
the Participant makes such a timely election, then upon his Termination
of
Employment, neither the Participant nor his beneficiaries shall have
any
further right to benefits of any kind under this Plan, and the payment
of
such benefits shall be governed solely by the
EDCP.
|
(e) The
election described in paragraph (a) will not be available to any Participant
who
is not eligibleto participate in the EDCP on November 1, 2007 according to
records maintained by theCompany.
4.3
|
The
benefit payable under this Plan shall be the amount of the retirement
income benefit to which an Employee would otherwise be entitled under
the
Funded Plan,
|
|
(i)
|
if
deferred compensation were included in the Funded Plan's definitions
of
"Participating Compensation" and "Retirement Annual Salary Rate",
at the
time of deferral; and
|
|
(ii)
|
if
the provisions of Sections 415 and 401(x)(17) of the Code, as expressed
in
the Funded Plan, were disregarded;
|
|
less
the combined amounts of the retirement income benefit to which the
Employee is entitled under the Funded Plan and the retirement income
benefit to which such Employee is entitled under the Eastman Excess
Retirement Income Plan.
|
The
"retirement income benefit to which the Participant is entitled under the Funded
Plan generally means the benefits actually payable to the Participant under
the
Funded Plan; provided, however, that where the benefits actually payable to
the
Participant under the Funded Plan are reduced on account of a payment of all
or
a portion of the Participant’s benefits to a third party on behalf of or with
respect to an Employee (pursuant, for example, to a qualified domestic relations
order), the "retirement income benefit to which the Participant is entitled
under the Funded Plan" shall be deemed to mean the benefit that would have
been
actually payable but for such payment to a third party.
4.4
|
If
an Employee's benefit from the Funded Plan is subject to an actuarial
reduction because of the time when payment commences, his benefit
from
this Plan shall be actuarially reduced on the same
basis.
|
4.5.
|
If
the Present Value of the Participant’s benefit under this Plan on the date
of his Termination of Employment is $5,000 or less, the Participant’s
benefit shall be automatically paid to him in a single lump sum on
the
first day of the 7
th
month
following the date of his Termination of
Employment.
|
4.6
|
The
benefits payable under this Plan shall be paid by the Company out
of its
general assets. To the extent an Employee acquires the right to receive
a
payment under this Plan, such right shall be no greater than that
of an
unsecured general creditor of the Company. No amount payable under
this
Plan may be
|
assigned,
transferred, encumbered or subject to any legal process for the payment of
any
claim against an Employee.
ARTICLE
FIVE
Administration
5.1
|
Responsibility
.
Except as expressly provided otherwise herein, the Senior Vice President,
Human Resources, Communications and Public Affairs shall have total
and
exclusive responsibility to control, operate, manage and administer
the
Plan in accordance with its terms.
|
5.2
|
Authority
of Senior Vice President, Human Resources, Communications, and Public
Affairs
. The
Senior
Vice
President, Human Resources, Communications and Public Affairs shall
have
all the authority that may be necessary or helpful to enable him
to
discharge his responsibilities with respect to the
Plan. Without limiting the generality of the preceding
sentence, such Vice President shall have the exclusive right: to
interpret
the Plan, to determine eligibility for participation in the Plan,
to
answer all question concerning eligibility for and the amount of
benefits
payable under the Plan, to construe any ambiguous provision of the
Plan,
to correct any default, to supply any omission, to reconcile any
inconsistency, and to answer any and all questions arising in the
administration, interpretation, and application of the Plan. However,
see
Section 5.5.
|
5.3
|
Discretionary
Authority
. The Senior Vice President, Human Resources, Communications
and Public Affairs shall have full discretionary authority in all
matters
related to the discharge of his responsibilities and the exercise
of his
authority under the Plan including, without limitation, his construction
of the terms of the Plan and his determination of eligibility for
participation and benefits under the Plan. It is the intent of Plan
that
the decisions of such Senior Vice President, Human Resources,
Communications, and Public Affairs and his action with respect to
the Plan
shall be final and binding upon all persons having or claiming to
have any
right or interest in or under the Plan and that no such decision
or action
shall be modified upon judicial review unless such decision or action
is
proven to be arbitrary or capricious. Notwithstanding anything to
the
contrary in this Article Five, the Senior Vice President, Human Resources,
Communications, and Public Affairs shall not have the authority to
make
any decision or resolve any issue that directly affects his own
participation or benefits under this Plan, and instead such decision
or
resolution shall be reserved to the Compensation
Committee.
|
5.4
|
Delegation
of Authority
. The Senior Vice President, Human Resources,
Communications and Public Affairs may delegate some or all of his
authority under the Plan to any person or persons provided that any
such
delegation be in writing.
|
5.5
|
Authority
Compensation Committee
. Under Section 4.1 of this Plan, decisions
concerning payment of benefits to executive officers shall be made
by the
Compensation Committee of the Board of Directors, and to that extent
the
provisions of 5.1 through 5.4 above shall be deemed to apply to such
Committee.
|
ARTICLE
SIX
Amendment
and Termination
6.1
|
While
the Company intends to maintain this Plan in conjunction with the
Funded
Plan under present business conditions, the Company, acting through
the
Compensation Committee, reserves the right to amend and/or terminate
it at
any time for whatever reasons it may deem
advisable. Notwithstanding the foregoing, termination of this
Plan must comply with the requirements of Treas. Reg. Section
1.409A-3(j)(4)(ix).
|
6.2
|
Notwithstanding
the preceding Section, however, the Company hereby makes a contractual
commitment to pay the benefits accrued under this Plan as of the
date of
such amendment or termination to the extent it is financially capable
of
meeting such obligation.
|
ARTICLE
SEVEN
Miscellaneous
7.1
|
Nothing
contained in this Plan shall be construed as a contract of employment
between the Company and an Employee, or as a right of an Employee
to be
continued in the employment of the Company, or as a limitation of
the
right of the Company to discharge any of its Employees, with or without
cause.
|
7.2
|
This
Plan shall be governed by the laws of the State of Tennessee, except
to
the extent preempted by federal
law.
|
7.3 This
Plan shall be binding upon the successors and assigns of the parties
hereto.
7.4
|
The
Company will withhold to the extent required by law all applicable
income
and other taxes from amounts accrued or paid under the
Plan.
|
AWARD
NOTICE
GRANTED
PURSUANT TO THE
EASTMAN
CHEMICAL COMPANY
2007
OMNIBUS LONG-TERM COMPENSATION PLAN
Grantee:
Number
of Shares:
Option
Price: $____
Date
of Grant: October
30, 2007
1.
Grant
of Option
. This Award Notice serves to notify you that the
Compensation and Management Development Committee (the “Committee”) of the Board
of Directors of Eastman Chemical Company ("Company") has granted to you,
under
the Company’s 2007 Omnibus Long-Term Compensation Plan (the "Plan"), a
nonqualified stock option ("Option") to purchase, on the terms and conditions
set forth in this Award Notice and the Plan, up to the number of shares of
its
$.01 par value Common Stock ("Common Stock") set forth above, at a price
equal
to $____ per share. The Plan is incorporated herein by reference and made
a part
of this Award Notice. Capitalized terms not defined herein have the
respective meanings set forth in the Plan. The principal terms of the
Plan, and of the offer by the Company of the shares of Common Stock covered
by
the Option, are described in the Prospectus for the Plan, which Prospectus
will
be delivered to you by the Company.
2.
Period
of Option and Limitations on Right to Exercise
. Subject to
earlier cancellation of all or a portion of the Option as described in Sections
6 and 7 of this Award Notice, the Option will expire at 4:00 p.m., Eastern
Standard Time, on October 29, 2017 ("Expiration Date").
3.
Exercise
of Option
.
(a) Subject
to the terms set forth in this Award Notice, the Option will become exercisable
as to one-third of the shares covered hereby on October 30, 2008, and one-third
of the shares covered hereby on October 30, 2009, and as to the remaining
shares
on October 30, 2010.
(b) Upon
your death, your personal representative may exercise the Option, subject
to the
terms set forth in Section 6 of this Award Notice.
(c) The
Option may be exercised in whole or in part. The exercise generally
must be accompanied by, or make provision for, full payment in cash; by check;
by a broker-assisted cashless method; or by surrendering unrestricted shares
of
Common Stock having a value on the date of exercise equal to the exercise
price,
or in any combination of the foregoing; however, if you wish to pay with
shares
of Common Stock already held by you, you may submit an Affidavit of Ownership
form attesting to the ownership of the shares instead of sending in actual
share
certificates.
4.
Nontransferability
. The
Option is not transferable except by will or by the laws of descent and
distribution, and may not be sold, assigned, pledged or encumbered in any
way,
whether by operation of law or otherwise. The Option may be granted
only to, and exercised only by you during your lifetime, except in the case
of a
permanent disability involving mental incapacity.
5.
Limitation
of Rights
. You will not have any rights as a stockholder with
respect to the shares covered by the Option until you become the holder of
record of such shares by exercising the Option. Neither the Plan, the
granting of the Option, nor this Award Notice gives you any right to remain
employed by the Company or its Subsidiaries.
6.
Termination
. Upon
termination of your employment with the Company and its Subsidiaries
("termination") by reason of death, disability, or retirement, the Option
will
remain exercisable for the lesser of: 1) five (5) years following your date
of
termination, or, 2) the Expiration Date. Upon termination due to
resignation, the Option will remain exercisable for the lesser of: 1) ninety
(90) days following your date of termination, or, 2) the Expiration Date.
Upon
termination for cause, any portion of the Option not previously exercised
by you
will be canceled and forfeited by you, without payment of any consideration
by
the Company. Upon termination for a reason other than those described
in this Section (e.g., reduction in force, divestiture, special separation,
termination by mutual consent), the Option will remain exercisable until
the
Expiration Date, unless the Committee (for executive officers) or the executive
officer responsible for Human Resources (for non-executive
employees) determines that any portion of the Option will not remain
exercisable, or that the Option will be exercisable for a period less than
until
the Expiration Date.
7.
Noncompetition;
Confidentiality
. You will not, without the written consent of the
Company, either during your employment by the Company or thereafter, disclose
to
anyone or make use of any confidential information which you have acquired
during your employment relating to any of the business of the Company, except
as
such disclosure or use may be required in connection with your work as an
employee of the Company. During your employment by the Company, and
for a period of two years after the termination of such employment, you will
not, either as principal, agent, consultant, employee or otherwise, engage
in
any work or other activity in competition with the Company in the field or
fields in which you have worked for the Company. The agreement in
this Section 7 applies separately in the United States and in other countries
but only to the extent that its application shall be reasonably necessary
for
the protection of the Company. You will forfeit all rights under this
Award Notice to or related to the Option if, in the determination of the
Committee (in the case of executive officers) or of the executive
officer responsible for Human Resources (in the case of non-executive
employees), you have violated any of the provisions of this Section 7, and
in
that event any payment or other action with respect to the Option shall be
made
or taken, if at all, in the sole discretion of the Committee or the executive
officer responsible for Human Resources.
8.
Restrictions
on Issuance of Shares
. If at any time the Company determines that
listing, registration, or qualification of the shares covered by the Option
upon
any securities exchange or under any state or federal law, or the approval
of
any governmental agency, is necessary or advisable as a condition to the
exercise of the Option, the Option may not be exercised in whole or in part
unless and until such listing, registration, qualification, or approval shall
have been effected or obtained free of any conditions not acceptable to the
Company.
9.
Change
in Ownership; Change in Control
. Article 14 of the Plan contain
certain special provisions that will apply to the Option in the event of
a
Change in Ownership or Change in Control, respectively.
10.
Adjustment
of
Option Terms
. The adjustment provisions of
Article 15 of the Plan will control in the event of a nonreciprocal transaction
between the company and its stockholders that causes the per-share value
of the
Common Stock to change (including, without limitation, any stock dividend,
stock
split, spin-off, rights offering, or large nonrecurring cash dividend) or
upon
the occurrence of or in anticipation of any other corporate event or transaction
involving the Company (including, without limitation, any merger, combination,
or exchange of shares).
11.
Plan
Controls
. In the event of any conflict between the provisions of
the Plan and the provisions of this Award Notice, the provisions of the Plan
will be controlling and determinative.
AWARD
NOTICE
NOTICE
OF NONQUALIFIED STOCK OPTION
GRANTED
PURSUANT TO THE
EASTMAN
CHEMICAL COMPANY
2007
OMNIBUS LONG-TERM COMPENSATION PLAN
Grantee: Mark
J.
Costa
Number
of Shares:
Option
Price: $____
Date
of Grant: October
30, 2007
1.
Grant
of Option
. This Award Notice serves to notify you that the
Compensation and Management Development Committee (the “Committee”) of the Board
of Directors of Eastman Chemical Company ("Company") has granted to you, under
the Company’s 2007 Omnibus Long-Term Compensation Plan (the "Plan"), a
nonqualified stock option ("Option") to purchase, on the terms and conditions
set forth in this Award Notice and the Plan, up to the number of shares of
its
$.01 par value Common Stock ("Common Stock") set forth above, at a price equal
to $____ per share. The Plan is incorporated herein by reference and made a
part
of this Award Notice. Capitalized terms not defined herein have the
respective meanings set forth in the Plan. The principal terms of the
Plan, and of the offer by the Company of the shares of Common Stock covered
by
the Option, are described in the Prospectus for the Plan, which Prospectus
will
be delivered to you by the Company.
2.
Period
of Option and Limitations on Right to Exercise
. Subject to
earlier cancellation of all or a portion of the Option as described in Sections
6 and 7 of this Award Notice, the Option will expire at 4:00 p.m., Eastern
Standard Time, on October 29, 2017 ("Expiration Date").
3.
Exercise
of Option
.
(a) Subject
to the terms set forth in this Award Notice, the Option will become exercisable
as to one-third of the shares covered hereby on October 30, 2008, and one-third
of the shares covered hereby on October 30, 2009, and as to the remaining shares
on October 30, 2010.
(b) Upon
your death, your personal representative may exercise the Option, subject to
the
terms set forth in Section 6 of this Award Notice.
(c) The
Option may be exercised in whole or in part. The exercise generally
must be accompanied by, or make provision for, full payment in cash; by check;
by a broker-assisted cashless method; or by surrendering unrestricted shares
of
Common Stock having a value on the date of exercise equal to the exercise price,
or in any combination of the foregoing; however, if you wish to pay with shares
of Common Stock already held by you, you may submit an Affidavit of Ownership
form attesting to the ownership of the shares instead of sending in actual
share
certificates.
4.
Nontransferability
. The
Option is not transferable except by will or by the laws of descent and
distribution, and may not be sold, assigned, pledged or encumbered in any way,
whether by operation of law or otherwise. The Option may be granted
only to, and exercised only by you during your lifetime, except in the case
of a
permanent disability involving mental incapacity.
5.
Limitation
of Rights
. You will not have any rights as a stockholder with
respect to the shares covered by the Option until you become the holder of
record of such shares by exercising the Option. Neither the Plan, the
granting of the Option, nor this Award Notice gives you any right to remain
employed by the Company or its Subsidiaries.
6.
Termination
. Upon
termination of your employment with the Company and its Subsidiaries
("termination") by reason of death, disability, or retirement, the Option will
remain exercisable for the lesser of: 1) five (5) years following your date
of
termination, or, 2) the Expiration Date. Upon termination of your
employment with the Company and its Subsidiaries without "Cause" or for
"Good Reason" (as such terms are defined in your Employment Agreement dated
May 4, 2006), the Option shall immediately vest and remain exercisable for
the lesser of: 1) five (5) years following your date of termination, or, 2)
the
Expiration Date. Upon termination due to voluntary resignation, the
Option will remain exercisable for the lesser of: 1) ninety (90) days following
your date of termination, or, 2) the Expiration Date. Upon termination for
Cause, any portion of the Option not previously exercised by you will be
canceled and forfeited by you, without payment of any consideration by the
Company. Upon termination for a reason other than those described in
this Section, the Committee will determine if all or any portion of the Option
will remain exercisable and if so, the period of time the Option may be
exercised, up to, but not to exceed the Expiration Date.
7.
Noncompetition;
Confidentiality
. You will not, without the written consent of the
Company, either during your employment by the Company or thereafter, disclose
to
anyone or make use of any confidential information which you have acquired
during your employment relating to any of the business of the Company, except
as
such disclosure or use may be required in connection with your work as an
employee of the Company. During your employment by the Company, and
for a period of two years after the termination of such employment, you will
not, either as principal, agent, consultant, employee or otherwise, engage
in
any work or other activity in competition with the Company in the field or
fields in which you have worked for the Company. The agreement in
this Section 7 applies separately in the United States and in other countries
but only to the extent that its application shall be reasonably necessary for
the protection of the Company. You will forfeit all rights under this
Award Notice to or related to the Option if, in the determination of the
Committee (in the case of executive officers) or of the executive
officer responsible for Human Resources (in the case of non-executive
employees), you have violated any of the provisions of this Section 7, and
in
that event any payment or other action with respect to the Option shall be
made
or taken, if at all, in the sole discretion of the Committee or the executive
officer responsible for Human Resources.
8.
Restrictions
on Issuance of Shares
. If at any time the Company determines that
listing, registration, or qualification of the shares covered by the Option
upon
any securities exchange or under any state or federal law, or the approval
of
any governmental agency, is necessary or advisable as a condition to the
exercise of the Option, the Option may not be exercised in whole or in part
unless and until such listing, registration, qualification, or approval shall
have been effected or obtained free of any conditions not acceptable to the
Company.
9.
Change
in Ownership; Change in Control
. Article 14 of the Plan contain
certain special provisions that will apply to the Option in the event of a
Change in Ownership or Change in Control, respectively.
10.
Adjustment
of
Option Terms
. The adjustment provisions of
Article 15 of the Plan will control in the event of a nonreciprocal transaction
between the company and its stockholders that causes the per-share value of
the
Common Stock to change (including, without limitation, any stock dividend,
stock
split, spin-off, rights offering, or large nonrecurring cash dividend) or upon
the occurrence of or in anticipation of any other corporate event or transaction
involving the Company (including, without limitation, any merger, combination,
or exchange of shares).
11.
Plan
Controls
. In the event of any conflict between the provisions of
the Plan and the provisions of this Award Notice, the provisions of the Plan
will be controlling and determinative.
EASTMAN
CHEMICAL COMPANY
PERFORMANCE
SHARE AWARD SUBPLAN
OF
THE 2007 OMNIBUS LONG-TERM COMPENSATION PLAN
2
008-2010
PERFORMANCE PERIOD
Section
1. Background
. Under Article 4 of the Eastman Chemical
Company 2007 Omnibus Long-Term Compensation Plan (the "Plan"), the "Committee"
(as defined in the Plan), may, among other things, award shares of the $.01
par
value common stock ("Common Stock") of Eastman Chemical Company (the "Company")
to "Participants" (as defined in the Plan), and such awards may take the
form of
Performance Awards which are contingent upon the attainment of certain
performance objectives during a specified period, and subject to such other
terms, conditions, and restrictions as the Committee deems
appropriate. The purpose of this Performance Share
Award Subplan (this "Subplan") is to set forth the terms of the award
of performance shares for the 2008-2010 Performance Period specified herein,
effective as of January 1, 2008 (the "Effective Date").
Section
2. Definitions
.
(a)
|
The
following definitions shall apply to this
Subplan:
|
(i)
|
"Actual
Grant Amount" means the number of shares of Common Stock to which
a
participant is entitled under this Subplan, calculated in accordance
with
Section 6 of this Subplan.
|
(ii)
|
“Award
Amount” means the performance shares awarded to the Participant under this
Subplan at the beginning of the Performance
Period.
|
|
(iii)
|
"Award
Payment Date" means the date the Committee approves the payout
of Common
Stock covered by an award under this Subplan to a
Participant.
|
|
(iv)
|
"Comparison
Group" is the group of companies comprising the “Materials Sector” from
Standard and Poor’s Super Composite 1500 Index, identified as Global
Industry Classification Standard (“GICS”)
15.
|
|
(v)
|
“Cost
of Capital” reflects the Company's cost of debt and the cost of equity,
expressed as a percentage, reflecting the percentage of interest
charged
on debt and the percentage of expected return on
equity.
|
|
(vi)
|
[“Earnings
from Continuing Operations” shall be defined as the total sales of the
Company minus the costs of all operations of any nature used to
produce
such sales, including taxes, plus after-tax interest associated
with the
Company's capital debt.—confirm that this is still the correct
definition]
|
(vii)
|
"Maximum
Deductible Amount" means the maximum amount deductible by the Company
under Section 162(a), taking into consideration the limitations
under
|
(viii)
|
Section
162(m), of the Internal Revenue Code of 1986, as amended, or any
similar
or successor provisions thereto.
|
(viii) “Participation
Date” means October 30, 2007.
(ix) “Performance
Period" means January 1, 2008 through December 31, 2010.
|
(x)
|
“Performance
Year” means one of the three calendar years in the Performance
Period.
|
|
(xi)
|
“Return
on Capital” shall mean the return produced by funds invested in the
Company and shall be determined as Earnings from Continuing Operations,
as
defined in Section 2.a.(vi), divided by the Average Capital
Employed. Average Capital Employed shall be derived by adding
the Company's capital debt plus equity at the close of the last
day of the
year preceding the Performance Year, to the Company's capital debt
plus
equity at the close of the last day of the present Performance
Year, with
the resulting sum being divided by two. Capital debt is defined
as the sum of borrowing by the Company due within one year and
long-term
borrowing, as designated on the Company's balance sheet. The
resulting ratio shall be multiplied by One Hundred (100) in order
to
convert such to a percentage. Such percentage shall be
calculated to the third place after the decimal point (i.e., xx.xxx%),
and
then rounded to the second place after the decimal point (i.e.,
xx.xx%).
|
|
(xii)
|
"Target
Award Range" means, with respect to any eligible Participant, the
number
of performance shares within the range specified on Exhibit A hereto
for
the Salary Grade applicable to such
Participant.
|
(xiii)
|
“TSR”
means total stockholder return, as reflected by the sum of (A)
change in
stock price (measured as the difference between (I) the average
of the
closing prices of a company’s common stock on the New York Stock Exchange,
or of the last sale prices or closing prices of such stock on another
national trading exchange, as applicable, in the period beginning
on the
tenth trading day preceding the beginning of the Performance Period
and
ending on the tenth trading day of the Performance Period and (II)
the
average of such closing or last sale prices for such stock in the
period
beginning on the tenth trading day preceding the end of the Performance
Period and ending on the tenth trading day following the end of
the
Performance Period) plus (B) dividends declared, assuming reinvestment
of
dividends, and expressed as a percentage return on a stockholder’s
hypothetical investment.
|
(b)
|
Any
capitalized terms used but not otherwise defined in this Subplan
shall
have the respective meanings set forth in the
Plan.
|
Section
3. Administration
. This Subplan shall be administered
by the Compensation and Management Development Committee of the Board of
directors. The Committee shall have authority to interpret this
Subplan, to prescribe rules and regulations relating to this Subplan, and
to
take any other actions it deems necessary or advisable for the administration
of
this Subplan, and shall retain all general authority granted to it under
Article
4 of the Plan. At the end of the Performance Period, the Committee
shall approve Actual Grant Amounts awarded to participants under this
Subplan.
Section
4. Eligibility
. The Participants who are eligible to
participate in this Subplan are those employees who, as of the Participation
Date, are at Salary Grade 49 and 105 and above. Employees who are
promoted during the Performance Period to a position that would meet the
above
criteria, but who do not hold such position as of the Participation Date,
are
not eligible to participate in this Subplan.
Section
5. Form of Payout of Awards
. Subject to the terms and
conditions of the Plan and this Subplan, earned Awards under this Subplan
shall
be paid out in the form of unrestricted shares of Common Stock, except for
conversions to cash and deferrals under Section 9 of this Subplan, and except
that if a participant is entitled to any fraction of a share of Common Stock,
as
a result of Section 10 of this Subplan or otherwise, then in lieu of receiving
such fraction of a share, the participant shall be paid a cash amount
representing the market value of such fraction of a share at the time of
payment.
Section
6. Size of Awards
.
(a)
|
Target
Award Range.
Exhibit A hereto shows by Salary Grade the
Target Award Range. The Salary Grade to be used in determining
the size of
any Award Amount to a participant under this Subplan shall be the
Salary
Grade applicable to the position held by the participant on the
Participation Date. The actual size of the Award Amount to the
participant
shall be determined based on an assessment by his or her senior
management
(and, in the case of executive officers, by the Committee) of the
participant’s past performance and potential for contributions to the
Company’s future long term success. Based on this assessment,
the participant may receive no award, the target award amount,
or any
amount within the Target Award Range to the nearest 10 performance
shares. Each member of senior management will have a
performance share budget, based on the cumulative award targets
for their
reports, which must be balanced for their
organizations.
|
(b)
|
Actual
Grant Amount.
Subject to the Committee’s authority to adjust the
Actual Grant Amount described in Section 12, the Actual Grant Amount
awarded to the participant at the end of the Performance Period
is
determined by applying a multiplier to the participant’s Award
Amount. The multiplier shall be determined by comparing Company
performance relative to two
measures:
|
(i)
|
The
Company's TSR during the Performance Period relative to the TSRs
of the
companies in the Comparison Group during the Performance
Period.
The Company and each company in the Comparison
Group shall be ranked by TSR, in descending order, with the company
having
the highest TSR during the Performance Period being ranked number
one. The Comparison Group shall further be separated into
quintiles (first 20%, second 20%, etc.) and the Company's position,
in
relation to the Comparison Group, shall be expressed as a position
in the
applicable quintile ranking; and
|
|
(ii)
|
The
arithmetic average, for each of the Performance Years during the
Performance Period, of the Company’s average Return on Capital minus a
Return on Capital target.
The Return on Capital target will be
determined by the Committee.
|
An
award multiplier table is shown in
Exhibit B. The award multiplier is based on the Company’s performance
relative to its quintile ranking relative to the Comparison Group, and its
average Return on Capital relative to a target during the Performance Period.
[The award multipliers range from 3.0 (i.e. 300%), if the Company's TSR is
in
the top performing quintile (top 20%) of companies in the Comparison Group,
and
the average Return on Capital minus the target Return on Capital is greater
than
10 percentage points, to 0.0 (with no shares of Common Stock being delivered
to
participants under this Subplan), if the Company does not meet certain levels
of
performance relative to the two measures.
Section
7. Composition of Comparison Group
. The
Comparison Group is composed of companies relevant for purposes of TSR
comparisons under this Subplan. However, during the Performance
Period, a company in the Comparison Group may be dropped from the Comparison
Group if a company's common stock ceases to be publicly traded on a national
stock exchange or market; or a company is a party to a significant merger,
acquisition, or other reorganization. Under these, or similar, circumstances,
the company or companies may be removed from the Comparison Group, and may
be
replaced with another company or companies by Standard & Poor’s, consistent
with their established criteria for selection of companies for the Comparison
Group. In any case where the Comparison Group ceases to exist, or is
otherwise determined to no longer be appropriate as the basis for a measure
under this Subplan, the Committee may designate a replacement Comparison
Group.
In any such case, the Committee shall have authority to determine the
appropriate method of calculating the TSR of such former and/or replacement
Comparison Group, whether by complete substitution of the replacement Comparison
Group (and disregard of the former Comparison Group) over the entire Performance
Period or by pro rata calculations for each Comparison Group or
otherwise.
Section
8. Preconditions to Payout Under Award
.
(a)
|
Continuous
Employment
. Except as specified in paragraph (b) below, to
remain eligible for payout under an Award under this Subplan, an
eligible
Employee must remain continuously employed with the Company or
a
Subsidiary at all times from the Effective Date through the Award
Payment
Date.
|
(b)
|
Death,
Disability, Retirement, or Termination for an Approved Reason Before
the
Award Payment Date.
If a participant's employment with the
Company or a Subsidiary is terminated due to death, disability,
retirement, or any approved reason as determined by the Committee
(in the
case of an executive officer) or the executive officer responsible
for
Human Resources (in the case of non-executive
officers) (including reduction in force, divestiture, special
separation, termination by mutual consent) prior to the Award Payment
Date, the participant shall receive, subject to the terms and conditions
of the Plan and this Subplan, an Award representing a prorated
portion of
the Actual Grant Amount to
which
|
|
such
participant otherwise would be entitled, with the precise amount
of such
Award to be determined by multiplying the Actual Grant Amount by
a
fraction, the numerator of which is the number of full calendar
months
employed in the Performance Period from the Effective Date through
and
including the effective date of such termination, and the denominator
of
which is 36 (the total number of months in the Performance
Period).
|
Section
9. Manner and Timing of Award Payments
.
(a)
|
Timing
of Award Payment
. Except for deferrals under Section 9(c)
if any Awards are payable under this Subplan, the payment of such
Awards
to eligible Employees shall be made as soon as is administratively
practicable after the end of the Performance Period and final approval
by
the Committee.
|
(b)
|
Tax
Withholding
. The Company may withhold or require the
grantee to remit a cash amount sufficient to satisfy federal, state,
and
local taxes (including the participant’s FICA obligation) required by law
to be withheld. Further, either the Company or the grantee may
elect to satisfy the withholding requirement by having the Company
withhold shares of common stock having a Fair Market Value on the
date the
tax is to be determined equal to the minimum statutory total tax
which
could be imposed on the
transaction.
|
(c)
|
Deferral
of Award in Excess of the Maximum Deductible Amount
. If
payment of the Award would, or could in the reasonable estimation
of the
Committee, result in the participant's receiving compensation in
excess of
the Maximum Deductible Amount in a given year, then such portion
(or all,
as applicable) of the Award as would, or could in the reasonable
estimation of the Committee, cause such participant to receive
compensation from the Company in excess of the Maximum Deductible
Amount
may, at the sole discretion of the Committee, be converted into
the right
to receive a cash payment, which shall be deferred until after
the
participant retires or otherwise terminates employment with the
Company
and its Subsidiaries, provided that such deferral is compliant
with the
requirements of Internal Revenue Code Section 409A and Treasury
Regulations and guidance
thereunder.
|
(d)
|
Award
Deferral to the EDCP
. In the event that all or any portion
of an Award is converted into a right to receive a cash payment
pursuant
to Section 9(c) except as otherwise provided in this Section with
respect
to Participants who are subject to Section 16(a) of the 1934
Act an amount representing the Fair Market Value, as of the
date the shares of Common Stock covered by the Award otherwise
would be
issued to the participant, of the Actual Grant Amount (or the deferred
portion thereof) will be credited to the Stock Account of the EDCP,
and
hypothetically invested in units of Common
Stock. Notwithstanding the foregoing, for each
Participant who is subject to Section 16(a) of the 1934 Act. the
deferrable amount, when initially credited to the participant's
EDCP
Account, shall be held in a participant's Interest Account until
the next
date that dividends are paid on Common Stock, and on such date
the
deferrable amount that would have been initially credited to the
participant's Stock Account but for this sentence shall be transferred,
together with allocable interest thereon, to the participant's
Stock
Account, subject to provisions
set
|
|
forth
in the EDCP. Thereafter, such amount shall be treated in the same
manner
as other investments in the EDCP and shall be subject to the terms
and
conditions thereof.
|
Section
10. No Rights as Stockholder
. No certificates for
shares of Common Stock shall be issued under this Subplan nor shall any
participant have any rights as a stockholder as a result of participation
in
this Subplan, until the Actual Grant Amount has been determined and such
participant has otherwise become entitled to an Award under the terms of
the
Plan and this Subplan. In particular, no participant shall have any right
to
vote or to receive dividends on any shares of Common Stock under this Subplan,
until certificates for such shares have been issued as described above;
provided, however, that if payment of all or any portion of an Award under
this
Subplan has been deferred pursuant to Section 9 of this Subplan or
otherwise, but such Award otherwise has become payable hereunder, then during
the period during which payment is deferred, the deferred Award shall be
credited with additional units of Common Stock, and (if applicable) fractions
thereof, based on any dividends declared on the Common Stock, in accordance
with
the terms of the EDCP.
Section
11. Application of Plan
. The provisions of the Plan
shall apply to this Subplan, except to the extent that any such provisions
are
inconsistent with specific provisions of this Subplan.
Section
12. Adjustment of Actual Grant Amount
. The Committee
may, in its sole discretion, adjust the Actual Grant Amount to reflect overall
Company performance and business and financial conditions.
Section
13. Amendments
. The Committee may, from time to time,
amend this Subplan in any manner.
EXHIBIT
A
Eastman
Chemical Company
Performance
Share Award Grant Table
2008-2010
Cycle
ON
FILE
IN GLOBAL COMPENSATIION
EXHIBIT
B
Award
Multiplier Table
|
Differential
from Target Return on Capital
|
Eastman
TSR Relative to Comparison Companies
|
<-7%
|
-7%
to
-5%
|
-4.99
to
-3%
|
-2.99
to
-1%
|
-0.99
to 0%
|
.01
to +1%
|
+1.01
to +3%
|
+3.01
to +5%
|
+5.01
to +7%
|
+7.01
to +10%
|
>10%
|
5
th
quintile
|
0
|
0
|
0
|
0
|
.4
|
.5
|
.6
|
.7
|
.8
|
1.1
|
1.5
|
4
th
quintile
|
0
|
0
|
0
|
.4
|
.5
|
.7
|
.8
|
.9
|
1.1
|
1.5
|
2
|
3
rd
quintile
|
0
|
0
|
.4
|
.5
|
.8
|
1
|
1.2
|
1.5
|
1.8
|
2.1
|
2.4
|
2
nd
quintile
|
0
|
.4
|
.6
|
.8
|
1
|
1.3
|
1.6
|
1.9
|
2.2
|
2.5
|
2.8
|
1
st
quintile
|
0
|
.6
|
.8
|
1
|
1.3
|
1.6
|
1.9
|
2.2
|
2.5
|
2.8
|
3
|
AWARD
NOTICE
GRANTED
PURSUANT TO THE
EASTMAN
CHEMICAL COMPANY
2007
OMNIBUS LONG-TERM COMPENSATION PLAN
Recipient:
Performance
Period: 2008 –
2010
Target
Award:
1.
Award
of Performance Shares
. This Award Notice serves to notify you
that the Compensation and Management Development Committee of the Board of
Directors (the “Committee”) of Eastman Chemical Company ("Company") has awarded
to you, under the 2008-2010 Performance Share Award Subplan ("Subplan") of
the
2007 Omnibus Long-Term Compensation Plan ("Plan"), on the terms and conditions
set forth in the Subplan and the Plan, the number of performance shares (the
"Performance Shares") of its $.01 par value Common Stock ("Common Stock")
specified above. The Performance Shares are rights to receive Awards
in the form of shares of Common Stock, subject to the attainment of specified
performance conditions by the Company. Subject to satisfaction of the
minimum performance conditions and the other terms of the Subplan, Awards
under
the Subplan will ultimately be paid in the form of unrestricted shares of
Common
Stock.
This
Award Notice provides a summary of
the terms and conditions of your performance shares, all of which terms and
conditions are contained in the Subplan and the Plan. Capitalized
terms not defined herein have the respective meanings set forth in the Subplan
and/or the Plan, as applicable.
2.
Performance
Conditions
. The performance conditions for the Subplan involve:
1) a comparison of the total stockholder return (referred to in the
Subplan as "TSR," and reflecting both the change in stock price and the amount
of dividends declared) of the Company during the period from January 1, 2008
through December 31, 2010 (the "Performance Period"), to the TSRs of the
companies in the Comparison Group (the group of companies comprising Standard
and Poor’s “Materials Sector”, identified as Global Industry Classification
Standard (“GICS”) 15, from Standard and Poor’s Super Composite 1500 Index); and
2) the arithmetic average for each of the Performance Years during the
Performance Period, of the Company’s average Return on Capital minus a Return on
Capital target. The specific terms of the performance
conditions are summarized in Section 3 of this Award Notice and are detailed
in
Section 6 of the Subplan.
3.
Number
of Performance Shares Awarded
. The number of Performance Shares
that you have been awarded is shown above (the "Target
Award"). However, the actual number of shares of Common Stock to
which you will be entitled under the Subplan (the "Actual Grant Amount")
may be
more or less than the Target Award, depending upon the quintile ranking of
the
Company's TSR when ranked among the TSRs of the Comparison Group, and the
Company’s average Return on Capital relative to a Return on Capital target for
each of the Performance Years during the Performance Period. The
Company’s performance relative to these measures shall determine a multiplier to
be applied to the Target Grant Amount. Multipliers range from 3.0
(i.e. 300%), if the Company’s TSR is ranked in the top performing quintile (top
20%) of companies in the Comparison Group, and the average Return on Capital
minus the target Return on Capital is greater than 10 percentage points,
to 0.0
(with no shares of Common Stock being delivered to participants under this
Subplan), if the Company does not meet certain levels of performance relative
to
the two measures. The award multiplier table is shown in Exhibit
A. Subject to the Committee’s authority to adjust the Actual Grant
Amount described in Section 12 of this Award Notice, your Actual Grant Amount
is
determined by applying the multiplier corresponding to the Company’s performance
(Exhibit A) to your Target Award.
4.
Payment
of Award
. If you are entitled to payment of an Award under the
Subplan, such payment will be made as soon as administratively practicable
after
the end of the Performance Period and final approval by the Committee; provided,
however, that if payment of the Award could, in the reasonable estimation
of the
Committee, result in your receiving compensation, in the year of scheduled
payment, in excess of the amount deductible by the Company under Section
162(m)
of the Internal Revenue Code, then such portion (or all, as applicable) of
the
Award as could, in the reasonable estimation of the Committee, create
such excess compensation, may, at the sole discretion of the Committee, be
converted into the right to receive a cash payment, which will be deferred
until
after you terminate employment with the Company and its Subsidiaries, provided
that such deferral is compliant with the requirements of Internal Revenue
Code
Section 409A and Treasury Regulations and guidance thereunder, as specified
in
Section 9 of the Subplan.
If
any portion of an Award is converted
into a right to receive a cash payment as described above, an amount
representing the Fair Market Value of the deferred portion of the Actual
Grant
Amount will be credited to the Stock Account of the EDCP and hypothetically
invested in units of Common Stock. Thereafter, such amount will be
treated in the same manner as other investments in the EDCP, all as specified
in
Section 9 of the Subplan.
The
Company may withhold or require the
grantee to remit a cash amount sufficient to satisfy federal, state, and
local
taxes (including the participant’s FICA obligation) required by law to be
withheld. Further, either the Company or the grantee may elect to
satisfy the withholding requirement by having the Company withhold shares
of
common stock having a Fair Market Value on the date the tax is to be determined
equal to the minimum statutory total tax which could be imposed on the
transaction.
5.
Nontransferability
. Unless
and until unrestricted shares of Common Stock are delivered or, if applicable,
cash is distributed under the EDCP to you in payment of an earned Award of
the
Performance Shares, the Performance Shares are not transferable except by
will
or by the laws of descent and distribution, and may not be sold, assigned,
pledged or encumbered in any way, whether by operation of law or
otherwise.
6.
Limitation
of Rights
. You generally will not have any rights as a
stockholder with respect to the Performance Shares unless and until certificates
for shares of Common Stock have been issued to you. No such
certificates will be issued under the Subplan until the Actual Grant Amount
has
been determined and you have otherwise become entitled to payment of an Award
under the terms of the Plan and the Subplan. However, if payment of
all or any portion of the Award is deferred, but the Award has otherwise
become
payable, then the deferred Award will be credited with additional shares
of
Common Stock based on any dividends declared on the Common Stock, in accordance
with the terms of the EDCP. Neither the Plan, the Subplan, the
granting of these Performance Shares nor this Award Notice gives you any
right
to remain employed by the Company and its Subsidiaries.
7.
Termination
. Upon
termination of your employment with the Company and its Subsidiaries by reason
of death, disability or retirement, or for another approved reason (e.g.,
reduction in force, divestiture, special separation, termination by mutual
consent), as determined by the Committee (in the case of executive officers)
or
the executive officer responsible for Human Resources (in the case of
non-executive employees), you will receive, subject to the terms and conditions
of the Plan and the Subplan, an Award representing a prorated portion of
the
Actual Grant Amount to which you otherwise would be entitled, based on the
number of full calendar months from January 1, 2007 through the effective
date
of such termination. Upon termination of your employment with the
Company and its Subsidiaries for a reason other than death, disability,
retirement or another approved reason prior to the date the shares of Common
Stock covered by the Award are delivered to you, you will not be eligible
or
entitled to receive any Award under the Subplan.
8.
Noncompetition;
Confidentiality
. You will forfeit all rights with respect to the
Performance Shares if you violate the noncompetition and confidentiality
provisions contained in Section 20 of the Plan.
9.
Restrictions
on Issuance of Shares
. If at any time the Company determines that
listing, registration or qualification of the shares covered by an Award
upon
any securities exchange or under any state or federal law, or the approval
of
any governmental agency, is necessary or advisable prior to the delivery
of any
certificate for shares of Common Stock subject to the Award, no such certificate
may be delivered unless and until such listing, registration, qualification
or
approval shall have been effected or obtained free of any conditions not
acceptable to the Company.
10.
Change
in Ownership; Change in Control
. Article 14 of the Plan contain
certain special provisions that will apply in the event of a Change in Ownership
or Change in Control, respectively.
11.
Adjustment
of
Terms
. The adjustment provisions Article 15 of the Plan
will control in the event of a nonreciprocal transaction between the company
and
its stockholders that causes the per-share value of the Common Stock to change
(including, without limitation, any stock dividend, stock split, spin-off,
rights offering, or large nonrecurring cash dividend) or upon the occurrence
of
in anticipation of any other corporate event or transaction involving the
Company (including, without limitation, any merger, combination, or exchange
of
shares).
12.
Adjustment
of Actual Grant Amount
. The Committee may, in its sole
discretion, adjust the Actual Grant Amount to reflect overall Company
performance and business and financial conditions.
13.
Plan
and Subplan Control
. In the event of any conflict between the
provisions of the Plan or the Subplan and the provisions of this Award Notice,
the provisions of the Plan or the Subplan, as applicable, will be controlling
and determinative.
AWARD
NOTICE
NOTICE
OF PERFORMANCE SHARES
GRANTED
PURSUANT TO THE
EASTMAN
CHEMICAL COMPANY
2007
OMNIBUS LONG-TERM COMPENSATION PLAN
Recipient: Mark
J.
Costa
Performance
Period: 2008 –
2010
Target
Award:
1.
Award
of Performance Shares
. This Award Notice serves to notify you
that the Compensation and Management Development Committee of the Board of
Directors (the “Committee”) of Eastman Chemical Company ("Company") has awarded
to you, under the 2008-2010 Performance Share Award Subplan ("Subplan") of
the
2007 Omnibus Long-Term Compensation Plan ("Plan"), on the terms and conditions
set forth in the Subplan and the Plan, the number of performance shares (the
"Performance Shares") of its $.01 par value Common Stock ("Common Stock")
specified above. The Performance Shares are rights to receive Awards
in the form of shares of Common Stock, subject to the attainment of specified
performance conditions by the Company. Subject to satisfaction of the
minimum performance conditions and the other terms of the Subplan, Awards under
the Subplan will ultimately be paid in the form of unrestricted shares of Common
Stock.
This
Award Notice provides a summary of
the terms and conditions of your performance shares, all of which terms and
conditions are contained in the Subplan and the Plan. Capitalized
terms not defined herein have the respective meanings set forth in the Subplan
and/or the Plan, as applicable.
2.
Performance
Conditions
. The performance conditions for the Subplan involve:
1) a comparison of the total stockholder return (referred to in the
Subplan as "TSR," and reflecting both the change in stock price and the amount
of dividends declared) of the Company during the period from January 1, 2008
through December 31, 2010 (the "Performance Period"), to the TSRs of the
companies in the Comparison Group (the group of companies comprising Standard
and Poor’s “Materials Sector”, identified as Global Industry Classification
Standard (“GICS”) 15, from Standard and Poor’s Super Composite 1500 Index); and
2) the arithmetic average for each of the Performance Years during the
Performance Period, of the Company’s average Return on Capital minus a Return on
Capital target. The specific terms of the performance
conditions are summarized in Section 3 of this Award Notice and are detailed
in
Section 6 of the Subplan.
3.
Number
of Performance Shares Awarded
. The number of Performance Shares
that you have been awarded is shown above (the "Target
Award"). However, the actual number of shares of Common Stock to
which you will be entitled under the Subplan (the "Actual Grant Amount") may
be
more or less than the Target Award, depending upon the quintile ranking of
the
Company's TSR when ranked among the TSRs of the Comparison Group, and the
Company’s average Return on Capital relative to a Return on Capital target for
each of the Performance Years during the Performance Period. The
Company’s performance relative to these measures shall determine a multiplier to
be applied to the Target Grant Amount. Multipliers range from 3.0
(i.e. 300%), if the Company’s TSR is ranked in the top performing quintile (top
20%) of companies in the Comparison Group, and the average Return on Capital
minus the target Return on Capital is greater than 10 percentage points, to
0.0
(with no shares of Common Stock being delivered to participants under this
Subplan), if the Company does not meet certain levels of performance relative
to
the two measures. The award multiplier table is shown in Exhibit
A. Subject to the Committee’s authority to adjust the Actual Grant
Amount described in Section 12 of this Award Notice, your Actual Grant Amount
is
determined by applying the multiplier corresponding to the Company’s performance
(Exhibit A) to your Target Award.
4.
Payment
of Award
. If you are entitled to payment of an Award under the
Subplan, such payment will be made as soon as administratively practicable
after
the end of the Performance Period and final approval by the Committee; provided,
however, that if payment of the Award could, in the reasonable estimation of
the
Committee, result in your receiving compensation, in the year of scheduled
payment, in excess of the amount deductible by the Company under Section 162(m)
of the Internal Revenue Code, then such portion (or all, as applicable) of
the
Award as could, in the reasonable estimation of the Committee, create
such excess compensation, may, at the sole discretion of the Committee, be
converted into the right to receive a cash payment, which will be deferred
until
after you terminate employment with the Company and its Subsidiaries, provided
that such deferral is compliant with the requirements of Internal Revenue Code
Section 409A and Treasury Regulations and guidance thereunder, as specified
in
Section 9 of the Subplan.
If
any portion of an Award is converted
into a right to receive a cash payment as described above, an amount
representing the Fair Market Value of the deferred portion of the Actual Grant
Amount will be credited to the Stock Account of the EDCP and hypothetically
invested in units of Common Stock. Thereafter, such amount will be
treated in the same manner as other investments in the EDCP, all as specified
in
Section 9 of the Subplan.
The
Company may withhold or require the
grantee to remit a cash amount sufficient to satisfy federal, state, and local
taxes (including the participant’s FICA obligation) required by law to be
withheld. Further, either the Company or the grantee may elect to
satisfy the withholding requirement by having the Company withhold shares of
common stock having a Fair Market Value on the date the tax is to be determined
equal to the minimum statutory total tax which could be imposed on the
transaction.
5.
Nontransferability
. Unless
and until unrestricted shares of Common Stock are delivered or, if applicable,
cash is distributed under the EDCP to you in payment of an earned Award of
the
Performance Shares, the Performance Shares are not transferable except by will
or by the laws of descent and distribution, and may not be sold, assigned,
pledged or encumbered in any way, whether by operation of law or
otherwise.
6.
Limitation
of Rights
. You generally will not have any rights as a
stockholder with respect to the Performance Shares unless and until certificates
for shares of Common Stock have been issued to you. No such
certificates will be issued under the Subplan until the Actual Grant Amount
has
been determined and you have otherwise become entitled to payment of an Award
under the terms of the Plan and the Subplan. However, if payment of
all or any portion of the Award is deferred, but the Award has otherwise become
payable, then the deferred Award will be credited with additional shares of
Common Stock based on any dividends declared on the Common Stock, in accordance
with the terms of the EDCP. Neither the Plan, the Subplan, the
granting of these Performance Shares nor this Award Notice gives you any right
to remain employed by the Company and its Subsidiaries.
7.
Termination
. Upon
termination of your employment with the Company and its Subsidiaries
("termination") by reason of death, disability or retirement, or for
another approved reason as determine by the Committee, you will receive, subject
to the terms and conditions of the Plan and the Subplan, an Award representing
a
prorated portion of the Actual Grant Amount to which you otherwise would be
entitled, based on the number of full calendar months employed from January
1,
2007 through the effective date of such termination. Upon termination
without "Cause" or for "Good Reason" (as such terms are defined in your
Employment Agreement dated May 4, 2006) Eastman will issue to you, within 30
days of your termination (or such other date as may be required under Internal
Revenue Code Section 409A), shares of Common Stock underlying outstanding
performance shares (as if all performance objectives with respect thereto had
been met at a level of 100%) on a pro rata basis based upon the number of full
calendar months employed during the performance period. Upon
termination for a reason other than death, disability, retirement or another
reason described above prior to the date the shares of Common Stock covered
by
the Award are delivered to you, you will not be eligible or entitled to receive
any Award under the Subplan.
8.
Noncompetition;
Confidentiality
. You will forfeit all rights with respect to the
Performance Shares if you violate the noncompetition and confidentiality
provisions contained in Section 20 of the Plan.
9.
Restrictions
on Issuance of Shares
. If at any time the Company determines that
listing, registration or qualification of the shares covered by an Award upon
any securities exchange or under any state or federal law, or the approval
of
any governmental agency, is necessary or advisable prior to the delivery of
any
certificate for shares of Common Stock subject to the Award, no such certificate
may be delivered unless and until such listing, registration, qualification
or
approval shall have been effected or obtained free of any conditions not
acceptable to the Company.
10.
Change
in Ownership; Change in Control
. Article 14 of the Plan contain
certain special provisions that will apply in the event of a Change in Ownership
or Change in Control, respectively.
11.
Adjustment
of
Terms
. The adjustment provisions Article 15 of the Plan
will control in the event of a nonreciprocal transaction between the company
and
its stockholders that causes the per-share value of the Common Stock to change
(including, without limitation, any stock dividend, stock split, spin-off,
rights offering, or large nonrecurring cash dividend) or upon the occurrence
of
in anticipation of any other corporate event or transaction involving the
Company (including, without limitation, any merger, combination, or exchange
of
shares).
12.
Adjustment
of Actual Grant Amount
. The Committee may, in its sole
discretion, adjust the Actual Grant Amount to reflect overall Company
performance and business and financial conditions.
13.
Plan
and Subplan Control
. In the event of any conflict between the
provisions of the Plan or the Subplan and the provisions of this Award Notice,
the provisions of the Plan or the Subplan, as applicable, will be controlling
and determinative.
EASTMAN
CHEMICAL COMPANY
(a
Subplan of the 2007 Omnibus Long-Term Compensation Plan)
EASTMAN
CHEMICAL COMPANY
2007
DIRECTOR LONG-TERM COMPENSATION SUBPLAN
(a
Subplan of the 2007 Omnibus Long-Term Compensation Plan)
ARTICLE
1
PURPOSE
1.1.
PURPOSE
.
The purpose of the Plan is to attract, retain and compensate
highly-qualified individuals who are not employees of Eastman Chemical Company
or any of its subsidiaries or affiliates for service as members of the Board
by
providing them with competitive compensation and an ownership interest in the
Stock of the Company. The Company intends that the Plan will benefit
the Company and its stockholders by allowing Non-Employee Directors to have
a
personal financial stake in the Company through an ownership interest in the
Stock and will closely associate the interests of Non-Employee Directors with
that of the Company’s stockholders.
1.2.
ELIGIBILITY
. Non-Employee
Directors of the Company who are Eligible Participants, as defined below, shall
automatically be participants in the Plan.
ARTICLE
2
DEFINITIONS
2.1.
DEFINITIONS
.
Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
such terms in the Omnibus Plan. Unless the context clearly indicates
otherwise, the following terms shall have the following meanings:
(a) “Committee”
means the Nominating and Corporate Governance Committee of the
Board.
(b) “Effective
Date” of the Plan has the meaning set forth in Section 7.4 hereof.
(c) “Eligible
Participant” means any person who is a Non-Employee Director on the Effective
Date or becomes a Non-Employee Director while this Plan is in effect; except
that during any period a director is prohibited from participating in the Plan
by his or her employer or otherwise waives participation in the Plan, such
director shall not be an Eligible Participant.
(d) “Omnibus
Plan” means the Eastman Chemical Company 2007 Omnibus Long-Term Compensation
Plan, or any subsequent equity compensation plan approved by the Board and
designated as the Omnibus Plan for purposes of this Plan.
(e) “Plan”
means this Eastman Chemical Company 2007 Director Long-Term Compensation
Subplan, as amended from time to time. The Plan is a subplan of the
Omnibus Plan.
(f) “Plan
Year(s)” means the approximate twelve-month periods between annual meetings of
the stockholders of the Company, which, for purposes of the Plan, are the
periods for which equity Awards are earned.
ARTICLE
3
ADMINISTRATION
3.1.
ADMINISTRATION
.
The
Plan shall be administered by the Committee. Subject to the
provisions of the Plan, the Committee shall be authorized to interpret the
Plan,
to establish, amend and rescind any rules and regulations relating to the Plan,
and to make all other determinations necessary or advisable for the
administration of the Plan. The Committee’s interpretation of the
Plan, and all actions taken and determinations made by the Committee pursuant
to
the powers vested in it hereunder, shall be conclusive and binding upon all
parties concerned including the Company, its stockholders and persons granted
awards under the Plan. The Committee may appoint a plan administrator
to carry out the ministerial functions of the Plan, but the administrator shall
have no other authority or powers of the Committee. The Board may
reserve to itself any or all of the authority and responsibility of the
Committee under the Plan or may act as administrator of the Plan for any and
all
purposes. To the extent the Board has reserved any authority and
responsibility or during any time that the Board is acting as administrator
of
the Plan, it shall have all the powers of the Committee hereunder, and any
reference herein to the Committee (other than in this Section 3.1) shall include
the Board. To the extent any action of the Board under the Plan
conflicts with actions taken by the Committee, the actions of the Board shall
control.
3.2.
RELIANCE
. In
administering the Plan, the Committee may rely upon any information furnished
by
the Company, its public accountants and other experts. No individual
will have personal liability by reason of anything done or omitted to be done
by
the Company or the Committee in connection with the Plan. This
limitation of liability shall not be exclusive of any other limitation of
liability to which any such person may be entitled under the Company’s
certificate of incorporation or otherwise.
ARTICLE
4
SHARES
4.1.
SOURCE
OF SHARES FOR THE PLAN
.
The shares of Stock that may be
issued pursuant to the Plan shall be issued under the Omnibus Plan, subject
to
all of the terms and conditions of the Omnibus Plan. The terms
contained in the Omnibus Plan are incorporated into and made a part of this
Plan
with respect to Restricted Stock, Nonstatutory Stock Options and any other
equity awards granted pursuant hereto and any such awards shall be governed
by
and construed in accordance with the Omnibus Plan. In the event of
any actual or alleged conflict between the provisions of the Omnibus Plan and
the provisions of this Plan, the provisions of the Omnibus Plan shall be
controlling and determinative. This Plan does not constitute a
separate source of shares for the grant of the equity awards described
herein.
ARTICLE
5
EQUITY
COMPENSATION
5.1.
RESTRICTED
STOCK
(a)
Initial
Award
of Restricted Stock
. Subject to share
availability under the Omnibus Plan, on the date that a new Non-Employee
Director is initially elected or appointed to the Board, such director will
receive a Restricted Stock Award. The number of shares of Restricted
Stock to be awarded shall be established from time to time by the
Board. Unless and until changed by the Board, the number of shares of
Restricted Stock to be awarded in each initial Restricted Stock Award shall
be
determined by dividing $10,000 by the Fair Market Value of one share of Stock
as
of the award date, and rounding up to the nearest whole share (the “Initial
Restricted Stock Award”). Non-Employee Directors shall be eligible to
receive both an Initial Restricted Stock Award and an Annual Restricted Stock
Award (as defined below) in his or her initial year of service. Such
shares of Restricted Stock shall be evidenced by a written Award Notice in
the
form at the end of this Plan and shall be subject to such restrictions and
risk
of forfeiture as are described in the form of Award Notice and any
other restrictions and terms determined by the Board, and shall be granted
under and pursuant to the terms of the Omnibus Plan.
(b)
Annual
Award of Restricted Stock
. Subject to share availability under
the Omnibus Plan, on the date of each annual meeting of the Company’s
stockholders, each Eligible Participant in service on the close of business
on
that date shall receive a Restricted Stock Award. The number of
shares of Restricted Stock to be awarded shall be established from time to
time
by the Board. Unless and until changed by the Board, the number of
shares of Restricted Stock to be awarded in each annual Restricted Stock Award
for a full Plan Year shall be determined by dividing $5,000 by the Fair Market
Value of one share of Stock as of the award date, and rounding up to the nearest
whole share (the “Annual Restricted Stock Award”). Such shares of
Restricted Stock shall be evidenced by a written Award Notice in the form at
the
end of this Plan and shall be subject to such restrictions and risk of
forfeiture as are described in the form of Award Notice and any other
restrictions and terms determined by the Board, and shall be granted under
and
pursuant to the terms of the Omnibus Plan.
(c)
Vesting
. Unless
and until provided otherwise by the Board, the Initial Restricted Stock Awards
and the Annual Restricted Stock Awards shall vest and all restrictions with
respect thereto shall lapse only upon the earliest to occur of: (i) three (3)
years from the date of grant, but only if the Non-Employee Director is still
a
director of the Company immediately prior to the election of directors at the
annual meeting of stockholders at the end of such three-year period; (ii) the
date that his or her tenure as a director of the Company terminates by reason
of
death, Disability, resignation effective at an annual meeting of stockholders
because he or she is no longer qualified to serve as a director under Section
3.1 of the Bylaws of the Company, or for another approved reason as determined
by the Committee; or (iii) the date that his or her tenure as director of the
Company terminates by reason of his or her failure to be reelected as a director
in an election in which he or she consented to be named as a director
nominee. If the grantee’s service as a director of the Company
(whether or not in a Non-Employee Director capacity) terminates prior to the
third anniversary of the date of grant other than as described in clause (ii)
or
(iii) of the foregoing sentence, then the grantee shall forfeit all of his
or
her right, title and interest in and to any unvested shares of Restricted Stock
as of the date of such termination from the Board and such shares of Restricted
Stock shall be reconveyed to the Company without further consideration or any
act or action by the grantee.
5.2
NONSTATUTORY
STOCK OPTIONS
(a)
Annual
Nonstatutory Stock Option Grant
. Subject to share availability
under the Omnibus Plan, on the date of each annual meeting of the Company’s
stockholders, each Eligible Participant in service on the close of business
on
that date shall receive a Nonstatutory Stock Option. Unless and until changed
by
the Board, each such Nonstatutory Stock Option shall be to purchase 2,000
shares of Stock.
(b)
Terms
and Conditions of Nonstatutory Stock Options
. Nonstatutory Stock
Options granted under this Section 5.2 shall be evidenced by a written Award
Notice in the form at the end of this Plan, and shall be subject to the terms
and conditions described below and of the Omnibus Plan.
(i)
Exercise
Price
. The exercise price per share under a Nonstatutory Stock
Option shall be the Fair Market Value on the date of grant.
(ii)
Vesting
. Unless
and until provided otherwise by the Board, each Nonstatutory Stock Options
granted under this Section 5.2 shall become fully vested and exercisable as
to
50% of the shares on the first anniversary of the date of grant, and as to
50%
of the shares on the second anniversary of the date of grant, but only if the
Non-Employee Director is still a director of the Company on such vesting dates.
Notwithstanding the foregoing, the Nonstatutory Stock Options shall become
fully
vested and exercisable upon the earlier occurrence of (i) the date that the
optionee’s tenure as a director of the Company terminates by reason of death,
Disability, resignation effective at an annual meeting of stockholders because
he or she is no longer qualified to serve as a director under Section 3.1 of
the
Bylaws of the Company, or for another approved reason as determined by the
Committee, or (ii) the date that his or her tenure as a director of the Company
terminates by reason of completion of his or her then-current term in office
and
he or she fails to be nominated for, or reelected as, a director to another
term. If the optionee’s service as a director of the Company (whether or
not in a Non-Employee Director capacity) terminates other than as described
in
clause (i) or (ii) of the foregoing sentence, then the optionee shall forfeit
all of his or her right, title and interest in and to any unvested Nonstatutory
Stock Options as of the date of such termination from the Board.
(iii)
Nonstatutory
Stock Option Term.
Subject to earlier termination as provided
herein, each Nonstatutory Stock Option granted under this Section 5.2 shall
expire on the tenth anniversary of the date of grant.
5.3
CHANGE
IN CONTROL
.
(a)
Vesting
of Awards
. Upon a Change in Control: (i) the terms of this
Section 5.3 shall immediately become operative, without further action or
consent by any person or entity; (ii) all conditions, restrictions, and
limitations in effect on any equity Awards awarded or granted pursuant to this
Plan shall immediately lapse as of the date of such event; (iii) no other terms,
conditions, restrictions and/or limitations shall be imposed upon any such
Awards on or after such date, and in no circumstance shall such Awards be
forfeited on or after such date; and (iv) all such Awards shall automatically
become one hundred percent (100%) vested immediately.
(b)
Valuation
and Payment of Awards
. Upon a Change in Control, each
Non-Employee Director, whether or not continuing in service as a director of
the
Company in any capacity, 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
effective date of the Change in Control, the value of all of his or her
outstanding Awards. For purposes of calculating the cash-out value of
Awards for purposes of this Section 5.3, the Change-in-Control Price shall
be
used as the Fair Market Value of the Shares.
ARTICLE
6
AMENDMENT,
MODIFICATION, AND TERMINATION
6.1.
AMENDMENT,
MODIFICATION AND TERMINATION
. The Board may, at any time and from
time to time, amend, modify or terminate the Plan without stockholder approval;
provided, however, that if an amendment to the Plan would, in the reasonable
opinion of the Board, require stockholder approval under applicable laws,
policies or regulations or the applicable listing or other requirements of
a
securities exchange on which the Stock is listed or traded, then such amendment
shall be subject to stockholder approval; and provided further, that the Board
may condition any other amendment or modification on the approval of
stockholders of the Company for any reason.
ARTICLE
7
GENERAL
PROVISIONS
7.1.
ADJUSTMENTS
. The
adjustment provisions of the Omnibus Plan shall apply with respect to Awards
outstanding or to be awarded or granted pursuant to this Plan.
7.2.
DURATION
OF THE PLAN
. The Plan shall remain in effect until terminated by
the Board or until the earlier termination of the Omnibus Plan.
7.3.
EXPENSES
OF THE PLAN
.
The expenses of administering the Plan
shall be borne by the Company.
7.4.
EFFECTIVE
DATE
.
The Plan was originally adopted by the Board on
[August 2, 2007], and became effective on that date (the “Effective
Date”).
FORM
OF NOTICE OF RESTRICTED STOCK AWARDS
UNDER
THE EASTMAN CHEMICAL COMPANY
2007
DIRECTOR LONG-TERM COMPENSATION SUBPLAN OF THE 2007 OMNIBUS LONG-TERM
COMPENSATION PLAN
Grantee:
Number
of Restricted Shares:
Date
of Award:
1.
Award
of Restricted Stock
. Eastman Chemical Company (“Company”) has
granted to you, under the 2007 Director Long-Term Compensation Subplan of the
2007 Eastman Chemical Company Omnibus Long-Term Compensation Plan (the “Plan”),
------------ shares (“Restricted Stock”) of its $.01 par value Common Stock
(“Common Stock”) to be held as restricted stock under the terms of the Plan and
this Award Notice (“Award Notice”). The Plan is incorporated herein
by reference and made a part of this Award Notice. Capitalized terms
not defined herein shall have the respective meanings set forth in the
Plan.
2. Lapse
of Restrictions
. The restrictions on transfer described below
with respect to the Restricted Stock awarded to you hereunder will lapse upon
the earliest of: (a) 4:00 p.m., Eastern Time, on
--------,20---- (the “Vesting Date”), if and only if you are still a
director of the Company immediately prior to the election of directors at the
annual meeting of stockholders at the end of such three-year period; or (b)
the
date that your tenure as a director of the Company terminates by reason of
death, disability, resignation effective at an annual meeting of stockholders
because you are no longer qualified to serve as a director under Section 3.1
of
the Bylaws of the Company, or for another approved reason as determined by
the
Committee; or (c) the date that your tenure as a director of the Company
terminates by reason of completion of your then-current term in office and
you
fail to be reelected as a director to another term.
3. Book-Entry
Registration
. The Restricted Stock awarded pursuant to this Award
Notice initially will be evidenced by book-entry registration only, without
the
issuance of a certificate representing such shares.
4. Issuance
of Shares
. Subject to the provisions of Section 7 of this Award
Notice, the Company shall, provided that the conditions to vesting specified
in
Section 2 of this Award Notice are satisfied, issue a certificate or
certificates representing the Restricted Stock as promptly as practicable
following the Vesting Date.
5. Restrictions
on Transfer of Shares
. Shares of Restricted Stock awarded under
the Plan, and the right to vote such shares and to receive dividends thereon,
may not, except as otherwise provided in the Plan, be sold, assigned,
transferred, pledged, or encumbered in any way prior to the Vesting Date,
whether by operation of law or otherwise, except by will or the laws of descent
and distribution. After the Vesting Date, the unrestricted shares of
Restricted Stock may be issued during your lifetime only to you, except in
the
case of a permanent disability involving mental incapacity.
6. Rights
as a Stockholder
. Except as otherwise provided in the Plan or
this Award Notice, prior to the Vesting Date, you will have all of the other
rights of a stockholder with respect to the Restricted Stock, including, but
not
limited to, the right to receive such cash dividends, if any, as may be declared
on such shares from time to time and the right to vote (in person or by proxy)
such shares at any meeting of stockholders of the Company.
7. Termination
of Tenure as a Director
. Upon termination of your tenure as a
director of the Company, prior to the Vesting Date, other than by reason of
death, disability, resignation effective at an annual meeting of stockholders
because you are no longer qualified to serve as a director under Section 3.1
of
the Bylaws of the Company, or your tenure as a director of the Company
terminates by reason of completion of your then-current term in office and
you
fail to be reelected as a director to another term, or for another approved
reason, as determined by the Committee, all of the Restricted Stock awarded
to
you shall be canceled and forfeited by you to the Company without the payment
of
any consideration by the Company. In such event, neither you nor your
successors, heirs, assigns, or personal representatives will thereafter have
any
further rights or interest in or with respect to such shares.
8. Change
in Control
. Upon a Change in Control of the Company, the
provisions of Section 5.3 of the Plan shall automatically and immediately become
operative with respect to the Restricted Stock.
9. No
Right to Continued Position on Board
. Neither the Plan, the award
of Restricted Stock, nor this Award Notice, shall give you any right to remain
on the Company’s Board of Directors.
10. Restrictions
on Issuance of Shares.
If at any time the Company shall
determine, in its sole discretion, that listing, registration, or qualification
of the shares of Restricted Stock upon any securities exchange or under any
state or federal law, or the consent or approval of any governmental regulatory
body, is necessary or advisable as a condition to the award or issuance of
certificate(s) for such Restricted Stock hereunder, such award or issuance
may
not be made in whole or in part unless and until such listing, registration,
qualification, consent, or approval shall have been effected or obtained free
of
any conditions not acceptable to the Company.
11. Plan
Controls
. In the event of any actual or alleged conflict between
the provisions of the Plan and the provisions of this Award Notice, the
provisions of the Plan shall be controlling and determinative.
12. Successors
. This
Award Notice shall be binding upon any successor of the Company, in accordance
with the terms of this Award Notice and the Plan.
FORM
OF NOTICE OF NONQUALIFIED STOCK OPTION GRANTS
UNDER THE
EASTMAN CHEMICAL COMPANY
2007
DIRECTOR LONG-TERM COMPENSATION SUBPLAN OF THE 2007 OMNIBUS LONG-TERM
COMPENSATION PLAN
Grantee:
Number
of Shares:
Option
Exercise Price: $
Date
of Grant:
1.
Grant
of Option
. This Award Notice serves to notify you that Eastman
Chemical Company ("Company") has granted to you, under the 2007 Director
Long-Term Compensation Subplan of the 2007 Eastman Chemical Company Omnibus
Long-Term Compensation Plan (the “Plan”), a nonqualified stock option ("Option")
to purchase, on the terms and conditions set forth in this Award Notice and
the
Plan, the number of shares of its $.01 par value Common Stock ("Common Stock")
set forth above at the exercise price per share set forth above. The
Plan is incorporated herein by reference and made a part of this Award
Notice. Capitalized terms not defined herein have the respective
meanings set forth in the Plan.
2.
Period
of Option Exercise.
The Option shall expire at 4:00 p.m., Eastern
Time, on ---------, 20-- (the “Expiration Date”).
3.
Exercise
of Option
. The terms and conditions of exercise of the Option are
as follows:
(a) Subject
to the terms set forth in this Award Notice, the Option shall become exercisable
as to one half of the shares covered hereby on -------, 20--, and as to the
remaining shares on ----------, 20--.
(b) Upon
your death, your personal representative may exercise the Option, subject to
the
terms set forth in this Award Notice, until the Expiration Date.
(c) The
Option may be exercised in whole or in part by completing and returning the
exercise form delivered with the Option. The exercise form generally
must be accompanied by, or make provision for, full payment in cash; by check;
or by surrendering unrestricted shares of Common Stock having a value on the
date of exercise equal to the exercise price, together with proof that such
shares, if acquired through a previous option exercise, have been owned by
the
optionee for at least six months prior to the date of exercise of the Option;
or
in any combination of the foregoing; however, if you wish to pay with shares
of
Common Stock already held by you, you may submit a Stock Validation form
attesting to the ownership of the shares instead of sending in actual share
certificates.
4.
Nontransferability
. The
Option is not transferable except by will or by the laws of descent and
distribution, and may not be sold, assigned, pledged, or encumbered in any
way,
whether by operation of law or otherwise. The Option may be granted
only to, and exercised only by you during your lifetime, except in the case
of a
permanent disability involving mental incapacity.
5.
Limitation
of Rights
. You will not have any rights as a stockholder with
respect to the shares covered by the Option until you become the holder of
record of such shares by exercising the Option. Neither the Plan, the
granting of the Option nor this Award Notice gives you any right to remain
on
the Company's Board of Directors.
6.
Termination
. Upon
termination of your directorship by reason of death, disability, resignation
effective at an annual meeting of stockholders because you are no longer
qualified to serve as a director under Section 3.1 of the Bylaws of the Company,
or your tenure as a director of the Company terminates by reason of completion
of your then-current term in office and you fail to be nominated for, or
reelected as, a director to another term, or for another approved reason, as
determined by the Committee, the Option will remain exercisable in accordance
with its original terms. Upon termination of your directorship for a
reason other than death, disability, resignation effective at an annual meeting
of stockholders because you are no longer qualified to serve as a director
under
Section 3.1 of the Bylaws of the Company, or your tenure as a director of the
Company terminates by reason of completion of your then-current term in office
and you fail to be nominated for, or reelected as a director to, another term,
or another approved reason, any portion of the Option not previously exercised
by you will be canceled and forfeited by you, without payment of any
consideration by the Company.
7.
Restrictions
on Issuance of Shares
. If at any time the Company determines that
listing, registration, or qualification of the shares covered by the Option
upon
any securities exchange or under any state or federal law, or the approval
of
any governmental agency, is necessary or advisable as a condition to the
exercise of the Option, the Option may not be exercised in whole or in part
unless and until such listing, registration, qualification, or approval shall
have been effected or obtained free of any conditions not acceptable to the
Company.
8.
Change
in Control
. Section 5.3 of the Plan contains certain special
provisions that will apply to the Option in the event of a Change in
Control.
9.
Adjustment
of Shares
. If the number of outstanding shares of Common Stock
changes through the declaration of stock dividends or stock splits, the number
of shares subject to the Option and the exercise price of the Option will be
appropriately adjusted. If there is a change in the number of
outstanding shares of Common Stock or any change in the outstanding stock in
the
Company, the Committee will make any adjustments and modifications to the Option
that it deems appropriate. In the event of any other change in the
capital structure or in the Common Stock of the Company, the Committee is
authorized to make appropriate adjustments to the Option.
10.
Plan
Controls
. In the event of any conflict between the provisions of
the Plan and the provisions of this Award Notice, the provisions of the Plan
will be controlling and determinative.
EASTMAN
CHEMICAL COMPANY AND SUBSIDIARIES
Computation
of Ratios of Earnings to Fixed Charges
|
|
|
Third
Quarter
|
First
Nine Months
|
(Dollars
in millions)
|
|
2007
|
|
2006
|
|
2007
|
|
2006
|
|
|
|
|
|
|
|
|
|
Earnings
before income taxes and cumulative effect of
|
|
|
|
|
|
|
|
|
changes
in accounting principles
|
$
|
32
|
$
|
136
|
$
|
308
|
$
|
472
|
Add:
|
|
|
|
|
|
|
|
|
Interest
expense
|
|
28
|
|
26
|
|
81
|
|
79
|
Appropriate
portion of rental expense (1)
|
|
6
|
|
5
|
|
16
|
|
16
|
Amortization
of capitalized interest
|
|
10
|
|
3
|
|
8
|
|
8
|
Earnings
as adjusted
|
$
|
76
|
$
|
170
|
$
|
413
|
$
|
575
|
|
|
|
|
|
|
|
|
|
Fixed
charges:
|
|
|
|
|
|
|
|
|
Interest
expense
|
$
|
28
|
$
|
26
|
$
|
81
|
$
|
79
|
Appropriate
portion of rental expense (1)
|
|
6
|
|
5
|
|
16
|
|
16
|
Capitalized
interest
|
|
--
|
|
--
|
|
8
|
|
6
|
Total
fixed charges
|
$
|
34
|
$
|
31
|
$
|
105
|
$
|
101
|
|
|
|
|
|
|
|
|
|
Ratio
of earnings to fixed charges
|
|
2.2x
|
|
5.5x
|
|
3.9x
|
|
5.7x
|
|
|
|
|
|
|
|
|
|
(1)
|
For
all periods presented, the interest component of rental expense is
estimated to equal one-third of such
expense.
|
EASTMAN
CHEMICAL COMPANY AND SUBSIDIARIES
Rule
13a – 14(a)/15d – 14(a) Certifications
I,
J.
Brian Ferguson, Chairman of the Board and Chief Executive Officer of Eastman
Chemical Company, certify that:
1. I
have reviewed this quarterly report on Form 10-Q of Eastman Chemical
Company;
|
2. Based
on my knowledge, this report does not contain any untrue statement
of a
material fact or omit to state a material fact necessary to make
the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
|
3. Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects
the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
|
|
4. The
registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
|
|
(a) Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to
ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is
being
prepared;
|
|
(b) Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision,
to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
|
|
(c) Evaluated
the effectiveness of the registrant's disclosure controls and procedures
and presented in this report our conclusions about the effectiveness
of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
|
|
(d) Disclosed
in this report any change in the registrant's internal control over
financial reporting that occurred during the registrant's most recent
fiscal quarter (the registrant's fourth fiscal quarter in the case
of an
annual report) that has materially affected, or is reasonably likely
to
materially affect, the registrant's internal control over financial
reporting; and
|
|
5. The
registrant's other certifying officer and I have disclosed, based
on our
most recent evaluation of internal control over financial reporting,
to
the registrant's auditors and the audit committee of the registrant's
board of directors (or persons performing the equivalent
functions):
|
|
(a) All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record,
process, summarize and report financial information;
and
|
|
(b) Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control
over financial reporting.
|
Date: October
31, 2007
J.
Brian
Ferguson
Chairman
of the Board and Chief Executive Officer
EASTMAN
CHEMICAL COMPANY AND SUBSIDIARIES
Rule
13a – 14(a)/15d – 14(a) Certifications
I,
Richard A. Lorraine, Senior Vice President and Chief Financial Officer of
Eastman Chemical Company, certify that:
1. I
have reviewed this quarterly report on Form 10-Q of Eastman Chemical
Company;
|
2. Based
on my knowledge, this report does not contain any untrue statement
of a
material fact or omit to state a material fact necessary to make
the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
|
3. Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects
the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
|
|
4. The
registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
|
|
(a) Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to
ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is
being
prepared;
|
|
(b) Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision,
to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
|
|
(c) Evaluated
the effectiveness of the registrant's disclosure controls and procedures
and presented in this report our conclusions about the effectiveness
of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
|
|
(d) Disclosed
in this report any change in the registrant's internal control over
financial reporting that occurred during the registrant's most recent
fiscal quarter (the registrant's fourth fiscal quarter in the case
of an
annual report) that has materially affected, or is reasonably likely
to
materially affect, the registrant's internal control over financial
reporting; and
|
|
5. The
registrant's other certifying officer and I have disclosed, based
on our
most recent evaluation of internal control over financial reporting,
to
the registrant's auditors and the audit committee of the registrant's
board of directors (or persons performing the equivalent
functions):
|
|
(a) All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record,
process, summarize and report financial information;
and
|
|
(b) Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control
over financial reporting.
|
Date:
October 31, 2007
Richard
A. Lorraine
Senior
Vice President and Chief Financial Officer
Exhibit
32.01
EASTMAN
CHEMICAL COMPANY AND SUBSIDIARIES
Section
1350 Certifications
In
connection with the Quarterly Report of Eastman Chemical Company (the "Company")
on Form 10-Q for the period ending March 31, 2007, as filed with the Securities
and Exchange Commission on the date hereof (the "Report"), each of the
undersigned officers of the Company certifies, pursuant to 18 U.S.C. § 1350, as
adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to such
officer's knowledge:
1.
|
The
Report fully complies with the requirements of section 13(a) or 15(d)
of
the Securities Exchange Act of 1934;
and
|
2.
|
The
information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the
Company
as of the dates and for the periods expressed in the
Report.
|
A
signed
original of this written statement required by Section 906 has been provided
to
Eastman Chemical Company and will be retained by Eastman Chemical Company and
furnished to the Securities and Exchange Commission or its staff upon
request.
Date:
October 31, 2007
/s/
J.
Brian Ferguson
J.
Brian
Ferguson
Chairman
of the Board and Chief Executive Officer
The
foregoing certification is being furnished solely pursuant to 18 U.S.C. §1350
and is not being filed as part of the Report or as a separate disclosure
document.
Exhibit
32.02
EASTMAN
CHEMICAL COMPANY AND SUBSIDIARIES
Section
1350 Certifications
In
connection with the Quarterly Report of Eastman Chemical Company (the "Company")
on Form 10-Q for the period ending March 31, 2007, as filed with the Securities
and Exchange Commission on the date hereof (the "Report"), each of the
undersigned officers of the Company certifies, pursuant to 18 U.S.C. § 1350, as
adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to such
officer's knowledge:
1.
|
The
Report fully complies with the requirements of section 13(a) or 15(d)
of
the Securities Exchange Act of 1934;
and
|
2.
|
The
information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the
Company
as of the dates and for the periods expressed in the
Report.
|
A
signed
original of this written statement required by Section 906 has been provided
to
Eastman Chemical Company and will be retained by Eastman Chemical Company and
furnished to the Securities and Exchange Commission or its staff upon
request.
Date:
October 31, 2007
Richard
A. Lorraine
Senior
Vice President and Chief Financial Officer
The
foregoing certification is being furnished solely pursuant to 18 U.S.C. §1350
and is not being filed as part of the Report or as a separate disclosure
document.
EASTMAN
CHEMICAL COMPANY DETAIL OF SALES REVENUE
|
|
First
Quarter
|
|
Second
Quarter
|
|
Third
Quarter
|
|
Fourth
Quarter
|
|
Twelve
Months
|
(Dollars
in millions)
|
|
2007
|
|
2007
|
|
2007
|
|
2007
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
Sales
Revenue
|
$
|
1,795
|
$
|
1,895
|
$
|
1,813
|
|
1,752
|
|
7,450
|
|
|
|
|
|
|
|
|
|
|
|
Less: Performance
Chemicals and Intermediates – contract ethylene sales
(1)
|
|
70
|
|
74
|
|
84
|
|
|
|
|
Sales
revenue excluding contract ethylene sales
|
|
1,725
|
|
1,821
|
|
1,729
|
$
|
1,608
|
$
|
6,639
|
Less: Performance
Polymers
|
|
|
|
|
|
|
|
|
|
|
PET
sales in Latin America from non-U.S. sites
(2)
|
|
127
|
|
110
|
|
91
|
|
|
|
|
Sales
revenue excluding contract ethylene sales and PET sales in Latin
America
from non-U.S. sites
(2)
|
$
|
1,598
|
$
|
1,711
|
$
|
1,638
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
Second
Quarter
|
|
Third
Quarter
|
|
Fourth
Quarter
|
|
Twelve
Months
|
(Dollars
in millions)
|
|
2006
|
|
2006
|
|
2006
|
|
2006
|
|
2006
|
|
|
|
|
|
|
|
|
|
|
|
Sales
Revenue
|
$
|
1,803
|
$
|
1,929
|
$
|
1,966
|
$
|
1,752
|
$
|
7,450
|
|
|
|
|
|
|
|
|
|
|
|
Less: Coatings,
Adhesives, Specialty Polymers and Inks – divested product lines
(3)
|
|
18
|
|
17
|
|
18
|
|
12
|
|
65
|
Performance
Chemicals and Intermediates – divested product lines
(4)
|
|
30
|
|
29
|
|
38
|
|
14
|
|
111
|
Performance
Polymers
|
|
|
|
|
|
|
|
|
|
|
divested
PE product lines
(3)
|
|
180
|
|
168
|
|
169
|
|
118
|
|
635
|
Sales
revenue – continuing product lines
|
|
1,575
|
|
1,715
|
|
1,741
|
|
1,608
|
|
6,639
|
|
|
|
|
|
|
|
|
|
|
|
Less: Performance
Polymers
|
|
|
|
|
|
|
|
|
|
|
PET
sales in Latin America from non-U.S. sites
(2)
|
|
109
|
|
119
|
|
136
|
|
121
|
|
485
|
Sales
revenue – continuing product lines excluding PET sales in Latin America
from non-U.S. sites
(2)
|
$
|
1,466
|
$
|
1,596
|
$
|
1,605
|
$
|
1,487
|
$
|
6,154
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
Contract
ethylene sales under the transition supply agreement related to the
divestiture of the polyethylene
businesses.
|
|
(2)
Sales revenue in Latin America
from PET manufactured at non-U.S. sites, including the Mexico and
Argentina PET manufacturing facilities held for
sale.
During the third quarter 2007, Eastman entered
into definitive agreements to sell its PET manufacturing facilities
in
Mexico and Argentina and the related businesses. Subject to
certain product-specific agreements associated with the sale of the
manufacturing facilities in Mexico and Argentina, the Company plans
to
continue to sell PET manufactured in the U.S. in Latin
America.
|
|
(3)
Divested
product lines are the
product lines related to the
polyethylene and
Epolene
polymer businesses and related assets of the Performance Polymers
and
Coatings, Adhesives, Specialty Polymers, and Inks ("CASPI") segments
located at the Longview, Texas site and the Company's ethylene pipeline
which were sold in fourth quarter
2006.
|
|
(4)
The
Company's Batesville, Arkansas manufacturing facility and related
assets
and the specialty organic chemicals product lines in the Performance
Chemicals and Intermediates ("PCI") segment were sold in fourth quarter
2006.
|