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Exhibit 10(u)
2004 RESTRICTED SHARE AND RETENTION INCENTIVE AWARD AGREEMENT
Participant's Name: xxxx
Awards:
200x: xxxx Shares
200x: xxxx Shares
200x: xxxx Shares
200x: xxxx Shares
200x: xxxx Shares
This 2004 RESTRICTED SHARE AND RETENTION INCENTIVE AWARD AGREEMENT (the
"Agreement") dated as of January 2, 2004, is between EDO Corporation, a New York
corporation (the "Company"), and _________________.
The EDO Corporation 2002 Long-Term Incentive Plan (the "Plan") is
intended to xxxxxx and promote the long-term financial success of the Company by
motivating superior performance by means of providing for the acquisition of an
ownership interest in the Company by Eligible Employees. The Company's Board of
Directors has designated its Compensation Committee (the "Committee") as the
committee to administer the Plan. The applicable terms of the Plan are
incorporated herein by reference. Capitalized terms used in this Agreement and
not defined herein shall have the meaning assigned to such terms in the Plan.
Pursuant to Section 7(a) of the Plan, on January 2, 2004, the Committee
decided to make the Awards of the Company's Common Stock, par value $1 per share
(the "Common Shares") to you, as described above and subject to the terms and
conditions described below.
You must be employed by the Company on the January 2 of the applicable
year set forth above in order to receive the grant of Restricted Shares for that
year.
1. Restrictions on Disposition of Common Shares
A certificate evidencing the Common Shares shall be held by the Company
until the lapse of the restrictions and shall contain the following legend on
the face thereof:
"The transfer of the shares represented by this certificate is
restricted pursuant to the terms of an Award Agreement under
the EDO Corporation 2002 Long-Term Incentive Plan."
Upon satisfaction of the restrictions pursuant to Section 2 of this
Agreement, a share certificate without legend shall be delivered to you.
2. Restriction Period
The Committee has set a Restriction Period for the Common Shares
subject to this Agreement. The Restriction Period is [five (5)][three (3)]
years, beginning on January 2 of the year, which relates to the applicable
grant. Unless the Committee permits otherwise, and pursuant to Sections 7 and 11
of the
Plan, you will receive the number of Common Shares listed above upon completion
of the Restriction Period, which shall not be subject to any restrictions.
Transfer of these shares to you will be treated as payment of compensation to
you, equal to the Fair Market Value of the shares on that date. The application
of the Restricted Period shall apply separately to each of the stated grant
years as detailed above. As provided in the Plan, the Committee may, at any time
and for any reason, accelerate the Restricted Period on these grants. The
Committee also may, at any time and for any reason, accelerate the year(s) in
which grants of Restricted Shares are to be received.
3. Rights as a Shareholder
Subject to the provisions of Section 7(e) of the Plan, you shall be
entitled to receive all dividends and other distributions with respect to the
Common Shares.
4. Change in Control
Notwithstanding any provision of the Plan or the Agreement, in the
event of a "Change in Control" (as defined below),
(i) if the Participant has not yet received all grants of
Restricted Shares for all of the years set forth above, he shall
immediately receive all grants of Restricted Shares for all remaining
years, as set forth above; and
(ii) the Restricted Period applicable to the Participant's
Restricted Shares shall expire immediately and all such shares shall be
nonforfeitable and immediately transferable; and
(iii) such shares shall be immediately transferred to the
Participant.
For purposes of this Section 4, "Change in Control" shall mean the
occurrence of any of the following events:
(i) as a result of, or in connection with, any cash tender
offer, merger, acquisition, disposition, business combination, sale of
assets or contested election, or combination of the foregoing, the
persons who were members of the Board shall cease to constitute a
majority of the Board; or
(ii) any "person," including a "group" is or becomes the
"beneficial owner" (as defined in Rule 13(d)(3) of the Exchange Act),
directly or indirectly of securities of the Company representing 30% or
more of the combined voting power of the Company's then outstanding
securities; or
(iii) the shareholders of the Company approve a definitive
agreement for the direct or indirect sale or other disposition of all
or substantially all of the assets of the Company, or
(iv) any other event or transaction that is declared by
resolution of the Board to constitute a Change in Control for purposes
of the Plan.
For purposes of paragraph (ii), the terms "person" and "group" have the
same meanings as used in Sections 13(d) and 14(d)(2) of the Exchange Act, except
that the terms shall exclude the Company, its Subsidiaries, any employee benefit
plan of the Company or any Subsidiary,
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employees of the Company or any Subsidiary or any "group" of which any of the
foregoing is a member).
Notwithstanding the foregoing, a "Change in Control" shall not be
deemed to occur in the event the Company files for bankruptcy, liquidation or
reorganization under the United States Bankruptcy Code.
Notwithstanding any other provision of the Plan, in the event that
there is any material change in the Participant's duties, compensation,
reporting obligations, location of employment, responsibilities and/or title, at
any time following a Change in Control, all Awards of Restricted Shares under
this agreement shall become immediately vested.
5. Vesting
If a Participant terminates Employment and, at that time, has an Award
of Restricted Shares for which the Restricted Period has not yet been satisfied,
the Award will be forfeited as of the Participant's date of termination.
However, if the Participant terminates employment as a result of his (i) death
or (ii) Disability, the Restricted Period with respect to grants of Restricted
Shares received in the current and prior years shall expire immediately upon the
Participant's termination of Employment and such Restricted Shares shall be
fully nonforfeitable; grants of Restricted Shares applicable to subsequent years
shall be forfeited as of the Participant's date of termination.
6. Capital Adjustments for Corporate Transactions
Upon the occurrence of an event described in Section 4(c) of the Plan,
the number of the Common Shares covered by this Agreement shall be
proportionately adjusted in accordance with the terms of that Section.
7. Withholding Taxes
The Company shall have the right to sell shares and deduct withholding
taxes from any payments made pursuant to this Agreement or to make such other
provisions, as it deems necessary or appropriate to satisfy its obligations to
withhold federal, state or local income or other taxes incurred by reason of
payments or the issuance of Common Shares under this Agreement. Whenever, under
this Agreement, Common Shares are to be delivered, the Committee shall be
entitled to require as a condition of delivery that you remit an amount
sufficient to satisfy all federal, state and other governmental withholding tax
requirements related thereto.
8. Agreement
Nothing contained in this Agreement and no action taken pursuant to
this Agreement shall create or be construed to create a trust of any kind, or a
fiduciary relationship, between the Company and you, your executor,
administrator or other legal representative, or designated beneficiary or any
other persons. Any reserves that may be established by the Company in connection
with this Agreement shall continue to be part of the general funds of the
Company and no individual or entity other than the Company shall have any
interest in such funds until paid. If and to the extent that you or your
executor, administrator or other legal representative, as the case many be,
acquires a right to receive any payment from the Company pursuant to this
Agreement, such right shall be no greater than the right of an unsecured general
creditor of the Company.
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9. Notices
You shall be responsible for furnishing the Company with the current
and proper address for the mailing of notices and delivery of agreements, shares
pursuant to this Agreement. Any notices required or permitted to be given shall
be in writing and shall be deemed given if directed to the person to whom
addressed at such address and mailed by regular United States mail, first-class
and prepaid. If any item mailed to such address is returned as undeliverable to
the addressee, mailing will be suspended until you furnish the proper address.
Notice may also be given by fax, telegram, or cable. Notice shall be effective
upon receipt. This provision shall not be construed as requiring the mailing of
any notice or notification if such notice is not required under the terms of the
Plan, this Agreement or any applicable law. Notice to the Company shall be given
as follows:
EDO Corporation
Attn: Vice President, Human Resources
00 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
10. Entire Agreement
This Agreement and the Plan contain the entire agreement and
understanding between the Company and you with respect to the subject matter
hereof and may not be changed, modified or terminated orally but only by a
written instrument executed by the Company and you. The Committee shall have
complete discretionary authority to interpret this Agreement and the Plan in
accordance with the provisions of the Plan.
11. Governing Law
This Agreement shall be construed and enforced in accordance with, and
governed by, the laws of the State of New York without reference to its conflict
of law rules to the extent not pre-empted by Federal law, which shall otherwise
control.
12. Severability of Provisions
If any provision of this Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provisions hereof, and this Agreement shall be construed and enforced as if such
provisions had not been included.
13. Interpretation, etc.
The Committee in accordance with the applicable provisions of the Plan
shall administer the Plan and this Agreement. All determinations by the
Committee as to any matter, including matters of interpretation of this
Agreement and the Plan shall be conclusive and binding upon you. In the event of
a conflict between the terms of the Plan and the terms of this Agreement, the
terms of the Plan shall control.
14. Amendments
The Committee shall have the right, from time to time, to amend the
Agreement provided that no such amendment shall impair your rights under this
Agreement without your consent. The Company shall give written notice to you of
any such alteration or amendment of this Agreement as promptly as
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practicable after the adoption thereof. This Agreement may also be amended in a
written document signed by both you and the Company.
15. No Right of Employment
Nothing in this Agreement and no action by the Company, the Board or
the Committee in establishing or administering this Agreement shall be construed
as giving you the right to be retained in the employ of the Company or any
Subsidiary.
16. Headings and Captions
The headings and captions herein are provided for reference and
convenience only. They shall not be considered part of this Agreement and shall
not be employed in its construction.
17. Supplements
The Committee may add any supplement to this Agreement at a later date
if such supplement does not adversely affect your rights under this Agreement.
All capitalized terms used in such supplements without definition are used as
defined in this Agreement or the Plan.
By signature below, the Company and you have duly executed this
Agreement.
EDO CORPORATION
By: ___________________________ ______________________________
Xxxxxxx X. Xxxxx Participant
Vice President - Administration
And Shareholder Relations
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