Exhibit 10(k)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement"), dated as of February 1, 2003, by
and between EDO Corporation, a New York corporation, and Xxxxx X. Xxxxx.
WHEREAS, EDO Corporation (the "Company"), AIL Systems Inc. a wholly
- owned subsidiary of the Company ("AIL") and Xxxxx X. Xxxxx ("you") entered
into an amended and restated employment agreement, dated as of January 2, 2000,
which otherwise expires by its terms on May 1, 2003 (the "Expiring Agreement");
WHEREAS, the Company desires that you continue in the positions of
Chairman, Chief Executive Officer and President and you are willing to continue
in such positions, all on the terms and conditions set forth in this new
Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Effective Date. This Agreement shall become effective as of the date
first above written (the "Effective Date"), at which time the
Expiring Agreement shall terminate and rendered void and without
further effect.
2. Employment Duties.
(a) Position and Duties. Subject to the terms and conditions
of this Agreement, the Company shall continue to employ
you as its Chairman, Chief Executive Officer and
President from and after the Effective Date until the
expiration of the Term (as defined in Section 3) of this
Agreement. In such position, you shall continue to be
responsible for the day-to-day operation and management
of the Company and have such powers, duties,
responsibilities and indemnification commensurate with
your experience and your position as Chief Executive
Officer and President as are set forth in the Company's
By-Laws and as may be assigned to you from time to time
by the Company's Board of Directors. You shall also
continue to serve, without additional compensation, in
such other position or positions with the Company and/or
its majority-owned subsidiaries commensurate with your
experience and position as Chief Executive Officer as
the Board of Directors shall assign to you at any time
and from time to time. It is understood that among your
duties during the term shall be to recommend to the
Board of Directors a mutually agreeable succession and
transition plan and the timely implementation of such
plan.
(b) Report to the Board. You shall continue to report
directly to the Company's Board of Directors. You shall
continue to serve as a member of the Board of Directors
of the Company and the Company will take such steps as
may be necessary and appropriate to have you nominated
for reelection for additional terms as a director during
the term of this Agreement.
(c) Working Time. You shall devote all of your working time,
on an exclusive basis, and except for vacations, periods
of illness, injury or other disability, to the business
and affairs of the Company.
(d) Location. Your principal place of employment shall be at
the Company's headquarters in New York City.
3. Term. The term of this Agreement shall be the period from the
Effective Date through May 31, 2006 (the "Term").
4. Compensation and Benefits. During the Term, the Company shall pay to
you, and you shall accept from the Company, as full compensation for
all of your services hereunder, the amounts indicated in this
Section 4:
(a) Base Salary. The Company shall pay to you an annual base
salary ("Base Salary") during the Term as followings:
- $600,000 per annum during the first 12 month
period of the Term;
- $625,000 per annum during the second 12
month period of the Term, and
- $650,000 per annum thereafter.
(b) Annual Bonus. During each year of the Term you will be
eligible to receive an annual bonus in an amount
determined in the sole discretion of the Compensation
Committee of the Board of Directors (the "Committee").
Your bonus target shall be 75% of your Base Salary in
respect of the year in which the bonus is to be paid.
The Committee shall determine the time and manner of
payment.
(c) Other Compensation and Benefits. Except as otherwise
provided herein, you shall be eligible to participate
in, on a basis commensurate with your position with the
Company, all of the Company's employee compensation and
benefit plans and arrangements in effect at any time or
from time to time during the Term. You shall be entitled
to participate in or receive benefits under any employee
benefit plan or arrangement made available by the
Company to its executives and key management employees,
subject to and on a basis consistent with the terms and
conditions thereof. Notwithstanding the foregoing,
should their be a downward adjustment in the benefits
provided executive employees under the EDO Corporation
Supplemental Executive Retirement Plan (the "SERP"), the
Company shall provide you a benefit substantially
equivalent any shortfall resulting from such change,
payable on substantially the same basis and at
substantially the same time you would have received such
payments under the SERP had there been no downward
adjustment.
(d) Company Grant of Restricted Shares. You shall be granted
15,000 shares of the Company's common stock annually in
respect of each whole year in the Term, subject to your
execution of a restricted share agreement in a form
mutually agreed with the Company. The restricted shares
shall not be transferable and shall remain subject to
forfeiture until vested in accordance with the terms of
the grant, as reflected in the
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restricted share agreement. It is not anticipated that
you will participate in any stock option program of the
Company during the term.
(e) Car Allowance. For your use during the Term, you will be
provided a new automobile every three years.
(f) Vacation. You shall be eligible for vacation benefits in
accordance with the Company's vacation policy. In no
event, however, shall you be provided less than four
weeks of vacation during any calendar year.
(g) Business Expenses. The Company shall reimburse you for
reasonable and necessary business expenses in accordance
with the Company's policies as the same may be amended
from time to time, and upon presentation of appropriate
documentation reasonably satisfactory to the Company.
(h) Legal Expenses. Upon your submission of receipts
reasonably acceptable to the Company and in accordance
with the Company's reimbursement policies, the Company
shall pay an additional amount during the Term in
respect of tax and estate planning not to exceed $15,000
in the aggregate.
5. Termination of Employment. Your employment with the Company may
terminate upon the occurrence of the following circumstances:
(a) Death and Disability. Your death or your inability to
perform your duties hereunder by reason of disability,
due to physical or mental illness, after reasonable
accommodation, for a period in excess of one hundred and
eighty (180) consecutive business days. Your employment
may be terminated by the Company by reason of your
disability, pursuant to this subsection (a) only if you
do not return to work within thirty (30) days after a
notice of termination has been provided to you in
writing by the Company.
(b) Cause. Termination of your employment by the Company for
"Cause", which for purposes of this Agreement shall
mean:
(i) the willful and continued failure by you to
substantially perform your duties hereunder
(other than any such failure resulting from
your disability due to physical or mental
illness), after you have received from the
Board of Directors of the Company a written
demand for substantial performance that
specifically identifies the manner in which
the Board of Directors believes you have not
substantially performed your duties and a
reasonable opportunity under the
circumstances to cure any such failure;
(ii) the willful engaging by you in gross
misconduct materially and demonstrably
injurious to the Company;
(iii) your having engaged in any conduct or failed
to take any action, with respect to the
Company, any of its employees, any of its
affiliates or any of its
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shareholders, which act or failure to act
constitutes a crime under federal or state
law; or
(iv) your having been convicted of or pleaded no
contest to any crime involving moral
turpitude or any crime that could carry a
jail sentence as a penalty.
For purposes of this subsection (b), no act, or failure
to act, shall be considered "willful" unless done, or
omitted to be done, by you not in good faith and without
reasonable belief that your act or omission was in the
best interest of the Company. Notwithstanding the
foregoing, your employment shall not be deemed to have
terminated for Cause unless and until there shall have
been delivered to you a copy of a resolution duly
adopted by the affirmative vote of not less than
three-quarters (3/4) of the membership of the Board of
Directors of the Company (excluding you) at a meeting of
the Board of Directors called and held for such a
purpose (after reasonable notice to you and an
opportunity for you, together with your counsel, to be
heard before the Board of Directors), finding that in
the good faith opinion of the Board of Directors you
were guilty of the conduct set forth in this
subparagraph (b) and specifying the particular details
thereof in detail. Such finding by the Board of
Directors shall be conclusive and binding upon all
parties, and the Board of Directors is hereby granted
discretionary authority to make such determination.
(c) Retirement. Termination of your employment by you due to
your retirement in accordance with the terms of any
Company retirement plan in which you participate.
(d) Good Reason. Termination of your employment at any time
by you for "Good Reason." For the purpose of this
Agreement, Good Reason shall mean:
(i) the assignment to you of any material duties
inconsistent with your position, duties,
responsibilities and status at the Company,
as provided herein, without your express
written consent;
(ii) a change inconsistent with the provisions of
this Agreement in your title as President
and/or Chief Executive Officer, or
substitution of a successor as President
and/or Chief Executive Officer, or in your
reporting responsibilities, except (A)
during the final eighteen months of the Term
with respect to a President and (B) during
the final twelve months of the Term with
respect to a Chief Executive Officer;
(iii) a reduction in your Base Salary (as defined
in Section 4(a));
(iv) failure to allow you to participate in the
any material employee benefit and executive
compensation plans and arrangements
available to senior executives in accordance
with the provisions of Section 4(c) except
as herein provided;
(v) a requirement that you be based anywhere
other than the Company's principal executive
offices in the greater New York metropolitan
area or, in the event you consent to any
such relocation of the Company's principal
executive offices, the failure by the
Company to pay (or reimburse you for) all
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reasonable moving expenses incurred by you
relating to a change of your principal
residence in connection with such relocation
and/or to indemnify you against any "loss"
realized in the sale of your principal
residence in connection with any such change
of residence, where "loss" is defined as the
amount by which the higher of (a) your
aggregate investment in such residence and
(b) the fair market value of such residence
as determined by any real estate appraiser
designated by you and reasonably
satisfactory to the Company, exceeds the
actual sale price of such residence; or
(vi) if not automatic by operation of law, the
failure of the Company to obtain the
assumption of, and agreement to perform,
this Agreement by any successor (whether
direct or indirect, by purchase,
consolidation or otherwise) to all or
substantially all of the assets of the
Company, by agreement in form and substance
reasonably satisfactory to you.
6. Compensation Upon Termination.
(a) Death or Disability. If your employment is terminated by
reason of your death or disability pursuant to Section
5(a), you or your estate, as the case may be, shall
receive your Base Salary through the date of your
termination and such other compensation and benefits to
which you are entitled in accordance with the terms and
conditions of the compensation and benefit plans and
arrangements in which you are then a participant.
(b) Cause. If your employment is terminated for Cause
pursuant to Section 5(b), you shall not be entitled to
any compensation for any period after termination, but
you shall receive such compensation and benefits for
time worked prior to such termination and to which you
are entitled in accordance with the terms of the
compensation and benefit plans in which you are then a
participant.
(c) Post-Retirement Consulting/Non-competition Payments. If
your employment is terminated by you due to your
retirement at the end of the Term pursuant to Section
5(c), you shall be provided the opportunity to provide
consulting services (the "Consulting Services"), for a
period of up to 2 years following such retirement (the
"Consulting Period"). As total consideration for the
Consulting Services, and in consideration of the
provisions of post-termination non-competition
provisions of Section 9(b) below, the Company will pay
you $300,000 during each year of the Consulting Period.
In the event of your demise during the Consulting
Period, the payment shall be made to your estate. In
accordance with the terms of the Company's health
insurance policy then in effect, you will be entitled to
participate in the Company's paid health insurance
during the Consulting Period. You shall not be eligible
to participate in any other plan or program of the
Company.
(d) Good Reason; Without Cause. Subject to the provisions of
Section 6(e), if your employment is terminated by you
for Good Reason pursuant to Section 5(d), or is
terminated by the Company for any reason other than
death, disability, Cause,
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retirement, expiration of the Term or mutual written
agreement, the Company will pay to you the following
amounts ((collectively, the "Termination Payments"):
(i) An amount equal to the product of (x) the
number three multiplied by (y) the sum of
(A) your annual Base Salary as defined in
Section 4(a), plus (B) the average annual
Company incentive bonus amount awarded to
you for the three years preceding the
termination of your employment, or the
previous year's incentive bonus if higher.
The Termination Payment will be paid in cash
in a single sum promptly following the date
of termination.
(ii) If a payment is made under (i) above, in
addition:
(A) for the three-year period
following your termination of
employment, you (and to the
extent covered at the date of
your termination of employment,
your spouse and your eligible
dependents) shall be entitled to
continued coverage under the
Company's medical, life and
disability plans for employees,
as the same may be modified from
time to time for employees
generally, on the same terms and
conditions as though you had
continued in the Company's
employ (or, at the Company's
election, coverage equivalent
thereto); and
(B) during the same period you shall
be entitled to five years (or up
to age 65 whichever is earlier)
of continued participation
service accrual under each
employee retirement plan in
which you are then
participating, whether or not
qualified (the "Pension Plans"),
to a period not to exceed the
granting of credited service to
all Plan participants; and
(C) upon the completion of the
period set forth in (A) above,
you will be entitled to those
benefits (or their equivalent)
to which retirees of the Company
may be entitled in accordance
with the terms and conditions of
the Pension Plans and the
medical and life insurance plans
for retirees, as those plans may
be modified from time to time
for employees generally.
(D) Notwithstanding the provisions
of (b)(ii)(B) above, in the
event that the granting of
vested service accrual credit to
you under the Pension Plan
could, in the reasonable opinion
of the Company, adversely affect
the tax-qualified status of the
Pension Plan, such service
credit shall not be granted and
in lieu thereof, the Company
shall pay you, upon the
expiration of the period set
forth in (A) above, a single
cash payment equal to the
actuarial equivalent of the
increase in your retirement
benefit that would have resulted
if the service credit had been
granted, as determined by the
enrolled actuary regularly
consulted by the Company for the
Pension Plan, and shall be paid
in accordance with the terms of
the Pension Plan in effect at
that time,
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with the determination of such
actuary being final and binding
upon all parties.
(E) All of the shares of Company
restricted stock granted,
whether pursuant to Section 4(d)
or otherwise, shall fully and
immediately vested on the date
your employment terminates under
the Section 6(d) and upon any
termination described in Section
6(d) any options to purchase
Company stock not otherwise
vested for any reason shall be
deemed to be and shall become
fully vested and nonforfeitable
and immediately exercisable, and
remain exercisable in accordance
with the terms of the stock
option plan.
(e) Release and Full Satisfaction. The Termination Payments
under Section 6(d) shall be in lieu of any other
severance or termination benefits to which you may be
entitled under the Company's plans, policies, programs
or agreements and shall be subject to your execution of
a release and separation agreement in form and substance
satisfactory to the Company and its counsel. Payment of
any amounts under Section 6(d) shall be in full and
complete satisfaction of any claims that you may have
under this Agreement or otherwise arising in connection
with your employment with or termination of employment
by the Company and/or any of its subsidiaries; provided
that, nothing contained in this clause shall be
construed to limit your right to any vested benefits
accrued or payable under the terms of any employee
benefit plan (other than any severance plan) established
and maintained by the Company, any vested rights under
any equity based incentive award, whether granted to you
under the terms of this Agreement or otherwise, or any
of its subsidiaries or your right to indemnification
with respect to his service as an employee, officer or
director of the Company or any of its subsidiaries.
7. Gross-up Payment Upon a Change in Control.
(a) Imposition of Excise Tax. In the event that any amount
or benefit paid or distributed to you pursuant to this
Agreement, taken together with any amounts or benefits
otherwise paid or distributed to you by the Company, any
subsidiary or any affiliated company (collectively, the
"Covered Payments"), would be an "excess parachute
payment" as defined in Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), and would
thereby subject you to the tax (the "Excise Tax")
imposed under Section 4999 of the Code (or any similar
tax that may hereafter be imposed), the Company shall
pay to you following your termination of your employment
an additional amount (the "Tax Adjustment") such that
the net amount retained by you with respect to such
Covered Payments, after deduction of any Excise Tax on
the Covered Payments and any Federal, state and local
income tax, employment tax and Excise Tax (including any
interest and penalties) on the Tax Adjustment provided
for by this Section 7, but before deduction for any
Federal, state or local income or employment tax
withholding on such Covered Payments, shall be equal to
the amount of the Covered Payments. The Tax Adjustment
shall be paid at the same time the payment is due to the
Internal Revenue Service in respect of the Covered
Payments.
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(b) Calculation Assumptions. For purposes of determining
whether any of the Covered Payments will be subject to
the Excise Tax and the amount of such Excise Tax,
(i) such Covered Payments will be treated as
"parachute payments" within the meaning of
Section 280G of the Code, and all "parachute
payments" in excess of the "base amount" (as
defined under Section 280G(b)(3) of the
Code) shall be treated as subject to the
Excise Tax, unless, and except to the extent
that, in the good faith judgment of the
Company's independent certified public
accountants or tax counsel of national
reputation selected by the Company (the "Tax
Advisors"), the Company has a reasonable
basis to conclude that such Covered Payments
(in whole or in part) either do not
constitute "parachute payments" or represent
reasonable compensation for personal
services actually rendered (within the
meaning of Section 280G(b)(4)(B) of the
Code) in excess of the "base amount," or
such `parachute payments" are otherwise not
subject to such Excise Tax, and
(ii) the value of any non-cash benefits or any
deferred payment or benefit shall be
determined by the Tax Advisors in accordance
with the principles of Section 280G of the
Code.
(c) Overpayment Adjustment. In the event that the Excise Tax
is subsequently determined by the Tax Advisors or
pursuant to any proceeding or negotiations with the
Internal Revenue Service to be less than the amount
taken into account hereunder in calculating the Tax
Adjustment made, you shall repay to the Company, at the
time that the amount of such reduction in the Excise Tax
is finally determined, the portion of such prior Tax
Adjustment that would not have been paid if such Excise
Tax had been applied in initially calculating such Tax
Adjustment, plus interest on the amount of such
repayment at the rate provided in Section 1274(b)(2)(B)
of the Code. Notwithstanding the foregoing, in the event
any portion of the Tax Adjustment to be refunded to the
Company has been paid to any Federal, state or local tax
authority, repayment thereof shall not be required until
actual refund or credit of such portion has been made to
you, and interest payable to the Company shall not
exceed interest received or credited to you by such tax
authority for the period it held such portion. You and
the Company shall mutually agree upon the course of
action to be pursued (and the method of allocating the
expenses thereof) if your good faith claim for refund or
credit is denied.
(d) Underpayment Adjustment. In the event that the Excise
Tax is later determined by the Tax Advisors or pursuant
to any proceeding or negotiations with the Internal
Revenue Service to exceed the amount taken into account
hereunder at the time the Tax Adjustment is made
(including, but not limited to, by reason of any payment
the existence or amount of which cannot be determined at
the time of the Tax Adjustment), the Company shall make
an additional Tax Adjustment in respect of such excess
(plus any interest or penalty payable with respect to
such excess) at the time that the amount of such excess
is finally determined.
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(e) Timing of Payment. Any Tax Adjustment (or portion
thereof) shall be paid to you not by wire transfer or
certified check not later than the day the applicable
tax payment is due in respect of the applicable Covered
Payment to which it relates; provided, however, that if
the amount of such Tax Adjustment (or portion thereof)
cannot be finally determined on or before the date on
which payment is due, the Company shall pay to you by
such date an amount estimated in good faith by the Tax
Advisors to be the minimum amount of such Tax Adjustment
and shall pay the remainder of such Tax Adjustment
(together with interest at the rate provided in Section
1274(b)(2)(IB) of the Code) as soon as the amount
thereof can be determined, but in no event later than
the due date pursuant to any demand therefor by the
Internal Revenue Service.
(f) Impact of Section 7. Notwithstanding anything else to
the contrary contained in this Section 7, you shall not
be required to take any actions or pay any amounts under
this Section that will in the aggregate, cause you to
receive less compensation (on a net-after tax basis)
than if this Section 7 was omitted from this Agreement
in its entirety.
8. Successors. As used in this Agreement, "the Company" shall mean the
Company as hereinbefore defined and any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization or
otherwise) to all or substantially all of the assets of the Company.
This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
9. Covenants. Confidential Information. You acknowledge and agree that
you have and will come into contact with, have access to and learn
various technical and non-technical trade secrets and other
Confidential Information, which are the property of the Company.
Such Confidential Information includes but is not limited to
methods, procedures, devices and other means used by the Company in
the conduct of its business, marketing plans and strategies, pricing
plans and strategies, data processing programs, databases, formulae,
secret processes, machines and adaptations thereto, inventions,
research projects, and all other matters of a technical nature, all
of which Confidential Information is not publicly available, but has
been developed by the Company at its great effort and expense; names
and addresses of the Company's customers and their representatives
responsible for entering into contracts for the Company's services,
customer leads or referrals, specific customer needs and
requirements and the manner in which they have been met by the
Company, information with respect to pricing, costs, profits, sales,
markets, plans for future business and other development, all of
which Confidential Information is not available from directories or
other public sources; and information with respect to the Company's
employees, their names and addresses, compensation, experience,
qualifications, abilities, job performance and similar information.
All of the Confidential Information has been developed, acquired or
compiled by the Company at its great effort and expense.
(a) Non-Disclosure of Confidential Information. Except as
may be required in the proper performance of your duties
hereunder or as may be compelled by administrative or
judicial subpoena or other process, you acknowledge and
agree that any disclosure, divulging, revealing or other
use of any of the aforesaid Confidential Information by
you, other than in connection with the Company's
business will be highly detrimental
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to the business of the Company and serious loss of
business and pecuniary damage may result therefrom.
Accordingly, you specifically covenant and agree to hold
all such Confidential Information and any documents
containing or reflecting the same in the strictest
confidence, and you will not, both during employment
with the Company or at any time thereafter, without the
Company's prior written consent, disclose, divulge or
reveal to any person whomsoever, or use for any purpose
other than the exclusive benefit of the Company, any
Confidential Information whatsoever, whether contained
in your memory or embodied in writing or other physical
form.
(b) Covenant Not to Compete. You acknowledge and agree that
the Company is engaged in a highly competitive business,
and by virtue of your position and responsibilities with
the Company, and your access to the Confidential
Information, engaging in any business which is directly
or indirectly competitive with the Company will cause it
great and irreparable harm. Consequently, you covenant
and agree that during the Term, and, in consideration of
the payments for the Consulting Services provided for in
Section 6(c) above, for the two-year period following
your termination of employment hereunder, you shall not
directly or indirectly own, manage, operate, control, be
employed by, participate in, or be connected with, in
any manner (other than as a shareholder of less than 2%
of the outstanding equity of any publicly traded
company), any business engaged in whole or in part in
any of the businesses conducted by the Company now or at
the time of the termination of your employment, or that
the Company has made substantial designs to pursue now
or at such time, in the United States, the same being
the same geographic area in which the Company's business
is conducted, without the prior written specific consent
of the Company. If requested, this consent shall not be
unreasonably withheld where the elements of competition
are not direct, or specific, to the Company's business.
(c) Non-Solicitation of Customers. You acknowledge and agree
that during the course and solely as a result of your
employment with the Company, you have and will become
aware of some, most or all of the Company's customers
and clients, their names and addresses, their
representatives responsible for engaging the Company's
services, their specific needs and requirements, and
lead and referrals to prospective customers and clients.
You further acknowledge and agree that the loss of such
customers and clients would cause the Company great and
irreparable harm. Consequently, you covenant and agree
that in the event of the termination of your employment
with the Company, whether voluntarily or involuntarily,
you will not, for the two year period following your
termination of employment hereunder, directly or
indirectly solicit to do business of a nature that is
directly or indirectly competitive with the business of
the Company or any of its subsidiaries with any customer
or client, former customer or client or prospective
customer or client of the Company with whom you came
into contact while employed by the Company or who was
known to you to be a current, former or prospective
customer or client of the Company. For purposes of the
immediately preceding sentence, a person or entity shall
be treated as a prospective customer only if and to the
extent that the Company has undertaken a deliberate
effort to obtain the business of such person or entity
and has a reasonable expectation of obtaining such
business.
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(d) Non-Solicitation of Employees. You acknowledge and agree
that during the course of employment by the Company, you
have and may hereafter come into contact with some, most
or all of the Company's employees, their knowledge,
skills, abilities, salaries, commissions, benefits and
other matters with respect to such employees not
generally known to the public. You further acknowledge
and agree that any solicitation, luring away or hiring
of such employees of the Company will be highly
detrimental to the business of the Company and will
cause the Company serious loss of business and great and
irreparable harm. Consequently, you covenant and agree
that during the course of employment by the Company and
for the two year period following the termination of
your employment hereunder, you shall not directly or
indirectly, on behalf of yourself or another, solicit,
lure or hire any employees of the Company of whom you
became aware while employed by the Company, or assist or
aid in any such activity.
(e) Enforcement of Covenants. You acknowledge and agree that
compliance with the covenants set forth in this Section
9 is necessary to protect the business and goodwill of
the Company and that any breach of this Section 9 or any
subparagraph hereof will result in irreparable and
continuing harm to the Company, for which money damages
may not provide adequate relief Accordingly, in the
event of any breach or anticipatory breach of Section 9
by you, the Company and you agree that the Company shall
be entitled to the following particular forms of relief
as a result of such breach, in addition to any remedies
otherwise available to it at law or equity: (a)
injunctions, both preliminary and permanent, enjoining
or restraining such breach or anticipatory breach, and
you hereby consent to the issuance thereof forthwith and
without bond by any court of competent jurisdiction; and
(b) recovery of all reasonable sums and costs, including
attorneys' fees, incurred by the Company to enforce the
provisions of Section 9.
(f) Prior Commitments. The covenants set forth in this
Section 9 supplement, and do not supersede, the
covenants contained in any other agreement between you
and the Company.
(g) Interpretation. Nothing in Section 9(c) or (d) shall be
construed to prevent any entity to which you provide
services from independently engaging in conduct of a
nature and type that you would be prohibited from
undertaking by reason of such Sections so long as you do
not, directly or indirectly, assist such entity in such
conduct.
10. Arbitration of Disputes and Jury Waivers. Except as set forth in
Section 9 of this Agreement, the parties hereto agree to arbitrate
any dispute, claim, or controversy (claim) against each other
arising out of the cessation of your employment, any claim of
unlawful discrimination or harassment that might or did arise during
or as a result of your employment which could have been brought
before an appropriate government administrative agency or in an
appropriate court, including but not limited to claims of age
discrimination under the Age Discrimination in Employment Act of
1967, as amended, as well as any claim or controversy under this
Agreement.
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The arbitration shall be arbitrated by one arbitrator in accordance
with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association. The parties hereto agree that
the arbitration shall take place in New York County, New York. The
arbitrator's fees will be shared equally by the parties. The
decision or award of the arbitration shall be final and binding upon
the parties. Any arbitral award may be entered as a judgment or
order in any court of competent jurisdiction.
Any Claims under Section 9 of this Agreement shall not be subject to
arbitration, but shall be subject to the remedies set forth therein.
(a) Jury Trial. If for any reason this Arbitration provision
is declared unenforceable, you agree to waive any right
you may have to a jury trial with respect to any dispute
or claim against the Company relating to this Agreement,
your employment, and the termination or modification of
any terms and conditions of employment, including but
not limited to claims of age discrimination under the
Age Discrimination in Employment Act of 1967, as
amended.
(b) Venue. In the event this Arbitration provision is
declared unenforceable for any reason, or in the event
of any litigation arising pursuant to Section 9 of this
Employment Agreement, the parties agree that, with
respect to any litigation arising pursuant to this
Agreement, New York County, New York shall be the only
proper county for purposes of venue. The parties further
agree that they will submit to the personal jurisdiction
of any Court (Federal or State) located within New York
State.
11. Miscellaneous.
(a) Waiver. No waiver or modification of the Agreement, nor
any portion hereof, shall be valid unless in writing and
signed by you and such officers as may be specifically
designated by the Board of Directors of the Company. No
waiver by either party hereto at any time of any breach
by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at
any prior or subsequent time. Any Notice of Termination
by you must be given not later than forty-five (45) days
after the occurrence of the event which you claim to
constitute Good Reason and any Notice of Termination by
the Company must be given not later than forty-five (45)
days after the Company becomes aware of the occurrence
of the event claimed by the Company to constitute Cause
or Disability. Subject to the preceding sentence, any
failure by the Company to claim promptly that any event
constitutes Cause, or failure by you to claim promptly
that any event constitutes Good Reason, shall not
preclude either the Company or you from claiming
subsequently that such event or any earlier or later
event constitutes Cause or Good Reason. No agreements or
representation, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made
by any party which are not set forth expressly in this
Agreement.
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(b) Notices. All notices required or permitted to be given
under the terms of the Agreement, or which any of the
parties desires to give hereunder, shall be in writing
and delivered personally or be sent by registered mail
or certified mail, postage prepaid, return receipt
requested, or by reputable private courier addressed as
follows:
If to the Company: EDO Corporation
00 X. 00xx Xx
Xxx Xxxx, Xxx Xxxx
Attn: Corporate Secretary
If to you: Xx. Xxxxx X. Xxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
With copy to: Xxxxx XxXxxxx, Esq.
Frankfurt Kurnit Xxxxx & Xxxx, PC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Any party may change the address to which notice is to
be sent to it or to him by notice in writing to the
other party as provided above.
(c) Governing Law. This Agreement shall be subject to and
governed by the laws of the State of New York without
regard to its conflict of laws provisions.
(d) Severability. If any provision(s) of this Agreement
shall be found invalid or unenforceable, in whole or in
part, then such provision(s) shall be deemed to be
modified or restricted to the extent and in the manner
necessary to render the same value and enforceable, or
shall be deemed excised from the Agreement, as the case
may require, and this Agreement shall be construed and
enforced to the maximum extent permitted by law, as if
such provision(s) had been originally incorporated
herein as so modified or restricted or as if such
provision(s) had not been originally incorporated herein
as the case may be.
(e) Legal Fees and Expenses. If, following any final
adjudication of any proceeding, you shall have prevailed
as to at least one material issue presented in any
arbitration or other contest regarding your rights or
obligations under this Agreement or regarding the
validity or enforceability of any provision of this
Agreement, the Company shall pay the reasonable amount
of the legal fees and expenses you incurred as a result
of such arbitration or contest.
(f) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original.
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EDO CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Name: XXXXXXXX X. XXXXXXXX
Title: Vice President, Human Resources
/s/ Xxxxx X. Xxxxx
------------------------
XXXXX X. XXXXX
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