Exhibit 10(e)
THIS
AGREEMENT is entered into as of November 15, 2004, between Joy Global Inc. (the
“Company”) and [_______________](the “Participant”).
WHEREAS,
the Company maintains the Joy Global Inc. 2003 Stock Incentive Plan (as amended from time
to time, the “Plan”), which is incorporated into and forms a part of this
Agreement. Capitalized terms used and not otherwise defined in this Agreement have the
meanings given to them in the Plan.
WHEREAS,
the Participant has been selected by the Committee to receive an award of Performance
Shares under the Plan;
NOW,
THEREFORE, IT IS AGREED, by and between the Company and the Participant, as follows:
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1. |
Terms of Award. The following terms used in this Agreement shall have the
following meanings: |
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(a) |
The
"Target Number of Performance Shares" is [________]. |
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(b) |
The “Performance Shares Earned” shall be the number of Performance
Shares earned by the Participant determined in accordance with the provisions of
Exhibit 1, which is attached to and forms a part of this Agreement. |
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(c) |
The “Award Cycle” is the period beginning on October 31, 2004 and
ending on November 3, 2007. |
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2. |
Award. Subject to the terms of this Agreement and the Plan, the
Participant is hereby granted the Target Number of Performance Shares set forth
in Paragraph 1(a). The award is not a Qualified Performance-Based Award. |
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3. |
Payment of Awards. The Company shall distribute to the Participant one
share of Common Stock (or cash equal to the Fair Market Value of one share of
Common Stock) for each Performance Share Earned. Subject to Paragraph 7,
Performance Shares Earned shall be paid solely in shares of Common Stock, solely
in cash based on the Fair Market Value of the Common Stock, or in a combination
of the two, as determined by the Committee in its sole discretion, except that
any fractional share of Common Stock will be rounded to the nearest whole share. |
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4. |
Time of Payment. Except as otherwise provided in this Agreement, payment
of Performance Shares Earned in accordance with the provisions of Paragraph 3
will be distributed on January 14, 2008. |
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5. |
Retirement, Disability, Death, or Involuntary Termination of Employment
Without Cause During Award Cycle. If the Participant experiences a
Termination of Employment during the Award Cycle because of the
Participant’s Retirement, Disability, death, or involuntary Termination of
Employment without Cause, the Participant shall be entitled to a portion of the
Performance Shares Earned in accordance with Exhibit 1, determined at the end of
the Award Cycle. Such portion shall equal the number of Performance Shares
Earned that would have been earned by the Participant had the Participant
remained employed through the end of the Award Cycle, multiplied by the quotient
equal to the number of full fiscal months the Participant was employed during
the Award Cycle, divided by the total number of fiscal months in the Award
Cycle. |
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6. |
Other Termination of Employment During Award Cycle. If the Participant
experiences a Termination of Employment during the Award Cycle for any reason
other than the Participant’s Retirement, Disability, death, or involuntary
Termination of Employment without Cause, the award granted under this Agreement
will be forfeited on the date of such Termination of Employment; provided,
however, that in such circumstances the Committee, in its discretion, may
determine that the Participant will be entitled to receive a pro rata or other
portion of the Performance Shares Earned, determined at the end of the Award
Cycle. |
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(a) |
If a Change in Control occurs during the Award Cycle, and the Participant has
not experienced a Termination of Employment before the Change in Control, the
Participant shall be entitled to the greater of (i) the Performance Shares
Earned that would have been earned by the Participant had the Participant
remained employed through the end of the Award Cycle in accordance with Exhibit
1 if the Performance Goal set forth in Exhibit 1 had been achieved, multiplied
by the quotient equal to the number of full fiscal months the Participant was
employed during the Award Cycle through the date of the Change in Control,
divided by the total number of fiscal months in the Award Cycle, or (ii) the
Performance Shares Earned as of the date of the Change in Control (based on the
Cumulative Cash Flow for the Award Cycle through and including such date). |
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(b) |
Notwithstanding the provisions of Paragraph 3, the value of Performance Shares
Earned in accordance with Paragraph 7(a) shall be distributed to the Participant
in a lump sum cash payment, based on a value per Performance Share equal to the
Change in Control Price, as soon as practicable after the occurrence of a Change
in Control (unless such Change in Control does not qualify as an event described
in Section 409A(a)(2)(A)(v) of the Code and the regulations thereunder, in which
case such distribution shall occur as soon as practicable following the first to
occur of (i) January 14, 2008, (ii) (x) if the Participant is not a
“specified employee” (within the meaning of Section 409A(a)(2)(B)(i)
of the Code) (a “Specified Employee”), the date of the
Participant’s Termination of Employment, or (y) if the Participant is a
Specified Employee, the date which is six months after the date of such
Termination of Employment, and (iii) the date the Participant dies or becomes
disabled (within the meaning of Section 409A(a)(2)(A)(ii) and the regulations
thereunder)). |
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(c) |
Distributions to the Participant under Paragraph 3 shall not be affected by
payments under this Paragraph 7, except that before payments are made under
Paragraph 3, and after all computations required under Paragraph 3 have been
made, the number of Performance Shares Earned by the Participant shall be
reduced by the number of Performance Shares Earned with respect to which payment
was made to the Participant under this Paragraph 7. |
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(d) |
The Participant shall not be required to repay any amounts to the Company on
account of any distribution made under this Paragraph 7 for any reason,
including failure to achieve the Performance Goal. |
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8. |
Heirs and Successors. This Agreement shall be binding upon, and inure to
the benefit of, the Company and its successors and assigns, and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Company’s assets and business. Subject to
the terms of the Plan, any benefits distributable to the Participant under this
Agreement that are not paid at the time of the Participant’s death shall be
paid at the time and in the form determined in accordance with the provisions of
this Agreement and the Plan to the beneficiary designated by the Participant in
writing filed with the Committee in such form and at such time as the Committee
shall require. If the Participant fails to designate a beneficiary prior to his
or her death, or if the designated beneficiary of the Participant dies before
the Participant dies or before complete payment of the amounts distributable
under this Agreement, the amounts to be paid under this Agreement shall be paid
to the legal representative or representatives of the estate of the last to die
of the Participant and the beneficiary. |
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9. |
Administration. The authority to manage and control the operation and
administration of this Agreement shall be vested in the Committee, and the
Committee shall have all powers with respect to this Agreement as it has with
respect to the Plan. Any interpretation of this Agreement by the Committee and
any decision made by it with respect to this Agreement are final and binding. |
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10. |
Plan Terms. Notwithstanding anything in this Agreement to the contrary,
the terms of this Agreement shall be subject to the terms of the Plan, a copy of
which may be obtained by the Participant from the office of the Secretary of the
Company. |
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11. |
Confidential Information; Noncompetition; Nonsolicitation. |
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(a) |
The Participant shall hold in a fiduciary capacity for the benefit of the
Company all secret or confidential information, knowledge or data relating to
the Company or any of its Affiliates and their respective businesses that the
Participant obtains during the Participant’s employment by the Company or
any of its Affiliates and that (i) is not public knowledge or (ii) became public
knowledge as a result of the Participant’s violation of this Paragraph
11(a) (“Confidential Information”). The Participant acknowledges that
the Confidential Information is highly sensitive and proprietary and includes,
without limitation: product design information, product specifications and
tolerances, manufacturing processes and methods, information regarding new
product or new feature development, information regarding how to satisfy
particular customer needs, expectations and applications, information regarding
strategic or tactical planning, information regarding pending or planned
competitive bids, information regarding costs, margins, and methods of
estimating, and information regarding key employees. The Participant shall not
communicate, divulge or disseminate Confidential Information at any time during
or after the Participant’s employment with the Company or any of its
Affiliates, except with the prior written consent of the Company or as otherwise
required by law or legal process. All computer software, business cards,
telephone lists, customer lists, price lists, contract forms, catalogs, records,
files and know-how acquired while an employee of the Company or any of its
Affiliates are acknowledged to be the property of the Company or the applicable
Affiliate(s) and shall not be duplicated, removed from the possession or
premises of the Company or such Affiliate(s) or made use of other than in
pursuit of the business of the Company and its Affiliates or as may otherwise be
required by law or any legal process, and, upon Termination of Employment for
any reason, the Participant shall deliver to the Company (or the applicable
Affiliate, if the Participant is employed outside the United States), without
further demand, all such items and any copies thereof which are then in his or
her possession or under his or her control. Nothing in this Agreement is
intended to limit the Company’s or its Affiliates’ rights with respect
to trade secrets. |
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(b) |
The Participant acknowledges that his or her employment may place him or her in
a position of contact and trust with customers of the Company or its Affiliates,
and that in the course of employment the Participant may be given access to and
asked to maintain and develop relationships with such customers. The Participant
acknowledges that such relationships are of substantial value to the Company and
its Affiliates and that it is reasonable for the Company to seek to prevent the
Participant from giving competitors unfair access to such relationships. |
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(c) |
For an eighteen-month period beginning on the Termination of Employment date,
the Participant will not, except upon prior written permission signed by the
President or an Executive Vice President of the Company, consult with or advise
or, directly or indirectly, as owner, partner, officer or employee, engage in
business with any of the companies set forth on Exhibit 2 or with any
corporation or entity controlled by, controlling or under common control with
any such company. Exhibit 2 is attached to and forms a part of this Agreement.
Notwithstanding the foregoing, the Participant may make and retain investments
in not more than three percent of the equity of any such company if such equity
is listed on a national securities exchange or regularly traded in an
over-the-counter market. |
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(d) |
For a two-year period beginning on the Termination of Employment date, the
Participant will not, directly or indirectly (i) employ or solicit for
employment on behalf of any organization other than the Company or one of its
Affiliates any person (other than any personal assistant hired to work directly
for the Participant) employed by the Company or any of its Affiliates (or any
person who was so employed at any time during the preceding three months) or
(ii) be involved in any way, on behalf of any organization other than the
Company or one of its Affiliates, in the hiring process of any person (other
than any personal assistant hired to work directly for the Participant) known by
the Participant (after reasonable inquiry) to be employed by the Company or any
of its Affiliates at such time (or any person who was so employed at any time
during the preceding three months). |
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(e) |
In the event of a breach of the Participant’s covenants under this
Paragraph 11, the award granted under this Agreement shall be forfeited as of
the date of such breach. The Participant acknowledges and agrees that such
forfeiture is not expected to adequately compensate the Company and its
Affiliates for any such breach and that such expiration shall not substitute for
or adversely affect the remedies to which the Company or any of its Affiliates
is entitled under Paragraph 11(f) or at law. |
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(f) |
In the event of a breach of the Participant’s covenants under this
Paragraph 11, it is understood and agreed that the Company and any Affiliate(s)
that employed the Participant shall be entitled to injunctive relief, as well as
any other legal or equitable remedies. The Participant acknowledges and agrees
that the covenants, obligations and agreements of the Participant in Paragraphs
11(a), (b), (c) and (d) of this Agreement relate to special, unique and
extraordinary matters and that a violation of any of the terms of such
covenants, obligations or agreements will cause the Company irreparable injury
for which adequate remedies are not available at law. Therefore, the Participant
agrees that the Company and any Affiliate(s) that employed the Participant shall
be entitled to an injunction, restraining order or such other equitable relief
(without the requirement to post bond) as a court of competent jurisdiction may
deem necessary or appropriate to restrain the Participant from committing any
violation of such covenants, obligations or agreements. These injunctive
remedies are cumulative and in addition to any other rights and remedies that
the Company or its Affiliates may have. |
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(g) |
The Company and the Participant hereby irrevocably submit to the exclusive
jurisdiction of the courts of Wisconsin and the Federal courts of the United
States of America, located in Milwaukee, Wisconsin, in respect of all disputes
involving Confidential Information, trade secrets or the violation of the
provisions of this Paragraph 11 and the interpretation and enforcement of this
Paragraph 11, and the parties hereto hereby irrevocably agree that (i) the sole
and exclusive appropriate venue for any suit or proceeding relating to such
matters shall be in such a court, (ii) all claims with respect to any such
matters shall be heard and determined exclusively in such court, (iii) such
court shall have exclusive jurisdiction over the person of such parties and over
the subject matter of any such dispute, and (iv) each hereby waives any and all
objections and defenses based on forum, venue or personal or subject matter
jurisdiction as they may relate to any suit or proceeding brought before such a
court in accordance with the provisions of this Paragraph 11. |
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8. |
Taxes and Withholdings. No later than the applicable distribution date of
the Performance Shares Earned, the Participant shall pay to the Company or make
arrangements satisfactory to the Committee regarding payment of any federal,
state or local taxes, and any non-U.S. taxes applicable to the Participant, of
any kind required by law to be withheld upon the distribution of such
Performance Shares Earned, and the Company shall, to the extent permitted or
required by law, have the right to deduct from any payment of any kind due to
the Participant federal, state, local and applicable non-U.S. taxes of any kind
required by law to be withheld upon the distribution of such Performance Shares
Earned. |
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12. |
No Shareholder Rights Before Settlement. The Participant shall not be
entitled to any privileges of ownership of shares of Common Stock with respect
to this award unless and until shares of Common Stock are actually delivered to
the Participant pursuant to this Agreement. |
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13. |
Adjustments. In the event of any change in corporate capitalization or a
corporate transaction, as described in Section 3 of the Plan, the Committee or
the Board may make equitable adjustments in the number of Performance Shares
subject to the award. |
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14. |
Notices. All notices and other communications under this Agreement shall
be in writing and shall be given by hand delivery to the other party or by
facsimile, overnight courier, or registered or certified mail, return receipt
requested, postage prepaid, addressed as follows: |
If to the Participant:
If to the Company:
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Joy
Global Inc.
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention:
Corporate Secretary
Fax: 0-000-000-0000
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or to such other address or facsimile
number as any party shall have furnished to the other in writing in accordance with this
Paragraph 14. Notice and communications shall be effective when actually received by the
addressee.
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15. |
Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. |
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16. |
Conflicts and Interpretation. In the event of any conflict between this
Agreement and the Plan, the Plan shall control. In the event of any ambiguity in
this Agreement, any term which is not defined in this Agreement, or any matters
as to which this Agreement is silent, the Plan shall govern including, without
limitation, the provisions thereof pursuant to which the Committee has the
power, among others, to (a) interpret the Plan, (b) prescribe, amend and rescind
rules and regulations relating to the Plan, and (c) make all other
determinations deemed necessary or advisable for the administration of the Plan. |
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17. |
Amendment. This Agreement may not be modified, amended or waived except
by an instrument in writing signed by both parties hereto. The waiver by either
party of compliance with any provision of this Agreement shall not operate or be
construed as a waiver of any other provision of this Agreement, or of any
subsequent breach by such party of a provision of this Agreement. |
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18. |
Section 409A. The Company believes that the Performance Shares may
constitute “deferred compensation” within the meaning of Section 409A
of the Code, and it is the intention and belief of the Company that the
Performance Shares comply in all respects with Section 409A of the Code. If the
Company determines after the date hereof that an amendment to this Agreement is
necessary or advisable to ensure such compliance, it may make such amendment,
effective as of the date hereof or at any later date, without the consent of the
Participant (unless such amendment is materially adverse to the Participant). |
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19. |
Laws Applicable to Construction. The interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Delaware as applied to contracts executed in and performed wholly within the
State of Delaware, without reference to principles of conflict of laws. |
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20. |
Counterparts. This Agreement may be executed in counterparts, which
together shall constitute one and the same original. |
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21. |
Headings. The headings of paragraphs herein are included solely for
convenience of reference and shall not affect the meaning or interpretation of
any of the provisions of this Agreement. |
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(a) |
This Agreement shall not confer upon the Participant any right to continue as an
employee of the Company or any of its subsidiaries, nor shall this Agreement
interfere in any way with the right of the Company or its subsidiaries to
terminate the employment of the Participant at any time. |
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(b) |
This Agreement shall be subject to all applicable laws, rules and regulations
and to such approvals by any governmental agencies or national securities
exchanges as may be required. |
IN
WITNESS WHEREOF, the Participant has executed this Agreement, and the Company has caused
this Agreement to be executed in its name and on its behalf, all as of the date first
written above.
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JOY
GLOBAL INC.
By: ________________________________
PARTICIPANT:
By:
________________________________
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