Exhibit 10(c)
THIS
AGREEMENT is entered into as of November 15, 2004, between Joy Global Inc. (the
“Company”) and [_______________](the “Employee”). In consideration of
the mutual promises and covenants made in this Agreement and the mutual benefits to be
derived from this Agreement, the Company and the Employee agree as follows:
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1. |
Grant of Stock Option. Subject to the provisions of this Agreement and to
the provisions of the Joy Global Inc. 2003 Stock Incentive Plan (as amended from
time to time, the “Plan”), the Company hereby grants to the Employee
as of November 15, 2004 (the “Grant Date”) the right and option (the
“Stock Option”) to purchase [_______] shares of common stock of the
Company, par value $1.00 per share (“Common Stock”), at the exercise
price of $39.12 per share. The Stock Option is a NonQualified Stock Option.
Unless earlier terminated pursuant to the terms of this Agreement, the Stock
Option shall expire on the tenth anniversary of the Grant Date. Capitalized
terms used and not defined in this Agreement have the meanings given to them in
the Plan. |
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2. |
Exercisability of the Stock Option. The Stock Option shall become vested
and exercisable as follows: one-third of the shares covered thereby (rounded up
to the next whole share) on November 15, 2005, an additional one-third of such
shares (rounded up to the next whole share) on November 15, 2006, and the
remainder of such shares on November 15, 2007, subject in each case to the prior
termination of the Stock Option. Notwithstanding the foregoing, the Stock
Option, to the extent outstanding, shall become immediately vested and fully
exercisable upon (a) a Change in Control or (b) a Termination of Employment due
to death or Disability. For purposes of this Agreement, Change in Control shall
have the meaning set forth in the Plan. Upon the effective date of the
Employee’s Termination of Employment for any reason other than death or
Disability, any portion of the Stock Option that is not vested as of such date
in accordance with the foregoing provisions of this Paragraph 2 shall cease
vesting and terminate immediately. |
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3. |
Method of Exercise of the Stock Option. |
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(a) |
The portion of the Stock Option as to which the Employee is vested shall be
exercisable by delivery to the Secretary of the Company of a written notice
stating the number of whole shares to be purchased pursuant to this Agreement
and the date on which the Employee wants to exercise the Stock Option and
accompanied by payment of the full purchase price of the shares of Common Stock
to be purchased. |
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(b) |
The full purchase price of the Stock Option shall be paid in cash, by wire
transfer, or by certified check or bank draft payable to the order of the
Company, by exchange of shares of unrestricted Common Stock of the Company
already owned by the Employee (that have been purchased on the open market by
the Employee or held for six months prior to exercise) and having an aggregate
Fair Market Value equal to the full purchase price, or by any other procedure
approved by the Committee, or by a combination of the foregoing. |
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4. |
Terminations of Employment. |
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(a) |
If the Employee incurs a Termination of Employment due to Disability, the Stock
Option, to the extent outstanding at the time of such Termination of Employment,
shall become immediately vested and fully exercisable and may be exercised by
the Employee at any time prior to the first to occur of (i) one year after such
Termination of Employment or (ii) the expiration date of the Stock Option, and
shall thereafter expire. |
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(b) |
If the Employee incurs a Termination of Employment due to death, the Stock
Option, to the extent outstanding at the time of such Termination of Employment,
shall become immediately vested and fully exercisable and may be exercised by
the Employee’s estate or by a person who acquired the right to exercise
such Stock Option by bequest or inheritance or otherwise by reason of the death
of the Employee at any time prior to the first to occur of (i) one year after
such Termination of Employment or (ii) the expiration date of the Stock Option,
and shall thereafter expire. |
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(c) |
If the Employee incurs a Termination of Employment due to Retirement, the
portion of the Stock Option, if any, which is exercisable at the time of such
Termination of Employment may be exercised at any time prior to the first to
occur of (i) three years after such Termination of Employment or (ii) the
expiration date of the Stock Option, and shall thereafter expire. Any portion of
the Stock Option that is not exercisable at the time of such Termination of
Employment shall expire as of such Termination of Employment. |
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(d) |
If the Employee incurs a voluntary Termination of Employment by the Employee
(other than Retirement), the portion of the Stock Option, if any, which is
exercisable at the time of such Termination of Employment may be exercised at
any time prior to the first to occur of (i) 30 days after such Termination of
Employment or (ii) the expiration date of the Stock Option, and shall thereafter
expire. Any portion of the Stock Option that is not exercisable at the time of
such Termination of Employment shall expire as of such Termination of
Employment. |
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(e) |
If the Employee incurs a Termination of Employment by the Company without Cause,
the portion of the Stock Option, if any, which is exercisable at the time of
such Termination of Employment may be exercised at any time prior to the first
to occur of (i) 90 days after such Termination of Employment or (ii) the
expiration date of the Stock Option, and shall thereafter expire. Any portion of
the Stock Option that is not exercisable at the time of such Termination of
Employment shall expire as of such Termination of Employment. |
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(f) |
If the Employee incurs a Termination of Employment by the Company for Cause, the
entire Stock Option shall immediately expire as of such Termination of
Employment. |
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5. |
Nontransferability of the Stock Option. The Stock Option is
non-transferable by the Employee other than (a) by will or the laws of descent
and distribution or (b) pursuant to a qualified domestic relations order. The
Stock Option may be exercised, during the lifetime of the Employee, only by the
Employee, the Employee’s guardian or legal representative, or any permitted
transferee described above. |
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6. |
No Shareholder Rights Before Exercise. The Employee or a transferee of
the Stock Option shall have no rights as a shareholder with respect to any
shares covered by the Stock Option until the Employee or transferee has given
written notice of exercise, has paid in full for such shares and, if requested
by the Company, has given the representation described in Section 12(a) of the
Plan. No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions of other rights
for which the record date is prior to the date the events set forth above in
this Paragraph 6 have occurred. |
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7. |
Adjustment in the Event of Change in Stock. In the event of any change in
corporate capitalization (including, but not limited to, a change in the number
of shares of Common Stock outstanding), such as a stock split or a corporate
transaction, such as any merger, consolidation, separation, including a
spin-off, or other distribution of stock or property of the Company, any
reorganization (whether or not such reorganization comes within the definition
of such term in Section 368 of the Code), or any partial or complete liquidation
of the Company, the number and kind of shares subject to the Stock Option and/or
the exercise price per share may be adjusted by the Board or Committee as the
Board or Committee may determine to be appropriate in its sole discretion;
provided, however, that the number of shares subject to the Stock Option shall
always be a whole number. The determination of the Board or Committee regarding
any adjustment will be final and conclusive. |
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8. |
Payment of Transfer Taxes, Fees and Other Expenses. The Company agrees to
pay any and all original issue taxes and stock transfer taxes that may be
imposed on the issuance of shares acquired pursuant to exercise of the Stock
Option, together with any and all other fees and expenses necessarily incurred
by the Company in connection therewith. |
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9. |
Other Restrictions on Exercisability. The exercise of the Stock Option
and the delivery of share certificates upon such exercise shall be subject to
the requirement that, if at any time the Committee shall determine that (a) the
listing, registration or qualification of the shares of Common Stock subject or
related thereto upon any securities exchange or under any state or federal law
or (b) the consent or approval of any government regulatory body is, in the case
or (a) or (b), necessary or desirable as a condition of, or in connection with,
such exercise or the delivery or purchase of shares pursuant thereto, then in
any such event such exercise shall not be effective unless such listing,
registration, qualification, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee. |
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10. |
Taxes and Withholdings. No later than the date of exercise of the Stock
Option granted hereunder, the Employee shall pay to the Company or make
arrangements satisfactory to the Committee regarding payment of any federal,
state and local taxes, and any non-U.S. taxes applicable to the Employee, of any
kind required by law to be withheld upon the exercise of such Stock Option, and
the Company shall, to the extent permitted or required by law, have the right to
deduct from any payment of any kind otherwise due to the Employee federal,
state, local and applicable non-U.S. taxes of any kind required by law to be
withheld upon the exercise of such Stock Option. |
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11. |
Confidential Information; Noncompetition; Nonsolicitation. |
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(a) |
The Employee 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
Employee obtains during the Employee’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 Employee’s violation of this Paragraph 11(a)
(“Confidential Information”). The Employee 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 Employee shall not
communicate, divulge or disseminate Confidential Information at any time during
or after the Employee’s employment by 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,
Employee shall deliver to the Company (or the applicable Affiliate, if the
Employee 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 Employee 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 Employee may be given access to and
asked to maintain and develop relationships with such customers. The Employee
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
Employee from giving competitors unfair access to such relationships. |
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(c) |
For a one-year period beginning on the Termination of Employment date, the
Employee 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 1 or with any
corporation or entity controlled by, controlling or under common control with
any such company. Exhibit 1 is attached to and forms a part of this Agreement.
Notwithstanding the foregoing, the Employee 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
Employee 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
Employee) 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 Employee) known by the Employee (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 Employee’s covenants under this Paragraph
11, the entire Stock Option shall immediately expire as of the date of such
breach. The Employee acknowledges and agrees that such expiration 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 Employee’s covenants under this Paragraph
11, it is understood and agreed that the Company and any Affiliate(s) that
employed the Employee shall be entitled to injunctive relief, as well as any
other legal or equitable remedies. The Employee acknowledges and agrees that the
covenants, obligations and agreements of the Employee 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 Employee agrees that the
Company and any Affiliate(s) that employed the Employee 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 Employee 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 Employee 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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12. |
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 Employee:
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 12. Notice and communications shall be effective when actually received by the
addressee.
13.
Successors. Except as otherwise provided hereunder, this Agreement shall
be binding upon and shall inure to the benefit of any successor or successors of
the Company, and to any transferee or successor of the Employee pursuant to
Paragraph 5.
14.
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.
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.
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.
17.
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.
18.
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.
19.
Counterparts. This Agreement may be executed in counterparts, which
together shall constitute one and the same original.
20.
Miscellaneous.
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(a) |
This Agreement shall not confer upon the Employee any right to continue as an
employee of the Company or any of its Affiliates, nor shall this Agreement
interfere in any way with the right of the Company or its subsidiaries to
terminate the employment of the Employee 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 Employee 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: _________________________
EMPLOYEE:
By: _________________________
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