Exhibit 10.11
2006 STOCK APPRECIATION RIGHTS AGREEMENT
This 2006 STOCK APPRECIATION RIGHTS AGREEMENT, made as of the Award Date set
forth in the Notice of Award of 2006 Stock Appreciation Rights (the "Notice"),
by and between Bucyrus International, Inc., a Delaware corporation (the
"Company"), and the undersigned individual (the "Grantee"), sets forth the terms
and conditions of the Stock Appreciation Rights Award described in the Notice.
Except as otherwise expressly set forth herein, this Agreement and the Award
hereunder shall be construed in accordance with the provisions of the Bucyrus
International, Inc. 2004 Equity Incentive Plan (the "Plan"). Any capitalized
terms not otherwise defined in this Agreement shall have the definitions set
forth in the Plan. You must sign both the Agreement and the Notice in order for
the Award to be effective. Please sign and date the Agreement and the Notice and
return them promptly in the enclosed envelope.
By accepting this Agreement and any stock appreciation rights issued pursuant to
this Stock Appreciation Rights Award, you acknowledge that you have received a
copy of the Prospectus, that you have read and understand the terms of the Plan
and this Agreement, and that you accept this Agreement subject to all such terms
and conditions.
For all purposes of this 2006 Stock Appreciation Rights Agreement, the Term
shall mean the period beginning on [grant date] and ending on ____________.Stock
Appreciation Rights Awards will consist of the right to the appreciation in the
underlying shares of the Class A common stock of the Company ("Company Stock")
from the Award Date to the date of exercise, with any gain at exercise settled
in shares of Company Stock, subject to a service-based vesting requirement. The
number of Stock Appreciation Rights awarded, the term of the Award and the
vesting schedule shall be stipulated in the Notice.
Terms and Conditions
1. Terms and Provisions of Stock Appreciation Right Award. Pursuant to Section 6
of the Plan, as of the Award Date the Company has awarded to the Grantee the
Stock Appreciation Rights ("SARs") specified in the Notice. Such Award is
subject to the following terms and conditions.
2. Award of SARs. The Grantee is hereby awarded the number of SARs specified in
the Notice, subject to the following terms, conditions and forfeiture
restrictions:
(a) Value of Awards. The Company grants SARs to the Grantee, which are
exercisable only when vesting requirements are met, entitling the Grantee
to obtain, subject to the terms and conditions set forth herein, shares of
Company Stock equal to the product of (a) the excess of the Fair Market
Value ("FMV"), as defined in this document, of a share of Company Stock at
the date of exercise over the FMV of those shares at the Award Date and
(b) the number of SARs being exercised (such product at the time of
exercise being referred to herein as the "SAR Value").
(b) Determination of Fair Market. The "Fair Market Value" of a share of
Company Stock on any date of reference shall mean the Closing Price (as
defined below) on such date, unless the Compensation Committee, in its
sole discretion, shall determine otherwise in a fair and uniform manner.
For purposes of this Agreement, the "Closing Price" of the Company Stock
on any business day shall be the last reported sale price of Company Stock
on the National Market System of the National Association of Securities
Dealer Automated Quotation system ("NASDAQ").
(c) Vesting. The SARs will vest based upon continued employment by the
Company and/or a Subsidiary until the dates set forth in the vesting
schedule established for the SARs, as set forth in the Notice (the
"Restricted Period"). If the Grantee ceases to be employed by the Company
and/or a Subsidiary prior to full vesting because of Disability (as such
term is defined in the Plan) or death (a "Qualifying Event"), then, as of
the date on which the Qualifying Event occurs, the Grantee shall be
entitled to receive the appreciation on all vested and unvested SARs. If
the Grantee retires later than one year after the Award Date (a
"Qualifying Retirement"), Grantee shall continue to vest in the SARs on
the same basis as if he had remained an active employee. In the event of a
Qualifying Retirement, the Grantee will receive the appreciation on
unvested SARs if (i) Grantee retires from employment with the Company on
or after his Early Retirement Date or Normal Retirement Date (as such
terms are defined under the Bucyrus Salaried Employees' Retirement Plan)
and (ii) the Grantee does not, prior to the expiration of the Restricted
Period, obtain other gainful employment regardless of whether such
employment is with a competitor of the Company. The Grantee acknowledges
and agrees that the restriction on vesting set forth in the preceding
sentence does not constitute a limitation or restriction on Grantee's
right to obtain other employment but is only a restriction on his or her
right to vest in the restricted shares.
(d) Time of Exercise. Once the Grantee is vested in a SAR, the Grantee may
exercise his/her right to the appreciation in the shares, in full or in
part, at any time until the earlier to occur of (a) the end of the Term,
as specified in the Notice, or (b) three (3) months following the date
upon which Grantee ceases to be an employee of the Company.
(e) Procedure for Exercise. In order to exercise the SARs, Grantee shall
deliver to the Company at its principal office at 0000 Xxxxxxxxx Xxx.,
Xxxxx Xxxxxxxxx, XX 00000, or at such other office as shall be designated
by the Company pursuant to the terms hereof, a written notice of Grantee's
election to exercise a SAR, which election notice shall state the number
of SARs to be exercised. Following receipt thereof, the Company shall, in
accordance with the terms hereof, deliver to the Grantee the SAR Value
relating to such exercise in the form of shares of Company Stock.
(f) Closing and Payment of SAR Value. The SAR Value payable at the closing
of the exercise of the SAR shall be payable within five (5) days of the
final determination of the SAR Value pursuant to the terms hereof. On the
closing of the exercise of a SAR, the Company shall pay the SAR Value in
shares of Company Stock, based on the FMV on the date of exercise and
Grantee shall execute a receipt evidencing the receipt of such payment and
confirming the number of SARs not exercised and still held by Grantee.
(g) Adjustment of Number of SARs. If the Company shall at any time after
the Award Date but prior to the expiration of the SARs subdivide its
outstanding Company Stock, by split-up, spin-off, or otherwise, or combine
its outstanding Company Stock, the number of SARs granted hereunder and
exercisable as of the date of such subdivision, split-up, spin-off or
combination shall forthwith be proportionately increased in the case of a
subdivision, or proportionately decreased in the case of a combination.
3. Tax Consequences. Grantee understands that the award of SARs, the exercise of
SARs, and the issuance of Company Stock, may have tax implications that could
result in adverse tax consequences to Grantee. Grantee acknowledges that Grantee
has been advised to consult a tax advisor and that he or she is not relying on
the Company for any tax, financial or legal advice. It is specifically
understood by the Grantee that no representations are made as to any particular
tax treatment with respect to this Award.
4. Confidential Information; Noncompetition; Nonsolicitation.
(a) Grantee acknowledges that all secret or confidential information,
knowledge or data relating to the Company or any of its Subsidiaries and
their respective businesses that Grantee obtains during Grantee's
employment by the Company or any of its Subsidiaries and that is not
public knowledge (other than as a result of the Grantee's violations of
this Section 4(a)) ("Confidential Information") is highly sensitive and
proprietary and includes, without limitation: product design information,
manufacturing processes and methods, information regarding new product
development, information regarding strategic or tactical planning,
information regarding pending or planned competitive bids, and
information regarding key employees. Grantee shall not communicate,
divulge or disseminate Confidential Information at any time during or
after Grantee's employment with the Company, except with the prior written
consent of the Company or as otherwise required by law or legal process.
All computer software, telephone lists, customer lists, price lists,
contract forms, catalogs, records, files and know-how acquired while an
employee of the Company are acknowledge to be the property of the Company
and shall not be duplicated, removed from the Company's possession or
premises or made use of other than in pursuit of the Company's business or
as may otherwise be required by law or any legal process, and, upon
termination of employment for any reason, Grantee shall deliver to the
Company, without further demand, all such items and any copies thereof
which are then in his or her possession or under his or her control.
(b) For a one year period beginning on Grantee's termination of
employment, Grantee will not, except upon prior written permission signed
by an authorized officer of the Company, consult with or advise or,
directly or indirectly, as owner, partner, officer or employee, engage in
business with any company in competition with the Company or with any
corporation or entity controlled by, controlling or under common control
with any such company. Notwithstanding the foregoing, Grantee 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.
(c) For a one year period beginning on Grantee's termination of
employment, Grantee will not, directly or indirectly, solicit for
employment or employ on behalf of any organization other than the Company
or one of its Subsidiaries or employ any person employed by the Company or
any of its Subsidiaries, nor will Grantee, directly or indirectly, solicit
for employment on behalf of any organization other than the Company or one
of its Subsidiaries or be involved in any way in the hiring process of any
person known by Grantee (after reasonable inquiry) to be employed at the
time by the Company or any of its Subsidiaries.
(d) In the event of a breach of Grantee's covenants under this Section 4,
all SARs shall immediately be forfeited as of such breach and it is
understood and agreed that the Company shall be entitled to injunctive
relief as well as any other legal or equitable remedies. Grantee
acknowledges and agrees that the covenants, obligations and agreements of
the Grantee in this Section 4 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, Employee
agrees that the Company 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 Grantee 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 may have. The Company and Grantee 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 Section 4.
5. Interpretation. Any dispute regarding the interpretation of this Agreement
shall be submitted to the Board or the Committee, which shall review such
dispute in accordance with the Plan. The resolution of such a dispute by the
Board or Committee shall be final and binding on the Company and Grantee.
6. Fractional Shares. If any calculation of Company Stock to be granted or to be
forfeited or to be released from restrictions or limitations would result in a
fractional share, such fractional share shall be paid in cash.
7. Approvals. No shares of Company Stock shall be issued under this Agreement
unless and until all legal requirements applicable to the issuance of such
shares have been complied with to the satisfaction of the Committee. The
Committee shall have the right to condition any issuance of shares to the
Grantee on the Grantee's undertaking in writing to comply with such restrictions
on the subsequent disposition of such shares as the Committee shall deem
necessary or advisable as a result of any applicable law or regulation.
8. Restrictions on Transfer. The SARs awarded to the Grantee under this
Agreement may not be transferred or otherwise disposed of by the Grantee,
including by way of sale, assignment, transfer, pledge, hypothecation or
otherwise, except as permitted by the Committee, or by will or the laws of
descent and distribution. Any purported sale, assignment, mortgage,
hypothecation, transfer, pledge, encumbrance, gift, transfer in trust (voting or
other) or other disposition of, or creation of a security interest in or lien
on, any of the SARs by any holder thereof in violation of the provisions of this
Agreement shall be invalid. The foregoing restrictions are in addition to and
not in lieu of any other remedies, legal or equitable, available to enforce said
provisions.
9. Change in Control. In the event of a Change in Control, all SARs that have
not yet vested shall become immediately vested and all restrictions and
forfeiture conditions applicable to the SARs shall immediately lapse.
10. Taxes. The Grantee shall pay to the Company promptly upon request, and in
any event at the time the Grantee recognizes taxable income in respect to the
exercise of a SAR, an amount equal to the federal, state and/or local taxes the
Company determines it is required to withhold under applicable tax laws with
respect to the SARs. The Grantee may satisfy the foregoing requirement by one or
a combination of the following methods: (a) making a payment to the Company in
cash or cash equivalents; or (b) authorizing the Company to withhold a portion
of the shares of Company Stock to be received hereunder having a value equal to
or less than the minimum amount required to be withheld. The Grantee understands
that the Grantee (and not the Company) shall be responsible for any tax
liability that may arise as a result of the transactions contemplated by this
Stock Appreciation Rights Agreement.
11. Compliance with Law and Regulations. This Agreement, the SARs awarded
hereunder and any obligation of the Company hereunder shall be subject to all
applicable
federal, state and local laws, rules and regulations and to such approvals by
any government or regulatory agency as may be required.
12. Incorporation of Plan. This Agreement is made under the provisions of the
Plan (which is incorporated herein by reference) and shall be interpreted in a
manner consistent with it. To the extent that this Agreement is silent with
respect to, or in any way inconsistent with, the terms of the Plan, the
provisions of the Plan shall govern and this Agreement shall be deemed to be
modified accordingly. Any capitalized term not defined herein shall have the
meaning set forth in the Plan.
13. Notices. Any notices required or permitted hereunder shall be addressed to
Secretary of the Company, 0000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxxxx
00000, or to the Grantee at the address then on record with the Company, as the
case may be, and deposited, postage prepaid, in the United States mail. Either
party may, by notice to the other given in the manner aforesaid, change his/her
or its address for future notices.
14. Binding Agreement; Successors. This Agreement shall bind and inure to the
benefit of the Company, its successors and assigns, and the Grantee and the
Grantee's personal representatives and beneficiaries.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware. The Committee shall have
final authority to interpret and construe the Plan and this Agreement and to
make any and all determinations under them, and its decision shall be binding
and conclusive upon all Persons.
16. Amendment. This Agreement may be amended or modified by the Company at any
time; provided, that notice is provided to the Grantee in accordance with
Section 13; and provided, further, that no amendment or modification that is
adverse to the rights of the Grantee as provided by this Agreement shall be
effective unless set forth in a writing signed by the parties hereto.
IN WITNESS WHEREOF, the undesigned parties have executed this Agreement to
be effective as of the Award Date set forth in the Notice.
GRANTEE
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Date
BUCYRUS INTERNATIONAL, INC.
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Xxxxx X. Xxxxxx Date
CFO & Secretary
