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PERFORMANCE SHARE AGREEMENT
THIS AGREEMENT is entered into as of December 3,
2007, between Joy Global Inc. (the “Company”) and [ ]
(the “Participant”).
WHEREAS, the Company maintains the Joy Global Inc.
2007 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:
1.
Terms of Award . The
following terms used in this Agreement shall have the following
meanings:
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(a)
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The “Target Number of Performance
Shares” is [ ] .
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(b)
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The “Performance Shares Earned” shall be
the number of Performance Shares earned by the Participant
determined in accordance with the provisions of
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Exhibit 1, which is attached to and forms a part of
this Agreement.
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(c)
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The “Award Cycle” is the period
beginning on the first day of the Company’s fiscal year 2008
and ending on the last day of the Company’s fiscal year
2010.
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(a)
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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 a Qualified
Performance-Based Award.
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(b)
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If for any reason the Participant does not sign and
return to the Company a duly executed original of this Agreement by
5:00 p.m. Milwaukee time on
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December 2, 2008, then (1) the Participant shall be
considered to have declined the grant of the Performance Shares,
(2) the Company’s grant of the Performance Shares shall be
deemed automatically rescinded and the Performance Shares shall be
null and void and (3) the Participant’s execution of this
Agreement after such time shall have no legal effect and the
Company shall not be bound by any such execution.
3.
Distribution 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 distributed 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.
4.
Time of Distribution .
Except as otherwise provided in this Agreement, shares and/or cash
distributable in respect of Performance Shares Earned in accordance
with the provisions of Paragraph 3 will be distributed as soon as
practicable after January 7, 2011, but in no event later than
January 14, 2011.
5.
Termination of Employment Due to 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 (determined in accordance with Paragraph 4 of
Exhibit 1), multiplied by the quotient equal to (A) the number of
full fiscal months the Participant was employed during the Award
Cycle divided by (B) the total number of fiscal months in the Award
Cycle.
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)
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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 Average Return on Equity for the Award Cycle through
and including such date).
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(b)
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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 (but no more than 30 days)
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 in accordance with
Paragraph 4.
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(c)
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Distributions to the Participant under Paragraph 3
shall not be affected by payments under this Paragraph 7, except
that before distributions 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)
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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
distributed at the time of the Participant’s death shall be
distributed 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
distribution of the amounts distributable under this Agreement, the
amounts to be distributed under this Agreement shall be distributed
to the legal representative or representatives of the estate of the
last to die of the Participant and the beneficiary.
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.
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.
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Confidential Information; Noncompetition;
Nonsolicitation .
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(a)
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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 premise
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