PERFORMANCE SHARE
AGREEMENT
THIS AGREEMENT is entered into as of
December 8, 2008, 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:
|
|
(a)
|
The “Target Number of Performance
Shares” is .
|
|
|
(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.
|
|
(c)
|
The “Award Cycle” is the period
beginning on the first day of the Company’s fiscal year 2009
and ending on the last day of the Company’s fiscal year
2011.
|
|
|
(a)
|
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.
|
|
|
(b)
|
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
|
December 7, 2009, 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Performance Shares shall be deemed automatically rescinded and the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.
|
|
(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 Average Return on Equity for the Award Cycle through
and including such date).
|
|
|
(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 (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).
|
|
|
(c)
|
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.
|
|
|
(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.
|
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.
|
|
11.
|
Confidential Information; Noncompetition;
Nonsolicitation .
|
|
|
(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.
|
|
|
(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.
|
|
|
(c)
|
Prior to and through a two-year period following
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 (1) any of the companies set forth on
Exhibit 2 or any of their successors or assigns or (2) any
corporation or entity (A) controlled by, controlling or under
common control with any such company and (B) engaged, directly or
indirectly, in a business that competes with any business conducted
by the Company or any of its
|
subsidiaries. Exhibit 2 is attached
to and forms a part of this Agreement. Notwithstanding the
foregoing, the Participant may make and ret
