|
RESTRICTED STOCK UNIT AWARD
AGREEMENT
THIS AGREEMENT is entered into as of December 3,
2007, 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:
Subject to the provisions of this Agreement and the
provisions of the Joy Global Inc. 2007 Stock Incentive Plan (as
amended from time to time, the “Plan”), the Company
hereby grants to the Employee [ ] restricted stock units (the
“Restricted Stock Units”) as of December 3, 2007, (the
“Grant Date”). This grant constitutes an “other
stock-based award” under Section 8 of the Plan. Capitalized
terms not defined in this Agreement have the meanings given to them
in the Plan.
|
|
(a)
|
Subject to the provisions of Paragraph 5(a) of this
Agreement, the Restricted Stock Units will vest, become
non-forfeitable and be settled as follows: one-third on December 3,
2010, (with fractional units rounded up to the next whole unit);
one-third on December 3, 2011, (with fractional units rounded up to
the next whole unit); and the remainder on December 3, 2012, (each
such date, an “Original Settlement Date” with respect
to the applicable units).
|
|
|
(b)
|
If for any reason the Employee does not sign and
return to the Company a duly executed original of this Agreement by
5:00 p.m. Milwaukee time on
|
December 2, 2008, then (1) the Employee shall be
considered to have declined the grant of the Restricted Stock
Units, (2) the Company’s grant of the Restricted Stock Units
shall be deemed automatically rescinded and the Restricted Stock
Units shall be null and void and (3) the Employee’s execution
of this Agreement after such time shall have no legal effect and
the Company shall not be bound by any such execution.
2.
Restriction Period .
The Restriction Period with respect to each Restricted Stock Unit
is the time between the Grant Date and the date such Restricted
Stock Unit vests.
3.
No Shareholder Rights Before
Settlement . The Employee shall not be
entitled to any rights or privileges of ownership of shares of
Common Stock with respect to any Restricted Stock Unit unless and
until a share of Common Stock is actually delivered to the Employee
in settlement of such Restricted Stock Unit pursuant to this
Agreement.
4.
Dividends . On each
payment date with respect to any dividend or distribution to
holders of Common Stock with a record date occurring during a
Restriction Period, the Employee will be credited with additional
Restricted Stock Units (rounded to the nearest whole unit) having a
value equal to the amount of the dividend or distribution that
would have been
payable with respect to the unvested Restricted
Stock Units if they had been actual shares of Common Stock on such
record date, based on the Fair Market Value of a share of Common
Stock on the applicable payment date. Such additional Restricted
Stock Units shall also be credited with additional Restricted Stock
Units as further dividends or distributions are declared, and all
such additional Restricted Stock Units shall be subject to the same
restrictions and conditions as the Restricted Stock Units with
respect to which they were credited.
|
|
5.
|
Forfeiture and Settlement of Units
.
|
|
|
(a)
|
If the Employee incurs a Termination of Employment
for any reason, any Restricted Stock Units that had not become
non-forfeitable prior to the date of such Termination of Employment
shall be forfeited; provided,
however , that if such Termination of
Employment is by reason of the Employee’s death or
disability, the Restricted Stock Units shall become non-forfeitable
and will be settled as soon as practicable after the date of such
Termination of Employment; and provided
further that if such Termination of
Employment is due to Retirement, the Committee shall have the
discretion to determine as of the date of such Retirement that any
Restricted Stock Units that had not become non-forfeitable prior to
the date of such Termination of Employment due to Retirement shall
continue to vest, become non-forfeitable and be settled in
accordance with the schedule in Paragraph 1 of this Agreement. If,
in the event of the Employee’s death, the Employee fails to
designate a beneficiary, or if the designated beneficiary of the
Employee dies before the Employee dies or before the complete
payment of the amounts payable 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 Employee and the beneficiary.
|
|
|
(b)
|
Unless earlier forfeited or settled pursuant to
Paragraph 5(a) of this Agreement, each Restricted Stock Unit shall
be settled at the end of the Restriction Period applicable to such
Restricted Stock Unit. Each Restricted Stock Unit settled pursuant
to this Paragraph 5 shall be settled by delivery of one share of
Common Stock. Any fractional Restricted Stock Units shall be
rounded to the nearest whole number.
|
|
|
6.
|
Change in Control and Corporate Events
.
|
|
|
(a)
|
Notwithstanding any other provision of this
Agreement, in the event 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), all
outstanding Restricted Stock Units held by the Employee on the
effective date of the Change in Control, whether or not then
vested, shall be settled as soon as practicable (but no more than
30 days) after the Change in Control by payment to the Employee of
an amount in cash equal to the Fair Market Value of a share of
Common Stock on the date of the Change in Control times the number
of such Restricted Stock Units.
|
|
|
(b)
|
In the event of a stock split, spin-off, or other distribution of
stock or property of the Company, or any reorganization (whether or
not such reorganization comes within the definition of such term in
Section 368 of the Code), the number of Restricted Stock Units
subject to the award shall be equitably adjusted by the Committee
as it determines to be appropriate in its sole discretion;
provided, however , that the number of Restricted Stock
Units subject to the award shall always be a whole number. In the
event of any other change in corporate capitalization (including,
but not limited to, a change in the number of shares of Common
Stock outstanding), or a corporate transaction, such as any merger,
consolidation, or separation, or any partial or complete
liquidation of the Company, the number and kind of Restricted Stock
Units subject to the award 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
Restricted Stock Units subject to the award shall always be a whole
number. The determination of the Board or Committee regarding any
adjustment will be final and conclusive.
|
7.
Nontransferability .
Restricted Stock Units granted under this Agreement are not
transferable by the Employee, whether voluntarily or involuntarily,
by operation of law or otherwise, during the Restriction Period,
except as provided in the Plan. Any assignment, pledge, transfer or
other disposition, voluntary or involuntary, of the Restricted
Stock Units made, or any attachment, execution, garnishment, or
lien issued against or placed upon the Restricted Stock Units
shall, except as provided in the Plan, be void.
8.
Administration . This
Agreement and the rights of the Employee hereunder are subject to
all the terms and conditions of the Plan, as the same may be
amended from time to time, as well as to such rules and regulations
as the Committee may adopt for administration of the Plan. It is
expressly understood that the Committee is authorized to
administer, construe, and make all determinations necessary or
appropriate to the administration of the Plan and this Agreement,
all of which shall be binding upon the Employee.
9.
Taxes and Withholdings . No later than the applicable date of settlement of the
Restricted Stock Units, the Employee 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 Employee, of any kind
required by law to be withheld upon the settlement of such
Restricted Stock Units, 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 Employee federal, state, local and
applicable non-U.S. taxes of any kind required by law to be
withheld upon the settlement of such Restricted Stock
Units.
|
|
10.
|
Confidential Information; Noncompetition;
Nonsolicitation .
|
|
|
(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 10(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 it
|
