RESTRICTED STOCK UNIT AWARD
AGREEMENT
THIS AGREEMENT is entered into as of
December 8, 2008, 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 8, 2008, (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.
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(a)
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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 8,
2011, (with fractional units rounded up to the next whole unit);
one-third on December 8, 2012, (with fractional units rounded up to
the next whole unit); and the remainder on December 8, 2013, (each
such date, an “Original Settlement Date” with respect
to the applicable units).
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(b)
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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
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December 7, 2009, 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Restricted Stock Units shall be deemed automatically rescinded and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.
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5.
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Forfeiture and Settlement of Units
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(a)
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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 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 become non-forfeitable. If the Restricted Stock
Units become nonforfeitable on account of the Employee’s
death or Disability (provided that, on account of the Disability,
the Employee is disabled within the meaning of Section
409A(a)(2)(C) of the Code and the regulations thereunder) (a
“409A Disability”), the Restricted Stock Units shall be
settled as soon as practicable (but no more than 30 days) after the
Employee’s death or the 409A Disability. If the Restricted
Stock Units become nonforfeitable on account of Disability (other
than a 409A Disability) or, in the discretion of the Committee, on
account of Retirement, the Restricted Stock Units shall continue to
vest 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.
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(b)
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Unless earlier forfeited or settled pursuant to
Paragraph 5(a) of this Agreement and subject to Paragraph 11 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.
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6.
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Change in Control and Corporate
Events .
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(a)
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Notwithstanding any other provision of this
Agreement (but subject to Paragraph 11 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)
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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.
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(b)
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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.
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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, except as provided in the Plan, shall 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.
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10.
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Confidential Information; Noncompetition;
Nonsolicitation .
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(a)
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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 Affil
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