(a) | 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 as of December 7, 2015, (the “Grant Date”) the right and option (the “Stock Option”) to purchase shares of common stock of the Company, par value $1.00 per share (“Common Stock”), at the exercise price of $12.19 share, which was the Fair Market Value of one share of Common Stock on the Grant Date (the “Exercise Price”). The Stock Option is a Nonqualified Stock Option. Unless earlier terminated pursuant to the terms of this Agreement, the Stock Option shall expire on the tenth anniversary of the Grant Date. Capitalized terms used and not defined in this Agreement have the meanings given to them in the Plan. |
(b) | Employee agrees to comply with the Company’s Executive Leadership Team Stock Ownership Policy, which is attached as Exhibit 1, with respect to Stock Options awarded under this Agreement. |
(c) | If for any reason the Employee does not acknowledge and accept this Agreement by 5:00 p.m. Milwaukee time on November 15, 2016, then (i) the Employee shall be considered to have declined the grant of the Stock Option, (ii) the Company’s grant of the Stock Option shall be deemed automatically rescinded and the Stock Option shall be null and void and (iii) the Employee’s acceptance of this Agreement after such time shall have no legal effect and the Company shall not be bound by any such acceptance. |
(a) | The portion of the Stock Option as to which the Employee is vested shall be exercisable by delivery to the Secretary of the Company of a written notice stating the number of whole shares to be purchased pursuant to this Agreement and the date on which the Employee elects to exercise the Stock Option and shall be accompanied by payment of the full Exercise Price of the shares of Common Stock to be purchased. |
(b) | The full Exercise Price of the Stock Option shall be paid in cash, by wire transfer, or by certified check or bank draft payable to the order of the Company, by exchange of shares of unrestricted Common Stock of the Company already owned by the Employee (that were purchased on the open market by the Employee or held for at least six months prior to exercise) and having an aggregate Fair Market Value equal to the full Exercise Price, or by any other procedure approved by the Committee, or by a combination of the foregoing. |
(c) | Notice and payment of the Exercise Price may also be made through a brokerage firm pursuant to an arrangement approved by the Company in advance. |
(a) | If the Employee incurs a Termination of Employment due to Disability, the Stock Option, to the extent outstanding at the time of such Termination of Employment, shall become immediately vested and fully exercisable and may be exercised by the Employee at any time prior to the first to occur of (i) one year after such Termination of Employment or (ii) the expiration date of the Stock Option, and shall thereafter expire. |
(b) | If the Employee incurs a Termination of Employment due to death, the Stock Option, to the extent outstanding at the time of such Termination of Employment, shall become immediately vested and fully exercisable and may be exercised by the Employee's estate or by a person who acquired the right to exercise such Stock Option by bequest, inheritance or otherwise by reason of the death of the Employee at any time prior to the first to occur of (i) one year after such Termination of Employment or (ii) the expiration date of the Stock Option, and shall thereafter expire. |
(c) | If the Employee incurs a Termination of Employment due to Retirement, the portion of the Stock Option, if any, which is exercisable at the time of such Termination of Employment may be exercised at any time prior to the first to occur of (i) three years after such |
(d) | If the Employee incurs a voluntary Termination of Employment by the Employee (other than Retirement), the portion of the Stock Option, if any, which is exercisable at the time of such Termination of Employment may be exercised at any time prior to the first to occur of (i) 30 days after such Termination of Employment or (ii) the expiration date of the Stock Option, and shall thereafter expire. Any portion of the Stock Option that is not exercisable at the time of such Termination of Employment shall expire as of such Termination of Employment. |
(e) | If the Employee incurs a Termination of Employment by the Company without Cause, the portion of the Stock Option, if any, which is exercisable at the time of such Termination of Employment may be exercised at any time prior to the first to occur of (i) 90 days after such Termination of Employment or (ii) the expiration date of the Stock Option, and shall thereafter expire. Any portion of the Stock Option that is not exercisable at the time of such Termination of Employment shall expire as of such Termination of Employment. |
(f) | If the Employee incurs a Termination of Employment by the Company for Cause, the entire Stock Option shall immediately expire as of such Termination of Employment. |
(g) | In the event of a Change in Control while the Stock Option is outstanding: (i) the successor Company (or an affiliate) may assume or substitute the Stock Option and, if the Employee subsequently incurs a Termination of Employment by the Company without Cause, the Stock Option, to the extent outstanding, shall become immediately vested and fully exercisable; (ii) if the successor company does not assume or substitute the Stock Option, the Stock Option shall, as determined by the Committee, become immediately vested and fully exercisable immediately before the Change in Control and/or be terminated in exchange for payment of an amount equal to the excess, if any, of the Fair Market Value of one share of Common Stock immediately prior to the occurrence of the Change in Control over the Exercise Price per share, multiplied by the number of shares subject to the Stock Option. |
(a) | If the Company restates any previously issued financial statements and such restatement is required as a result of the Company’s material noncompliance with any applicable financial reporting requirement under the federal securities laws the Employee shall be required to reimburse or repay to the Company, or the Company may reduce the amount of the award subject to this Agreement, by any amount that the Company determines to be due pursuant to the Joy Global Compensation Recovery Policy (the “Policy”) (or pursuant to any regulation, rule, stock exchange listing standard or other guidance implementing Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act). |
(b) | The Company may seek recovery of the amounts due under subsection (a) by all legal means available, including seeking direct repayment from the Employee, withholding such amount from other amounts owed by the Company to the Employee (or with respect to the Employee), and/or causing the cancellation of any outstanding incentive award. |
(c) | The determination of the Board or Committee regarding the consequence of any event of restatement and the application of the Joy Global Compensation Recovery Policy as described in this Paragraph 8 shall be final, conclusive, and binding on all interested parties. This Paragraph 8 does not affect the Company’s ability to pursue any and all available legal rights and remedies under governing law. |
(a) | Employee Acknowledgments. |
(i) | The Employee acknowledges that he or she will receive Confidential Information (as defined in Paragraph 12(b) below) in connection with his or her employment. The Employee also acknowledges that his or her employment may place him or her in contact, and in a position of trust, with customers of the Company or its Affiliates, and that in the course of employment the Employee may be given access to and asked to maintain and develop relationships with such customers. The Employee acknowledges that such Confidential Information and customer relationships are of substantial value to the Company and its Affiliates, that this award of the Stock Option is designed to induce the Company and its Affiliates to share Confidential Information with the Employee and to further create incentives for the Employee to develop goodwill through customer relationships, and that it is reasonable for the Company to seek to prevent the Employee from giving competitors unfair access to Confidential Information and customer relationships. |
(ii) | The Employee acknowledges that the Company and its Affiliates have multi-national operations and competitors. |
(b) | Confidential Information. 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 is not public knowledge (“Confidential Information”). The Employee acknowledges that the Confidential Information is highly sensitive and proprietary and examples of such Confidential Information include, 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 |
(c) | Use and Disclosure of Confidential Information. Except on behalf of the Company or its Affiliates as may be required to discharge the Employee’s duties or with the prior written consent by the President or an Executive Vice President of the Company or as otherwise required by law or legal process, the Employee shall not use, communicate, divulge, or disseminate Confidential Information at any time during or after the Employee’s employment for so long as such use or disclosure of the Confidential Information would reasonably be likely to result in a competitive disadvantage to the Company or its Affiliates. |
(d) | Company Property. 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, Employee shall deliver to the Company, or the applicable Affiliate, without further demand, all such items and any copies thereof which are then in his or her possession or under his or her control. |
(e) | Noncompetition. Prior to and through an eighteen-month period following the Termination of Employment date, the Employee will not, within the geographic area where the Company or any of its Affiliates do business, except upon prior written permission signed by the President or an Executive Vice President of the Company, work for, consult with, or advise, directly or indirectly, as an employee, consultant, owner, partner, member, director, or officer, or make passive investments of more than three percent of the equity in, or otherwise engage in business with, any of the following, in a capacity where the Employee’s use of the goodwill described above in Paragraph 12(a)(i) or knowledge of trade secrets or other Confidential Information of the Company or any of its Affiliates would reasonably be likely to place the Company or any of its Affiliates at a competitive disadvantage: (i) the companies set forth on Exhibit 2, which are acknowledged by the Employee and the Company to be competitors of the Company or its Affiliates, or any of their successors or assigns; or, (ii) an entity controlled by, controlling or under common control with any company described in clause (i). Exhibit 2 is attached to and forms a part of this Agreement. |
(f) | Nonsolicitation of Personnel. Prior to and through a two-year period following the Termination of Employment date, the Employee will not, directly or indirectly (i) solicit or induce for employment, or engagement as an independent contractor, on behalf of any individual or organization, or (ii) be involved in any way on behalf of any individual or organization in the hiring process of, any Company Employee. For purposes of this Paragraph 12(f), a “Company Employee” is any person (other than any personal assistant hired to work directly for the Employee) who, at the time of such activity, is employed, or engaged as an independent contractor, by the Company or any of its Affiliates or was so employed or engaged within the previous three months. |
(g) | Nonsolicitation of Customers. Prior to and through a one-year period following the Termination of Employment date, the Employee will not, directly or indirectly, endeavor to entice away from Company or any of its Affiliates, any person, firm, corporation, partnership or entity of any kind, if (i) such person or entity is a customer of the Company or any of its Affiliates, or was a customer of the Company or any of its Affiliates within one year prior to the Termination of Employment date, and (ii) (A) the Employee regularly performed services for, or regularly dealt with, or regularly had contact with such customer on behalf of the Company or any of its Affiliates, or (B) the Employee obtained knowledge, as a result of his or her position with the Company or any of its Affiliates, which would be beneficial to Employee’s efforts to convince such customer to cease doing business with the Company or any of its Affiliates, in whole or in part. |
(h) | Noninterference with Business Relationships. Prior to and through a one-year period following the Termination of Employment date, the Employee will not, directly or indirectly, disrupt, or attempt to interfere with or disrupt, the business relationship between the Company or any of its Affiliates and any of its customers, suppliers, or employees. |
(i) | Expiration of the Stock Option. In the event of a breach of any of the Employee’s covenants under this Paragraph 12, the entire Stock Option shall immediately expire as of the date of such breach. The Employee acknowledges and agrees that such expiration is not expected to adequately compensate the Company and its Affiliates for any such breach and that such expiration shall not substitute for or adversely affect the remedies to which the Company or any of its Affiliates is entitled under Paragraph 12(j), at law, or otherwise. |
(j) | Remedies. In the event of a breach of any of the Employee’s covenants under this Paragraph 12, the Employee shall return to the Company any Common Stock obtained under this Agreement in exchange for the purchase price (if any) the Employee paid for such Common Stock. If the Employee has sold, transferred, or otherwise disposed of Common Stock obtained under this Agreement, the Company shall be entitled to receive from the Employee a cash payment equal to the fair market value of the Common Stock on the date of sale, transfer, or other disposition minus the purchase price (if any) paid by the Employee. Furthermore, in the event of a breach of any of the Employee’s covenants under this Paragraph 12, it is understood and agreed that the Company and any of its Affiliate(s) that employed the Employee shall be entitled to injunctive relief, as well as any other legal or equitable remedies that may be available. The Employee acknowledges and agrees that the covenants, obligations and agreements of the Employee in Paragraphs 12(a), (b), (c), (d), (e), (f), (g), and (h) of this Agreement independently 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, the Employee agrees that the Company and any of its Affiliate(s) that employed the Employee 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 the Employee 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 or its Affiliates may have. |
(k) | Jurisdiction. With respect to all disputes under this Paragraph 12, the Company and the Employee hereby irrevocably submit to the exclusive jurisdiction of the federal and state courts in the state or jurisdiction where the Employee’s primary office is located (or, if |
(i) | the limitations as to time, geographical area, and scope of activity to be restrained by Paragraph 12 are reasonable and acceptable to the Employee, and do not impose any greater restraint than is reasonably necessary to protect the trade secrets and other Confidential Information, goodwill, and other legitimate business interests of the Company and its Affiliates; and |
(ii) | the performance by the Employee of the covenants and agreements contained herein, and the enforcement by the Company of the provisions contained herein, will cause no undue hardship on the Employee. |
(a) | This Agreement shall not confer upon the Employee any right to continue as an employee of the Company or its Affiliates, nor shall this Agreement interfere in any way with the right of the Company or its Affiliates to terminate the employment of the Employee at any time. |
(b) | Nothing in this Agreement, or any other agreement with, or policy of, the Company or its Affiliates, is intended or interpreted to prohibit the Employee from reporting possible violations of federal law or regulation to any government agency or entity or making any disclosures that are protected under the whistleblower provisions of federal law or regulation or otherwise cooperating with any government inquiry, in each case without advance approval by or prior, contemporaneous or subsequent notice to anyone in the Company or its Affiliates. |
(c) | This Agreement shall be subject to all applicable laws, rules and regulations and to such approvals by any governmental agencies or national securities exchanges as may be required. |
(d) | The Employee acknowledges and agrees that the Company and its Affiliates will process and retain certain personal data for the purposes of calculating awards, monitoring performance conditions, and otherwise administering the Plan and awards made under it, including but not limited to pay data relating to the Employee, the Employee’s address and social security number, job title and employment dates. The Employee hereby consents to such processing, and to the sharing of such personal data with the Company, its Affiliates, advisers, regulators and tax authorities, where appropriate, both within and outside the European Economic Area. |
• | CEO: Five times annual salary. Until the five times annual salary requirement has been met, the executive is required to retain shares of Common Stock having a market value at least equal to 50% of the pre-tax compensation realized upon settlement of any restricted stock units, payment of any performance shares, exercise of any stock options or settlement of any other stock awards. After the five times annual salary requirement has been met, the CEO is required to retain, at the retention rate specified in the preceding sentence, a sufficient number of shares of Common Stock received by the CEO from subsequent settlements of restricted stock units, payments of performance shares, exercises of stock options and settlements of other stock awards as may be necessary at that time to satisfy the five times annual salary requirement. |
• | Other Executive Officers: Two and one-half times annual salary. Until the two and one-half times annual salary requirement has been met, the executive is required to retain shares of Common Stock having a market value at least equal to 25% of the pre-tax compensation realized upon settlement of any restricted stock units, payment of any performance shares, exercise of any stock options or settlement of any other stock awards. After the two and one-half times annual salary requirement has been met, the executive is required to retain, at the retention rate specified in the preceding sentence, a sufficient number of shares of Common Stock from subsequent settlements of restricted stock units, payments of performance shares, exercises of stock options and settlements of other stock awards as may be necessary at that time to satisfy the two and one-half times annual salary requirement. |
• | Each executive shall not sell, transfer or otherwise dispose of shares of Common Stock (i) until the respective ownership requirement has been met or (ii) after the respective ownership requirement has been met, to the extent that the executive would no longer satisfy the ownership requirement immediately following such sale, transfer or other disposition. |
• | For the purposes of this policy, restricted stock units, performance shares and stock options shall not be considered to be shares of Common Stock. |
1. | Atlas Copco AB |
2. | Caterpillar, Inc. |
3. | Eickhoff Corporation |
4. | Fletcher International or Fletcher Asset Management |
5. | Longwall Associates, Inc. |
6. | Sandvik AB |
7. | SANY Group Co. Ltd. |
8. | Taiyuan Heavy Industry Co., Ltd. |
9. | Zhengzhou Coal Mining Machinery Group, Ltd. |