(a) | The “Target Number of Performance Shares” is . |
(b) | The “Performance Shares Earned” shall be the number of Performance Shares earned by the Employee determined in accordance with (1) the provisions of Exhibit 1, which is attached to and forms a part of this Agreement, and (2) Section 7(a). |
(c) | The “Award Cycle” is the period beginning on the first day of the Company’s fiscal year 2016 and ending on the last day of the Company’s fiscal year 2018. |
(a) | Subject to the terms of this Agreement and the Plan, the Employee is hereby granted the Target Number of Performance Shares set forth in Paragraph 1(a). The award is a Qualified Performance-Based Award. |
(b) | Employee agrees to comply with the Company’s Executive Leadership Team Stock Ownership Policy, which is attached as Exhibit 2, with respect to this award. |
(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 (1) the Employee shall be considered to have declined the grant of the Performance Shares, (2) the |
(a) | The Employee shall be entitled to the Performance Shares Earned that would have been earned by the Employee had the Employee remained employed through the |
(b) | Notwithstanding the provisions of Paragraph 3, (i) if the Performance Shares Earned under Paragraph 7(a) are not assumed or substituted by the successor to the Company (or an affiliate), such Performance Shares shall be converted to a non-forfeitable right to receive an amount in cash equal to the Fair Market Value of one share of Common Stock on the date of the Change in Control times the number of Performance Shares Earned, and, unless the Company elects to terminate this Award (to the extent permitted by section 409A of the Code), the Award will be accumulated with interest from the date of the Change in Control until the payment date at a rate of 120 percent of the Federal mid-term rate (as in effect under section 1274 of the Code for the month in which the Change in Control occurs), and such amount shall be paid at the time of payment specified under Paragraph 4; and (ii) if the Performance Shares Earned under Paragraph 7(a) are assumed or substituted, such Performance Shares shall be converted to restricted stock units (in an amount equal to the number of Performance Shares Earned, adjusted under Paragraph 15), which shall become non-forfeitable if the Employee remains employed until the last day of the Award Cycle or until the award becomes non-forfeitable under Paragraph 5, or, if, during the remainder of the Award Cycle, the Employee incurs a Termination of Employment by the Company without Cause (and, in such case, the Award shall become non-forfeitable without proration), and in each case the restricted stock units, to the extent non-forfeitable, shall be settled at the time specified under Paragraph 4 in cash or shares. |
(c) | Distributions to the Employee 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 Employee shall be reduced by the number of Performance Shares Earned with respect to which payment was made to the Employee under this Paragraph 7. |
(d) | The Employee 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, other than as provided in Paragraph 8. |
(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 |
(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 Performance Award 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. |
(a) | 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 regarding costs, margins, and methods of estimating; and information regarding key employees. |
(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 3, 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 3 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) |
(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 Performance Award. In the event of a breach of any of the Employee’s covenants under this Paragraph 12, the entire Performance Award 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 |
(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 litigation is brought after the Termination of Employment date, where the Employee’s most recent primary office was located), except if such location is outside of the United States, the Company and the Employee hereby irrevocably submit to the exclusive jurisdiction of the federal and state courts in Delaware. The parties hereto hereby irrevocably agree that (i) the sole and exclusive appropriate venue for any suit or proceeding relating to such matters shall be in such a court, (ii) all claims with respect to any such matters shall be heard and determined exclusively in such court, (iii) such court shall have exclusive jurisdiction over the person of such parties and over the subject matter of any such dispute, and (iv) each hereby waives any and all objections and defenses based on forum, venue or personal or subject matter jurisdiction as they may relate to any suit or proceeding brought before such a court in accordance with the provisions of this Paragraph 12. |
(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 any of 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. |
1. | Purpose. This Exhibit sets forth the performance measures that will be applied to determine the Performance Shares Earned by the Participant under the 2016 Performance Share Program (the “2016 Program”) under the terms of the Performance Share Agreement entered into as of December 7, 2015. |
2. | Performance Goal. The Performance Goal applicable to the Participant under the 2016 Program shall be average diluted earnings per share (EPS) for the three year-cycle FY2016 through FY2018. |
3. | Determination of Performance Shares Earned. The number of Performance Shares Earned distributable to the Participant under this Agreement shall be determined from Operating Leverage and Earnings Per Share for the three-year cycle FY2016 through FY2018, at the following levels. |
Target EPS Achievement | Payout Factor | |
Minimum Payout | 60% | 0.25 |
Target Payout | 100% | 1.00 |
Maximum Payout | 120% | 1.50 |
• | 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. |