As filed with the Securities and Exchange Commission on October 5, 2001
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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JOY GLOBAL INC.
(Exact name of registrant as specified in its charter)
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Delaware 39-1566457
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 East Wisconsin Avenue, Suite 2780, 53202
Milwaukee, WI (Zip Code)
(Address of Principal Executive Offices)
Joy Global Inc. 2001 Stock Incentive Plan
(Full title of the plan)
Eric B. Fonstad, Esq.
Secretary and Associate General Counsel
Joy Global Inc.
100 East Wisconsin Drive, Suite 2780
Milwaukee, WI 53202
(414) 319-8500
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
------------------------------ -------------------- --------------------- ----------------------- ------------------
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered(1) offering price per aggregate offering registration
share price fee
------------------------------ -------------------- --------------------- ----------------------- ------------------
Common Stock, par value $1 5,556,000 shares $14.80 (2) $82,228,800 (2) $20,558 (2)
per share
------------------------------ -------------------- --------------------- ----------------------- ------------------
(1) Pursuant to Rule 416 under the Securities Act of 1933, this Registration
Statement shall be deemed to cover any additional shares of Common Stock
which may be issuable under the plan to reflect stock splits, stock
dividends, mergers and other capital changes.
(2) Estimated pursuant to Rule 457(h) solely for purposes of calculating the
aggregate offering price and the amount of the registration fee based upon
the average of the high and low prices reported for the shares on the
National Association of Stock Dealers Automated Quotation (the "NASDAQ")
system on October 4, 2001.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Part I (plan
and registrant information) will be delivered in accordance with Rule 428(b)(1)
under the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not required to be, and are not, filed with the Securities and
Exchange Commission (the "Commission"), either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. These documents, and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II of this
Form S-8, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement, which are also
incorporated by reference in the Section 10(a) prospectus, other documents
required to be delivered to eligible participants pursuant to Rule 428(b), or
additional information about the Joy Global Inc. 2001 Stock Incentive Plan (the
"Plan"), will be available without charge by contacting the Joy Global Inc.
Human Resources Department, 100 East Wisconsin Avenue, Suite #2780, Milwaukee,
WI 53202; Telephone Number: (414) 319-8500.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Joy Global Inc.
(the "Company") with the Commission, are incorporated in this Registration
Statement by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended October
31, 2000.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended January
31, April 30 and July 31, 2001.
(c) The Company's Form 8-K dated July 12, 2001.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Joy Global Inc.'s Amended and Restated Certificate of Incorporation authorizes
the issuance of up to 150,000,000 shares of common stock, par value $1.00 per
share. Each share of the common stock shall entitle the holder thereof to one
vote, in person or by proxy, at any and all meetings of the stockholders of the
Company on all propositions before such meetings. Subject to the prior rights of
the holders of any preferred stock, the holders of common stock shall be
entitled to dividends if, when and as the same shall be declared by the board of
directors of the Company and as may be permitted by law. The common stock may be
issued by the Company from time to time for such consideration and upon such
terms as may be fixed from time to time by the board of directors of the Company
and as may be permitted by law, without action by any stockholders. Upon
liquidation, dissolution, or winding up of the Company, the holders of common
stock are entitled to receive pro rata assets of the Company which are legally
available for distribution, after payment of all debts and other liabilities and
subject to the prior rights of any holders of preferred stock then outstanding.
Holders of common stock have no preemptive or conversion rights or other
subscription rights and there are no redemption or sinking fund provisions
applicable to the common stock. All shares of common stock, when issued and paid
for, will be fully paid and nonassessable.
Item 5. Interests of Named Experts and Counsel. Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company is incorporated under the laws of the State of Delaware. Article 6
of the Company's Amended and Restated Certificate of Incorporation provides, as
authorized by Section 102(b)(7) of the Delaware General Company Law (the
"DGCL"), that a director of the Company, to the fullest extent permitted by the
DGCL, will not be personally liable to the Company or its stockholders for
monetary damages arising out of breach of fiduciary duty to the Company as a
director.
Section 15 of Article III of the Company's Amended and Restated Bylaws further
provides, as permitted by Section 145 of the DGCL, that each person who was, is
or is threatened to be made a party to or is otherwise involved with any action,
suit, arbitration, mediation or proceeding, whether civil, criminal,
administrative or investigative, whether domestic or foreign, by reason of the
fact that he or she, or a person of whom he or she is the legal representative,
is or was a director or officer of the Company or, while a director or officer
of the Company, is or was serving at the request of the Company as a director,
officer, fiduciary, employee or agent of another company or other enterprise (an
"indemnitee"), will be indemnified and held harmless by the Company to the
fullest extent not prohibited by the DGCL, against all expense, liability and
loss (including attorneys' fees), reasonably incurred or suffered by such
indemnitee in connection therewith. This right of indemnification includes the
obligation of the Company to provide an advance of expenses, although the
indemnitee may be required to repay such an advance if there is a judicial
determination that the indemnitee was not entitled to the indemnification. The
Company may also, by action of its board of directors, provide indemnification
to employees and agents of the Company with the same or lesser scope and effect
as the foregoing indemnification of directors and officers.
Item 7. Exemption from Registration Claimed. Not applicable.
Item 8. Exhibits. An Exhibit Index is located at page 8.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement,
(i) to include any prospectus required by Section 10(a) (3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of Registration Statement (or most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement;
(2) that, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Milwaukee, State of Wisconsin, on October 5, 2001.
JOY GLOBAL INC.
By: /s/
--------------------------
John Nils Hanson
Director, President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John Nils Hanson his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, and any
other regulatory authority, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and power of attorney have been signed by the following
persons in the capacities indicated on August 28 2001.
Signature Title
/s/ Director, President and Chief Executive Officer
---------------------------------(Principal Executive Officer)
John Nils Hanson
/s/ Executive Vice President, Treasurer and Chief
---------------------------------Financial Officer (Principal Financial Officer)
Donald C. Roof
/s/ Vice President, Controller and Chief Accounting
---------------------------------Officer (Principal Accounting Officer)
Michael S. Olsen
/s/ Director
---------------------------------
Steven L. Gerard
/s/ Director
---------------------------------
Ken C. Johnsen
/s/ Director
---------------------------------
James R. Klauser
/s/ Director
---------------------------------
Richard B. Loynd
/s/ Director
---------------------------------
P. Eric Siegert
/s/ Director
---------------------------------
James H. Tate
EXHIBIT INDEX
Exhibit Description
Number
4.1 Amended and Restated Certificate of Incorporation of the
Company, incorporated by reference to Exhibit 3.1 of the
Company's Form 8-K dated as of July 12, 2001.
4.2 Amended and Restated Bylaws of the Company, incorporated by
reference to Exhibit 3.2 of the Company's Form 8-K dated as
of July 12, 2001.
4.3 Form of certificate representing shares of common stock,
$1.00 par value per share, incorporated by reference to
Exhibit 4.4 of the Company's Form 8-K dated as of July 12,
2001.
4.4 Joy Global Inc. 2001 Stock Incentive Plan
5.1 Opinion of Eric B. Fonstad, Esq.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Counsel, included in Exhibit 5.1 of this
Registration Statement.
24 Powers of Attorney, incorporated by reference to the
signature page of this Registration Statement.
Exhibit 4.4
JOY GLOBAL, INC.
2001 STOCK INCENTIVE PLAN
SECTION 1. Purpose; Definitions
The purpose of the Plan is to give the Company a competitive advantage in
attracting, retaining and motivating officers, employees, and/or directors and
to provide the Company and its Subsidiaries and Affiliates with a stock plan
providing incentives directly linked to the profitability of the Company's
businesses and increases in Company shareholder value.
For purposes of the Plan, the following terms are defined as set forth
below:
a. "Affiliate" means a corporation or other entity controlled by,
controlling or under common control with the Company.
b. "Award" means a Stock Option, Stock Appreciation Right, Performance
Unit, or other stock-based award.
c. "Award Cycle" shall mean a period of consecutive fiscal years or
portions thereof designated by the Committee over which Performance Units are to
be earned.
d. "Board" means the Board of Directors of the Company.
e. "Cause" means, unless otherwise provided by the Committee, (1) "Cause"
as defined in any Individual Agreement to which the participant is a party, or
(2) if there is no such Individual Agreement or if it does not define Cause: (A)
conviction of the participant for committing a felony under federal law or the
law of the state in which such action occurred, (B) dishonesty in the course of
fulfilling the participant's employment duties, (C) willful and deliberate
failure on the part of the participant to perform his or her employment duties
in any material respect, or (D) prior to a Change in Control, such other events
as shall be determined by the Committee. The Committee shall, unless otherwise
provided in an Individual Agreement with the participant, have the sole
discretion to determine whether "Cause" exists, and its determination shall be
final.
f. "Change in Control" and "Change in Control Price" have the meanings set
forth in Sections 10(b) and (c), respectively.
g. "Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor thereto.
h. "Commission" means the Securities and Exchange Commission or any
successor agency.
i. "Committee" means the Committee referred to in Section 2.
j. "Common Stock" means common stock, par value $1.00 per share, of the
Company.
k. "Company" means Joy Global, Inc., a Delaware corporation.
l. "Covered Employee" means a participant designated prior to the grant of
Performance Units by the Committee who is or may be a "covered employee" within
the meaning of Section 162(m)(3) of the Code in the year in which Performance
Units are expected to be taxable to such participant.
m. "Disability" means, unless otherwise provided by the Committee, (1)
"Disability" as defined in any Individual Agreement to which the participant is
a party, or (2) if there is no such Individual Agreement or it does not define
"Disability," permanent and total disability as determined under the Company's
Long-Term Disability Plan applicable to the participant.
n. "Early Retirement" means retirement from active employment with the
Company, a Subsidiary or Affiliate pursuant to the early retirement provisions
of the applicable pension plan of such employer.
o. " Eligible Individuals" mean directors, officers, and employees of the
Company or any of its Subsidiaries or Affiliates, and prospective employees who
have accepted offers of employment from the Company or its Subsidiaries or
Affiliates, who are or will be responsible for or contribute to the management,
growth or profitability of the business of the Company, or its Subsidiaries or
Affiliates.
p. "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor thereto.
q. "Fair Market Value" means, except as otherwise provided by the
Committee, as of any given date, the average of the highest and lowest per-share
sales prices for the shares during normal business hours on any national
exchange listing the Company's Common Stock for the immediately preceding date,
or if the shares were not traded on such national exchange on such date, then on
the next preceding date on which such shares of Common Stock were traded, all as
reported by such source as the Committee may select.
r. "Incentive Stock Option" means any Stock Option designated as, and
qualified as, an "incentive stock option" within the meaning of Section 422 of
the Code.
s. "Individual Agreement" means an employment or similar agreement between
a participant and the Company or one of its Subsidiaries or Affiliates.
t. "NonQualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
u. "Normal Retirement" means retirement from active employment with the
Company, a Subsidiary or Affiliate at or after age 65.
v. "Qualified Performance-Based Award" means an Award of Performance Units
designated as such by the Committee at the time of grant, based upon a
determination that (i) the recipient is or may be a "covered employee" within
the meaning of Section 162(m)(3) of the Code in the year in which the Company
would expect to be able to claim a tax deduction with respect to such
Performance Units and (ii) the Committee wishes such Award to qualify for the
Section 162(m) Exemption.
w. "Performance Goals" means the performance goals established by the
Committee in connection with the grant of Performance Units. In the case of
Qualified Performance-Based Awards, (i) such goals shall be based on the
attainment of specified levels of one or more of the following measures:
earnings per share, sales, net profit after tax, gross profit, operating profit,
cash generation, unit volume, return on equity, change in working capital,
return on capital, shareholder return, economic value added, or earnings before
interest, taxes, depreciation and amortization, and (ii) such Performance Goals
shall be set by the Committee within the time period prescribed by Section
162(m) of the Code and related regulations.
x. "Performance Units" means an Award granted under Section 7.
y. "Plan" means the Joy Global, Inc. 2001 Stock Incentive Plan, as set
forth herein and as hereinafter amended from time to time.
z. "Retirement" means Normal or Early Retirement.
aa. "Rule 16b-3" means Rule 16b-3, as promulgated by the Commission under
Section 16(b) of the Exchange Act, as amended from time to time.
bb. "Section 162(m) Exemption" means the exemption from the limitation on
deductibility imposed by Section 162(m) of the Code that is set forth in Section
162(m)(4)(C) of the Code.
cc. "Stock Appreciation Right" means an Award granted under Section 6.
dd. "Stock Option" means an Award granted under Section 5.
ee. "Subsidiary" means any corporation, partnership, joint venture or other
entity during any period in which at least a 50% voting or profits interest is
owned, directly or indirectly, by the Company or any successor to the Company.
ff. "Termination of Employment" means the termination of the participant's
employment with, or performance of services for, the Company and any of its
Subsidiaries or Affiliates. A participant employed by, or performing services
for, a Subsidiary or an Affiliate shall also be deemed to incur a Termination of
Employment if the Subsidiary or Affiliate ceases to be such a Subsidiary or an
Affiliate, as the case may be, and the participant does not immediately
thereafter become an employee of, or service-provider for, the Company or
another Subsidiary or Affiliate. Temporary absences from employment because of
illness, vacation or leave of absence and transfers among the Company and its
Subsidiaries and Affiliates shall not be considered Terminations of Employment.
In addition, certain other terms used herein have definitions given to them
in the first place in which they are used.
SECTION 2. Administration
The Plan shall be administered by the Human Resource Committee or such
other committee of the Board as the Board may from time to time designate (the
"Committee"), which shall be composed of not less than three directors, and
shall be appointed by and serve at the pleasure of the Board.
The Committee shall have plenary authority to grant Awards pursuant to the
terms of the Plan to Eligible Individuals.
Among other things, the Committee shall have the authority, subject to the
terms of the Plan:
(a) To select the Eligible Individuals to whom Awards may from time to time
be granted;
(b) To determine whether and to what extent Incentive Stock Options,
NonQualified Stock Options, Stock Appreciation Rights, and Performance Units or
any combination thereof are to be granted hereunder;
(c) To determine the number of shares of Common Stock to be covered by each
Award granted hereunder;
(d) To determine the terms and conditions of any Award granted hereunder
(including, but not limited to, the option price (subject to Section 5(a)), any
vesting condition, restriction or limitation (which may be related to the
performance of the participant, the Company or any Subsidiary or Affiliate) and
any vesting acceleration regarding any Award and the shares of Common Stock
relating thereto, based on such factors as the Committee shall determine;
(e) To modify, amend or adjust the terms and conditions of any Award, at
any time or from time to time, including but not limited to Performance Goals;
provided, however, that the Committee may not adjust upwards the amount payable
with respect to a Qualified Performance-Based Award or waive or alter the
Performance Goals associated therewith;
(f) To determine to what extent and under what circumstances Common Stock
and other amounts payable with respect to an Award shall be deferred; and
(g) To determine under what circumstances an Award may be settled in cash
or Common Stock under Sections 5(j) and 6(b)(ii).
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall
from time to time deem advisable, to interpret the terms and provisions of the
Plan and any Award issued under the Plan (and any agreement relating thereto)
and to otherwise supervise the administration of the Plan.
The Committee may act only by a majority of its members then in office.
Except to the extent prohibited by applicable law or the applicable rules of a
stock exchange, the Committee may delegate administrative responsibilities with
respect to the Plan. Any determination made by the Committee with respect to any
Award shall be made in the sole discretion of the Committee at the time of the
grant of the Award or, unless in contravention of any express term of the Plan,
at any time thereafter. All decisions made by the Committee pursuant to the
provisions of the Plan shall be final and binding on all persons, including the
Company and Plan participants.
Any authority granted to the Committee may also be exercised by the full
Board, except to the extent that the grant or exercise of such authority would
cause any Award or transaction to become subject to (or lose an exemption under)
the short-swing profit recovery provisions of Section 16 of the Exchange Act or
cause an Award designated as a Qualified Performance-Based Award not to qualify
for, or to cease to qualify for, the Section 162(m) Exemption. To the extent
that any permitted action taken by the Board conflicts with action taken by the
Committee, the Board action shall control.
SECTION 3. Common Stock Subject to Plan
The maximum number of shares of Common Stock that may be delivered to
participants and their beneficiaries under the Plan shall be 5,556,000. No
participant may be granted Stock Options and Stock Appreciation Rights covering
in excess of 1,000,000 shares of Common Stock in any fiscal year of the Company.
Shares subject to an Award under the Plan may be authorized and unissued shares
or may be treasury shares.
If any Award is forfeited, or if any Stock Option (and related Stock
Appreciation Right, if any) terminates, expires or lapses without being
exercised, or if any Stock Appreciation Right is exercised for cash, shares of
Common Stock subject to such Awards shall again be available for distribution in
connection with Awards under the Plan. If the option price of any Stock Option
granted under the Plan is satisfied by delivering shares of Common Stock to the
Company (by either actual delivery or by attestation), only the number of shares
of Common Stock issued net of the shares of Common Stock delivered or attested
to shall be deemed delivered for purposes of determining the maximum numbers of
shares of Common Stock available for delivery under the Plan. To the extent any
shares of Common Stock subject to an Award are not delivered to a participant
because such shares are used to satisfy an applicable tax-withholding
obligation, such shares shall not be deemed to have been delivered for purposes
of determining the maximum number of shares of Common Stock available for
delivery under the Plan. The maximum number of shares of Common Stock that may
be issued pursuant to Stock Options intended to be Incentive Stock Options shall
be 20% of the shares issued under the Plan.
In the event of any change in corporate capitalization (including, but not
limited to, a change in the number of shares of Common Stock outstanding), such
as a stock split or a corporate transaction, such as any merger, consolidation,
separation, including a spin-off, or other distribution of stock or property of
the Company, any reorganization (whether or not such reorganization comes within
the definition of such term in Section 368 of the Code) or any partial or
complete liquidation of the Company, the Committee or Board may make such
substitution or adjustments in the aggregate number and kind of shares reserved
for issuance under the Plan, and the maximum limitation upon Stock Options and
Stock Appreciation Rights to be granted to any participant, in the number, kind
and option price of shares subject to outstanding Stock Options and Stock
Appreciation Rights, in the number and kind of shares subject to other
outstanding Awards granted under the Plan and/or such other equitable
substitution or adjustments as it may determine to be appropriate in its sole
discretion; provided, however, that the number of shares subject to any Award
shall always be a whole number. Such adjusted option price shall also be used to
determine the amount payable by the Company upon the exercise of any Stock
Appreciation Right associated with any Stock Option.
SECTION 4. Eligibility
Awards may be granted under the Plan to Eligible Individuals.
SECTION 5. Stock Options
Stock Options may be granted alone or in addition to other Awards granted
under the Plan and may be of two types: Incentive Stock Options and NonQualified
Stock Options. Any Stock Option granted under the Plan shall be in such form as
the Committee may from time to time approve.
The Committee shall have the authority to grant any optionee Incentive
Stock Options, NonQualified Stock Options or both types of Stock Options (in
each case with or without Stock Appreciation Rights); provided, however, that
grants hereunder are subject to the aggregate limit on grants to individual
participants set forth in Section 3. Incentive Stock Options may be granted only
to employees of the Company and its subsidiaries or parent corporation (within
the meaning of Section 424(f) of the Code). To the extent that any Stock Option
is not designated as an Incentive Stock Option or even if so designated does not
qualify as an Incentive Stock Option on or subsequent to its grant date, it
shall constitute a NonQualified Stock Option.
Stock Options shall be evidenced by option agreements, the terms and
provisions of which may differ. An option agreement shall indicate on its face
whether it is intended to be an agreement for an Incentive Stock Option or a
NonQualified Stock Option. The grant of a Stock Option shall occur on the date
the Committee by resolution selects an Eligible Individual to receive a grant of
a Stock Option, determines the number of shares of Common Stock to be subject to
such Stock Option to be granted to such Eligible Individual and specifies the
terms and provisions of the Stock Option. The Company shall notify an Eligible
Individual of any grant of a Stock Option, and a written option agreement or
agreements shall be duly executed and delivered by the Company to the
participant. Such agreement or agreements shall become effective upon execution
by the Company and the participant.
Stock Options granted under the Plan shall be subject to the following
terms and conditions and shall contain such additional terms and conditions as
the Committee shall deem desirable:
(a) Option Price. The option price per share of Common Stock purchasable
under a Stock Option shall be determined by the Committee and set forth in the
option agreement, and with respect to Incentive Stock Options, shall not be less
than the Fair Market Value of the Common Stock subject to the Stock Option on
the date of grant, other than with respect to Stock Option granted in lieu of
foregone compensation.
(b) Option Term. The term of each Stock Option shall be fixed by the
Committee, but no Incentive Stock Option shall be exercisable more than 10 years
after the date the Stock Option is granted.
(c) Exercisability. Except as otherwise provided herein, Stock Options
shall be exercisable at such time or times and subject to such terms and
conditions as shall be determined by the Committee. If the Committee provides
that any Stock Option is exercisable only in installments, the Committee may at
any time waive such installment exercise provisions, in whole or in part, based
on such factors as the Committee may determine. In addition, the Committee may
at any time accelerate the exercisability of any Stock Option.
(d) Method of Exercise. Subject to the provisions of this Section 5, Stock
Options may be exercised, in whole or in part, at any time during the option
term by giving written notice of exercise to the Company specifying the number
of shares of Common Stock subject to the Stock Option to be purchased.
Such notice shall be accompanied by payment in full of the purchase price
by certified or bank check or such other instrument as the Company may accept.
If approved by the Committee, payment, in full or in part, may also be made in
the form of unrestricted Common Stock (by delivery of such shares or by
attestation) already owned by the optionee of the same class as the Common Stock
subject to the Stock Option (based on the Fair Market Value of the Common Stock
on the date the Stock Option is exercised); provided, however, that, in the case
of an Incentive Stock Option, the right to make a payment in the form of already
owned shares of Common Stock of the same class as the Common Stock subject to
the Stock Option may be authorized only at the time the Stock Option is granted
and provided, further, that such already owned shares have been held by the
optionee for at least six months at the time of exercise or had been purchased
on the open market.
If approved by the Committee, payment in full or in part may also be made
by delivering a properly executed exercise notice to the Company, together with
a copy of irrevocable instructions to a broker to deliver promptly to the
Company the amount of sale or loan proceeds necessary to pay the purchase price,
and, if requested, by the amount of any federal, state, local or foreign
withholding taxes. To facilitate the foregoing, the Company may enter into
agreements for coordinated procedures with one or more brokerage firms.
In addition, if approved by the Committee, payment in full or in part may
also be made by instructing the Committee to withhold a number of such shares
having a Fair Market Value on the date of exercise equal to the aggregate
exercise price of such Stock Option. The Committee may also provide for Company
loans to be made for purposes of the exercise of Stock Options.
No shares of Common Stock shall be issued until full payment therefor has
been made. Except as otherwise provided in Section 5(l) below, an optionee shall
have all of the rights of a shareholder of the Company holding the class or
series of Common Stock that is subject to such Stock Option (including, if
applicable, the right to vote the shares and the right to receive dividends),
when the optionee has given written notice of exercise, has paid in full for
such shares and, if requested, has given the representation described in Section
13(a).
If determined by the Committee at or, with respect to a NonQualified Stock
Option, subsequent to the date of grant of a Stock Option, in the event an
optionee who has not incurred a Termination of Employment pays the option price
of such Stock Option (in whole or in part) by delivering (or attesting to
ownership of) shares of Common Stock previously owned by the optionee, such
optionee shall automatically be granted a reload Stock Option (a "Reload
Option") for the number of shares of Common Stock used to pay the option price.
Unless otherwise determined by the Committee, the Reload Option shall be subject
to the same terms and conditions as the Option, except that the Reload Option
shall be a NonQualified Stock Option, have an option price equal to the Fair
Market Value of the Common Stock on the date the Reload Option is granted,
expire the same date as the expiration date of the Option so exercised, and
shall vest and become exercisable 6 months following the date of grant of such
Reload Option. Reload Options shall not be treated as grants for purposes of the
limitations set forth in the second sentence of Section 3 of the Plan.
(e) Nontransferability of Stock Options. No Stock Option shall be
transferable by the optionee other than (i) by will or by the laws of descent
and distribution; or (ii) in the case of a NonQualified Stock Option, as
otherwise expressly permitted by the Committee including, if so permitted,
pursuant to a transfer to such optionee's children immediate family, whether
directly or indirectly or by means of a trust or partnership or otherwise. For
purposes of this Plan, unless otherwise determined by the Committee, "immediate
family" shall have the meaning given to such term in General Instructions
A.1(a)(5) to Form S-8 under the Securities Act of 1933 as amended, and any
successor thereto. All Stock Options shall be exercisable, subject to the terms
of this Plan, only by the optionee, the guardian or legal representative of the
optionee, or any person to whom such option is transferred pursuant to this
paragraph, it being understood that the term "holder" and "optionee" include
such guardian, legal representative and other transferee.
(f) Termination by Death. Unless otherwise determined by the Committee, if
an optionee incurs a Termination of Employment by reason of death, any Stock
Option held by such optionee may thereafter be exercised, to the extent then
exercisable, or on such accelerated basis as the Committee may determine, for a
period of one year (or such other period as the Committee may specify in the
option agreement) from the date of such death or until the expiration of the
stated term of such Stock Option, whichever period is the shorter.
(g) Termination by Reason of Disability. Unless otherwise determined by the
Committee, if an optionee incurs a Termination of Employment by reason of
Disability, any Stock Option held by such optionee may thereafter be exercised
by the optionee, to the extent it was exercisable at the time of termination, or
on such accelerated basis as the Committee may determine, for a period of two
years (or such other period as the Committee may specify in the option
agreement) from the date of such Termination of Employment or until the
expiration of the stated term of such Stock Option, whichever period is the
shorter; provided, however, that if the optionee dies within such period, any
unexercised Stock Option held by such optionee shall, notwithstanding the
expiration of such period, continue to be exercisable to the extent to which it
was exercisable at the time of death for a period of 12 months from the date of
such death or until the expiration of the stated term of such Stock Option,
whichever period is the shorter. In the event of Termination of Employment by
reason of Disability, if an Incentive Stock Option is exercised after the
expiration of the exercise periods that apply for purposes of Section 422 of the
Code, such Stock Option will thereafter be treated as a NonQualified Stock
Option.
(h) Termination by Reason of Retirement. Unless otherwise determined by the
Committee, if an optionee incurs a Termination of Employment by reason of
Retirement, any Stock Option held by such optionee may thereafter be exercised
by the optionee, to the extent it was exercisable at the time of such
Retirement, or on such accelerated basis as the Committee may determine, for a
period of two years (or such other period as the Committee may specify in the
option agreement) from the date of such Termination of Employment or until the
expiration of the stated term of such Stock Option, whichever period is the
shorter; provided, however, that if the optionee dies within such period any
unexercised Stock Option held by such optionee shall, notwithstanding the
expiration of such period, continue to be exercisable to the extent to which it
was exercisable at the time of death for a period of 12 months from the date of
such death or until the expiration of the stated term of such Stock Option,
whichever period is the shorter. In the event of Termination of Employment by
reason of Retirement, if an Incentive Stock Option is exercised after the
expiration of the exercise periods that apply for purposes of Section 422 of the
Code, such Stock Option will thereafter be treated as a NonQualified Stock
Option.
(i) Other Termination. Unless otherwise determined by the Committee: (A) if
an optionee incurs a Termination of Employment for Cause, all Stock Options held
by such optionee shall thereupon terminate; and (B) if an optionee incurs a
Termination of Employment for any reason other than death, Disability,
Retirement or for Cause, any Stock Option held by such optionee, to extent it
was then exercisable at the time of termination, or on such accelerated basis as
the Committee may determine, may be exercised for the lesser of three months
from the date of such Termination of Employment or the balance of such Stock
Option's term; provided, however, that if the optionee dies within such
three-month period, any unexercised Stock Option held by such optionee shall,
notwithstanding the expiration of such three-month period, continue to be
exercisable to the extent to which it was exercisable at the time of death for a
period of 12 months from the date of such death or until the expiration of the
stated term of such Stock Option, whichever period is the shorter.
Notwithstanding any other provision of this Plan to the contrary, in the event
an optionee incurs a Termination of Employment other than for Cause during the
24-month period following a Change in Control, any Stock Option held by such
optionee may thereafter be exercised by the optionee, to the extent it was
exercisable at the time of termination, or on such accelerated basis as the
Committee may determine, for (x) the longer of (i) one year from such date of
termination or (ii) such other period as may be provided in the Plan for such
Termination of Employment or as the Committee may provide in the option
agreement, or (y) until expiration of the stated term of such Stock Option,
whichever period is the shorter. If an Incentive Stock Option is exercised after
the expiration of the post-termination exercise periods that apply for purposes
of Section 422 of the Code, such Stock Option will thereafter be treated as a
NonQualified Stock Option.
(j) Cashing Out of Stock Option. On receipt of written notice of exercise,
the Committee may elect to cash out all or part of the portion of the shares of
Common Stock for which a Stock Option is being exercised by paying the optionee
an amount, in cash or Common Stock, equal to the excess of the Fair Market Value
of the Common Stock over the option price times the number of shares of Common
Stock for which the Option is being exercised on the effective date of such
cash-out.
(k) Change in Control Cash-Out. Notwithstanding any other provision of the
Plan, during the 60-day period from and after a Change in Control (the "Exercise
Period"), if the Committee shall determine at the time of grant or thereafter,
an optionee shall have the right, whether or not the Stock Option is fully
exercisable and in lieu of the payment of the option price for the shares of
Common Stock being purchased under the Stock Option and by giving notice to the
Company, to elect (within the Exercise Period) to surrender all or part of the
Stock Option to the Company and to receive cash, within 30 days of such
election, in an amount equal to the amount by which the Change in Control Price
per share of Common Stock on the date of such election shall exceed the exercise
price per share of Common Stock under the Stock Option (the "Spread") multiplied
by the number of shares of Common Stock granted under the Stock Option as to
which the right granted under this Section 5(k) shall have been exercised.
Notwithstanding the foregoing, if any right granted pursuant to this Section
5(k) would make a Change in Control transaction ineligible for
pooling-of-interests accounting under APB No. 16 that but for the nature of such
grant would otherwise be eligible for such accounting treatment, the Committee
shall have the ability to substitute for the cash payable pursuant to such right
Common Stock with a Fair Market Value (as of the date of delivery of such stock)
equal to the cash that would otherwise be payable hereunder or, if necessary to
preserve such accounting treatment, otherwise modify or eliminate such right.
(l) Deferral of Option Shares. The Committee may from time to time
establish procedures pursuant to which an optionee may elect to defer, until a
time or times later than the exercise of an Option, receipt of all or a portion
of the shares of Common Stock subject to such Option and/or to receive cash at
such later time or times in lieu of such deferred shares, all on such terms and
conditions as the Committee shall determine. If any such deferrals are
permitted, then notwithstanding Section 5(d) above, an optionee who elects such
deferral shall not have any rights as a stockholder with respect to such
deferred shares unless and until shares are actually delivered to the optionee
with respect thereto, except to the extent otherwise determined by the
Committee.
SECTION 6. Stock Appreciation Rights
(a) Grant and Exercise. Stock Appreciation Rights may be granted in
conjunction with all or part of any Stock Option granted under the Plan. In the
case of a NonQualified Stock Option, such rights may be granted either at or
after the time of grant of such Stock Option. In the case of an Incentive Stock
Option, such rights may be granted only at the time of grant of such Stock
Option. A Stock Appreciation Right shall terminate and no longer be exercisable
upon the termination or exercise of the related Stock Option.
A Stock Appreciation Right may be exercised by an optionee in accordance
with Section 6(b) by surrendering the applicable portion of the related Stock
Option in accordance with procedures established by the Committee. Upon such
exercise and surrender, the optionee shall be entitled to receive an amount
determined in the manner prescribed in Section 6(b). Stock Options which have
been so surrendered shall no longer be exercisable to the extent the related
Stock Appreciation Rights have been exercised.
(b) Terms and Conditions. Stock Appreciation Rights shall be subject to
such terms and conditions as shall be determined by the Committee, including the
following:
(i) Stock Appreciation Rights shall be exercisable only at such time or
times and to the extent that the Stock Options to which they relate are
exercisable in accordance with the provisions of Section 5 and this Section 6.
(ii) Upon the exercise of a Stock Appreciation Right, an optionee shall be
entitled to receive an amount in cash, shares of Common Stock or both, in value
equal to the excess of the Fair Market Value of one share of Common Stock over
the option price per share specified in the related Stock Option multiplied by
the number of shares in respect of which the Stock Appreciation Right shall have
been exercised, with the Committee having the right to determine the form of
payment.
(iii) Stock Appreciation Rights shall be transferable only to permitted
transferees of the underlying Stock Option in accordance with Section 5(e).
(iv) Upon the exercise of a Stock Appreciation Right, the Stock Option or
part thereof to which such Stock Appreciation Right is related shall be deemed
to have been exercised for the purpose of the limitation set forth in Section 3
on the number of shares of Common Stock to be issued under the Plan, but only to
the extent of the number of shares covered by the Stock Appreciation Right at
the time of exercise based on the value of the Stock Appreciation Right at such
time.
SECTION 7. Performance Units
(a) Administration. Performance Units may be awarded either alone or in
addition to other Awards granted under the Plan. The Committee shall determine
the Eligible Individuals to whom and the time or times at which Performance
Units shall be awarded, the number of Performance Units to be awarded to any
Eligible Individual), the duration of the Award Cycle and any other terms and
conditions of the Award, in addition to those contained in Section 7(b).
(b) Terms and Conditions. Performance Unit Awards shall be subject to the
following terms and conditions:
(i) The Committee may, prior to or at the time of the grant, designate
Performance Units as Qualified Performance-Based Awards, in which event it shall
condition the settlement thereof upon the attainment of Performance Goals. If
the Committee does not designate Performance Units as Qualified
Performance-Based Awards, it may also condition the settlement thereof upon the
attainment of Performance Goals. Regardless of whether Performance Units are
Qualified Performance-Based Awards, the Committee may also condition the
settlement thereof upon the continued service of the participant. The provisions
of such Awards (including without limitation any applicable Performance Goals)
need not be the same with respect to each recipient. Subject to the provisions
of the Plan and the Performance Unit Agreement referred to in Section 7(b)(vi),
Performance Units may not be sold, assigned, transferred, pledged or otherwise
encumbered during the Award Cycle. No more than 200,000 shares of Common Stock
may be subject to Qualified Performance-Based Awards granted to any participant
in any fiscal year of the Company.
(ii) Except to the extent otherwise provided in the applicable Performance
Unit Agreement or Section 7(b)(iii) or 10(a)(iii), upon a participant's
Termination of Employment for any reason during the Award Cycle or before any
applicable Performance Goals are satisfied, all rights to receive cash or stock
in settlement of the Performance Units shall be forfeited by the participant;
provided, however, that the Committee shall have the discretion to waive, in
whole or in part, any or all remaining payment limitations (other than, in the
case of Performance Units that are Qualified Performance-Based Awards,
satisfaction of the applicable Performance Goals unless the participant's
employment is terminated by reason of death or Disability) with respect to any
or all of such participant's Performance Units.
(iii) A participant may elect to further defer receipt of cash or shares in
settlement of Performance Units for a specified period or until a specified
event, subject in each case to the Committee's approval and to such terms as are
determined by the Committee (the "Elective Deferral Period"). Subject to any
exceptions adopted by the Committee, such election must generally be made prior
to commencement of the Award Cycle for the Performance Units in question.
(iv) At the expiration of the Award Cycle, the Committee shall evaluate the
Company's performance in light of any Performance Goals for such Award, and
shall determine the number of Performance Units granted to the participant which
have been earned, and the Committee shall then cause to be delivered (A) a
number of shares of Common Stock equal to the number of Performance Units
determined by the Committee to have been earned, or (B) cash equal to the Fair
Market Value of such number of shares of Common Stock to the participant, as the
Committee shall elect (subject to any deferral pursuant to Section 7(b)(iii)).
(v) Each Award shall be confirmed by, and be subject to, the terms of a
Performance Unit Agreement.
SECTION 8. Tax Offset Bonuses
At the time an Award is made hereunder or at any time thereafter, the
Committee may grant to the participant receiving such Award the right to receive
a cash payment in an amount specified by the Committee, to be paid at such time
or times (if ever) as the Award results in compensation income to the
participant, for the purpose of assisting the participant to pay the resulting
taxes, all as determined by the Committee and on such other terms and conditions
as the Committee shall determine.
SECTION 9. Other Stock-Based Awards
Other Awards of Common Stock and other Awards that are valued in whole or
in part by reference to, or are otherwise based upon, Common Stock, including
(without limitation) dividend equivalents and convertible debentures, may be
granted either alone or in conjunction with other Awards granted under the Plan.
SECTION 10. Change in Control Provisions
(a) Impact of Event. Notwithstanding any other provision of the Plan to the
contrary, the Committee may provide in the terms of any grant that in the event
of a Change in Control:
(i) Any Stock Options and Stock Appreciation Rights outstanding as of the
date such Change in Control is determined to have occurred, and which are not
then exercisable and vested, shall become fully exercisable and vested to the
full extent of the original.
(ii) All Performance Units shall be considered to be earned and payable in
full, and any deferral or other restriction shall lapse and such Performance
Units shall be settled in cash as promptly as is practicable.
(iii) The Committee may also make additional adjustments and/or settlements
of outstanding Awards as it deems appropriate and consistent with the Plan's
purposes.
(b) Definition of Change in Control. For purposes of the Plan, a "Change in
Control" shall mean the happening of any of the following events:
(i) An acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 20% or more of either (1) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (2) the combined voting
power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); excluding, however, the following: (1) any acquisition directly
from the Company, other than an acquisition by virtue of the exercise of a
conversion privilege unless the security being so converted was itself acquired
directly from the Company, (2) any acquisition by the Company, (3) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any entity controlled by the Company, or (4) any
acquisition pursuant to a transaction which complies with clauses (1), (2) and
(3) of subsection (iii) of this Section 10(b); or
(ii) A change in the composition of the Board such that the individuals
who, as of the effective date of the Plan, constitute the Board (such Board
shall be hereinafter referred to as the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board; provided, however, for purposes
of this Section 10(b), that any individual who becomes a member of the Board
subsequent to the effective date of the Plan, whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of those individuals who are members of the Board and who were also
members of the Incumbent Board (or deemed to be such pursuant to this proviso)
shall be considered as though such individual were a member of the Incumbent
Board; but, provided further, that any such individual whose initial assumption
of office occurs as a result of either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board shall not be so considered as a
member of the Incumbent Board; or
(iii) Consummation of a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the assets of the Company
("Corporate Transaction"); excluding, however, such a Corporate Transaction
pursuant to which (1) all or substantially all of the individuals and entities
who are the beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to such
Corporate Transaction will beneficially own, directly or indirectly, more than
50% of, respectively, the outstanding shares of common stock, and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Corporate Transaction (including, without limitation, a
corporation which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case may be, (2)
no Person (other than the Company, any employee benefit plan (or related trust)
of the Company or such corporation resulting from such Corporate Transaction)
will beneficially own, directly or indirectly, 20% or more of, respectively, the
outstanding shares of common stock of the corporation resulting from such
Corporate Transaction or the combined voting power of the outstanding voting
securities of such corporation entitled to vote generally in the election of
directors except to the extent that such ownership existed prior to the
Corporate Transaction, and (3) individuals who were members of the Incumbent
Board will constitute at least a majority of the members of the board of
directors of the corporation resulting from such Corporate Transaction; or
(iv) The approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
(c) Change in Control Price. For purposes of the Plan, "Change in Control
Price" means the higher of (i)the highest reported sales price, regular way, of
a share of Common Stock in any transaction reported on the New York Stock
Exchange Composite Tape or other national exchange on which such shares are
listed or on NASDAQ during the 60-day period prior to and including the date of
a Change in Control or (ii) if the Change in Control is the result of a tender
or exchange offer or a Corporate Transaction, the highest price per share of
Common Stock paid in such tender or exchange offer or Corporate Transaction;
provided, however, that in the case of Incentive Stock Options and Stock
Appreciation Rights relating to Incentive Stock Options, the Change in Control
Price shall be in all cases the Fair Market Value of the Common Stock on the
date such Incentive Stock Option or Stock Appreciation Right is exercised. To
the extent that the consideration paid in any such transaction described above
consists all or in part of securities or other noncash consideration, the value
of such securities or other noncash consideration shall be determined in the
sole discretion of the Board.
SECTION 11. Term, Amendment and Termination
The Plan will terminate on the tenth anniversary of the effective date of
the Plan. Under the Plan, Awards outstanding as of such date shall not be
affected or impaired by the termination of the Plan.
The Board may amend, alter, or discontinue the Plan, but no amendment,
alteration or discontinuation shall be made which would impair the rights of an
optionee under a Stock Option or a recipient of a Stock Appreciation Right,
Performance Unit Award or other stock-based Award theretofore granted without
the optionee's or recipient's consent, except such an amendment made to comply
with applicable law, stock exchange rules or accounting rules. In addition, no
such amendment shall be made without the approval of the Company's stockholders
to the extent such approval is required by applicable law or stock exchange
rules.
The Committee may amend the terms of any Stock Option or other Award
theretofore granted, prospectively or retroactively, but no such amendment shall
cause a Qualified Performance-Based Award to cease to qualify for the Section
162(m) Exemption or impair the rights of any holder without the holder's consent
except such an amendment made to cause the Plan or Award to comply with
applicable law, stock exchange rules or accounting rules.
Subject to the above provisions, the Board shall have authority to amend
the Plan to take into account changes in law and tax and accounting rules as
well as other developments, and to grant Awards which qualify for beneficial
treatment under such rules without stockholder approval.
SECTION 12. Unfunded Status of Plan
It is presently intended that the Plan constitute an "unfunded" plan for
incentive and deferred compensation. The Committee may authorize the creation of
trusts or other arrangements to meet the obligations created under the Plan to
deliver Common Stock or make payments; provided, however, that unless the
Committee otherwise determines, the existence of such trusts or other
arrangements is consistent with the "unfunded" status of the Plan.
SECTION 13. General Provisions
(a) The Committee may require each person purchasing or receiving shares
pursuant to an Award to represent to and agree with the Company in writing that
such person is acquiring the shares without a view to the distribution thereof.
The certificates for such shares may include any legend which the Committee
deems appropriate to reflect any restrictions on transfer.
Notwithstanding any other provision of the Plan or agreements made pursuant
thereto, the Company shall not be required to issue or deliver any certificate
or certificates for shares of Common Stock under the Plan prior to fulfillment
of all of the following conditions:
(1) Listing or approval for listing upon notice of issuance, of such shares
on the New York Stock Exchange, Inc., or such other securities exchange as may
at the time be the principal market for the Common Stock;
(2) Any registration or other qualification of such shares of the Company
under any state or federal law or regulation, or the maintaining in effect of
any such registration or other qualification which the Committee shall, in its
absolute discretion upon the advice of counsel, deem necessary or advisable; and
(3) Obtaining any other consent, approval, or permit from any state or
federal governmental agency which the Committee shall, in its absolute
discretion after receiving the advice of counsel, determine to be necessary or
advisable.
(b) Nothing contained in the Plan shall prevent the Company or any
Subsidiary or Affiliate from adopting other or additional compensation
arrangements for its employees.
(c) The Plan shall not constitute a contract of employment, and adoption of
the Plan shall not confer upon any employee any right to continued employment,
nor shall it interfere in any way with the right of the Company or any
Subsidiary or Affiliate to terminate the employment of any employee at any time.
(d) No later than the date as of which an amount first becomes includible
in the gross income of the participant for federal income tax purposes with
respect to any Award under the Plan, the participant shall pay to the Company,
or make arrangements satisfactory to the Company regarding the payment of, any
federal, state, local or foreign taxes of any kind required by law to be
withheld with respect to such amount. Unless otherwise determined by the
Company, withholding obligations may be settled with Common Stock, including
Common Stock that is part of the Award that gives rise to the withholding
requirement; provided, that not more than the legally required minimum
withholding may be settled with Common Stock. The obligations of the Company
under the Plan shall be conditional on such payment or arrangements, and the
Company and its Affiliates shall, to the extent permitted by law, have the right
to deduct any such taxes from any payment otherwise due to the participant. The
Committee may establish such procedures as it deems appropriate, including
making irrevocable elections, for the settlement of withholding obligations with
Common Stock.
(e) The Committee shall establish such procedures as it deems appropriate
for a participant to designate a beneficiary to whom any amounts payable in the
event of the participant's death are to be paid or by whom any rights of the
participant, after the participant's death, may be exercised.
(f) In the case of a grant of an Award to any employee of a Subsidiary of
the Company, the Company may, if the Committee so directs, issue or transfer the
shares of Common Stock, if any, covered by the Award to the Subsidiary, for such
lawful consideration as the Committee may specify, upon the condition or
understanding that the Subsidiary will transfer the shares of Common Stock to
the employee in accordance with the terms of the Award specified by the
Committee pursuant to the provisions of the Plan. All shares of Common Stock
underlying Awards that are forfeited or canceled should revert to the Company.
(g) The Plan and all Awards made and actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of Delaware,
without reference to principles of conflict of laws.
(h) Except as otherwise provided in Section 5(e) or 6(b)(iii) or by the
Committee, Awards under the Plan are not transferable except by will or by laws
of descent and distribution.
(i) In the event an Award is granted to Eligible Individual who is employed
or providing services outside the United States and who is not compensated from
a payroll maintained in the United States, the Committee may, in its sole
discretion, modify the provisions of the Plan as they pertain to such individual
to comply with applicable foreign law.
SECTION 14. Effective Date of Plan
The Plan shall be effective as of the date it is adopted by the Board
subject to the approval by at least a majority of the outstanding shares of
Common Stock of the Company. (which approval shall be deemed to have been given
upon the final confirmation of the Company's Joint Plan of Reorganization by the
U.S. Bankruptcy Court for the District of Delaware in Case No. 99-2171 (PJW)).
SECTION 15. Director Stock Options.
(a) Each director of the Company who is not otherwise an employee of the
Company or any of its Subsidiaries or Affiliates, shall (i) on the first day
after his or her first election as a director of the Company automatically be
granted 10,000 NonQualified Stock Options to purchase Common Stock having an
exercise price of 100% of Fair Market Value of the Common Stock on the date of
grant of such NonQualified Stock Option and (ii) thereafter, on the day after
each Annual Meeting of Stockholders of the Company during such director's term,
be granted 5,000 NonQualified Stock Options to purchase Common Stock having an
exercise price of 100% of Fair Market Value of the Common Stock on the date of
grant of such NonQualified Stock Option.
(b) An automatic director Stock Option shall be granted hereunder only if
as of each date of grant the director (i) is not otherwise an employee of the
Company or any of its Subsidiaries or Affiliates, (ii) has not been an employee
of the Company or any of its Subsidiaries or Affiliates for any part of the
preceding fiscal year, and (iii) has served on the Board continuously since the
commencement of his term.
(c) Each holder of a Stock Option granted pursuant to this Section 15 shall
also have the rights specified in Section 5(k).
(d) In the event that the number of shares of Common Stock available for
future grant under the Plan is insufficient to make all automatic grants
required to be made on such date, then all non-employee directors entitled to a
grant on such date shall share ratably in the number of options on shares
available for grant under the Plan.
(e) Except as expressly provided in this Section 15, any Stock Option
granted hereunder shall be subject to the terms and conditions of the Plan as if
the grant were made pursuant to Section 5 hereof.
Exhibit 5.1
JOY GLOBAL INC.
Eric B. Fonstad
Secretary and
Associate General Counsel
October 5, 2001
Joy Global Inc.
100 E Wisconsin Ave, Suite 2780
Milwaukee WI 53202
Re: Registration Statement on Form S-8
Ladies/Gentlemen:
I am issuing this opinion letter in my capacity as Associate General
Counsel to Joy Global Inc., a Delaware corporation (the "Company"), in
connection with the filing by the Company of a Registration Statement on Form
S-8 under the Securities Act of 1933, as amended (the "Act"), with the
Securities Exchange Commission covering the offering of up to 5,556,000 shares
of the common stock of the Company, $1.00 par value per share (the "Shares"),
pursuant to the Joy Global Inc. 2001 Stock Incentive Plan (the "Plan").
For purposes of this letter, I have examined such documents, records,
certificates, memoranda and other instruments deemed necessary as a basis for
this opinion.
Based upon and subject to the assumptions and limitations stated in this
letter, it is my opinion that the Shares are duly authorized and, when (i) the
Registration Statement related to the Shares becomes effective under the Act,
(ii) the Shares have been duly issued in accordance with the terms of the Plan
upon receipt of the consideration to be paid therefor (assuming in each case the
consideration received by the Company is at least equal to $1.00 per share), and
(iii) the certificates representing the Shares comply as to form with the bylaws
of the Company and the Delaware General Corporation Law and bear all necessary
signatures and authentications, the Shares will be validly issued, fully paid
and nonassessable.
I have relied without independent investigation upon an assurance from the
Company that the number of Shares which the Company is authorized to issue in
its Amended and Restated Certificate of Incorporation exceeds the number of
shares outstanding and the number of shares which the Company is obligated to
issue (or had otherwise reserved for issuance) for any purposes other than
issuance in connection with the Plan by at least the number of Shares which may
be issued in connection with the Plan and I have assumed that such condition
will remain true at all future times relevant to this opinion. I have assumed
that the Company will cause certificates representing Shares issued in the
future to be properly executed and delivered and will take all other actions
appropriate for the issuances of such Shares. All of my opinions assume that the
Registration Statement related to the Shares will become effective under the Act
before any Shares covered by such Registration Statement are sold. I have also
made other assumptions which I believe to be appropriate for purposes of this
letter.
I hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. In giving this consent, I do not
thereby admit that I am in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission.
I do not find it necessary for the purposes of this opinion, and
accordingly I do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance and sale of the Shares.
This opinion is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein. I assume
no obligation to revise or supplement this opinion should the present laws of
the States of Wisconsin or Delaware or the federal law of the United States be
changed by legislative action, judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Sincerely,
Eric B. Fonstad
Secretary and Associate General Counsel
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 11, 2001 relating to the
financial statements, which appears in the 2000 Annual Report to Shareholders of
Joy Global Inc. (p/k/a Harnischfeger Industries, Inc.), which is incorporated in
Joy Global Inc.'s Annual Report on Form 10-K for the year ended October 31,
2000. We also consent to the incorporation by reference of our report dated
January 11, 2001 relating to the financial statement schedule, which appears in
such Annual Report on Form 10-K.
PricewaterhouseCoopers LLP
Milwaukee, Wisconsin
October 5, 2001