Exhibit 10.(h)


 


CUMMINS INC.

EMPLOYEE STOCK PURCHASE PLAN


 


 


Restated as of January 1, 2009


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I.

  	
  GENERAL PROVISIONS

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Restatement

  	
   

  	
  4

  
	
  Section 1.02.

  	
  Purpose

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  DEFINED TERMS AND RULES OF CONSTRUCTION

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Definitions

  	
   

  	
  4

  
	
  Section 2.02.

  	
  Rules of Interpretation and Governing Law

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  ELIGIBILITY AND PARTICIPATION

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Eligibility

  	
   

  	
  6

  
	
  Section 3.02.

  	
  Participation

  	
   

  	
  6

  
	
  Section 3.03.

  	
  Effective Date of Participation

  	
   

  	
  6

  
	
  Section 3.04.

  	
  End of Participation

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
  ACCOUNTS, CONTRIBUTIONS, AND PURCHASES

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Accounts

  	
   

  	
  6

  
	
  Section 4.02.

  	
  Payroll Deduction Contributions

  	
   

  	
  6

  
	
  Section 4.03.

  	
  Employer Contributions

  	
   

  	
  6

  
	
  Section 4.04.

  	
  Credits to Accounts

  	
   

  	
  6

  
	
  Section 4.05.

  	
  Application of Cash

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  PURCHASE AND SALE OF PLAN SHARES

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Purchase of Plan Shares

  	
   

  	
  7

  
	
  Section 5.02.

  	
  Certificates for Plan Shares

  	
   

  	
  7

  
	
  Section 5.03.

  	
  Sale of Plan Shares

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  TERMINATION OF PARTICIPATION

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Termination of Participation

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  VOTING AND TENDER OF PLAN SHARES

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Voting of Plan Shares

  	
   

  	
  9

  
	
  Section 7.02.

  	
  Tender or Exchange Offer

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
  PLAN EXPENSES

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Expenses

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
  AMENDMENT AND TERMINATION

  	
   

  	
  9

  



 

















 


	
  Section 9.01.

  	
  Amendment

  	
   

  	
  9

  
	
  Section 9.02.

  	
  Termination

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
  MISCELLANEOUS PROVISIONS

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Statements

  	
   

  	
  9

  
	
  Section 10.02.

  	
  Tax Matters

  	
   

  	
  10

  
	
  Section 10.03.

  	
  Limitation on the Employers’ and the Administrator’s
  Liability

  	
   

  	
  10

  
	
  Section 10.04.

  	
  Transfer; Assignment

  	
   

  	
  10

  
	
  Section 10.05.

  	
  Effect of
  Financial Hardship Distribution

  	
   

  	
  10

  



 

















 


ARTICLE
I.

GENERAL PROVISIONS


 


Section 1.01.                         Restatement.  Cummins Inc. (“Cummins”)
established the Cummins Inc. Employee Stock Purchase Plan (“Plan”), effective November 1,
1998.  Cummins hereby restates the Plan,
effective January 1, 2009.


 


Section 1.02.                         Purpose.  The purpose of
the Plan is to allow eligible employees of Cummins and its subsidiaries and
affiliates (“Employer”) to purchase shares of Cummins common stock at a
discount.  The Plan is not intended to
qualify as an employee stock purchase plan within the meaning of Section 423
of the Internal Revenue Code.


 


ARTICLE
II.

DEFINED TERMS AND RULES OF CONSTRUCTION


 


Section 2.01.                         Definitions.  For purposes of
the Plan, the following terms, when capitalized, have the meanings set out
below:


 


(a)                                  “Account”
means, with respect to a Participant, the account established by the
Administrator for the Participant pursuant to Section 4.01.


 


(b)                                 “Administrator”
means Solomon Smith Barney or such other administrator as Cummins, in its
discretion, may designate.


 


(c)                                  “Applicable
Form” means the form designated and provided by the Employer or Administrator
for making an election or providing a notice required by the Plan.  To the extent permitted by applicable law,
the Employer or Administrator may prescribe an oral, electronic, or telephonic
form in lieu of or in addition to a paper form.


 


(d)                                 “Base Pay”
means, with respect to a Participant, his base salary or hourly wages,
exclusive of allowances, incentive pay, reimbursed expenses, overtime pay,
fringe benefits, and other similar forms of payment.


 


(e)                                  “Code” means
the Internal Revenue Code of 1986, as amended from time to time.


 


(f)                                    “Commission”
means the United States Securities and Exchange Commission.


 


(g)                                 “Employer”
means Cummins and its subsidiaries and affiliates.


 


(h)                                 “Common Stock”
means the common stock of Cummins.


 


(i)                                     “Cummins” means
Cummins Inc.


 


(j)                                     “Eligible
Employee” means an Employee (i) employed by an Employer in the United
States, or (ii) in the case of a citizen or resident of the United States
working outside of the United States, employed by an Employer outside the
United States, provided, in each case, 


 


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that the Employee is, in the judgment of
Cummins, employed at a work location having sufficient payroll system
capabilities to support the Plan.


 


(k)                                  “Employee”
means a common law employee of an Employer, excluding, however, any person paid
through the payroll of an unrelated third party, even if such person is
determined to be a common law employee of an Employer.


 


(l)                                     “Employer”
means Cummins and its subsidiaries and affiliates.


 


(m)                               “Employer
Contribution” means, with respect to a Participant for a month, an amount
sufficient to result in the Participant receiving the specified discount (as
determined pursuant to the next sentence) on the Plan Shares purchased for the
Participant on the Purchase Date occurring in the next following month.  The specified discount shall be 10%;
provided, however, Cummins may, in its sole discretion, change or eliminate the
specified discount by providing at least 30 days written notice of the change
to Participants.


 


(n)                                 “Participant”
means a current or past Eligible Employee who has become a Participant pursuant
to Section 3.03 and who has not ceased to be a Participant pursuant to Section 3.04.


 


(o)                                 “Plan” means
the Cummins Inc. Employee Stock Purchase Plan, as set out herein, as amended
from time to time.


 


(p)                                 “Plan Shares”
means shares of Common Stock.


 


(q)                                 “Purchase Date”
means the fifth day of a month, or if the principal exchange on which Common
Shares are sold is not open on such date, the next preceding date on which such
exchange is open.


 


Section 2.02.                         Rules of Interpretation and Governing Law.  The following rules shall be applied in
interpreting the Plan:


 


(a)                                  The Plan shall
be interpreted, enforced, and administered and the validity thereof determined
in accordance with the internal laws of the State of Indiana without regard to
conflict of law principles and the following rules.


 


(b)                                 Words used in
the masculine gender shall be construed to include the feminine gender, where
appropriate, and words used in the singular or plural shall be construed as
being in the plural or singular, where appropriate.


 


(c)                                  The headings
and subheadings in the Plan are inserted for convenience of reference only and
are not to be considered in the interpretation of any provision of the Plan.


 


(d)                                 If any
provision of the Plan shall be held to be illegal or invalid for any reason,
that provision shall be deemed to be null and void, but the invalidation of
that provision shall not otherwise impair or affect the Plan.


 


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ARTICLE
III.

ELIGIBILITY AND PARTICIPATION


 


Section 3.01.                         Eligibility.  Only
Eligible Employees may participate in the Plan.


 


Section 3.02.                         Participation.  To become a
Participant, an Eligible Employee must submit to his Employer or the
Administrator, as directed, all Applicable Forms required for participation,
including one or more forms (i) authorizing his Employer to withhold
payroll deductions to be used for the purchase of Common Stock pursuant to the
Plan and (ii) an investment authorization form authorizing his Employer
and/or the Administrator to act as his agent for the purposes described
therein.


 


Section 3.03.                         Effective Date of Participation.  An Employee
shall become a Participant, effective as of the first payroll date occurring
after the month in which he has satisfied the requirements of Section 3.02.


 


Section 3.04.                         End of Participation.  A Participant
shall cease to be such upon the distribution of all amounts credited to his
Account.


 


ARTICLE
IV.

ACCOUNTS, CONTRIBUTIONS, AND PURCHASES


 


Section 4.01.                         Accounts.  The
Administrator shall establish an Account for each Participant as that
Participant’s agent.


 


Section 4.02.                         Payroll Deduction Contributions.  As a condition
of participation, an Eligible Employee must elect on an Applicable Form to
have a percentage of his Base Pay withheld from his cash compensation to be
used for the purchase of Common Shares pursuant to the Plan.  The minimum payroll deduction contribution
shall be 1% of Base Pay, and the maximum contribution 15% of Base Pay;
provided, however, Cummins may, in its sole discretion, change the minimum
and/or maximum contribution amount at any time. 
A Participant may change his elected payroll deduction contributions at
any time by filing a new Applicable Form with his Employer or the
Administrator, as directed, in which case his new election will become
effective as soon as administratively feasible after it is received.  The Employer shall forward amounts withheld
from a Participant’s cash compensation during a month to the Administrator for
the purchase of Plan Shares on the Purchase Date occurring in the next
following month.


 


Section 4.03.                         Employer Contributions.  The Employer shall forward the required
Employer Contributions for each Participant on account of his payroll deduction
contributions during a month to the Administrator for the purchase of Plan
Shares on the Purchase Date occurring in the next following month.


 


Section 4.04.                         Credits to Accounts.  Contributions
for a Participant shall be credited to a Participant’s Account when received by
the Administrator.  In addition, unless
otherwise elected by the Participant, cash dividends on Plan Shares allocated
to his Account shall be 


 


6





















 


credited to his Account at the time such
dividends are paid.  Any stock dividends or shares
received as a result of a stock split on any Plan Shares credited to a
Participant’s Account shall be credited to the Participant’s Account when
received by the Administrator.


 


Section 4.05.                         Application of Cash.  Except as
otherwise expressly provided herein, the Administrator shall apply all cash
credited to a Participant’s Account under Section 4.04 to the purchase of
whole and fractional Plan Shares on the Purchase Date and shall credit such
Plan Shares to the Participant’s Account. 
In making such purchases, the Administrator may commingle the cash
credited to all Participants’ Accounts.


 


ARTICLE
V.

PURCHASE AND SALE OF PLAN SHARES


 


Section 5.01.                         Purchase of Plan Shares.  The Administrator shall purchase Plan Shares
in negotiated transactions or on any securities exchange or other securities
trading facility on which Common Stock is traded.  The purchases shall be on terms as to price,
delivery, and other matters, and shall be executed through those brokers or
dealers, as the Administrator may determine. 
Under certain circumstances, observance of the rules and
regulations of the Commission or applicable securities exchange or other
securities trading facility may require temporary suspension of purchases by
the Administrator or may require that a purchase be spread over a longer period
than indicated in Section 4.05.  In
that event, purchases shall be made or resumed when permitted by the rules and
regulations of the Commission or applicable securities exchange or other
securities trading facility; and the Administrator shall not be accountable for
its inability to make all purchases within the applicable period.  If any Commission, securities exchange, or
other securities trading facility suspension of trading in Common Stock remains
effective for 90 consecutive days, the Administrator shall remit to each
Participant promptly after the end of such period all cash credited to the
Participant’s Account attributable to the Participant’s payroll deductions and
cash dividends paid on Plan Shares credited to the Participant’s Account. 


 


Section 5.02.                         Certificates for Plan Shares.  The
Administrator shall hold the Plan Shares of all Participants in its name or in
the name of its nominee evidenced by as many or as few certificates as the
Administrator determines appropriate.  No
certificate representing Plan Shares purchased for a Participant’s Account
shall be issued to the Participant unless and until his Account is terminated.


 


Section 5.03.                         Sale of Plan Shares.  A Participant may request that the
Administrator sell all or any part of his Plan Shares at any time.  A Participant who wishes to sell any part of
his Plan Shares may do so by provided notice to the Administrator on an
Applicable Form.  Upon receipt of the
notice, the Administrator, as the Participant’s agent, shall sell the number of
Plan Shares specified in the Participant’s notice within five business days
after receiving the Participant’s notice of instruction to sell and shall
deliver to the Participant the proceeds of the sale, less a handling charge,
brokerage commissions, and other costs of sale. 
Whole and fractional shares may be aggregated and sold with those of
other Participants, in which case the proceeds for each Participant shall be
based on the average sales price of all shares aggregated and sold.  Any sale may, but need not, be made by
purchase for other Accounts, in which case the 


 


7





















 


price shall be the mean of the high and low
selling price of Common Stock as reported by the principal stock exchange on
which the stock is traded on the date on which the Administrator receives
notice of the Participant’s notice of instruction to sell, or, if the stock is
not traded on such date, the mean on the next prior date on which the Common
Stock was so traded.  Any fractional
shares that are not sold shall be paid for in cash at a price equal to the mean
of the high and low selling prices of Common Stock as reported by the principal
stock exchange on which Common Stock is traded on the date on which the
Administrator receives notice of the Participant’s notice of instruction to
sell or, if the stock is not traded on such date, the mean on the next prior
date on which the Common Stock was so traded. 
If a Participant elects to sell all of his Plan Shares, the
Participant shall be deemed to have terminated participation in the Plan, and
the provisions of Section 6.01 shall apply.


 


ARTICLE
VI.

TERMINATION OF PARTICIPATION


 


Section 6.01.                         Termination of Participation.  A Participant
may terminate his or her participation in the Plan at any time by providing
written notice to his Employer.  The
Employer shall inform the Administrator of a Participant’s election to
terminate participation within ten business days after it receives the
Participant’s notice.  As soon as
practicable (and not more than 20 days) after the Administrator receives notice
from the Employer, unless a Participant makes a contrary election, the
Administrator shall send to the terminating Participant, at a reasonable
charge, a certificate representing the full Plan Shares credited to his Account
and a check for the net proceeds of any fractional share credited to his
Account.  If a Participant elects to
terminate and continues to be an Employee, he may not rejoin the Plan for a
period of six months from the date of the termination.  In any case of termination, the Administrator
shall, if the Participant elects, sell, as the Participant’s agent, all or part
of the Participant’s Plan Shares within five business days after receiving the
Participant’s written instruction to sell his Plan Shares, and shall deliver to
Participant the proceeds of the sale, less a handling charge, brokerage
commissions, and other costs of sale. 
Whole and fractional shares may be aggregated and sold with those of
other Participants, in which case the proceeds for each Participant shall be
based on the average sales price of all shares aggregated and sold.  Any sale may, but need not, be made by
purchase for other Accounts, in which case the price shall be the mean of the
high and low selling price of Common Stock as reported by the principal stock
exchange on which the Common Stock is traded on the date on which the
Administrator receives the notice of termination or, if the Common Stock is not
traded on such date, the mean on the next prior date on which it was so
traded.  On termination, fractional
shares credited to a Participant’s Account that are not aggregated and sold
shall be paid for in cash at a price equal to the mean of the high and low
selling prices of Common Stock as reported by the principal stock exchange or
inter-dealer quotation system on which Common Stock is traded on the date on
which the Administrator receives the notice of termination or, if the Common
Stock is not so traded on such date, the mean on the next prior date on which
is was so traded.


 


8

















 


ARTICLE
VII.

VOTING AND TENDER OF PLAN SHARES


 


Section 7.01.                         Voting of Plan Shares.  The Administrator shall vote Plan Shares
credited to a Participant’s Account as instructed by the Participant on an
Applicable Form provided to the Administrator at least five days (or such
shorter period as the law may require) before the meeting at which such Plan
Shares are to be voted.  The
Administrator shall not vote Plan Shares for which no instructions have been
received.


 


Section 7.02.                         Tender or Exchange Offer.  If a tender offer or exchange offer for the
Common Stock is initiated, the Administrator, upon receipt of information with
respect thereto as the holder of record of the Plan Shares, shall either (i) forward,
or provide for forwarding, to each Participant, the information provided by the
offeror to holders of record of Common Stock or (ii) provide to the
offeror the name and mailing address of each Participant, as reflected on the
records of the Administrator, with instructions to mail such material to each
Participant.  The Administrator shall
tender all or part of a Participant’s Plan Shares in response to written
instructions from the Participant in such form as the Administrator may
reasonably require and only if such instructions are received by the
Administrator at least five days (or such shorter period as may be required by
law) before termination of the offer. 
Unless the Administrator has received instructions in accordance with
the previous sentence, it will not tender a Participant’s Plan Shares.  Except to the extent that disclosure is
required to tender Plan Shares pursuant to proper written instructions, the
Administrator shall maintain the confidentiality of a Participant’s election to
tender or not tender Plan Shares.


 


ARTICLE
VIII.

PLAN EXPENSES


 


Section 8.01.                         Expenses.  Cummins
shall pay the service charges, brokerage, costs of mailing and other charges
incurred in connection with the purchase of Plan Shares.  The cost of selling Plan Shares shall be
borne by Participants, as provided herein.


 


ARTICLE
IX.

AMENDMENT AND TERMINATION


 


Section 9.01.                         Amendment.  Cummins may,
in its sole discretion, amend this Plan at any time; provided, however, except
as required by law, no amendment shall be retroactive, nor shall any amendment
deprive any Participant of amounts credited to his Account.


 


Section 9.02.                         Termination.  Cummins may, in
its sole discretion, terminate the Plan at any time.


 


ARTICLE
X.

MISCELLANEOUS PROVISIONS


 


Section 10.01.                  Statements.  The
Administrator shall provide or make available to Participants periodic
statements summarizing the transactions in the Participant’s Account since the
most recent available statement.


 


9

















 


Section 10.02.                  Tax Matters.  Each
Participant is responsible for all taxes (whether local, state or federal) due
because of Employer Contributions, the payment of a dividend, or the sale of
Plan Shares credited to his Account.  The
Administrator shall timely prepare and forward to the United States Internal
Revenue Service, the appropriate state and local authorities, and Participants
the information returns required by the Code and applicable state statutes,
presently Forms 1099-Div and 1099-B.  All
Employer Contributions shall constitute taxable income to the Participant to
whose Account they are credited and shall be reported to the United States
Internal Revenue Service on the Participant’s Form W-2 as taxable
earnings.


 


Section 10.03.                  Limitation on the Employers’ and the Administrator’s Liability.  The Employers and the Administrator shall not
be liable for any action that is in compliance with the terms and conditions of
this Plan taken or omitted in good faith, including without limitation, any
claim of liability:


 


(a)                                  Arising out of
failure to terminate a Participant’s Account upon the Participant’s death or
otherwise before the receipt of written notice of the event causing
termination, accompanied by documentation deemed satisfactory by the
Administrator;


 


(b)                                 With respect to
the prices at which Plan Shares are purchased or sold for a Participant’s
Account and the timing and terms on which the purchase or sale is made; or


 


(c)                                  For the market
value, or any fluctuation in the market value, after purchase or sale of Plan
Shares for a Participant’s Account.


 


Section 10.04.                  Transfer; Assignment.  Except as is expressly provided in this Plan,
no Participant may sell, pledge, hypothecate, or otherwise assign or transfer
his Account, any interest in his Account, or any cash or stock credited to his
Account.  Any attempt to sell, pledge,
hypothecate, assign, or transfer his Account, any interest in his Account, or
any cash or stock credited to his Account shall be void.


 


Section 10.05.                  Effect
of Financial Hardship Distribution.  A Participant who receives a financial
hardship distribution from a qualified cash or deferred arrangement described
in Section 401(k) of the Code that is maintained by an Employer may
not contribute to the Plan for a period of six months after receipt of the
financial hardship distribution.  The
Participant must submit a new Applicable Form to recommence contributions
to the Plan after receiving such a financial hardship distribution.


 


10