December 23, 2008
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Re:
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Amendments to Performance Share
Agreements
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As you know, Joy Global Inc. (the
“Company”) granted to you awards of Performance Shares
on each of the following dates: November 18, 2002; January 21,
2004;
November 15, 2004; November 13,
2006; and December 3, 2007 (collectively, the “Performance
Shares”). The agreements evidencing each award of Performance
Shares (the “Performance Share Agreements”) are hereby
amended, as described below, to conform the Agreements to Section
409A of the Internal Revenue Code of 1986, as amended (the
“Code”), and to make clear that payment under each
Performance Share Agreement is delayed to the extent necessary to
ensure that the Company may deduct payment of Performance Shares
under Section 162(m) of the Code.
Each Performance Share Agreement is
hereby amended, effective as of the date of such agreement, by
adding the following Section 25:
25. Mandatory Deferral of
Distribution When Section 162(m) Limits Apply . In accordance
with Section 1.409A-2(b)(7)(i) of the Treasury Regulations, and
notwithstanding any other provision in this Agreement, distribution
of shares or cash in respect of the Performance Shares may be
delayed, as described below:
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(a)
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The distribution of shares or
cash in respect of the Performance Shares scheduled to be
distributed on a specified distribution date (the “Original
Distribution Date”) pursuant to Paragraph 4 shall be deferred
automatically if, but only if, both of the following are true as to
the Employee:
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(1)
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the Employee is a “covered
employee” for purposes of Section 162(m) of the Code for the
Company’s taxable year that includes such Original
Distribution Date (the “ODD Taxable Year”);
and
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(2)
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the Employee’s total
“compensation” (excluding compensation treated as
performance-based under Section 162(m)) that the Company and its
subsidiaries could otherwise deduct, including the compensation
value of the Performance Shares Earned scheduled to be distributed
within such taxable year, is expected to exceed $1,000,000 for such
ODD Taxable Year.
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(b)
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In the event that a mandatory
deferral applies under the terms of Paragraph 25(a), the following
provisions shall apply to such deferral:
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(1)
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The cash or number of
shares
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