December 23, 2008
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Re:
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Amendments to Restricted Stock Unit Award
Agreements
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As you know, Joy Global Inc. (the
“Company”) granted to you awards of Restricted Stock
Units on each of the following dates: January 21, 2004 (the
“January 2004 RSUs”), November 15, 2004 (the
“November 2004 RSUs”), November 14, 2005 (the
“November 2005 RSUs”), November 13, 2006 (the
“November 2006 RSUs”), and December 3, 2007 (the
“December 2007 RSUs”) (collectively, the
“RSUs”). The agreements evidencing each award of RSUs
(the “RSU 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 RSU Agreement is delayed to the
extent necessary to ensure that the Company may deduct payment of
RSUs under Section 162(m) of the Code.
Each RSU Agreement is hereby
amended, effective as of the date of such agreement, as
follows:
1. Section 5(a) of each RSU
Agreement is amended to read as follows:
If the Employee incurs a Termination
of Employment for any reason, any Restricted Stock Units that had
not become non-forfeitable prior to the date of such Termination of
Employment shall be forfeited; provided, however, that if
such Termination of Employment is by reason of the Employee’s
death or Disability, the Restricted Stock Units shall become
non-forfeitable; and provided further that if such
Termination of Employment is due to Retirement, the Committee shall
have the discretion to determine as of the date of such Retirement
that any Restricted Stock Units that had not become non-forfeitable
prior to the date of such Termination of Employment due to
Retirement shall become non-forfeitable. If the Restricted Stock
Units become nonforfeitable on account of the Employee’s
death or Disability (provided that, on account of the Disability,
the Employee is disabled within the meaning of Section
409A(a)(2)(C) of the Code and the regulations thereunder) (a
“409A Disability”), the Restricted Stock Units shall be
settled as soon as practicable (but no more than 30 days) after the
Employee’s death or the 409A Disability. If the Restricted
Stock Units become nonforfeitable on account of Disability (other
than a 409A Disability) or, in the discretion of the Committee, on
account of Retirement, the Restricted Stock Units shall continue to
vest and be settled in accordance with the schedule in Paragraph 1
of this Agreement. If, in the event of the Employee’s death,
the Employee fails to designate a beneficiary, or if the designated
beneficiary of the Employee dies before the Employee dies or before
the complete payment of the amounts payable under this Agreement,
the amounts to be paid under this Agreement shall be paid to the
legal representative or representatives of the estate of the last
to die of the Employee and the beneficiary.
2. The first sentence of Section 6
of each RSU Agreement for the January 2004 RSUs,
the November 2004 RSUs, and the November 2005
RSUs, and Section 6(a) of the RSU Agreement for the November 2006
RSUs are amended to read as follows:
Notwithstanding any other provision
of this Agreement, in the event of a Change in Control (unless such
Change in Control does not qualify as an event described in Section
409A(a)(2)(A)(v) of the Code and the regulations thereunder), all
outstanding Restricted Stock Units held by the Employee on the
effective date of the Change in Control, whether or not
the
