exv10w2






Exhibit 10.2



PERFORMANCE SHARE AGREEMENT




     THIS AGREEMENT is entered into as of December 7, 2009, between Joy Global Inc., a
Delaware Corporation, (the “Company”) and (the “Participant”).



     WHEREAS, the Company maintains the Joy Global Inc. 2007 Stock Incentive Plan (as amended
from time to time, the “Plan”), which is incorporated into and forms a part of this Agreement.
Capitalized terms used and not otherwise defined in this Agreement have the meanings given to them
in the Plan.



     WHEREAS, the Participant has been selected by the Committee to receive an award of
Performance Shares under the Plan.



     NOW, THEREFORE, IT IS AGREED, by and between the Company and the Participant, as follows:



     1. Terms of Award. The following terms used in this Agreement shall have
the following meanings:




	 	(a)	 	The “Target Number of Performance Shares” is .
	 
	 	(b)	 	The “Performance Shares Earned” shall be the number of Performance Shares
earned by the Participant determined in accordance with the provisions of
Exhibit 1, which is attached to and forms a part of this Agreement.
	 
	 	(c)	 	The “Award Cycle” is the period beginning on the first day of the Company’s
fiscal year 2010 and ending on the last day of the Company’s fiscal year 2012.





     2. Award.




	 	(a)	 	Subject to the terms of this Agreement and the Plan, the Participant is hereby
granted the Target Number of Performance Shares set forth in Paragraph 1(a). The award
is a Qualified Performance-Based Award.
	 
	 	(b)	 	Participant agrees to comply with the Company’s Executive Leadership Team Stock
Ownership Policy, which is attached as Exhibit 2, with respect to this award.
	 
	 	(c)	 	If for any reason the Participant does not acknowledge and accept this
Agreement by 5:00 p.m. Milwaukee time on December 6, 2010, then (1) the Participant
shall be considered to have declined the grant of the Performance Shares, (2) the
Company’s grant of the Performance Shares shall be deemed automatically rescinded and
the Performance Shares shall be null and void and (3) the Participant’s acceptance of
this Agreement after such time shall have no legal effect and the Company shall not be
bound by any such acceptance.




 









 











     3. Distribution of Awards. The Company shall distribute to the Participant
one share of Common Stock (or cash equal to the Fair Market Value of one share of Common Stock) for
each Performance Share Earned. Subject to Paragraph 7, Performance Shares Earned shall be
distributed solely in shares of Common Stock, solely in cash based on the Fair Market Value of the
Common Stock, or in a combination of the two, as determined by the Committee in its sole
discretion, except that any fractional share of Common Stock will be rounded to the nearest whole
share.



     4. Time of Distribution. Except as otherwise provided in this Agreement,
shares and/or cash distributable in respect of Performance Shares Earned in accordance with the
provisions of Paragraph 3 will be distributed as soon as practicable after January 4, 2013, but in
no event later than January 14, 2013.



     5. Termination of Employment Due to Retirement, Disability, Death, or
Involuntary Termination of Employment Without Cause During Award Cycle. If the Participant
experiences a Termination of Employment during the Award Cycle because of the Participant’s
Retirement, disability, death, or involuntary Termination of Employment without Cause, the
Participant shall be entitled to a portion of the Performance Shares Earned in accordance with
Exhibit 1, determined at the end of the Award Cycle. Such portion shall equal the number of
Performance Shares Earned that would have been earned by the Participant had the Participant
remained employed through the end of the Award Cycle
(determined in accordance with Exhibit 1), multiplied by the quotient equal to (A) the number
of full fiscal months the Participant was employed during the Award Cycle divided by (B) the total
number of fiscal months in the Award Cycle.



     6. Other Termination of Employment During Award Cycle. If the Participant
experiences a Termination of Employment during the Award Cycle for any reason other than the
Participant’s Retirement, disability, death, or involuntary Termination of Employment without
Cause, the award granted under this Agreement will be forfeited on the date of such Termination of
Employment; provided, however, that in such circumstances the Committee, in its discretion, may
determine that the Participant will be entitled to receive a pro rata or other portion of the
Performance Shares Earned, determined at the end of the Award Cycle.



     7. Change in Control.




	 	(a)	 	If a Change in Control occurs during the Award Cycle, and the Participant has not
experienced a Termination of Employment before the Change in Control, the Participant
shall be entitled to the greater of (i) the Performance Shares Earned that would have
been earned by the Participant had the Participant remained employed through the end of
the Award Cycle in accordance with Exhibit 1 if the Performance Goal set forth in
Exhibit 1 had been achieved, multiplied by the quotient equal to the number of full
fiscal months the Participant was employed during the Award Cycle through the date of
the Change in Control, divided by the total number of fiscal months in the Award Cycle,
or (ii) the Performance Shares




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	 	 	 	Earned as of the date of the Change in Control (based on
the Average Return on Equity for the Award Cycle through and including such date).
	 
	 	(b)	 	Notwithstanding the provisions of Paragraph 3, the value of Performance Shares
Earned in accordance with Paragraph 7(a) shall be distributed to the Participant in a
lump sum cash payment, based on a value per Performance Share equal to the Change in
Control Price, as soon as practicable (but no more than 30 days) after the occurrence
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, in
which case such distribution shall occur in accordance with Paragraph 4).
	 
	 	(c)	 	Distributions to the Participant under Paragraph 3 shall not be affected by
payments under this Paragraph 7, except that before distributions are made under
Paragraph 3, and after all computations required under Paragraph 3 have been made, the
number of Performance Shares Earned by the Participant shall be reduced by the number
of Performance Shares Earned with respect to which payment was made to the Participant
under this Paragraph 7.
	 
	 	(d)	 	The Participant shall not be required to repay any amounts to the Company on
account of any distribution made under this Paragraph 7 for any reason, including
failure to achieve the Performance Goal.





     8. Heirs and Successors. This Agreement shall be binding upon, and inure to the
benefit of, the Company and its successors and assigns, and upon any person acquiring, whether by
merger, consolidation, purchase of assets or otherwise, all or substantially all of the Company’s
assets and business. Subject to the terms of the Plan, any benefits distributable to the
Participant under this Agreement that are not distributed at the time of the Participant’s death
shall be distributed at the time and in the form determined in accordance with the provisions of
this Agreement and the Plan to the beneficiary designated by the Participant in writing filed with
the Committee in such form and at such time as the Committee shall require. If the Participant
fails to designate a beneficiary prior to his or her death, or if the designated beneficiary of the
Participant dies before the Participant dies or before complete distribution of the amounts
distributable under this Agreement, the amounts to be distributed under this Agreement shall be
distributed to the legal representative or representatives of the estate of the last to die of the
Participant and the beneficiary.



     9. Administration. The authority to manage and control the operation and
administration of this Agreement shall be vested in the Committee, and the Committee shall have all
powers with respect to this Agreement as it has with respect to the Plan. Any interpretation of
this Agreement by the Committee and any decision made by it with respect to this Agreement are
final and binding.



     10. Plan Terms. Notwithstanding anything in this Agreement to the contrary,
the terms of this Agreement shall be subject to the terms of the Plan, a copy of which may be
obtained by the Participant from the office of the Secretary of the Company.



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     11. Confidential Information; Noncompetition; Nonsolicitation.




Nothing in this Agreement or that follows limits the Company’s or Affiliates’ rights
with respect to Trade Secrets which are defined by and protected by Wis. Stat. § 134.90.




	 	(a)	 	The Participant shall hold in a fiduciary capacity for the benefit of the Company
all secret or confidential information, knowledge or data relating to the Company or
any of its Affiliates and their respective businesses that the Participant obtains
during the Participant’s employment by the Company or any of its Affiliates and that
(i) is not public knowledge or (ii) became public knowledge as a result of the
Participant’s violation of this Paragraph 11.(a) (“Confidential Information”). The
Participant acknowledges that the Confidential Information is highly sensitive and
proprietary and includes, without limitation: product design information, product
specifications and tolerances, manufacturing processes and methods, information
regarding new product or new feature development, information regarding how to satisfy
particular customer needs, expectations and applications, information regarding
strategic or tactical planning, information regarding pending or planned competitive
bids, information regarding costs, margins, and methods of estimating, and information
regarding key employees. The Participant shall not communicate, divulge or disseminate
Confidential Information to any person, firm, corporation, partnership or entity of any
kind whatsoever under any circumstances reasonably likely to result in the use of such
Confidential Information to the Company or any of its Affiliates’ competitive
disadvantage at any time during or after the Employee’s employment by the Company or
any of its Affiliates, for a period of two (2) years following the Termination of
Employment, except with the prior written consent of the Company or as otherwise
required by law or legal process.
	 
	 	 	 	All computer software, business cards, telephone lists, customer lists, price lists,
contract forms, catalogs, records, files and know-how acquired while an employee of
the
Company or any of its Affiliates are acknowledged to be the property of the Company
or the applicable Affiliate(s) and shall not be duplicated, removed from the
possession or premises of the Company or such Affiliate(s) or made use of other than
in pursuit of the business of the Company and its Affiliates or as may otherwise be
required by law or any legal process, and, upon Termination of Employment for any
reason, Participant shall deliver to the Company (or the applicable Affiliate, if the
Participant is employed outside the United States), without further demand, all such
items and any copies thereof which are then in his or her possession or under his or
her control.
	 
	 	(b)	 	The Participant acknowledges that his or her employment may place him or her in
a position of contact and trust with customers of the Company or its Affiliates, and
that in the course of employment the Participant may be given access to and asked to
maintain and develop relationships with such customers. The Participant acknowledges
that such relationships are of substantial value to the Company and




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	 	 	 	its Affiliates and
that it is reasonable for the Company to seek to prevent Participant from giving
competitors unfair access to such relationships.
	 
	 	(c)	 	Prior to and through an eighteen-month period following the Termination of
Employment date, the Participant will not, except upon prior written permission signed
by the President or an Executive Vice President of the Company, consult with or advise
or, directly or indirectly, as owner, partner, officer or employee, engage in business
with any company or entity in competition with the Company or any of its Affiliates in
the business of manufacturing, selling, servicing, or repairing equipment or parts for
the surface mining industry, including but not limited to, those entities set forth in
the attached Exhibit 3 and in a capacity where Confidential Information or Trade
Secrets of the Company or any of its Affiliates would reasonably be considered useful.
Notwithstanding the foregoing, the Participant may make and retain investments in not
more than three percent of the equity of any such company if such equity is listed on a
national securities exchange or regularly traded in an over-the-counter market.
	 
	 	(d)	 	Prior to and through a two-year period following the Termination of Employment
date, the Participant will not, directly or indirectly solicit or induce for employment
on behalf of any company or entity in competition with the Company or any of its
Affiliates in the business of manufacturing, selling, servicing or repairing mining
equipment or parts, including but not limited to, those entities set forth in the
attached Exhibit 3 (other than any personal assistant hired to work directly for the
Participant), any individual employed by the Company or any of its Affiliates on the
Termination of Employment date or any person who was so employed by the Company or any
of its Affiliates at any time during the preceding three months.
	 
	 	(e)	 	Prior to and through a one-year period following the Termination of Employment,
the Participant will not, directly or indirectly, interfere with, or endeavor to entice
away from Company or any of its Affiliates, any person, firm, corporation, partnership
or entity of any kind whatsoever which is a customer of Company or any of its
Affiliates, or which was a customer of Company or any of its Affiliates, within one
year prior to the Termination of Employment date, and, which the Participant regularly
performed services for, or regularly dealt with, or regularly had contact with such
customer on behalf of the Company or any of its Affiliates, and the Participant
obtained knowledge, as a result of his or her position with the Company or any of its
Affiliates, which would be beneficial to Participant’s efforts to convince such
customer to cease doing business with the Company or any of its Affiliates, in whole or
in part.
	 
	 	(f)	 	In the event of a breach of the Participant’s covenants under this Paragraph
11, the entire Stock Option shall immediately expire as of the date of such breach.
The Participant acknowledges and agrees that such expiration is not expected to
adequately compensate the Company and its Affiliates for any such breach and that such
expiration shall not substitute for or adversely affect the remedies to which the
Company or any of its Affiliates is entitled under Paragraph 11(g) or at law.




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	 	(g)	 	In the event of a breach of the Participant’s covenants under this Paragraph
11, it is understood and agreed that the Company and any Affiliate(s) that employed the
Participant shall be entitled to injunctive relief, as well as any other legal or
equitable remedies. The Participant acknowledges and agrees that the covenants,
obligations and agreements of the Participant in Paragraphs 11(a), (b), (c), (d) and
(e) of this Agreement relate to special, unique and extraordinary matters and that a
violation of any of the terms of such covenants, obligations or agreements will cause
the Company irreparable injury for which adequate remedies are not available at law.
Therefore, the Participant agrees that the Company and any Affiliate(s) that employed
the Participant shall be entitled to an injunction, restraining order or such other
equitable relief (without the requirement to post bond) as a court of competent
jurisdiction may deem necessary or appropriate to restrain the Participant from
committing any violation of such covenants, obligations or agreements. These
injunctive remedies are cumulative and in addition to any other rights and remedies
that the Company or its Affiliates may have.
	 
	 	(h)	 	The Company and the Participant hereby irrevocably submit to the exclusive
jurisdiction of the courts of Wisconsin and the federal courts of the United States of
America, located in Milwaukee, Wisconsin, in respect of all disputes involving
Confidential Information, trade secrets or the violation of the provisions of this
Paragraph 11 and the interpretation and enforcement of this Paragraph 11, and the
parties hereto hereby irrevocably agree that (i) the sole and exclusive appropriate
venue for any suit or proceeding relating to such matters shall be in such a court,
(ii) all claims with respect to any such matters shall be heard and determined
exclusively in such court, (iii) such court shall have exclusive jurisdiction over the
person of such parties and over the subject matter of any such dispute, and (iv) each
hereby waives any and all objections and defenses based on forum, venue or personal or
subject matter jurisdiction as they may relate to any suit or proceeding brought before
such a court in accordance with the provisions of this Paragraph 11.





     12. Taxes and Withholdings. No later than the applicable distribution date
for any distribution of shares and/or cash made under Paragraph 3, the Participant shall pay to the
Company or make arrangements satisfactory to the Committee regarding payment of any federal, state
or local taxes, and any non-U.S. taxes applicable to the Participant, of any kind required by law
to be withheld upon such distribution, and the Company shall, to the extent permitted or required
by law, have the right to deduct from any payment of any kind due to the Participant federal,
state, local and applicable non-U.S. taxes of any kind required by law to be withheld upon such
distribution.



     13. No Shareholder Rights Before Settlement. The Participant shall not be
entitled to any privileges of ownership of shares of Common Stock with respect to this award unless
and until shares of Common Stock are actually delivered to the Participant pursuant to this
Agreement.



     14. Adjustments. In the event of a stock split, spin-off, or other
distribution of stock or property of the Company, or any reorganization (whether or not such
reorganization comes within the definition of such term in Section 368 of the Code), the number of
Performance Shares subject



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to the award shall be equitably adjusted by the Committee as it
determines to be appropriate in its sole discretion; provided, however, that the number of
Performance Shares subject to the award shall always be a whole number. In the event of any other
change in corporate capitalization (including, but not
limited to, a change in the number of shares of Common Stock outstanding), or a corporate
transaction, such as any merger, consolidation, or separation, or any partial or complete
liquidation of the Company, the number and kind of Performance Shares subject to the award may be
adjusted by the Board or Committee as the Board or Committee may determine to be appropriate in its
sole discretion; provided, however, that the number of Performance Shares subject to the award
shall always be a whole number. The determination of the Board or Committee regarding any
adjustment will be final and conclusive.



     15. Notices. All notices and other communications under this Agreement
shall be in writing and shall be given by hand delivery to the other party or by facsimile,
overnight courier, or registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:


If to the Participant:





			
	If to the Company:	 	Joy Global Inc.

100 East Wisconsin Avenue, Suite 2780

Milwaukee, WI 53202

Attention: Corporate Secretary

Facsimile: 414-319-8520




or to such other address or facsimile number as any party shall have furnished to the other in
writing in accordance with this Paragraph 15. Notice and communications shall be effective when
actually received by the addressee.




     16. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other provision of this
Agreement. If any provision of this Agreement is held invalid or unenforceable to any extent, the
remainder of this Agreement shall not be affected by that provision and that provision shall be
enforced to the greatest extent permitted by law.



     17. Conflicts and Interpretation. In the event of any conflict between this
Agreement and the Plan, the Plan shall control. In the event of any ambiguity in this Agreement,
any term which is not defined in this Agreement, or any matters as to which this Agreement is
silent, the Plan shall govern including, without limitation, the provisions thereof pursuant to
which the Committee has the power, among others, to (a) interpret the Plan, (b) prescribe, amend
and rescind rules and regulations relating to the Plan, and (c) make all other determinations
deemed necessary or advisable for the administration of the Plan.



     18. Amendment. This Agreement may not be modified, amended or waived except
by an instrument in writing signed by both parties hereto. The waiver by either party of
compliance with any provision of this Agreement shall not operate or be construed as a waiver of
any other provision of this Agreement, or of any subsequent breach by such party of a provision of
this Agreement.



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     19. Section 409A. If any distribution or settlement of a Performance Share
pursuant to the terms of this Agreement or the Plan would subject the Participant to tax under
Section 409A of the Code, the Company shall be entitled (but not required) to modify this Agreement
and/or the Plan (in each case, without the consent of the Participant) in the least restrictive
manner necessary in order to comply with the provisions of Section 409A, other applicable
provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under
such statutory provisions and, in each case, without any material diminution in the value of the
payments to the Participant.



     20. Laws Applicable to Construction. The interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of Delaware as applied to
contracts executed in and performed wholly within the State of Delaware, without reference to
principles of conflict of laws with the exception of Paragraph 11, which will be interpreted,
enforced, and governed by the laws of the State of Wisconsin.



     21. Counterparts. This Agreement may be executed in counterparts, which
together shall constitute one and the same original.



     22. Headings. The headings of paragraphs herein are included solely for
convenience of reference and shall not affect the meaning or interpretation of any of the
provisions of this Agreement.




     23. Nontransferability. Performance Shares are not transferable by the
Participant, whether voluntarily or involuntarily, by operation of law or otherwise, during the
Award Cycle, except as provided in the Plan. Any assignment, pledge, transfer or other
disposition, voluntary or involuntary, of the Performance Shares made, or any attachment,
execution, garnishment, or lien issued against or placed upon the Performance Shares, except as
provided in the Plan, shall be void.



     24. Miscellaneous.




	 	(a)	 	This Agreement shall not confer upon the Participant any right to continue as an
employee of the Company or any of its Affiliates, nor shall this Agreement interfere in
any way with the right of the Company or its Affiliates to terminate the employment of
the Participant at any time.
	 
	 	(b)	 	This Agreement shall be subject to all applicable laws, rules and regulations
and to such approvals by any governmental agencies or national securities exchanges as
may be required.





     IN WITNESS WHEREOF, the Participant has executed this Agreement, and the Company has caused
this Agreement to be executed in its name and on its behalf, all as of the date first written
above.



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	 	JOY GLOBAL INC.



Michael W. Sutherlin

President and Chief Executive Officer



PARTICIPANT

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 




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EXHIBIT 1




PERFORMANCE MEASURES





	1.	 	Purpose. This Exhibit sets forth the performance measures that will be applied to
determine the Performance Shares Earned by the Participant under the 2010 Performance Share
Program (the “2010 Program”) under the terms of the Performance Share Agreement entered into
as of December 7, 2009.
	 
	2.	 	Performance Goal. The Performance Goal applicable to the Participant under the
2010 Program is Average Return on Equity of 10% for the Award Cycle.
	 
	3.	 	Determination of Average Return on Equity. Average Return on Equity for the Award
Cycle shall be determined as follows:






	 	(A)	 	Average Return on Equity shall be calculated as the mean of the Return on Equity in
each of the three fiscal years in the Award Cycle;
	 
	 	(B)	 	Return on Equity for each fiscal year shall be calculated by dividing (1) the
Company’s consolidated net income for such fiscal year (as reflected in the Company’s
annual report on Form 10-K filed with the Securities and Exchange Commission) by (2) the
Company’s Average Shareholders’ Equity for such fiscal year;
	 
	 	(C)	 	Average Shareholders’ Equity for a fiscal year shall be calculated as the mean of
five data points consisting of the balance in Shareholders’ Equity (1) at the end of each
fiscal quarter of such fiscal year and (2) at the end of the prior fiscal year; and
	 
	 	(D)	 	Shareholders’ Equity shall be determined in accordance with generally accepted
accounting principles, but shall exclude any adjustments to shareholders’ equity since the
beginning of the Award Cycle due to pension accounting adjustments or decreases in
deferred tax valuation reserves.






	4.	 	Determination of Performance Shares Earned. If Average Return on Equity for the
Award Cycle equals or exceeds 10% for the Award Cycle, the number of Performance Shares Earned
distributable to the Participant under the Agreement shall be (a) 180% of the Target Number of
Performance Shares or (b) at the discretion of the Committee, any lower number that, expressed
as a percentage of the Target Number of Performance Shares, is not less than the percentage of
target number of performance shares generally awarded to participants in the 2010 Program for
whom the Performance Goal was average diluted EPS.




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EXHIBIT 2




EXECUTIVE LEADERSHIP TEAM

STOCK OWNERSHIP POLICY




     Members of the Company’s Executive Leadership Team are subject to the following minimum
ownership requirements for shares of the Company’s common stock:




	•	 	CEO: Five times annual salary. Until the five times annual salary requirement has been
met, the executive is required to retain shares of Common Stock having a market value at least
equal to 50% of the pre-tax compensation realized upon settlement of any restricted stock
units, payment of any performance shares, exercise of any stock options or settlement of any
other stock awards. After the five times annual salary requirement has been met, the CEO is
required to retain, at the retention rate specified in the preceding sentence, a sufficient
number of shares of Common Stock received by the CEO from subsequent settlements of restricted
stock units, payments of performance shares, exercises of stock options and settlements of
other stock awards as may be necessary at that time to satisfy the five times annual salary
requirement.
	 
	•	 	Other Executive Officers: Two and one-half times annual salary. Until the two and
one-half times annual salary requirement has been met, the executive is required to retain
shares of Common Stock having a market value at least equal to 25% of the pre-tax compensation
realized upon settlement of any restricted stock units, payment of any performance shares,
exercise of any stock options or settlement of any other stock awards. After the two and
one-half times annual salary requirement has been met, the executive is required to retain, at
the retention rate specified in the preceding sentence, a sufficient number of shares of
Common Stock from subsequent settlements of restricted stock units, payments of performance
shares, exercises of stock options and settlements of other stock awards as may be necessary
at that time to satisfy the two and one-half times annual salary requirement
	 
	•	 	Each executive shall not sell, transfer or otherwise dispose of shares of Common Stock (i)
until the respective ownership requirement has been met or (ii) after the respective ownership
requirement has been met, to the extent that the executive would no longer satisfy the
ownership requirement immediately following such sale, transfer or other disposition.
	 
	•	 	For the purposes of this policy, restricted stock units, performance shares and stock
options shall not be considered to be shares of Common Stock.





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EXHIBIT 3




COMPANIES




     This Exhibit forms a part of the Performance Share Agreement entered into as of December 7,
2009, between Joy Global Inc. and Participant.




	 	1.	 	Bucyrus International, Inc.
	 
	 	2.	 	Cogar Manufacturing Inc.
	 
	 	3.	 	Eickhoff Corporation
	 
	 	4.	 	FMC Technologies Inc.
	 
	 	5.	 	Fletcher International or Fletcher Asset
Management
	 
	 	6.	 	Longwall Associates, Inc.
	 
	 	7.	 	Sandvik AB
	 
	 	8.	 	SANY Group Co. Ltd.




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