Exhibit 10.23


 


BUNGE LIMITED


2007 NON-EMPLOYEE DIRECTORS


EQUITY INCENTIVE PLAN


(Amended and Restated as of December 31,
2008)


 


Bunge Limited, a company incorporated under
the laws of Bermuda (“Bunge”),  hereby
establishes an equity compensation plan to be known as the Bunge Limited 2007
Non-Employee Directors Equity Incentive Plan (the “Plan”).  The Plan shall become effective as of the
Effective Date, as defined in Section 14. 
Subject to approval by the shareholders of Bunge, upon the Effective
Date no further Awards shall be granted pursuant to the Bunge Limited
Non-Employee Directors Equity Incentive Plan, as amended from time to
time.  Capitalized terms that are not
otherwise defined in the text of the Plan are defined in Section 2.


 


1.             Purpose


 


The purpose of the Plan is to promote the
long-term growth and financial success of Bunge and its Subsidiaries by
attracting, motivating and retaining non-employee directors of outstanding
ability and assisting the Company in promoting a greater identity of interest
between the Company’s non-employee directors and its shareholders.


 


2.             Definitions


 


For purposes of the Plan, the following terms
shall be defined as follows:


 


“Annual Meeting” means the annual general
meeting of the Company’s shareholders.


 


“Award”
means, individually or collectively, any Director Option, Restricted Stock,
Restricted Stock Unit or Deferred Restricted Stock Unit granted pursuant to the
Plan.


 


“Award Document” means the
written agreement or certificate or other documentation governing an Award
under the Plan, which shall contain such terms and conditions not inconsistent
with the Plan as the Committee may determine and which shall incorporate the
Plan by reference.


 


“Board” means the Board of Directors of the
Company.


 


“Change of Control” shall have the meaning set
forth in the Bunge Limited Equity Incentive Plan as in effect from time to
time, or any successor thereto.


 


“Code” means the Internal Revenue Code of
1986, as amended and any applicable rulings and regulations promulgated thereunder.


 


“Committee”
means the Compensation Committee of the Board.


 

















 


“Common Stock” means the common shares, par
value $0.01 per share, of Bunge.


 


“Company” means Bunge Limited or any successor
to substantially all its business.


 


“Date of Grant” means
the date on which an Award is granted to a Non-Employee Director under the Plan


 


“Deferral Election” has the meaning set forth
in Section 12.


 


“Deferral Election Form” means a document in a form approved by the
Committee, pursuant to which a Non-Employee Director may elect to make a
Deferral Election.


 


“Deferral Value” means, with respect to an Award of Restricted Stock Units, (x) the
Fair Market Value of a Share on the Vesting Date multiplied by (y) the
number of Shares underlying the portion of such Award of Restricted Stock Units
that the Non-Employee Director has elected to defer, with the product subject
to reduction for any applicable withholding taxes.


 


“Deferred Restricted Stock Unit”
means an Award
representing a right to receive one Share of Common Stock granted to a
Non-Employee Director pursuant to Section 10.


 


“Director Option” means an Award representing a right to
purchase one Share of Common Stock granted to a Non-Employee Director pursuant
to Section 7.


 


“Dividend Equivalent” means a right to receive
payment in accordance with Section 11 based on the value of a regular cash
dividend paid by the Company on a Share of Common Stock.


 


“Effective Date” means the effective date of
the Plan provided for in Section 14.


 


“Fair Market Value” of a Share of Common Stock
as of any date means:


 


(i)            if the Common Stock is listed on an established stock
exchange or exchanges (including for this purpose, the NASDAQ National Market),
(a) the closing price of a Share quoted for such date as reported in the
Transactions Index of each such exchange, as published in The Wall
Street Journal and determined by the Committee, or, if no sale price
was quoted in any such Index for such date, then as of the next preceding date
on which such a sale price was quoted;


 


(ii)           if the Common Stock is not then listed on an established
stock exchange or the NASDAQ National Market, the average of the closing bid
and asked prices for a  Share in the
over-the-counter market as quoted on The NASDAQ Small Cap or OTC Electronic
Bulletin Board, as appropriate, on such date; or


 


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(iii)          if the Common Stock is not then listed on an established
stock exchange or quoted in the over-the-counter market, an amount determined
in good faith by the Committee; provided, however, that, when appropriate, the
Committee, in determining Fair Market Value of the Common Stock, may take into
account such factors as it may deem appropriate under the circumstances.


 


“Non-Employee Director”
means a member of the Board who is not an employee of the Company or any of its
Subsidiaries.


 


“Option Term” means
the term of a Director Option as set forth in Section 7(b).


 


“Permanent Disability” means a physical or
mental impairment rendering a Non-Employee Director substantially unable to
function as a member of the Board for any period of six consecutive
months.  Any dispute as to whether a
Non-Employee Director suffers from a Permanent Disability shall be resolved by
a physician mutually acceptable to the Non-Employee Director and the Committee
(or if such Non-Employee Director and the Committee cannot mutually agree on a
physician, a physician chosen by the Chief of Staff of Westchester Medical
Center), whose decision shall be final and binding.


 


“Plan Limit” has the meaning set forth in Section 4(a).


 


“Restricted Stock” means a Share of Common
Stock granted to a Non-Employee Director pursuant to Section 8.


 


“Restricted Stock Unit”  means an Award representing a right to
receive one Share of Common Stock granted to a Non-Employee Director pursuant to Section 9.


 


“Retirement” means a
Non-Employee Director’s retirement from the Board in accordance with the
retirement policy then in effect for Board members.


 


“Section 409A”
means Section 409A of the Code.


 


“Separation Date”
means the date of a Non-Employee Director’s termination of service as a member
of the Board or such later date as constitutes the Non-Employee Director’s “separation
from service” from the Company as determined under the default provisions
included in Treasury Regulation Section 1.409A-1(h) or any successor
regulation thereto; provided, however for the purposes of determining which entity is a
service recipient or employer, “at least 20 percent” is substituted for “at
least 80 percent” in each place it appears in Treasury Regulation §1.414(c)-2.


 


“Shares” means shares
comprising the Common Stock.


 


“Subsidiary” means (i) a domestic or
foreign corporation or other entity with respect to which Bunge, directly or
indirectly, has the power, whether through the ownership of voting securities,
by contract or otherwise, to elect at least a majority of the members of such
corporation’s board of directors or analogous governing body, or (ii) any
other domestic or foreign corporation or other entity in which Bunge, directly
or 


 


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indirectly, has an equity or similar interest and which the Committee
designates as a Subsidiary for purposes of the Plan.


 


3.             Administration
of the Plan


 


The Plan shall be administered by the
Committee, which shall have the authority, subject to the provisions of the
Plan, to establish, adopt and revise such rules and regulations and make
such determinations (including, without limitation, factual and legal
determinations) as it considers necessary or appropriate to carry out the Plan’s
purposes.  Subject to the provisions of
the Plan, the Committee has the authority to (i) grant discretionary
Awards under the Plan; (ii) determine the time or times when Awards are
made under the Plan; (iii) determine the number, amount and type of Awards
granted under the Plan; (iv) determine the terms and conditions of Awards;
(v) prescribe the form or forms of Award Documents and (vi) accelerate
the vesting or settlement of any Award, the lapse of restrictions on any Award
and the date on which any Award first becomes exercisable.


 


The Committee shall have the authority to
interpret and construe the Plan, all Awards and all Award Documents issued
pursuant to the Plan and to correct any defects, supply any omissions and/or
reconcile any inconsistencies therein. 
The Committee’s interpretation of the Plan or any documents evidencing
Awards granted pursuant thereto and all decisions and determinations by the
Committee with respect to the Plan shall be final, binding, and conclusive on
all parties.  The Committee may, but need
not, from time to time delegate some or all of its authority under the Plan
(other than its power to delegate) to a subcommittee consisting of one or more
members of the Committee, any such delegation to be subject to the restrictions
and limits that the Committee specifies at the time of such delegation or
thereafter.  References in the Plan to
the “Committee” shall, to the extent consistent with the terms and limitations
of any such delegation, be deemed to include a reference to any such committee
to which authority hereunder has been delegated.  The Committee may also delegate
administrative duties under the Plan to an employee of the Company.


 


4.             Shares Available


 


(a)           General. 
Subject to adjustment as provided in Section 16, the maximum number
of Shares of Common Stock that may be subject to Awards issued under the Plan
(the “Plan
Limit”) shall be 600,000 Shares.


 


(b)           Rules Applicable to Determining Shares
Available for Issuance. 
For purposes of determining the number of Shares of Common Stock that
remain available for issuance under the Plan, the number of Shares shall be
determined as follows:


 


(i)            each
Share subject to a Director Option shall reduce the Plan Limit by one Share of
Common Stock;


 


(ii)           each
Share subject to an Award of Restricted Stock, Deferred Restricted Stock Units
or Restricted Stock Units shall reduce the Plan Limit by 2.2 Shares of Common
Stock; and


 


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(iii)          the
number of Shares subject to an Award that is forfeited, cancelled or expires
for any reason without having been settled or delivered shall be added back to
the Plan Limit and shall again be available for Awards under the Plan.


 


The number of Shares remaining for issuance
shall be reduced by the number of Shares subject to outstanding Awards in the
manner provided above.  Shares of Common
Stock shall be made available from authorized but unissued Shares or may be
purchased on the open market or by private purchase.


 


5.             Eligibility


 


Awards shall be granted only to
Non-Employee Directors.


 


6.             Awards in General


 


(a)           Grant of Awards. 
Unless otherwise determined by the Committee, Awards shall be granted
under the Plan as follows:


 


(i) upon
a Non-Employee Director’s initial election or appointment to the Board; and


 


(ii) to
a Non-Employee Director who continues to be a member of the Board as of the
date of an Annual Meeting.


 


All Awards
granted by the Committee shall be subject to the approval of the Board.  Notwithstanding any provision herein to the
contrary, a Non-Employee Director who is elected or appointed to the Board
other than on the date of an Annual Meeting shall receive, as of the date of
such election or appointment, a pro-rata portion of the Awards made to
Non-Employee Directors generally on the immediately preceding Date of Grant
based on the number of days from the date of election or appointment to the
next Annual Meeting, divided by 365.  To
the extent practicable, such Award(s) shall be made in the same form as
the Award(s) made as of such Date of Grant.


 


(b)           Terms Set Forth in Award Document.  The terms and conditions of each Award
shall be set forth in an Award Document and such terms and conditions shall not
be inconsistent with the Plan and shall include, without limitation, the date
on which the Award was granted and the amount and type of such Award.


 


7.             Terms
and Conditions of Director Options


 


(a)           General.  The
Committee shall determine the number of Director Options (if any) that
may be granted to a Non-Employee Director. 
Director Options shall be nonqualified stock options and are not
intended to qualify as “incentive stock options” under Section 422 of the
Code.  The exercise price per Share of
Common Stock subject to each Director Option shall be equal to the Fair Market
Value of a Share on the Date of Grant.


 


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(b)           Option
Term. 
Each Director Option shall expire on the tenth anniversary of the Date
of Grant or such earlier time as set forth in the Plan or an applicable Award
Document.


 


(c)           Vesting.
 Unless otherwise determined by the Committee,
and subject to earlier forfeiture or accelerated vesting as provided herein, Director Options shall become
fully vested and exercisable on the third anniversary of the applicable Date of
Grant.  Notwithstanding the preceding
sentence, unless otherwise determined
by the Committee, (i) all Director
Options shall be immediately vested and exercisable upon termination of a
Non-Employee Director’s service on the Board by reason of Retirement, death, or
Permanent Disability or by reason of failure by the Company’s shareholders to
reelect such Non-Employee Director after he or she was nominated for
re-election by the Board and (ii) in the event a Non-Employee Director’s service on
the Board terminates for any other reason, any Director Options that are not
vested at the time of such termination shall be forfeited and cancelled without
any payment.


 


(d)           Notice
of Exercise.  Subject to the other terms and conditions of
the Plan, a Non-Employee Director may exercise all or any portion of a vested
Director Option by giving notice of exercise to the Company or its designated
agent; provided,
however, that no fewer than
one hundred (100) Shares of Common Stock may be purchased upon any exercise of
a Director Option unless the number of Shares purchased at such time is the
total number of Shares in respect of which the Director Option is then
exercisable, and provided
further, that in no event
shall the Director Option be exercisable for a fractional Share.  The date of exercise of a Director Option
shall be the later of (i) the date on which the Company or its agent
receives such notice or (ii) the date on which the conditions provided in
Sections 7(e) and 7(g) are satisfied.


 


(e)           Form of
Payment. 
The exercise price of a Director Option may be paid in (i) cash or (ii) by
any other method as approved by the Committee. 
In accordance with the rules and
procedures authorized by the Committee for this purpose, a Director Option may
also be exercised through a “cashless exercise” procedure authorized by the
Committee from time to time. 
Notwithstanding any provision herein to the contrary, the Company shall
not directly or indirectly extend or maintain credit, or arrange for the
extension of credit, in the form of a personal loan to or for any Non-Employee
Director through the Plan in violation of Section 402 of the
Sarbanes-Oxley Act of 2002 and Bermuda law.


 


(f)            Termination of Service.  Unless
otherwise determined by the Committee, (i) in the event of a
Non-Employee Director’s termination of service on the Board by reason of
Retirement, death, or Permanent Disability or by reason of failure by the
Company’s shareholders to reelect such Non-Employee Director after he or she
was nominated for re-election by the Board, all outstanding, vested Director
Options held by such Non-Employee Director shall remain exercisable until the
earlier of (x) the third anniversary of the date of such termination or (y) the
expiration of the Option Term and (ii) if a Non-Employee Director’s service to
the Board terminates for any other reason, all outstanding, vested Director
Options held by such Non-Employee Director shall remain exercisable for the
ninety (90) day period immediately following such termination (unless such
Director Options expire earlier upon expiration of the Option Term).


 


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(g)           Limitation
on Exercise.  A Director Option shall not
be exercisable unless the Common Stock subject thereto has been registered
under the Securities Act of 1933, as amended (the “1933 Act”), and
qualified under applicable state “blue sky” laws in connection with the offer
and sale thereof, or the Company has determined that an exemption from
registration under the 1933 Act and from qualification under such state “blue
sky” laws is available.


 


(h)           Shareholder
Rights.  A Non-Employee Director
shall have no rights as a shareholder with respect to any Common Stock issuable
upon exercise of a Director Option until such Shares shall have been issued and
delivered to such Non-Employee Director in such manner as the Company, in its discretion,
shall deem appropriate.  No adjustment
shall be made for dividends or distributions or other rights in respect of any
Share for which the record date is prior to the date upon which the
Non-Employee Director becomes the holder of record thereof.


 


(i)            Issuance
of Shares. 
Subject to the foregoing conditions, after the Company’s receipt of a
proper notice of exercise and payment of the exercise price for the number of
Shares of Common Stock with respect to which a Director Option is exercised,
Shares shall be issued in such manner as the Company, in its discretion, shall
deem appropriate, including, without limitation, book-entry registration or
issuance of one or more stock certificates. 
If stock certificates are issued, such certificates shall be delivered
to the Non-Employee Director or such certificates shall be credited to a
brokerage account if the Non-Employee Director so directs; provided,
however, that such certificates
shall bear such legends as the Company deems necessary or advisable in order to
comply with applicable federal or state securities laws or Company policy.  Any fractional share of Common Stock shall be
payable in cash, based on the Fair Market Value of a Share on the date of
payment.


 


8.             Terms
and Conditions of Restricted Stock


 


(a)           General.  The
Committee shall determine the number of Shares of Restricted Stock (if
any) that may be granted to a Non-Employee Director.


 


(b)           Vesting.  Unless
otherwise determined by the Committee and subject to earlier forfeiture or
accelerated vesting as provided herein, Restricted Stock shall fully vest on the third anniversary of the
applicable Date of Grant. 
Notwithstanding the preceding sentence, unless otherwise determined by the Committee, (i) Restricted Stock shall be immediately vested
upon termination of a Non-Employee Director’s service on the Board by reason of
Retirement, death, or Permanent Disability or by reason of failure by the
Company’s shareholders to reelect such Non-Employee Director after he or she
was nominated for re-election by the Board and (ii) in the event  a Non-Employee Director’s service on
the Board terminates for any other reason, any Restricted Stock that is not
vested at the time of such termination shall be forfeited and cancelled without
any payment.


 


(c)           Shareholder
Rights.  A Non-Employee Director
shall have all rights of a shareholder as to the Shares of Restricted Stock
(including the right to receive regular cash dividends and to vote).  Dividends shall be subject to the same terms and conditions (including vesting)
as the underlying Shares of Restricted Stock and shall be distributed to a
Non-Employee Director upon vesting of such Shares.  None of the Shares of Restricted Stock
may be sold, 


 


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transferred,
assigned, pledged or otherwise encumbered or disposed of, unless such Shares
have vested.


 


(d)           Issuance
of Shares. 
As soon as practicable following the grant of an Award, the Restricted
Stock shall be registered in the Non-Employee Director’s name in one or more
stock certificates or book entry form in the discretion of the Company.  If a certificate is issued it shall include
such restrictions as the Company deems appropriate and shall be held by the
Company until the restrictions lapse.  On
the date on which the Restricted Stock vests, all restrictions shall lapse and
Shares of Common Stock shall be issued in such manner as the Company shall deem
appropriate.  If stock certificates are
issued, such certificates shall be delivered to the Non-Employee Director or
such certificates shall be credited to a brokerage account if the Non-Employee
Director so directs; provided, however, that such certificates shall bear such legends
as the Company deems necessary or advisable in order to comply with applicable
federal or state securities laws or Company policy.  Any fractional share of Common Stock shall be
payable in cash, based on the Fair Market Value of a Share on the date of
payment.


 


9.             Terms and Conditions of Restricted
Stock Units


 


(a)           General.  The
Committee shall determine the number of Restricted Stock Units (if any)
that may be granted to a Non-Employee Director.


 


(b)           Vesting.  Unless
otherwise determined by the Committee and subject to earlier forfeiture or
accelerated vesting as provided herein,
each Restricted Stock Unit shall fully vest on the third
anniversary of the applicable Date of Grant. 
Notwithstanding the preceding sentence, unless otherwise determined by the Committee, (i) a Restricted Stock Unit shall be immediately
vested upon termination of a Non-Employee Director’s service on the Board by
reason of Retirement, death, or Permanent Disability or by reason of failure by
the Company’s shareholders to reelect such Non-Employee Director after he or
she was nominated for re-election by the Board and (ii) in the event a
Non-Employee Director’s service on the Board terminates for any other reason,
any Restricted Stock Unit that is not vested at the time of such termination
shall be forfeited and cancelled without any payment.


 


(c)           Shareholder
Rights.  A Non-Employee Director
shall not have any rights as a shareholder with respect to the Shares of Common
Stock underlying any Restricted Stock Unit until such Shares have been issued
and delivered to such Non-Employee Director in such manner as the Company, in
its discretion, shall deem appropriate. 
None of the Restricted Stock Units may be sold, transferred, assigned,
pledged or otherwise encumbered or disposed of unless such Restricted Stock
Units vest and are paid in Shares.


 


(d)           Settlement
of Restricted Stock Units.  Subject to Section 12, on the date on which the Restricted Stock
Units vest, all restrictions covering such Restricted Stock Units shall lapse
and the Restricted Stock Units shall be payable in Shares of Common Stock and
shall be evidenced in such manner as the Company, in its discretion, shall deem
appropriate, including, without limitation, book-entry registration or issuance
of one or more stock certificates.  If
stock certificates are issued, such certificates shall be delivered to the Non-Employee
Director or such certificates shall be credited to a brokerage account if the
Non-


 


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Employee Director so directs; provided, however, that such certificates shall bear such
legends as the Company, in its discretion, may determine to be necessary or
advisable in order to comply with applicable federal or state securities laws
or Company policy.  Any fractional Share
shall be payable in cash, based on the Fair Market Value of a Share on the date
of payment.


 


10.          Terms
and Conditions of Deferred Restricted Stock Units


 


(a)           General.  The
Committee shall determine the number of Deferred Restricted Stock Units
(if any) that may be granted to a Non-Employee Director.


 


(b)           Vesting.  Unless
otherwise determined by the Committee and subject to earlier forfeiture or
accelerated vesting as provided herein,
each Deferred Restricted Stock Unit shall fully vest on the first
anniversary of the applicable Date of Grant. 
Notwithstanding the preceding sentence, unless otherwise determined by the Committee, (i) a Deferred Restricted Stock Unit shall be
immediately vested upon termination of a Non-Employee Director’s service on the
Board by reason of Retirement, death, or Permanent Disability or by reason of
failure by the Company’s shareholders to reelect such Non-Employee Director
after he or she was nominated for re-election by the Board and (ii) in the
event a Non-Employee Director’s service on the Board terminates for any other
reason, any Deferred Restricted Stock Unit that is not vested at the time of
such termination shall be forfeited and cancelled without any payment.


 


(c)           Shareholder
Rights.  A Non-Employee Director
shall not have any rights as a shareholder with respect to the Shares of Common
Stock underlying any Deferred Restricted Stock Unit until such Shares have been
issued and delivered to such Non-Employee Director in such manner as the
Company, in its discretion, shall deem appropriate.  None of the Deferred Restricted Stock Units
may be sold, transferred, assigned, pledged or otherwise encumbered or disposed
of unless such Deferred Restricted Stock Units vest and are paid in Shares.


 


(d)           Settlement
of Deferred Restricted Stock
Units.  Subject to Section 12, Shares of Common
Stock attributable to a Non-Employee Director’s vested Deferred Restricted
Stock Units shall be paid out to such Non-Employee Director in a lump sum on
the third anniversary of the applicable Date of Grant.  Upon payment, all restrictions covering such
Deferred Restricted Stock Units shall lapse and the Deferred Restricted Stock
Units shall be payable in Shares of Common Stock and shall be evidenced in such
manner as the Company, in its discretion, shall deem appropriate, including,
without limitation, book-entry registration or issuance of one or more stock
certificates.  If stock certificates are
issued, such certificates shall be delivered to the Non-Employee Director or
such certificates shall be credited to a brokerage account if the Non-Employee
Director so directs; provided, however,
that such certificates shall bear such legends as the Company, in its
discretion, may determine to be necessary or advisable in order to comply with
applicable federal or state securities laws or Company policy.  Any fractional Share shall be payable in
cash, based on the Fair Market Value of a Share on the date of payment.


 


11.          Dividend Equivalents


 


A Non-Employee
Director shall be entitled to receive Dividend Equivalents on Restricted Stock
Units and Deferred Restricted Stock Units in the event the Company pays a 


 


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regular cash dividend with respect to the Common Stock.  Dividend Equivalents shall be deemed to be
reinvested in Shares.  The Company shall
maintain a bookkeeping record with respect to the Dividend Equivalents and such
Dividend Equivalents shall be credited to a Non-Employee Director’s account on
the date that the Company pays such regular cash dividend.  Dividend Equivalents shall accrue on the
Restricted Stock Units and Deferred Restricted Stock Units until such time as
such Awards are settled and paid in Shares of Common Stock.  If the
Non-Employee Director elects to defer settlement of any Restricted Stock Units
and Deferred Restricted Stock Units, such Awards shall continue to earn additional
Dividend Equivalents during the deferral period and such additional Dividend
Equivalents shall be deferred subject to the same terms and conditions as the
Restricted Stock Units and Deferred Restricted Stock Units to which the
Dividend Equivalents originally related. 
Payment of Dividend Equivalents
that have been credited to the Non-Employee Director’s account will not be made with respect to
any Restricted Stock Units and Deferred Restricted Stock Units that do not vest and are cancelled.  Any fractional Dividend Equivalents shall be
paid in cash.


 


12.          Right to Elect to Defer
Awards


 


(a)           Deferral Election.  The Committee may permit any
Non-Employee Director to elect to defer receipt of the value of all or any
portion of his or her Restricted Stock Units or Deferred Restricted Stock Units
until a date subsequent to the settlement date of the Restricted Stock Units or
Deferred Restricted Stock Units (a “Deferral
Election”); provided that
the Non-Employee Director may elect the settlement date for an annual Award of
Restricted Stock Units or Deferred Restricted Stock Units by making an
irrevocable Deferral Election on a Deferral Election Form, within the time
period specified on such form, and delivered to the Company not later than the
close of business on the last business day of the calendar year immediately
preceding the calendar year of the Annual Meeting in respect of which Award
will be made (so that, for example, a Deferral Election relating to the annual
Award of Restricted Stock Units or Deferred Restricted Stock Units to be made
following the 2009 Annual Meeting must be made by the close of business on the
last business day of 2008); provided,
however, that in the case of any
person who is newly elected or appointed to the Board as a Non-Employee
Director, a Deferral Election may be made no later than 30 days after the date
of such election or appointment.  A
Non-Employee Director may designate on a Deferral Election Form one of the
following dates as the settlement date for such Award of Restricted Stock Units
or Deferred Restricted Stock Units:


 


(i)                                   such Non-Employee Director’s Separation Date; or


 


(ii)                                the earlier to
occur of (a) the date specified by such Non-Employee Director and (b) the
Non-Employee Director’s Separation Date.


 


If a Non-Employee Director fails to designate one of the foregoing
alternatives as the settlement date for an Award of Restricted Stock Units or
Deferred Stock Units, such Non-Employee Director shall be deemed to have
designated alternative (i). 
Notwithstanding any Deferral Election made by a Non-Employee Director on
any Deferral Election Form, in the event of such Non-Employee Director’s death,
all Restricted Stock Units and Deferred Stock Units will be paid in Shares to
such Non-Employee Director’s beneficiary (or, if no beneficiary has been
designated, to such Non-Employee Director’s estate) within 90 days, following
the date of such Non-Employee Director’s death.


 


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(b)           Deferral Value.  The Deferral Value will be credited
automatically, without any further action on the part of any Non-Employee
Director, to a bookkeeping account to be established by the Company on behalf
of such Non-Employee Director on the books and records of the Company on the
applicable Vesting Date of such Award of Restricted Stock Units or Deferred
Restricted Stock Units that is subject to a Deferral Election.


 


13.          Transferability


 


Awards may not be transferred, pledged,
assigned or otherwise disposed of except by will or the laws of descent and distribution
or pursuant to a domestic relations order; provided, however, that the Committee may,
subject to such terms and conditions as it shall specify, permit the transfer
of an Award for no consideration to a Non-Employee Director’s family members or
to one or more trusts or partnerships established in whole or in part for the
benefit of one or more of such family members (collectively, “Permitted Transferees”).  Any Awards transferred to a Permitted
Transferee shall be further transferable only by will or the laws of descent
and distribution or, for no consideration, to another Permitted Transferee of
the Non-Employee Director.  A
Non-Employee Director shall notify the Company in writing prior to any proposed
transfer of an Award to a Permitted Transferee and shall furnish the Company,
upon request, with information concerning such Permitted Transferee’s financial
condition and investment experience.


 


14.          Term


 


The “Effective Date” is May 25, 2007,
assuming the Plan is approved by an affirmative vote of the holders of a
majority of the Shares present, or represented, and entitled to vote at the
2007 Annual Meeting.  Unless earlier
terminated in accordance with Section 15, the Plan shall expire on the
tenth anniversary of the Effective Date (the “Expiration Date”).  No Awards shall be granted under the Plan
after the Expiration Date.  However, the
expiration of the Plan shall not affect Awards made on or prior to the
Expiration Date, which Awards shall remain outstanding subject to the terms
hereof.


 


15.          Amendments


 


Subject to Section 21, the Board may at
any time and from time to time alter, amend, suspend or terminate the Plan in
whole or in part, including, without limitation, to amend the provisions for
determining the amount of Awards to be issued to a Non-Employee Director; provided, however,
that any amendment which under the requirements of applicable law or a stock
exchange rule must be approved by the shareholders of the Company shall
not be effective unless and until such shareholder approval has been obtained
in compliance with such law or rule. 
Notwithstanding the foregoing, no Director Option may be repriced,
regranted through cancellation or otherwise amended to reduce the applicable
exercise price (other than as provided in Section 16) without the approval
of the Company’s shareholders.


 


No termination or amendment of the Plan that
would adversely affect a Non-Employee Director’s rights under the Plan with
respect to any Award made prior to such action shall be effective as to such
Non-Employee Director unless he or she consents thereto.


 


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16.          Recapitalization or Reorganization


 


(a)           Authority
of the Company and Shareholders. 
The existence of the Plan or Awards hereunder shall not affect or restrict
in any way the right or power of the Company or the shareholders of the Company
to make or authorize any adjustment, recapitalization, reorganization or other
change in the Company’s capital structure or its business, any merger,
amalgamation or consolidation of the Company, any issue of stock or of options,
warrants or rights to purchase stock or of bonds, debentures, preferred or
prior preference shares whose rights are superior to or affect the Common Stock
or the rights thereof or which are convertible into or exchangeable for Common
Stock, or the winding up, dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.


 


(b)           Change in Control.  In addition to the
alternatives described in Section 16(c), in the event of a Change in
Control, the Committee may take such measures as it deems appropriate with
respect to any outstanding Awards, which measures may include, without
limitation, the acceleration of vesting, the rollover of outstanding Awards
into awards exercisable for or subject to the acquirer’s securities, the cash
out of vested Awards or any combination of the foregoing; provided,
however, that unless the
Committee determines otherwise, in the event of a Change in Control, all
outstanding Awards shall become fully vested immediately prior to the
consummation of such Change in Control transaction.


 


(c)           Change
in Capitalization.  The number and kind
of Shares authorized for issuance under Section 4(a) shall be
equitably adjusted in the event of a stock split, subdivision, stock dividend,
bonus issue, recapitalization, reorganization, merger, amalgamation,
consolidation, division, extraordinary dividend, split-up, spin-off,
combination, exchange of shares, warrants or rights offering to purchase Common
Stock at a price substantially below Fair Market Value, or other similar
corporate event affecting the Common Stock in order to preserve, but not
increase, the benefits or potential benefits intended to be made available
under the Plan.  In addition, upon the
occurrence of any of the foregoing events, the number of outstanding Awards and
the number and kind of Shares subject to any outstanding Awards and the exercise
price per Share shall be equitably adjusted in order to preserve the benefits
or potential benefits intended to be made available to Non-Employee Directors
granted Awards.  Unless otherwise
determined by the Committee, such adjusted Awards shall be subject to the same
vesting schedule and restrictions to which the underlying Award is subject.


 


17.          No
Right to Re-election


 


Nothing in the Plan shall be deemed to create
any obligation on the part of the Board to nominate any of its members for
re-election by the Company’s shareholders, nor confer upon any Non-Employee
Director the right to remain a member of the Board for any period of time, or
at any particular rate of compensation.


 


18.          Governing
Law


 


The Plan and all agreements, including,
without limitation, any Award Document, entered into under the Plan shall be
construed in accordance with and subject to the laws of the state of New York.


 


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19.          Unfunded
Plan


 


The Plan is unfunded.  Prior to the exercise of any Awards, nothing
contained herein shall give any Non-Employee Director any rights that are
greater than those of a general creditor of the Company.  The Committee may authorize the creation of
trusts or other arrangements to meet the obligations created under the Plan to
deliver Common Stock with respect to awards hereunder.


 


20.          Compliance
with Rule 16b-3


 


It is the Company’s intent that
the Plan and the Awards comply in all respects with Rule 16b-3 of the
Securities Exchange Act of 1934, as amended, and any related regulations.  If the consummation of any transaction under
the Plan would result in the possible imposition of liability on a Non-Employee
Director pursuant to Section 16(b) of the Securities Exchange Act of
1934, as amended, the Committee shall have the right, but shall not be
obligated, to defer such transaction or the effectiveness of such action to the
extent necessary to avoid such liability.


 


21.           Section 409A Compliance


 


(i) Notwithstanding any contrary
provision in the Plan, an Award Document or an Award, if any provision of the
Plan, an Award Document or an Award contravenes any regulations or guidance
promulgated under Section 409A or would cause any person to be subject to
additional taxes, interest and/or penalties under Section 409A, such
provision of the Plan, an Award Document or an Award may be modified by the
Committee without notice and consent of any person in any manner the Committee
deems reasonable or necessary.  In making
such modifications the Committee shall attempt, but shall not be obligated, to
maintain, to the maximum extent practicable, the original intent of the
applicable provision without contravening the provisions of Section 409A.  Moreover, any discretionary authority that
the Committee may have pursuant to the Plan shall not be applicable to an Award
that is subject to Section 409A to the extent such discretionary authority
would contravene Section 409A.


 


(ii)           If
any amount owed to a Non-Employee Director under this Plan is considered for
purposes of Section 409A to be owed to the Non-Employee Director by virtue
of his termination of service, such amount shall be paid if and only if such
termination of service constitutes a “separation from service” with the
Company, determined using the default provisions set forth in Treasury
Regulation §1.409A-1(h) or any successor regulation thereto; provided, however for the
purposes of determining which entity is a service recipient or employer, “at
least 20 percent” is substituted for “at least 80 percent” in each place it
appears in Treasury Regulation §1.414(c)-2.


 


22.          Stated
Periods of Time


 


In the event that any period of
days, months or years set forth in the Plan ends on a date that is Saturday,
Sunday or a public holiday in the United States, the end of such period shall
be the first business day following such date.


 


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