Exhibit 10.4


 


Second Amendment to the 

FOSTER WHEELER LTD.

Omnibus Incentive Plan


 


The
Foster Wheeler Ltd. Omnibus Incentive Plan (the “Plan”) is hereby further amended
as follows, pursuant to resolutions adopted by the Board of Directors of Foster
Wheeler Ltd. and its Compensation Committee at their meetings held December 8,
2008:


 


1.             The first paragraph of Section 1.1
is replaced in its entirety with the following language:


 


Foster
Wheeler Ltd., a Bermuda company, established an incentive compensation plan
known as the Foster Wheeler Ltd. Omnibus Incentive Plan (the “Plan”).  The Plan superseded and replaced the Foster
Wheeler Ltd. 1995 Stock Option Plan, the Directors Stock Option Plan, the 2004
Stock Option Plan, and the Management Restricted Stock Plan (the “Prior Plans”),
except that the Prior Plans shall remain in effect until the awards granted
under such plans have been exercised, forfeited, are otherwise terminated, or
any and all restrictions lapse, as the case may be, in accordance with the
terms of such awards.  Foster Wheeler
Ltd. moved the place of organization of the parent company of its group of
companies from Bermuda to Switzerland by means of a scheme of arrangement (“Scheme
of Arrangement”) between Foster Wheeler Ltd. and Foster Wheeler AG, a
wholly-owned subsidiary of Foster Wheeler Ltd. registered in Switzerland, and
certain related agreements described in Foster Wheeler Ltd.’s Proxy Statement
for the Special Court-Ordered Meeting of Common Shareholders held on January 27,
2009.  Effective upon the completion of
the Scheme of Arrangement, Foster Wheeler AG, a Swiss company (hereinafter
referred to as the “Company”) assumes the Plan, renames it the “Foster Wheeler
AG Omnibus Incentive Plan,” and amends the Plan as set forth in this document.


 


2.             Section 2(c) is
replaced in its entirety with the following language:


 


“Applicable Laws” means the legal requirements relating to the
administration of equity plans or the issuance of share capital by a company,
including under the laws of Switzerland, applicable U.S. state corporate laws,
U.S. federal and applicable state securities laws, other U.S. federal and state
laws, the Code, any stock exchange rules and regulations that may from
time to time be applicable to the Company, and the applicable laws, rules and
regulations of any other country or jurisdiction where Awards are granted under
the Plan, as such laws, rules, regulations, interpretations and requirements
may be in place from time to time.


 


3.             The first clause of Section 2(i) is
replaced in its entirety with the following language:


 


“Cause” means, with respect to any Participant, unless
otherwise specified in (a) an applicable employment agreement between the
Company and a Participant or (b) an applicable employment agreement
between an Affiliate or a Subsidiary (which Affiliate or Subsidiary is
incorporated in the United States or Bermuda) 


 

















 


and
a Participant which has been approved by the Board or Committee or executed by
the person who is the Chief Executive Officer of the Company:


 


4.             The first clause of Section 2(j) is
replaced in its entirety with the following language:


 


“Change in Control” means, unless otherwise
specified in (a) an applicable employment agreement between the Company
and a Participant or (b) an applicable employment agreement between an
Affiliate or a Subsidiary (which Affiliate or Subsidiary is incorporated in the
United States or Bermuda) and a Participant which has been approved by the
Board or Committee or executed by the person who is the Chief Executive Officer
of the Company,


 


5.             Section 2(n) is
replaced in its entirety with the following language:


 


“Company” means Foster Wheeler AG, a Swiss company, and any
successor thereto as provided in Article 21 herein.


 


6.             The first clause of Section 2(q) is
replaced in its entirety with the following language:


 


“Disability” means, unless otherwise specified in (a) an
applicable employment agreement between the Company and a Participant or (b) an
applicable employment agreement between an Affiliate or a Subsidiary (which
Affiliate or Subsidiary is incorporated in the United States or Bermuda) and a
Participant which has been approved by the Board or Committee or executed by
the person who is the Chief Executive Officer of the Company,


 


7.             Section 2(v) is
replaced in its entirety with the following language:


 


“Full-Value Award” means an Award other than
in the form of an ISO, NQSO, or SAR, and which is settled by the issuance of
fully paid Shares.  A Full-Value Award
shall require the Participant to pay par value for each Share unless the
Company has treasury shares available for grant and the Award does not require
payment of such par value.


 


8.             Section 2(x) is
replaced in its entirety with the following language:


 


“Grant Price” means the price established when the
Committee approves the grant of an SAR pursuant to Article 7, used to
determine whether there is any payment due upon exercise of the SAR.  The Grant Price of any SAR will be at least
the greater of the Fair Market Value of a Share or the par value of a Share.


 


9.             Section 2(ee) is
replaced in its entirety with the following language:


 


“Option Price” means the price at which a Share may be
purchased by a Participant pursuant to an Option.  The Option Price will be at least the greater
of the Fair Market Value of a Share or par value of a Share.


 


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10.           Section 2(pp) is
replaced in its entirety with the following language:


 


“Plan” means the Foster Wheeler AG Omnibus Incentive Plan.


 


11.           The first clause of Section 2(tt)
is replaced in its entirety with the following language:


 


“Resignation for Good Reason” means, unless otherwise
specified in (x) an applicable employment agreement between the Company
and a Participant or (y) an applicable employment agreement between an
Affiliate or a Subsidiary (which Affiliate or Subsidiary is incorporated in the
United States or Bermuda) and a Participant which has been approved by the
Board or Committee or executed by the person who is the Chief Executive Officer
of the Company, a material negative change in the employment relationship
without the Participant’s consent;


 


12.           Section 2(ww) is
replaced in its entirety with the following language:


 


“Share” means a share of the Company, par value CHF 3.00
each, or such other par value as may be in effect from time to time.  Effective upon the completion of the Scheme
of Arrangement, shares of the Company will be issued, held, made available, or
used to measure benefits as appropriate under the Plan in lieu of Foster
Wheeler Ltd. common shares with respect to all outstanding Awards issued prior
to or after the completion of the Scheme of Arrangement.


 


13.           The last sentence of Section 4.2
is replaced in its entirety with the following language:


 


The
Shares available for issuance under this Plan may be authorized and unissued
Shares or Shares available on the open market; provided, however, that with
respect to Awards granted upon and after the completion of the Scheme of
Arrangement, (i) only Options and Stock Appreciation Rights may be granted
from the Company’s Conditional Share Capital as described in the Company’s
Articles of Association, as amended from time to time (“Articles of Association”),
and (ii) all Awards (other than Options, Stock Appreciation Rights and
Cash-Based Awards) must be granted from Authorized Capital as described in the
Articles of Association but may be granted only to the extent that the Company
has or is permitted to acquire a sufficient number of Shares to satisfy such
Award and the total par value of such Shares does not exceed ten percent (10%)
of the Company’s share capital.


 


14.           The following new Section 5.5
is added to the Plan:


 


5.5          Termination
of Employment.  For purposes
of Awards granted under this Plan, the Committee shall have discretion to
determine whether a Participant has ceased to be employed by (or, in the case
of a Director or Third Party Service Provider, has ceased providing services
to) the Company, Affiliate and/or any Subsidiary, and the effective date on
which such employment (or 


 


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services)
terminated, or whether any Participant is on an authorized leave of absence.


 


15.           The second paragraph of Section 6.6
is replaced in its entirety with the following language:


 


A
condition of the issuance of the Shares as to which an Option shall be
exercised shall be the payment of the Option Price.  The Option Price of any Option shall be
payable, in full, to the Company, under any of the following methods as determined
by the Committee, in its sole discretion: (a) in cash or its equivalent; (b) by
tendering (either by actual delivery or attestation) to the Company for
repurchase previously acquired Shares having an aggregate Fair Market Value at
the time of exercise equal to the Option Price together with an assignment of
the proceeds of the Share repurchase to pay the Option Price (provided that any
such repurchase of Shares shall be subject to the Swiss Code of Obligations); (c) by
a cashless (broker-assisted) exercise; (d) by a combination of (a), (b) and/or
(c); or (e) any other method approved or accepted by the Committee in its
sole discretion.


 


16.           The third paragraph of Section 7.1
is replaced in its entirety with the following language:


 


The
Grant Price for each grant of an SAR shall be determined by the Committee and
shall be specified in the Award Agreement. 
Notwithstanding the foregoing, the Grant Price of a Non-Tandem SAR on
the Grant Date shall be at least equal to the greater of one hundred percent
(100%) of the FMV of the Shares as determined on the Grant Date or the par
value of the Shares.  The Grant Price of
a Tandem SAR on the Grant Date shall equal the Option Price of the related
Option.


 


17.           Section 8.3 is replaced
in its entirety with the following language:


 


8.3          Other
Restrictions.  The
Committee shall impose such other conditions and/or restrictions on any Shares
of Restricted Stock or Restricted Stock Units granted pursuant to this Plan as
it may deem advisable including, without limitation, a requirement that
Participants pay a stipulated purchase price for each Share of Restricted Stock
or each Restricted Stock Unit, restrictions based upon the achievement of
specific performance goals, time-based restrictions on vesting following the
attainment of the performance goals, time-based restrictions, and/or
restrictions under Applicable Laws or under the requirements of any stock
exchange or market upon which such Shares are listed or traded, or holding
requirements or sale restrictions placed on the Shares by the Company upon
vesting of such Restricted Stock or Restricted Stock Units.


 


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18.           The second paragraph of Section 8.4
is replaced in its entirety with the following language:


 


The
sale or transfer of the common shares of Foster Wheeler AG represented by this
certificate, whether voluntary, involuntary, or by operation of law, is subject
to certain restrictions on transfer as set forth in the Foster Wheeler AG
Omnibus Incentive Plan, and in the associated Award Agreement.  A copy of this Plan and such Award Agreement
will be provided by Foster Wheeler AG, without charge, within five (5) days
after receipt of a written request therefor.


 


19.           Section 8.5 is replaced
in its entirety with the following language:


 


8.5          Voting
Rights.  Unless otherwise set forth in
a Participant’s Award Agreement and permitted by Applicable Law, a Participant
holding Shares of Restricted Stock granted hereunder shall be granted the right
to exercise full voting rights with respect to those Shares during the Period
of Restriction.  A Participant shall have
no voting rights with respect to any Restricted Stock Units granted hereunder.


 


20.           The first sentence of Section 8.7
is replaced in its entirety with the following language:


 


In
the event that any Shares are required to be forfeited under any circumstances
set forth in this Article 8, Article 20 or otherwise under this Plan
or an Award Agreement, then the Company shall have the right (but not the
obligation) to repurchase any or all of such forfeited Shares for the par value
of each Share repurchased.


 


21.           The first sentence of Section 9.7
is replaced in its entirety with the following language:


 


In
the event that any Shares are required to be forfeited under any circumstances
set forth in this Article 9, Article 20 or otherwise under this Plan
or an Award Agreement, then the Company shall have the right (but not the
obligation) to repurchase any or all of such forfeited Shares for the par value
of each Share repurchased.


 


22.           The first sentence of Section 10.7
is replaced in its entirety with the following language:


 


In
the event that any Shares are required to be forfeited under any circumstances
set forth in this Article 10, Article 20 or otherwise under this Plan
or an Award Agreement, then the Company shall have the right (but not the
obligation) to repurchase any or all of such forfeited Shares for the par value
of each Share repurchased.


 


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23.           The last paragraph of Section 22.21
is replaced in its entirety with the following:


 


The
foregoing right of indemnification shall not be exclusive of any other rights
of indemnification to which such individuals may be entitled under the Company’s
Articles of Association and its organizational regulations, as a matter of law,
or otherwise, or any power that the Company may have to indemnify them or hold
them harmless.


 


24.           This Second Amendment shall
take effect upon completion of the Scheme of Arrangement and shall apply to all
Awards outstanding on such date or granted thereafter.


 


IN WITNESS WHEREOF, Foster Wheeler Ltd. has
caused this Second Amendment to the Plan to be executed.


 


	
   

  	
  FOSTER WHEELER LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter J. Ganz

  
	
   

  	
  Name: 

  	
  Peter J. Ganz

  
	
   

  	
  Title: 

  	
  Exec. V.P., General Counsel & Secretary

  
				



 


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