Exhibit 10.9
[Form of Amendment to Restricted
Stock Award and Agreement (to be used when Grantee will not reach
Retirement in a taxable year before the taxable year in which the
last Vesting Date occurs)]
FIRST AMENDMENT TO
CHIQUITA BRANDS INTERNATIONAL,
INC.
2002 STOCK OPTION AND INCENTIVE
PLAN
RESTRICTED STOCK AWARD AND
AGREEMENT
THIS FIRST AMENDMENT (this
“Amendment”) is entered into between Chiquita Brands
International, Inc., a New Jersey corporation (the
“Company”), and
(the “Grantee”) under the following
circumstances.
Background
A. The Company adopted the Chiquita
2002 Stock Option and Incentive Plan (the “Plan”)
effective March 19, 2002.
B. The Company and the Grantee
entered into a Restricted Stock Award and Agreement relating to an
award made on
(the “Award Agreement”).
C. Effective January 1, 2005,
awards granted under the Plan generally became subject to
Section 409A of the Internal Revenue Code of 1986
(“Section 409A”), which imposes material adverse tax
consequences on the grantee of any award that is not compliant
with, or exempt from, the requirements of
Section 409A.
D. In order to avoid these adverse
tax consequences, pursuant to regulatory guidance issued under
Section 409A, the Company has amended the Plan (and changed
the name of the Plan to the “Chiquita Stock and Incentive
Plan”) so that awards granted under the Plan would be
compliant with, or exempt from, the requirements of
Section 409A.
E. The Company and the Grantee wish
to amend the Award Agreement to ensure that the Shares issuable
under it are exempt from Section 409A.
Amendment
Therefore, the Company and the
Grantee agree to amend the Award Agreement as follows, it being
understood that all amendments will have retroactive effect to
January 1, 2005 or, if later, the effective date of the Award
Agreement:
1. All references to the Plan in the
Award Agreement refer to the Chiquita Stock and Incentive Plan as
amended July 8, 2008 (the “Amended Plan”). The
Grantee hereby acknowledges that a copy of the Amended Plan has
been made available to him or her.
2. The second sentence of the
paragraph of the Award Agreement entitled “GRANT” is
amended to read as follows:
“The Shares will be issued at
no cost to you on the date[s] set forth below, provided that you
have a vested right to such Shares as described
below.”
3. The paragraph of the Award
Agreement entitled “VESTING” is amended to read in its
entirety as follows:
“ VESTING AND DELIVERY OF
SHARES : [All of the Shares will vest on [date]] or [The Shares
will vest between the Grant Date and [last vesting date] with [% or
number of shares] vesting on [dates]] or, if ear
