Exhibit 10.26a
AMENDED AND RESTATED
1997 EQUITY PLAN FOR NON-EMPLOYEE
DIRECTORS OF PLAYBOY ENTERPRISES, INC.
1. Purpose. The purposes of the Plan are (1) to promote the growth
and long-term success of Playboy Enterprises, Inc., a Delaware corporation (the
"Company"), by offering Non-Employee Directors the ability to acquire Common
Stock of the Company, (2) to enable the Company to attract and retain qualified
persons to serve as Non-Employee Directors, which services are considered
essential to the long-term success of the Company, by offering them an
opportunity to own Common Stock of the Company, and (3) to more closely align
the interests of Non-Employee Directors with the interests of the Company's
stockholders by paying certain amounts of compensation for services as a
Director in the form of shares of Common Stock.
2. Definitions. In addition to the other terms defined elsewhere
herein, wherever the following terms are used in this Plan with initial capital
letters, they have the meanings specified below, unless the context clearly
indicates otherwise.
"Accounting Period" means each calendar quarter of the Company, such
quarters beginning on January 1, April 1, July 1 and October 1 of each year.
"Award" means an award of an Option Right, Restricted Stock or
Common Stock Grant under this Plan.
"Board" means the Board of Directors of the Company.
"Calendar Year" means the period beginning on January 1 of each year
and ending on December 31 of each year.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Common Stock" means the Class B Common Stock, par value $0.01 per
share, of the Company, and any security into which such Common Stock may be
converted or for which such Common Stock may be exchanged by reason of any
transaction or event of the type described in Section 9 of this Plan.
"Common Stock Grant" means Common Stock, other than Restricted
Stock, awarded pursuant to Section 5 of this Plan.
"Company" has the meaning set forth in Section 1, and includes its
successors.
"Date of Award" means the date specified by the Board on which an
Award becomes effective, which shall not be earlier than the date on which the
Board takes action with respect thereto.
"Deferred Compensation Plan" means the Playboy Enterprises, Inc.
Board of Directors' Deferred Compensation Plan, effective as of October 1, 1992,
as it may be amended from time to time.
"Employee" means any officer or other employee of the Company or of
any corporation which is then a Subsidiary.
"Issuance Date" has the meaning set forth in Section 6.
"Mandatory Fee and Retainer Shares" means (a) Common Stock awarded
pursuant to Section 6(a) with an aggregate Market Value per Share generally
equal to a Non-Employee Director's Meeting Fees and (b)
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Exhibit 10.26a
Common Stock awarded pursuant to Section 6(b) with an aggregate Market Value per
Share generally equal to a Non-Employee Director's Retainer.
"Meeting Fees" means the compensation payable to a Non-Employee
Director with regard to the number of Board or Committee meetings attended, or
Committee positions held, as determined by the Board from time to time, but for
purposes of Section 6 of this Plan shall not include any such compensation
subject to deferral under the Deferred Compensation Plan pursuant to an
agreement executed by a Non-Employee Director and the Company in accordance with
the terms of the Deferred Compensation Plan.
"Market Value per Share" means either (a) the closing price of a
share of Common Stock as reported on the New York Stock Exchange (the "NYSE") on
the date as of which such value is being determined, or, if there are no
reported transactions for such date, on the next preceding date for which
transactions were reported, as published in the Midwest Edition of The Wall
Street Journal, or (b) if there is no reporting of transactions on the NYSE, the
fair market value of a share of Common Stock as determined by the Board from
time to time.
"Non-Employee Director" means a member of the Board who is not an
Employee.
"Optionee" means a Non-Employee Director to whom an Option Right is
awarded under this Plan.
"Option Price" means the purchase price payable upon the exercise of
an Option Right.
"Option Right" means the right to purchase shares of Common Stock
from the Company upon the exercise of an option awarded hereunder.
"Participant" means a Non-Employee Director (or a person who has
agreed to commence serving in such capacity) who is selected by the Board to
receive Awards under this Plan, who is entitled to receive Mandatory Fee Shares
or Mandatory Retainer Shares or who has elected to receive Voluntary Shares.
"Participation Agreement" means the agreement submitted by a
Non-Employee Director to the Secretary of the Company pursuant to which a
Non-Employee Director may elect to receive all or any portion of his or her
Retainer in the form of Voluntary Shares for a specified period in the future.
"Performance Objectives" means the performance objectives that may
be established by the Board pursuant to this Plan for Participants who have
received Awards.
"Plan" means the Amended and Restated 1997 Equity Plan for
Non-Employee Directors of Playboy Enterprises, Inc. as set forth herein, as the
same may be amended or restated from time to time.
"Restricted Stock" means Common Stock awarded pursuant to Section 5
of this Plan as to which neither the substantial risk of forfeiture nor the
restrictions on transfer referred to in Section 5 hereof have expired.
"Restricted Stockholder" means a Non-Employee Director to whom
Restricted Stock has been awarded under this Plan.
"Retainer" means the portion of a Non-Employee Director's annual
compensation that is payable without regard to the number of board or committee
meetings attended or committee positions held, as determined by the Board from
time to time, but for purposes of Section 7 of this Plan shall not include (a)
any such compensation subject to deferral under the Deferred Compensation Plan
pursuant to an agreement executed by a Non-Employee Director and the Company in
accordance with the terms of the Deferred Compensation Plan and (b) any such
compensation which is issued to a Non-Employee Director as Mandatory Retainer
Shares pursuant to Section 6(b) hereof.
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Exhibit 10.26a
"Rule 16b-3" means Rule 16b-3 under the Securities Exchange Act of
1934, as amended or any successor rule.
"Subsidiary" means any corporation, partnership, joint venture,
limited liability company, unincorporated association or other entity (each, an
"Entity") in an unbroken chain of Entities beginning with the Company if each of
the Entities other than the last Entity in the unbroken chain then owns stock or
other interests possessing 50 percent or more of the total combined voting power
of all classes of stock or other interests in one of the other Entities in such
chain.
"Termination of Directorship" means the time when a Participant
ceases to be a Director for any reason, including, without limitation, a
termination by resignation, removal, failure to be elected or reelected, death
or retirement.
"Valuation Date" has the meaning set forth in Section 6(a).
"Voluntary Shares" has the meaning set forth in Section 7(a).
3. Shares Available under the Plan. Subject to adjustment as
provided in Section 9 of this Plan, the number of shares of Common Stock issued
or transferred, plus the number of shares of Common Stock covered by outstanding
Awards and not forfeited under this Plan, shall not in the aggregate exceed
400,000 shares, which may be shares of original issuance or shares held in
treasury or a combination thereof. If an Option Right lapses or terminates
before such Option is exercised or shares of Restricted Stock or Common Stock
Grants are forfeited, for any reason, the shares covered thereby may again be
made subject to Awards or issued as Mandatory Fee Shares, Mandatory Retainer
Shares, or Voluntary Shares under this Plan.
4. Option Rights. The Board may from time to time authorize Awards
to Participants of Options to purchase shares of Common Stock upon such terms
and conditions as the Board may determine in accordance with the following
provisions:
(a) Each Award shall specify the number of shares of Common
Stock to which the Option Rights pertain.
(b) Each Award of Option Rights shall specify an Option Price
per share of Common Stock, which shall be equal to or greater than the
Market Value per Share on the Date of Award.
(c) Each Award of Option Rights shall specify the form of
consideration to be paid in satisfaction of the Option Price and the
manner of payment of such consideration, which may include (i) cash in the
form of currency or check or other cash equivalent acceptable to the
Company, (ii) nonforfeitable, nonrestricted shares of Common Stock, which
are already owned by the Optionee and have a value at the time of exercise
that is equal to the Option Price, (iii) any other legal consideration
that the Board may deem appropriate, including, without limitation, any
form of consideration authorized under Section 4(d) below, on such basis
as the Board may determine in accordance with this Plan, and (iv) any
combination of the foregoing.
(d) On or after the Date of Award of any Option Right, the
Board may determine that payment of the Option Price may also be made in
whole or in part in the form of shares of Restricted Stock or other shares
of Common Stock that are subject to risk of forfeiture or restrictions on
transfer. Unless otherwise determined by the Board on or after the Date of
Award, whenever any Option Price is paid in whole or in part by means of
any of the forms of consideration specified in this Section 4(d), the
shares of Common Stock received by the Optionee upon the exercise of the
Option Right shall be subject to the same risks of forfeiture or
restrictions on transfer as those that applied to the consideration
surrendered by the Optionee; provided, however, that such risks of
forfeiture and restrictions on transfer shall apply only to the same
number of shares of Common Stock received by the Optionee as applied to
the forfeitable or restricted shares of Common Stock surrendered by the
Optionee.
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Exhibit 10.26a
(e) Any Award of Option Rights may provide for the deferred
payment of the Option Price from the proceeds of sale through a broker of
some or all of the shares of Common Stock to which the exercise relates.
(f) Successive Awards may be made to the same Participant
regardless of whether any Option Rights previously awarded to the
Participant remain unexercised.
(g) Each Award shall specify the period or periods of
continuous service as a Non-Employee Director by the Optionee that are
necessary or Performance Objectives that must be achieved before the
Option Rights or installments thereof shall become exercisable, and any
Award may provide for the earlier exercise of the Option Rights in the
event of a change in control of the Company or other transaction or event.
(h) The term of an Option Right shall be set by the Board;
provided, however, that no Option Right awarded pursuant to this Section 4
may have a term of more than 10 years from the Date of Award.
(i) Each Award of an Option Right shall be evidenced by a
written Stock Option Agreement, which shall be executed on behalf of the
Company by any officer thereof and delivered to and accepted by the
Optionee and shall contain such terms and provisions as the Board may
determine consistent with this Plan.
5. Common Stock Grants and Restricted Stock. The Board may also
authorize Awards to Participants of Common Stock Grants and Restricted Stock
upon such terms and conditions as the Board may determine in accordance with the
following provisions:
(a) A Common Stock Grant consists of the transfer by the
Company to a Participant of shares of Common Stock in consideration and as
additional compensation for services performed for the Company. Each Award
of Common Stock Grants and Restricted Stock shall constitute an immediate
transfer of the ownership of shares of Common Stock to the Participant in
consideration of the performance of services, entitling such Participant
to dividend, voting and other ownership rights, subject to, in the case of
Awards of Restricted Stock, the substantial risk of forfeiture and
restrictions on transfer hereinafter referred to.
(b) Each Award of Restricted Stock shall provide that the
shares of Restricted Stock covered thereby shall be subject to a
"substantial risk of forfeiture" within the meaning of Section 83 of the
Code for a period to be determined by the Board on the Date of Award, and
may provide for the termination of such risk of forfeiture upon the
achievement of certain Performance Objectives, in the event of a change in
control of the Company, or upon any other transaction or event.
(c) Each Award of Restricted Stock shall provide during the
period for which such substantial risk of forfeiture is to continue, and
any Award of Common Stock Grants may provide, that the transferability of
the shares of Common Stock subject to such Awards shall be prohibited or
restricted in the manner and to the extent prescribed by the Board on the
Date of Award. Such restrictions may include, without limitation, rights
of repurchase or first refusal in the Company or provisions subjecting the
shares of Restricted Stock to a continuing substantial risk of forfeiture
in the hands of any transferee.
(d) Any Award of a Common Stock Grant or Restricted Stock may
be made in consideration of payment by the Participant of an amount that
is less than the Market Value per Share on the Date of Award, but in no
event shall the value of the consideration provided with respect to any
such Award be less than the par value per share of Common Stock.
(e) Any Award of Restricted Stock may require that any or all
dividends or other distributions paid on the shares of Restricted Stock
during the period of such restrictions be automatically sequestered and
reinvested on an immediate or deferred basis in additional shares of
Common Stock, which
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Exhibit 10.26a
may be subject to the same restrictions as the underlying award or such
other restrictions as the Board may determine.
(f) Each Award of a Common Stock Grant and Restricted Stock
shall be evidenced by a Stock Grant Agreement or Restricted Stock
Agreement (as the case may be), which shall be executed on behalf of the
Company by any officer thereof and delivered to and accepted by the
Participant and shall contain such terms and provisions as the Board may
determine consistent with this Plan. Unless otherwise directed by the
Board, Restricted Stock will be held in book-entry form by the Company as
custodian for the Participant. Any certificates representing shares of
Restricted Stock, together with a stock power endorsed in blank by the
Participant with respect to the shares of Restricted Stock, shall be held
in custody by the Company until all restrictions thereon lapse.
(g) The Board may provide, at or after the Date of Award of
any Common Stock Grant or Restricted Stock, for the payment of a cash
award intended to offset the amount of tax that the Participant may incur
in connection with such Common Stock Grant or Restricted Stock, including,
without limitation, tax on the receipt of such cash award.
(h) The Board may provide in any individual Stock Grant
Agreement or Restricted Stock Agreement that the Company shall have the
right to repurchase the Restricted Stock then subject to restrictions
under the Restricted Stock Agreement, or the Common Stock subject to the
Common Stock Grant, immediately upon a Termination of Directorship for any
reason at a cash price per share equal to the cash price paid by the
Participants for such Restricted Stock or Common Stock. In the discretion
of the Board, provision may be made that no such right of repurchase shall
exist in the event of a Termination of Directorship without cause or
because of the Participant's retirement, death or permanent and total
disability.
6. Mandatory Fee and Retainer Shares.
(a) Commencing with the first meeting of the Board following
the effective date of this Plan, all Meeting Fees shall be payable in the
form of Mandatory Fee Shares. No later than ten (10) days following the
end of an Accounting Period (the "Issuance Date"), the Company shall issue
to each Non-Employee Director a number of Mandatory Fee Shares equal to
(i) the amount of such Director's Meeting Fees for such Accounting Period,
divided by (ii) the Market Value per Share on the last day of each
Accounting Period (the "Valuation Date") with respect to which such
Meeting Fees are payable. To the extent that the application of the
foregoing formula would result in the issuance of fractional shares of
Common Stock, any such fractional shares shall be disregarded, and the
remaining amount of Meeting Fees shall be paid in cash. The Company shall
pay any and all fees and commissions incurred in connection with the
payment of Mandatory Fee Shares to a Director.
(b) Commencing on January 1, 2001, 50% of each Non-Employee
Director's Retainer shall be payable in the form of Mandatory Retainer
Shares. Upon the Issuance Date, the Company shall issue to each
Non-Employee Director a number of mandatory Retainer Shares equal to (i)
50% of the amount of such Director's Retainer for such accounting period,
divided by (ii) the Market Value per Share on the applicable Valuation
Date. To the extent that the application of the foregoing formula would
result in the issuance of fractional shares of Common Stock, any such
fractions shares shall be disregarded, and the remaining amount of such
portion of the Non-Employee Director's Retainer shall be paid in cash. The
Company shall pay any and all fees and commissions incurred in connection
with the payment of Mandatory Retainer Shares to a Director.
7. Voluntary Shares. Each Non-Employee Director shall be eligible to
elect to receive shares of Common Stock in accordance with the following
provisions:
(a) Prior to the commencement of the Company's Calendar Year
(or by such other date as may be specified by the Board), a Participant
may elect, by the filing of a Participation Agreement, to have up to 100
percent of his or her Retainer paid by the Company in the form of shares
of Common Stock in lieu of a cash payment (the "Voluntary Shares"). Such
Participation Agreement must, except as
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Exhibit 10.26a
the Board may otherwise provide, be filed as a one-time election for the
applicable Calendar Year. Unless the Director revokes or changes such
election by filing a new Participation Agreement by the due date therefor
specified in this Section 7(a), such election shall apply to a
Participant's Retainer for each subsequent Calendar Year. Once an election
has been terminated, another election may not be made effective until the
commencement of the next subsequent full Calendar Year unless the Board
shall have otherwise provided.
(b) No later than the Issuance Date, the Company shall issue
to each Participant who has made an election under Section 7(a), a number
of Voluntary Shares for the prior Accounting Period equal to (i) the
amount of such Director's Retainer for such Accounting Period that such
Director has elected to receive as Voluntary Shares, divided by (ii) the
Market Value per Share on the Valuation Date. To the extent that the
application of the foregoing formula would result in the issuance of
fractional shares of Common Stock, any such fractional shares shall be
disregarded, and the remaining amount of the Retainer shall be paid in
cash. The Company shall pay any and all fees and commissions incurred in
connection with the payment of the Voluntary Shares to a Director.
8. Transferability.
(a) Except as may be otherwise determined by the Board, (i)
Awards, Mandatory Fee Shares, Mandatory Retainer Shares and Voluntary
Shares issued or granted under this Plan shall be issued only to a
Participant, (ii) Option Rights and Restricted Stock may be transferred by
a Participant only by will or the laws of descent and distribution, and
(iii) Option Rights may not be exercised during a Participant's lifetime
except by the Participant or, in the event of the Participant's legal
incapacity, by his guardian or legal representative acting in a fiduciary
capacity on behalf of the Participant under state law and court
supervision.
(b) Any Award made under this Plan may provide that all or any
part of the shares of Common Stock that are to be issued or transferred by
the Company upon the exercise of Option Rights, or are no longer subject
to the substantial risk of forfeiture and restrictions on transfer
referred to in Section 5 of this Plan, shall be subject to further
restrictions upon transfer.
(c) To the extent required to satisfy any condition to
exemption available pursuant to Rule 16b-3, Mandatory Fee Shares,
Mandatory Retainer Shares and Voluntary Shares acquired by a Participant
shall be held by the Participant for a period of at least six months
following the date of such acquisition.
9. Adjustments. The Board may make or provide for such adjustments
in the (a) number of shares of Common Stock covered by outstanding Awards,
payable as Mandatory Fee Shares or Mandatory Retainer Shares or subject to
elections to receive Voluntary Shares, (b) prices per share applicable to Option
Rights, and (c) kind of shares (including, without limitation, shares of another
issuer) covered thereby, as the Board in its sole discretion may in good faith
determine to be equitably required in order to prevent dilution or enlargement
of the rights of Participants that otherwise would result from (x) any stock
dividend, stock split, combination of shares, recapitalization or other change
in the capital structure of the Company, (y) any merger, consolidation,
spin-off, split-off, split-up, reorganization, partial or complete liquidation
or other distribution of assets, or issuance of rights or warrants to purchase
securities or (z) any other corporate transaction or event having an effect
similar to any of the foregoing. In the event of any such transaction or event,
the Board may provide in substitution for any or all outstanding Awards,
Mandatory Fee Shares, Mandatory Retainer Shares or Voluntary Shares to be issued
under this Plan such alternative consideration as it may in good faith determine
to be equitable under the circumstances and may require in connection therewith
the surrender of all Awards, Mandatory Fee Shares, Mandatory Retainer Shares or
Voluntary Shares so replaced. The Board may also make or provide for such
adjustments in the numbers and kind of shares specified in Section 3 of this
Plan as the Board may in good faith determine to be appropriate in order to
reflect any transaction or event described in this Section 9.
10. Fractional Shares. The Company shall not be required to issue
any fractional shares of Common Stock pursuant to this Plan. The Board may
provide for the elimination of fractions, for the settlement thereof in cash or
for such other adjustments as the Board may deem appropriate under this Plan.
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Exhibit 10.26a
11. Withholding Taxes. To the extent, if any, that the Company is
required to withhold federal, state, local or foreign taxes in connection with
any payment made or benefit realized by a Participant or other person under this
Plan, and the amounts available to the Company for the withholding are
insufficient, it shall be a condition to the receipt of any such payment or the
realization of any such benefit that the Participant or such other person make
arrangements satisfactory to the Company for payment of the balance of any taxes
required to be withheld. At the discretion of the Board, any such arrangements
may include relinquishment of a portion of any such payment or benefit. The
Company and any Participant or such other person may also make similar
arrangements with respect to the payment of any taxes with respect to which
withholding is not required.
12. Certain Terminations of Directorships.
(a) Notwithstanding any other provision of this Plan to the
contrary, in the event of a Termination of Directorship by reason of death
or disability, or in the event of hardship or other special circumstances,
of a Participant who holds an Option Right that is not immediately and
fully exercisable or any Award as to which the substantial risk of
forfeiture or the prohibition or restriction on transfer has not lapsed,
the Board may in its sole discretion take any action that it deems to be
equitable under the circumstances or in the best interests of the Company,
including, without limitation, waiving or modifying any limitation or
requirement with respect to any Award under this Plan.
(b) If a Non-Employee Director becomes an Employee while
continuing to serve as a Director, that fact alone shall not result in a
Termination of Directorship or otherwise impair the rights such Director
may have under this Plan, including, without limitation, the rights such
Director may have under any Award outstanding under this Plan, but such
Director shall no longer be eligible to receive any further Awards,
Mandatory Fee Shares, Mandatory Retainer Shares or Voluntary Shares under
this Plan.
13. Administration.
(a) Administration by the Board; Delegation. This Plan shall
be administered by the Board, which may from time to time delegate all or
any part of its authority under this Plan to a committee or subcommittee
of not less than two Directors appointed by the Board who are
"non-employee directors" within the meaning of that term as defined in
Rule 16b-3. To the extent of any delegation by the Board under this Plan,
references in this Plan to the Board shall also refer to the applicable
committee or subcommittee. The majority of any such committee or
subcommittee shall constitute a quorum, and the action of a majority of
its members present at any meeting at which a quorum is present, or acts
unanimously approved in writing, shall be the acts of such committee or
subcommittee.
(b) Administrative Powers. The Board shall have the power to
interpret this Plan, the Option Rights, the Common Stock Grants, the
Restricted Stock, the procedures for issuance of Mandatory Fee Shares or
Mandatory Retainer Shares and elections to receive Voluntary Shares, and
the agreements pursuant to which the Option Rights, the Common Stock
Grants, the Restricted Stock, the Mandatory Fee Shares, Mandatory Retainer
Shares and the Voluntary Shares are awarded and issued (including
Participation Agreements), and to adopt such rules for the administration,
interpretation and application of this Plan (including the administration
of this Plan in conjunction with the Deferred Compensation Plan), and such
agreements as are consistent therewith and to interpret, amend or revoke
any such rules. Any Award under this Plan need not be the same with
respect to each Optionee or Restricted Stockholder.
(c) Professional Assistance; Good Faith Actions. All expenses
and liabilities which members of the Board incur in connection with the
administration of this Plan shall be borne by the Company. The Board may
employ attorneys, consultants, accountants, appraisers, brokers or other
persons. The Board, the Company and the Company's officers and Directors
shall be entitled to rely upon the advice, opinions or valuations of any
such persons. All actions taken and all interpretations and determinations
made by the Board in good faith shall be final and binding upon all
Participants, the Company and all other interested persons. No members of
the Board shall be personally liable for any action, determination or
interpretation made in good faith with respect to this Plan, or any
Option, Common Stock Grant, Restricted Stock, Mandatory Fee Shares,
Mandatory Retainer Shares or Voluntary Shares, and
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Exhibit 10.26a
all members of the Board shall be fully protected by the Company in
respect of any such action, determination or interpretation.
14. Amendment, Suspension, Termination and Other Matters.
(a) This Plan may be wholly or partially amended or otherwise
modified, suspended or terminated at any time or from time to time by the
Board. However, without further approval of the stockholders of the
Company, no action of the Board may, except as provided in Section 9 of
this Plan, increase the limits imposed in Section 3 on the maximum number
of shares of Common Stock which may be issued under this Plan, and no
action of the Board may be taken that would otherwise require stockholder
approval as a matter of applicable law or the rules of any U.S. stock
exchange, including the NYSE, on which the Common Stock may be listed for
trading or authorized for quotation. No amendment, suspension or
termination of this Plan shall, without the consent of the holder of an
Award, alter or impair any rights or obligations under any Award
theretofore granted, unless the Award itself otherwise expressly so
provides.
(b) The Board may make under this Plan any Award or
combination of Awards authorized under this Plan in exchange for the
cancellation of an Award that was not made under this Plan.
(c) Except as provided in Section 14(b) of this Plan, the
making of one or more Awards to a Non-Employee Director under this Plan
shall not preclude the making of Awards to such Non-Employee Director
under any other stock option or incentive plan previously or subsequently
adopted by the Board, nor shall the fact that a Non-Employee Director has
received one or more awards under any other stock option or incentive plan
of the Company preclude such Non-Employee Director from receiving awards
under this Plan.
15. Termination of the Plan. No further awards shall be made under
this Plan after the passage of 10 years from the date on which this Plan is
first approved by the stockholders of the Company.
16. Effective Date. The effective date of this Plan shall be the
date of its adoption by the Board of Directors. This Plan and all Awards
granted, Mandatory Fee Shares issued, and any elections to receive Voluntary
Shares effected prior to the stockholder approval hereinafter mentioned, shall
be void and of no further force and effect unless this Plan shall have been
approved at a meeting of stockholders of the Company called for such purpose by
the affirmative vote of a majority of the shares of Class A Common Stock of the
Company represented in person or by proxy.
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