Exhibit 10.3
SECOND AMENDED AND RESTATED
1997 EQUITY PLAN FOR NON-EMPLOYEE
DIRECTORS OF PLAYBOY ENTERPRISES, INC.
(as amended through May 23, 2007)
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.
"Committee Fees" means the compensation payable to a Non-Employee
Director with regard to 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.
"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.
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"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 Committee Fee Shares" means Common Stock awarded pursuant
to Section 6(c) with an aggregate Market Value per Share generally equal to 50%
of a Non-Employee Director's Committee Fees.
"Mandatory Meeting Fee Shares" means Common Stock awarded pursuant
to Section 6(a) with an aggregate Market Value per Share generally equal to 100%
of a Non-Employee Director's Meeting Fees.
"Mandatory Retainer Shares" means Common Stock awarded pursuant to
Section 6(b) with an aggregate Market Value per Share generally equal to 50% of
a Non-Employee Director's Retainer.
"Meeting Fees" means the compensation payable to a Non-Employee
Director with regard to the number of Board meetings attended, 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 Meeting Fee
Shares, Mandatory Retainer Shares, or Mandatory Committee Fee 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.
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"Retainer" means the portion of a Non-Employee Director's annual
compensation that is payable without regard to the number of board 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.
"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
600,000 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 Meeting Fee Shares, Mandatory
Retainer Shares, Mandatory Committee Fee 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. In addition, the
Board may, in its discretion and whether or not specified in an Award of Option
Rights, permit payment of the Option Price by a "net exercise" via the
forfeiture to the Company of a portion of the Option Rights pertaining to shares
of Common Stock with a value (based on the Market Value per Share on the date of
such forfeiture) equal to the exercise price of the portion of the Option Rights
being exercised plus the applicable tax withholding amount.
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(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.
(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
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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 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 Meeting Fee, Retainer, and Committee Fee 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 Meeting 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 Meeting 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 Meeting 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.
(c) Commencing on January 1, 2003, 50% of each Non-Employee
Director's Committee Fees shall be payable in the form of Mandatory Committee
Fee Shares. Upon the Issuance Date, the Company shall issue to each Non-Employee
Director a number of Mandatory Committee Fee Shares equal to (i) 50% of the
amount of such Director's Committee Fees 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
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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 Committee Fees shall be paid in cash. The Company shall
pay any and all fees and commissions incurred in connection with the payment of
Mandatory Committee Fee 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 and/or Committee Fees 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 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 and Committee Fees 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 and Committee Fees 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 Meeting Fee Shares, Mandatory Retainer Shares, Mandatory
Committee Fee 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 Meeting Fee Shares,
Mandatory Retainer Shares, Mandatory Committee Fee 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 Meeting Fee Shares, Mandatory Retainer Shares or Mandatory Committee
Fee 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
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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 Meeting Fee Shares, Mandatory Retainer Shares, Mandatory
Committee Fee 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 Meeting Fee Shares, Mandatory Retainer Shares, Mandatory
Committee Fee 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.
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 Meeting Fee Shares,
Mandatory Retainer Shares, Mandatory Committee Fee 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 Meeting Fee Shares, Mandatory
Retainer Shares or Mandatory Committee Fee 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 Meeting Fee Shares,
Mandatory Retainer Shares, Mandatory Committee Fee Shares and the Voluntary
Shares are awarded and issued (including Participation Agreements), and to adopt
such rules for the
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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 Meeting Fee
Shares, Mandatory Retainer Shares, Mandatory Committee Fee Shares or Voluntary
Shares, and 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 May 23, 2007, the date on which this
Plan, as amended, is 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 Meeting 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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