**Exhibit 10.9**

 

**MUNICIPAL MORTGAGE AND EQUITY, L.L.C.**

**1998 NON-EMPLOYEE DIRECTORS’ SHARE PLAN**

 

1. Purpose. The purpose of this 1998 Non-Employee Directors’ Share Plan (the “Plan”) of Municipal Mortgage and Equity, L.L.C., a Delaware limited liability company (the “Company”), is toadvance the interests of the Company and its shareholders by providing a means to attract and retain highly qualified persons to serve as non-employee directors of the Company and to promote ownership by such directors of a greater proprietaryinterest in the Company, thereby aligning such directors’ interests more closely with the interests of shareholders of the Company. 

 

2 Definitions. In addition to terms defined elsewhere in the Plan, the following are defined terms under the Plan: 

 

(a) “Code” means the Internal Revenue Code of 1986, as amended fromtime to time. References to any provision of the Code include regulations thereunder and successor provisions and regulations thereto. 

 

(b) For purposes of the Plan, a “Change in Control” shall have occurred if, after consummation of the Transaction: 

 

(i) Any “person,” as such term is used in Sections13(d) and 14(d) of the Exchange Act (other than the Company, a subsidiary, any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any corporation owned, directly or indirectly, by the shareholders of theCompany in substantially the same proportions as their ownership of shares of the Company), is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Companyrepresenting 25% or more of the combined voting power of the Company’s then outstanding voting securities; 

 

(ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board, and any newdirector (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii), or (iv) of this Section 2(b)) whose election by the Board or nomination forelection by the Company’s shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election waspreviously so approved, cease for any reason to constitute at least a majority thereof; 

 

(iii) the shareholders of the Company approve a merger, consolidation, recapitalization, or reorganization of the Company, or a reverseshare split of any class of voting securities of the Company, or the consummation of any such transaction if shareholder approval is not obtained, other than any such transaction which would result in at least 75% of the total voting powerrepresented by the voting securities of the Company or the surviving entity outstanding immediately after such transaction being beneficially owned by persons who together beneficially owned at least 75% of the combined voting power of the votingsecurities of the Company outstanding immediately prior to such transaction, with the relative voting power of each such continuing holder compared to the voting power of each other continuing holder not substantially altered as a result of thetransaction; provided that, for purposes of this paragraph (iii), such continuity of ownership (and preservation of relative voting power) shall be deemed to be satisfied if the failure to meet such 75% threshold (or to substantially preserve suchrelative voting power) is due solely to the acquisition of voting securities by an employee benefit plan of the Company or such surviving entity or of any subsidiary of the Company or such surviving entity; or 

 

(iv) the shareholders of the Company approve a plan ofcomplete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets (or any transaction having a similar effect). 

 

(c) “Deferred Share” means a credit to a Participant’sdeferral account under Section 7 which represents the right to receive one Share upon settlement of the deferral account. Deferral accounts, and Deferred Shares credited thereto, are maintained solely as bookkeeping entries by the Companyevidencing unfunded obligations of the Company. 

 

(d)“Exchange Act” means the Securities Exchange Act of 1934, as amended. References to any provision of the Exchange Act include rules thereunder and successor provisions and rules thereto. 

(e) “Fair Market Value” of a Share means, as of any given date, the closing sales price of aShare reported in the table entitled “American Stock Exchange Composite Transactions” contained in The Wall Street Journal (or an equivalent successor table) for such date or, if no such closing sales price was reported for such date, forthe most recent trading day prior to such date for which a closing sales price was reported. 

 

(f) “Option” means the right, granted to a director under Section 6, to purchase a specified number of Shares at the specified exercise price for a specified period of time under the Plan. All Optionswill be non-qualified stock Options. 

 

(g)“Participant” means any person who, as a non-employee director of the Company, has been granted an Option or Deferred Shares which remain outstanding or who has elected to be paid fees in the form of Shares or Deferred Shares under thePlan. 

 

(h) “Rule 16b-3” means Rule 16b-3, as fromtime to time in effect and applicable to the Plan and Participants, promulgated by the Securities and Exchange Commission under Section 16 of the Exchange Act. 

 

(i) “Share” means a Growth Share of the Company and such other securities as may be substituted for such Share orsuch other securities pursuant to Section 8. 

 

3. SharesAvailable Under the Plan. Subject to adjustment as provided in Section 8, the total number of Shares reserved and available for issuance under the Plan is 50,000. Such Shares may be authorized but unissued Shares, treasury Shares, or Sharesacquired in the market for the account of the Participant. For purposes of the Plan, Shares that may be purchased upon exercise of an Option or delivered in settlement of Deferred Shares will not be considered to be available after such Option hasbeen granted or Deferred Share credited, except for purposes of issuance in connection with such Option or Deferred Share; provided, however, that, if an Option expires for any reason without having been exercised in full, the Shares subject to theunexercised portion of such Option will again be available for issuance under the Plan. 

 

4. Administration of the Plan. The Plan will be administered by the Board of Directors of the Company; provided, however, that any action by the Board relating to the Plan will be taken only if, in addition to anyother required vote, such action is approved by the affirmative vote of a majority of the directors who are not then eligible to participate in the Plan. 

 

5. Eligibility. Each director of the Company who, on any date on which an Option is to be granted under Section 6 or on which fees are to be paidwhich could be received in the form of Shares or deferred in the form of Deferred Shares under Section 7, is not an employee of the Company or any subsidiary of the Company will be eligible, at such date, to be granted an Option underSection 6 or receive fees in the form of Shares or defer fees in the form of Deferred Shares under Section 7. No person other than those specified in this Section 5 will be eligible to participate in the Plan. 

 

6. Options. An Option to purchase 2,500 Shares, subject to adjustment asprovided in Section 8, will be automatically granted (i) to a person who is first elected or appointed to serve as a member of the Board of Directors of the Company at or after the effective date of the Plan, on the date of such electionor appointment, if such director is eligible to be granted an Option at that date, and (ii) to each member of the Board of Directors (which may include a director who also will receive a grant under clause (i) of this sentence), on thedate of the final adjournment of the Company’s Annual Meeting of Shareholders each year, if such director is eligible to be granted an Option at that date. 

 

(a) Exercise Price. The exercise price per Share purchasable upon exercise of an Option will be equal to 100% of the Fair Market Value of a Share onthe date of grant of the Option. 

 

b. Option Expiration. AParticipant’s Option will expire at the earlier of (i) ten years after the date of grant or (ii) one year after the date the Participant ceases to serve as a director of the Company for any reason. 

 

c. Exercisability. No Option may be exercised unless and until it has becomeexercisable in accordance with this Section 6(c). A Participant’s Option will become exercisable in full on the first anniversary of the date of grant; provided, however, that a Participant’s Option will become immediately exercisablein full at the time the Participant ceases to serve as a director due to death or disability or upon a Change in Control; and provided further, that a Participant’s Option may be exercised after the Participant ceases to serve as a director forany reason other than death or disability only to the extent that the Option was exercisable at the date he or she ceased to 

be a director or has become exercisable pursuant to this Section 6(c) within two months after the date he or she ceased to be a director. 

 

d. Method of Exercise. A Participant may exercise an Option, in whole or inpart, at such time as it is exercisable and prior to its expiration, by giving written notice of exercise to the Secretary of the Company, specifying the Option to be exercised and the number of Shares to be purchased, and paying in full theexercise price in cash (including by check) or by surrender of Shares already owned by the Participant (except for Shares acquired from the Company by exercise of an Option or other award less than six months before the date of surrender) having aFair Market Value at the time of exercise equal to the exercise price, or by a combination of cash and Shares. 

 

7. Receipt of Shares or Deferred Shares In Lieu of Fees. Each director of the Company may elect to be paid fees, in his or her capacity as a director(including annual retainer fees for service on the Board, fees for service on a Board committee, fees for service as chairman of a Board committee, and any other fees paid to directors) in the form of Shares or Deferred Shares in lieu of cashpayment of such fees, if such director is eligible to do so under Section 5 at the date any such fee is otherwise payable. If so elected, payment of fees in the form of Shares or Deferred Shares shall be made in accordance with thisSection 7. 

 

a. Elections. Each director who elects to bepaid fees for a given calendar year in the form of Shares or to defer such payment of fees in the form of Deferred Shares for such calendar year must file an irrevocable written election with the Secretary of the Company no later thanDecember 31 of the year preceding such calendar year; provided, however, that any newly elected or appointed director may file an election for any year not later than 30 days after the date such person first became a director, and a directormay file an election for the year in which the Plan became effective not later than 30 days after the date of effectiveness. An election by a director shall be deemed to be continuing and therefore applicable to subsequent Plan years unless thedirector revokes or changes such election by filing a new election form by the due date for such form specified in this Section 7(a). The election must specify the following: 

 

i. A percentage of fees to be received in the form of Shares or deferred in the form of Deferred Sharesunder the Plan; and 

 

ii. In the case of adeferral, the period or periods during which settlement of Deferred Shares will be deferred (subject to such limitations as may be specified by counsel to the Company). 

 

b. Payment of Fees in the Form of Shares. At any date on which fees are payable to a Participant who has elected to receivesuch fees in the form of Shares, the Company will issue to such Participant, or to a designated third party for the account of such Participant, a number of Shares having an aggregate Fair Market Value at that date equal to the fees, or as nearly aspossible equal to the fees (but in no event greater than the fees), that would have been payable at such date but for the Participant’s election to receive Shares in lieu thereof. If the Shares are to be credited to an account maintained by theParticipant and to the extent reasonably practicable without requiring the actual issuance of fractional Shares, the Company shall cause fractional Shares to be credited to the Participant’s account. If fractional Shares are not so credited,any part of the Participant’s fees not paid in the form of whole Shares will be payable in cash to the Participant (either paid separately or included in a subsequent payment of fees, including a subsequent payment of fees subject to anelection under this Section 7). 

 

c. Deferral of Fees inthe Form of Deferred Shares. The Company will establish a deferral account for each Participant who elects to defer fees in the form of Deferred Shares under this Section 7. At any date on which fees are payable to a Participant who has electedto defer fees in the form of Deferred Shares, the Company will credit such Participant’s deferral account with a number of Deferred Shares equal to the number of Shares having an aggregate Fair Market Value at that date equal to the fees thatotherwise would have been payable at such date but for the Participant’s election to defer receipt of such fees in the form of Deferred Shares. The amount of Deferred Shares so credited shall include fractional Shares calculated to at leastthree decimal places. 

 

d. Crediting of Dividend Equivalents.Whenever dividends are paid or distributions are made with respect to Shares, a Participant to whom Deferred Shares are then credited in a deferral account shall be entitled to receive, as dividend equivalents, an amount equal in value to the amountof the dividend paid or property distributed on a single Share multiplied by the number of Deferred Shares (including any fractional Share) credited to his or her deferral account as of the record date for such dividend or distribution. Suchdividend equivalents shall be credited to the Participant’s deferral 

account as a number of Deferred Shares determined by dividing the aggregate value of such dividend equivalents by the Fair Market Value of a Share at thepayment date of the dividend or distribution. 

 

e. Settlement ofDeferred Shares. The Company will settle the Participant’s deferral account by delivering to the Participant (or his or her beneficiary) a number of Shares equal to the number of whole Deferred Shares then credited to his or her deferralaccount (or a specified portion in the event of any partial settlement), together with cash in lieu of any fractional share remaining at a time when less than one whole Deferred Share is credited to such deferral account. Such settlement shall bemade at the time or times specified in the Participant’s election filed in accordance with Section 7(a); provided, however, that a Participant may further defer settlement of Deferred Shares if counsel to the Company determines that suchfurther deferral likely would be effective under applicable federal income tax laws and regulations. 

 

f. Nonforfeitability. The interest of each Participant in any fees paid in the form of Shares or Deferred Shares (and any deferral account relatingthereto) at all times will be nonforfeitable. 

 

8. AdjustmentProvisions. 

 

a. Corporate Transactions and Events. In the eventany recapitalization, reorganization, merger, consolidation, spinoff, combination, repurchase, exchange of Shares or other securities of the Company, share split or reverse split, extraordinary dividend (whether in the form of cash, Shares, or otherproperty), liquidation, dissolution, or other similar corporate transaction or event affects the Shares such that an adjustment is appropriate in order to prevent dilution or enlargement of each Participant’s rights under the Plan, then anadjustment shall be made, in a manner that is proportionate to the change to the Shares and otherwise equitable, in (i) the number and kind of Shares remaining reserved and available for issuance under Section 3, (ii) the number andkind of Shares to be subject to each automatic grant of an Option under Section 6, (iii) the number and kind of Shares issuable upon exercise of outstanding Options, and/or the exercise price per Share thereof (provided that no fractionalShares will be issued upon exercise of any Option), (iv) the kind of Shares to be issued in lieu of fees under Section 7, and (v) the number and kind of Shares to be issued upon settlement of Deferred Shares under Section 7. Theforegoing notwithstanding, no adjustment may be made hereunder except as will be necessary to maintain the proportionate interest of the Participant under the Plan and to preserve, without exceeding, the value of outstanding Options and potentialgrants of Options and the value of outstanding Deferred Shares. 

 

b. Insufficient Number of Shares. If at any date an insufficient number of Shares are available under the Plan for the automatic grant of Options or the receipt of fees in the form of Shares or deferral of fees in the form of DeferredShares at that date, Options will first be automatically granted proportionately to each eligible director, to the extent Shares are then available (provided that no fractional Shares will be issued upon exercise of any Option) and otherwise asprovided under Section 6, and then, if any Shares remain available, fees shall be paid in the form of Shares or deferred in the form of Deferred Shares proportionately among directors then eligible to participate to the extent Shares are thenavailable and otherwise as provided under Section 7. 

 

9.Changes to the Plan. The Board of Directors may amend, alter, suspend, discontinue, or terminate the Plan or authority to grant Options or pay fees in the form of Shares or Deferred Shares under the Plan without the consent of shareholders orParticipants, except that any amendment or alteration will be subject to the approval of the Company’s shareholders at or before the next annual meeting of shareholders for which the record date is after the date of such Board action if suchshareholder approval is required by any applicable federal or state law or regulation or the rules of any stock exchange or automated quotation system as then in effect, and the Board may otherwise determine to submit other such amendments oralterations to shareholders for approval; provided, however, that, without the consent of an affected Participant, no such action may materially impair the rights of such Participant with respect to any previously granted Option or any previouspayment of fees in the form of Shares or Deferred Shares. 

 

10.General Provisions. 

 

a. Agreements. Options, Deferred Shares,and any other right or obligation under the Plan may be evidenced by agreements or other documents executed by the Company and the Participant incorporating the terms and conditions set forth in the Plan, together with such other terms andconditions not inconsistent with the Plan, as the Board of Directors may from time to time approve. 

 

b. Compliance with Laws and Obligations. The Company will not be obligated to issue or deliver Shares in connection with any Option, in 

payment of any directors’ fees, or in settlement of Deferred Shares in a transaction subject to the registration requirements of the Securities Act of1933, as amended, or any other federal or state securities law, any requirement under any listing agreement between the Company and any stock exchange or automated quotation system, or any other law, regulation, or contractual obligation of theCompany, until the Company is satisfied that such laws, regulations, and other obligations of the Company have been complied with in full. Certificates representing Shares issued under the Plan will be subject to such stop-transfer orders and otherrestrictions as may be applicable under such laws, regulations, and other obligations of the Company, including any requirement that a legend or legends be placed thereon. 

 

c. Limitations on Transferability. Options, Deferred Shares, and any other right under the Plan will not be transferable bya Participant except by will or the laws of descent and distribution (or to a designated beneficiary in the event of a Participant’s death), and will be exercisable during the lifetime of the Participant only by such Participant or his or herguardian or legal representative; provided, however, that Options and Deferred Shares (and rights relating thereto) may be transferred to one or more trusts or other beneficiaries during the lifetime of the Participant for purposes of theParticipant’s estate planning or at the Participant’s death, and such transferees may exercise rights thereunder in accordance with the terms thereof, but only if and to the extent then permitted under Rule 16b-3 and consistent with theregistration of the offer and sale of Shares related thereto on Form S-8, Form S-3, or such other registration form of the Securities and Exchange Commission as may then be filed and effective with respect to the Plan. The Company may rely upon thebeneficiary designation last filed in accordance with this Section 10(c). Options, Deferred Shares, and other rights under the Plan may not be pledged, mortgaged, hypothecated, or otherwise encumbered, and shall not be subject to the claims ofcreditors of any Participant. 

 

d. Compliance with Rule 16b-3.It is the intent of the Company that this Plan comply in all respects with applicable provisions of Rule 16b-3. Accordingly, if any provision of this Plan or any agreement hereunder does not comply with the requirements of Rule 16b-3 as thenapplicable to a transaction by a Participant, such provision will be construed or deemed amended to the extent necessary, to conform to the applicable requirements with respect to such Participant. 

 

e. No Right To Continue as a Director. Nothing contained in the Plan or anyagreement hereunder will confer upon any Participant any right to continue to serve as a director of the Company. 

 

f. No Shareholder Rights Conferred. Nothing contained in the Plan or any agreement hereunder will confer upon any Participant (or any person or entityclaiming rights by or through a Participant) any rights of a shareholder of the Company unless and until Shares are in fact issued to such Participant (or person) or, in the case of an Option, such Option is validly exercised in accordance withSection 6. 

 

g. Nonexclusivity of the Plan. Neither theadoption of the Plan by the Board of Directors nor any submission thereof to the shareholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other compensatory arrangements fordirectors as it may deem desirable. 

 

h. Governing Law. Thevalidity, construction, and effect of the Plan and any agreement hereunder will be determined in accordance with the Delaware Limited Liability Company Act and other laws (including those governing contracts) of the State of Delaware, without givingeffect to principles of conflicts of laws, and applicable federal law. 

 

11. Effective Date and Plan Termination. The Plan will be effective if, and at such time as, the Company’s 1998 Share Incentive Plan has become effective, subject to its approval by the shareholders of the Company. Unless earlierterminated by action of the Board of Directors, the Plan will remain in effect until such time as no Shares remain available for issuance under the Plan and the Company and Participants have no further rights or obligations under the Plan.

 

As adopted by the Board of Directors: March 23, 1998