URSTADTBIDDLE PROPERTIES INC. and THE BANKOF NEW YORK as RightsAgent _________________________ RightsAgreement Dated asofJuly 18, 2008

 

(g) The term “Common Stock” when used with respect to any Person other than the Corporation shall mean the capital stock with the greatest voting power or the equity securities or other equity interests having the power to control or direct the management and affairs of such Person, or if such Person is a Subsidiary of another Person, the Person who ultimately controls such first mentioned Person and which has outstanding such Common Stock (or other equity securities).

 

(h) The term “Common Share Event” shall mean the occurrence of any event described in (I) Section 11(a)(ii) hereof or (II) clauses (a), (b) or (c) of the first sentence of Section 13 hereof.

 

(i) The term “Continuing Director” shall mean any Director of the Corporation who (i) is not an Acquiring Person or an Affiliate of an Acquiring Person and (ii) either was (A) a member of the Board of Directors of the Corporation on the Declaration Date, (B) nominated for his or her initial term of office by a majority of the Continuing Directors in office at the time of such nomination or (C) nominated for his or her initial term of office by a majority of the members of the Nominating and Corporate Governance Committee who were Continuing Directors in office at the time of such nomination.

 

(j) The term “Declaration Date” shall mean November 12, 2008 and shall be the effective date of this Agreement.

 

(k) The term “Disqualified Transferee” shall mean any Person who is a transferee of any Rights from an Acquiring Person or an Affiliate of an Acquiring Person and becomes such a transferee (x) after the occurrence of a Common Share Event or (y) prior to or concurrently with the Acquiring Person becoming such and received such Rights pursuant to a transfer (whether or not for value) (A) from the Acquiring Person to holders of its Common Stock or other equity securities or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights or (B) which a majority of the Directors then in office determine is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of Section 7(e) hereof.

 

(l) The term “Distribution Date” shall mean the close of business on the date which is the earlier of the tenth Business Day following (x) a Share Acquisition Date or (y) the Offer Commencement Date.

 

(m) The term “Exempted Person” shall mean (i) Charles J. Urstadt; (ii) any Immediate Relative of Charles J. Urstadt (defined as his spouse, any of his children or any of their spouses, any of his grandchildren or any of their spouses); or (iii) any trust, corporation, partnership, limited liability company or other entity or organization controlled by Charles J. Urstadt or any Immediate Relative of Charles J. Urstadt or in which Charles J. Urstadt or any Immediate Relative of Charles J. Urstadt has any economic, beneficial or other interest.

(n) The term “Offer Commencement Date” shall mean the date of the commencement of a tender or exchange offer by any Person, other than the Corporation, a Wholly Owned Subsidiary of the Corporation or any employee benefit plan of the Corporation or of a Wholly Owned Subsidiary of the Corporation or any Exempted Person if, upon consummation thereof, the Person and Affiliates thereof would be the Beneficial Owner of 30% or more of the then outstanding Common Shares (including any such date which is after the date of this Agreement and prior to the issuance of the Rights).

 

(o) The term “Person” shall mean a corporation, association, partnership, joint venture, trust, organization, business, limited liability company, individual or government or any governmental agency or political subdivision thereof, as well as any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act.

 

(p) The term “Preferred Shares” shall mean the Series A Participating Preferred Shares, par value $.01 per share, of the Corporation, having the rights and preferences set forth in the form of the Articles Supplementary attached hereto as Exhibit A.

 

(q) The term “Share Acquisition Date” shall mean the first date of public announcement by the Corporation or an Acquiring Person (or an Affiliate thereof) that an Acquiring Person has become such (including the first date on which any filing with any governmental authority disclosing that an Acquiring Person has become such becomes available to the public).

 

(r) The term “Subsidiary” shall mean any person of which the Corporation (or other specified parent) now or hereafter shall directly, or indirectly through a Subsidiary or Subsidiaries, at the time own at least a majority of the outstanding capital stock (or other shares of beneficial interest) entitled to vote generally, or hold at least a majority of partnership or similar interests, or be a general partner or managing member. The term “Wholly Owned Subsidiary” shall mean any Subsidiary of which (i) all of the outstanding capital stock (or other shares of beneficial interest) entitled to vote generally other than directors’ qualifying shares, is owned by the Corporation (or other specified Person) directly, or indirectly through one or more Wholly Owned Subsidiaries, or (ii) the sole general partner or managing member is the Corporation.

(a) Until the Distribution Date (i) the Rights will be evidenced (subject to the provisions of Section 3(b) hereof) by the certificates representing the Common Shares registered in the names of the holders of the Common Shares (which certificates shall be deemed also to be certificates for the associated Rights) and not by separate Right Certificates and (ii) the Rights will be transferable only in connection with the transfer of the associated Common Shares. The Corporation shall give the Rights Agent prompt written notice of the Distribution Date.  Until such notice is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes that the Distribution Date has not occurred.  As soon as practicable after the Distribution Date, and receipt of all relevant information and written notice of the Distribution Date from the Corporation, the Rights Agent will, at the Corporation’s expense, send, by first-class, postage prepaid mail, to each record holder of Common Shares as of the close of business on the Distribution Date, at the address of such holder shown on the register of shares of the Corporation, a right certificate, in substantially the form of Exhibit B hereto (a “Right Certificate”), evidencing that number of Rights to which such holder is entitled in accordance with the provisions of this Agreement. In the event that an adjustment in the number of Rights per Common Share has been made pursuant to Sections 11(i) or 11(o) hereof, at the time of distribution of the Right Certificates the Corporation shall make the necessary and appropriate rounding adjustments (in accordance with Section 14(a) hereof) so that Right Certificates representing only whole numbers of Rights are distributed and cash is paid in lieu of any fractional Rights. As of and after the Distribution Date, the Rights will be evidenced solely by such Right Certificates. The Rights are exercisable only in accordance with the provisions of Section 7 hereof and are redeemable only in accordance with Section 23 hereof.

(a) The Right Certificates (and the form of assignment and the form of election to purchase and certificate to be printed on the reverse thereof) shall each be substantially in the form set forth in Exhibit B hereto and may have such marks of identification or designation and such legends, summaries or endorsements printed thereon as the Corporation may deem appropriate (but which do not affect the rights, duties or responsibilities of the Rights Agent) and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Rights may from time to time be listed, or to conform to usage. The Right Certificates shall be in a machine printable format and in a form reasonably satisfactory to the Rights Agent. Subject to the provisions of Sections 11 and 22 hereof, the Right Certificates, whenever distributed, shall be dated as of the Declaration Date, show the date of countersignature, and on their face shall entitle the holders thereof to purchase such number of one one-hundredths of a Preferred Share as shall be set forth therein at a price of $65 per each one-hundredth of a share (the “Purchase Price”), but the amount and type of securities issuable upon the exercise of each Right and the Purchase Price shall be subject to adjustment as provided herein.

(a) Subject to the provisions of Sections 4(b), 7(e) and 14 hereof, at any time after the close of business on the Distribution Date, and at or prior to the Expiration Date, any Right Certificate or Right Certificates may be transferred, split up, combined or exchanged for another Right Certificate or Right Certificates entitling the registered holder to purchase a like number of one one-hundredths of a Preferred Share (or, following a Common Share Event, Common Shares and/or such other securities, cash or other property as shall be issuable in respect of the Rights in accordance with the terms of this Agreement (such other securities, cash or other property being referred to herein as “Other Consideration”)), as the Right Certificate or Right Certificates surrendered then entitled such holder to purchase. Any registered holder desiring to transfer, split up, combine or exchange any Right Certificate shall make such request in writing delivered to the Rights Agent, and shall surrender the Right Certificate or Right Certificates to be transferred, split up, combined or exchanged with the form of assignment and certificate appropriately completed and executed, at the office of the Rights Agent designated for such purpose.  The Right Certificates are transferable only on the registry books of the Rights Agent.  The Corporation shall not be obligated to take any action whatsoever with respect to the transfer of any such surrendered Right Certificate or Certificates until the registered holder thereof shall have (i) completed and signed the certificate contained in the form of assignment set forth on the reverse side of each such Right Certificate and (ii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) thereof and of the Rights evidenced thereby and the Affiliates and Associates of such Beneficial Owner (or former Beneficial Owner) as the Corporation or the Rights Agent shall reasonably request.  Thereupon, subject to Sections 4(b) and 7(e) hereof, the Corporation shall execute and the Rights Agent countersign and deliver to the person entitled thereto a Right Certificate or Right Certificates, as the case may be, as so requested. The Corporation may require payment by the holders of Rights of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer, split up, combination or exchange of Right Certificates which the Corporation is not required to pay in accordance with Section 9(d) hereof.  The Rights Agent shall have no duty or obligation under any Section of this Agreement requiring the payment of taxes and/or governmental charges unless and until it is satisfied that all such taxes and/or governmental charges have been paid.

(b) Upon receipt by the Corporation and the Rights Agent of evidence reasonably satisfactory to them of the loss, theft, destruction or mutilation of a Right Certificate, and, in case of loss, theft or destruction, of indemnity or security satisfactory to them, and, in case of mutilation, upon surrender to the Rights (c) Agent and cancellation of the mutilated Right Certificate and, in any case, upon reimbursement to the Corporation and the Rights Agent of all reasonable expenses incidental thereto, the Corporation will execute and deliver a new Right Certificate of like tenor to the Rights Agent for countersignature and delivery to the registered owner in lieu of the Right Certificate so lost, stolen, destroyed or mutilated.

 

SECTION 7.

EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS.

 

(a) Except as otherwise provided herein, the registered holder of any Right Certificate may exercise the Rights evidenced thereby in whole or in part at any time from and after the Distribution Date and prior to the earliest of (i) the close of business on November 11, 2018 (which date may be extended pursuant to Section 26) or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (such earlier time being herein referred to as the “Expiration Date”). At the Expiration Date, all rights will be extinguished and all Right Certificates shall become null and void. To exercise Rights, the registered holder of the Right Certificate evidencing such Rights shall surrender such Right Certificate, with the form of election to purchase and certificate on the reverse side thereof duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment in cash, or by certified check or bank check payable to the order of the Corporation, of the Purchase Price with respect to the total number of one one-hundredths of a Preferred Share (or, after a Common Share Event, Common Shares and/or Other Consideration) as to which the Rights are exercised (which payment shall include any additional amount payable by such Person in accordance with Section 9(d) hereof). The Rights Agent shall promptly deliver to the Corporation all payments of the Purchase Price received in respect of Right Certificates accepted for exercise.

 

(b) The Purchase Price for each one-hundredth of a Preferred Share issuable pursuant to the exercise of a Right shall initially be $65, shall be subject to adjustment as provided in Section 11 hereof and shall be payable in lawful money of the United States of America.

 

(c) Upon receipt of a Right Certificate representing the Rights, with the form of election to purchase and certificate set forth on the reverse side thereof duly executed, accompanied by payment of the Purchase Price and an amount equal to any applicable transfer tax or evidence satisfactory to the Corporation of payment of such tax, the Rights Agent, subject to Section 7(e), Section 11(a)(iii) and Section 20(k) hereof, shall thereupon promptly (i) if prior to a Common Share Event, requisition from any transfer agent of the Preferred Shares (or from the Corporation if there shall be no such transfer agent, or make available if the Rights Agent is such transfer agent) certificates for the total number of one one-hundredths of a Preferred Share to be purchased and the Corporation hereby irrevocably authorizes such transfer agent to comply with any such request, or if after a Common Share Event, requisition from the appropriate person required to issue or deliver the Common Shares or Other Consideration issuable pursuant to Section 11(a)(ii) or Section 13 certificates evidencing, or other evidence of, such Common Shares or Other Consideration, (ii) after receipt of such certificates or Other Consideration, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder, and (iii) when appropriate, requisition from the Corporation or other appropriate Person the amount of cash to be paid in lieu of issuance of a fractional share in accordance with Section 14 hereof and after receipt promptly deliver such cash to or upon the order of the registered holder of such Right Certificate. After the occurrence of a Common Share Event, the Corporation will make all necessary arrangements so that the Common Shares and/or Other Consideration then deliverable in respect of the Rights are available for distribution by the Rights Agent. For purposes of this Section 7, the Rights Agent shall be entitled to conclusively rely, and shall be fully protected in conclusively relying, on an Officers’ Certificate from the Corporation to the effect that the Distribution Date has occurred.

 

(d) Subject to Sections 4(b), 7(e) and 14 hereof, in case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be executed and delivered by the Corporation to the Rights Agent and countersigned and delivered by the Rights Agent to the registered holder of such Right Certificate or to his duly authorized assigns.

 

(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Common Share Event, any Rights beneficially owned by (i) an Acquiring Person, (ii) an Affiliate of an Acquiring Person or (iii) a Disqualified Transferee shall become null and void without any further action, and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Corporation shall use all reasonable efforts to ensure that the provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates or Disqualified Transferees hereunder.

 

(f) Notwithstanding anything in this Agreement or any Right Certificate to the contrary, neither the Rights Agent nor the Corporation shall be obligated to undertake any action with respect to a registered holder of any Right Certificate upon the occurrence of any purported exercise thereof unless such registered holder shall have (i) properly completed and signed the certificate following the form of election to purchase set forth on the reverse side of the Right Certificate surrendered for such exercise and (ii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates thereof as the Rights Agent or the Corporation shall reasonably request.

(a) The Corporation covenants and agrees as long as any of the Rights are outstanding, it will cause to be reserved and kept available out of its authorized and unissued Preferred Shares (or, following the occurrence of a Common Share Event, out of its authorized and unissued shares or similar units of Common Shares and/or other securities, or out of its authorized and issued securities held in its treasury), the number of Preferred Shares (or, following the occurrence of a Common Share Event, shares or units of Common Shares and/or other securities) that, except as provided in Section 11(a)(ii) hereof, would then be sufficient to permit the exercise in full of all outstanding Rights.

 

(b) The Corporation covenants and agrees that on and after the Distribution Date so long as the Preferred Shares (or, following the occurrence of a Common Share Event, the Common Shares or other securities) issuable upon the exercise of Rights may be listed on any national securities exchange, the Corporation shall use its best efforts to cause all shares (or similar units) reserved for such issuance to be listed on such exchange upon official notice of issuance upon such exercise.

 

(c) The Corporation covenants and agrees that it will take all such action as may be necessary to ensure that each one one-hundredth of a Preferred Share (or, following the occurrence of a Common Share Event, each share and/or similar unit of Common Shares or other securities) delivered upon exercise of Rights shall, at the time of delivery of the certificates for such shares (or units), subject to payment of the Purchase Price, be duly and validly authorized and issued and fully paid and nonassessable.

 

(d) The Corporation further covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges which may be payable in respect of the issuance or delivery of the Right Certificates or of any Preferred Shares (or, following the occurrence of a Common Share Event, any shares and/or similar units of Common Shares or other securities) upon the exercise of Rights; provided, however, that the Corporation shall not be required to pay any transfer tax which may be payable in respect of any transfer involved in the transfer or delivery of Right Certificates or in the issuance or delivery of certificates for any number of one one-hundredths of a Preferred Share (or, following the occurrence of a Common Share Event, shares and/or similar units of Common Shares or other securities) in a name other than that of the registered holder of the Right Certificate evidencing Rights surrendered for exercise or to issue or deliver any certificates for a number of one one-hundredths of a Preferred Share (and, following the occurrence of a Common Share Event, any shares and/or similar units of Common Shares or other securities) upon the exercise of any Rights until any such tax shall have been paid (any such tax being payable by the holder of such Right Certificate at the time of surrender) or until it has been established to the Corporation’s satisfaction that no such tax is due.

 

(e) The Corporation shall use its best efforts to (i) file, as soon as practicable following the earliest date after the first occurrence of a Common Share Event on which the consideration to be delivered by the Corporation upon exercise of the Rights has been determined in accordance with Section 11(a)(iii) hereof, or as soon as is required by law following the Distribution Date, as the case may be, a

The Purchase Price and the number and kind of securities covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.

 

(a) (i)           In the event that the Corporation shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Shares payable in shares of Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C)combine outstanding Preferred Shares into a smaller number of shares or (D) issue, change or alter any shares of its beneficial interests in a reclassification or recapitalization (including any such reclassification or recapitalization in connection with a consolidation or merger or share exchange in which the Corporation is the continuing or surviving entity) except as otherwise provided in Section 7(e) then, and in each such case, the Purchase Price in effect at the time of the record date for such dividend or the effective time of such subdivision, combination, reclassification or recapitalization, and the number and kind of Preferred Shares or other shares of beneficial interests issuable at such time, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive the aggregate number and kind of Preferred Shares or other shares of beneficial interests which, if such Right had been exercised immediately prior to such time and at a time when the Preferred Shares register or other transfer books of the Corporation were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination, reclassification or recapitalization. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii).

 

(ii) In the event

 

(A) any Acquiring Person or any Affiliate of any Acquiring Person, at any time after the date of this Agreement, directly or indirectly (1) shall merge into the Corporation or otherwise combine with the Corporation, the Corporation shall be the continuing or surviving entity of such merger or combination and the Original Common Shares shall remain outstanding and no shares thereof shall be changed or otherwise transformed into stock or other securities of any other Person or the Corporation or cash or any other property, (2) shall, in one or more transactions, transfer any assets to the Corporation or any Subsidiary in exchange (in whole or in part) for shares of any class of its equity securities or for securities exercisable for or convertible into shares of any such class or otherwise obtain from the Corporation or any Subsidiary, with or without consideration, any additional shares of any such class or securities exercisable for or convertible into shares of any such class (other than as part of a pro rata distribution to all holders of such class), (3) shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of (in one transaction or a series of transactions), to, from or with the Corporation or any of the Corporation’s Subsidiaries or any employee benefit plan maintained by the Corporation or any Subsidiary or any trustee or fiduciary with respect to such plan acting in such capacity, assets including securities on terms and

 

(B) any Person (other than the Corporation, any Subsidiary of the Corporation, any employee benefit plan of the Corporation or of any Subsidiary of the Corporation, or any Person or entity organized, appointed or established by the Corporation for or pursuant to the terms of any such plan or any Exempted Person), alone or together with its Affiliates, shall, at any time on or after the Declaration Date, become the Beneficial Owner of 10% or more of the total combined voting power of the Common Shares then outstanding other than pursuant to a transaction to which the provisions of Section 13(a) apply; or

 

(C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any combination thereof), or recapitalization of the Corporation, or any merger or consolidation or share exchange of the Corporation with any of its Subsidiaries, or any repurchase by the Corporation or any of its Subsidiaries of the Common Shares, or any other class or series of securities issued by the Corporation (whether or not with or into or otherwise involving an Acquiring Person or any Affiliate of an Acquiring Person), which has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities or securities exercisable for or convertible into any class of equity securities of the Corporation or any of its Subsidiaries which is directly or indirectly beneficially owned by an Acquiring Person or any Affiliate of an Acquiring Person;

 

then, and in each such case, proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of the number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the occurrence of an event described in this Section 11(a)(ii), such number of Original Common Shares as shall equal the result obtained by (x) multiplying an amount equal to the then current Purchase Price by an amount equal to the number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of any such event, and dividing that product by (y) 50% of the current market price per Original Common Share of the Corporation (as defined in Section 11(d) hereof) determined as of the date of such first occurrence.

(iii) In the event that the number of Original Common Shares which are authorized by the Corporation’s Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof, in lieu of issuing Original Common Shares in accordance with Section 11(a)(ii) the Corporation shall (A) determine an amount (the “Excess Amount”) equal to the excess of (1) the value (the “Current Value”) of the Original Common Shares issuable upon the exercise of a Right in accordance with Section 11(a)(ii) hereof, over (2) the Purchase Price and (B) with respect to each Right, make adequate provision to substitute for such Original Common Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of the Corporation (including, without limitation, shares or units of preferred shares which the Directors of the Corporation have deemed, in good faith, to have the same value as an Original Common Share (such preferred shares hereinafter referred to as “Common Share Equivalents”)), (4) debt securities of the Corporation, (5) other assets or (6) any combination of the foregoing having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Directors of the Corporation, in good faith, based upon the advice of a nationally recognized investment banking firm selected by the Directors of the Corporation; provided, however, subject to the provisions of Section 9(e), if the Corporation shall not have made adequate provision to deliver value pursuant to clause (B) above within 30 days following the first occurrence of a Common Share Event, then the Corporation shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, Original Common Shares (to the extent available) and then, if necessary, cash, securities and/or assets which in the aggregate are equal to the Excess Amount. If the Directors of the Corporation shall determine in good faith that it is likely that sufficient additional Original Common Shares could be authorized for issuance upon exercise in full of the Rights, the 30-day period set forth above may be amended to the extent necessary, but not more than 90 days following the first occurrence of such a Common Share Event, in order that the Corporation may seek shareholder approval for the authorization of such additional shares (such 30-day period, as it may be extended to 90 days, is referred to herein as the “Substitution Period”). To the extent that the Corporation determines that some action is to be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Corporation (x) shall provide, subject to Section 7(e) hereof, that (except as shall be determined by a majority of the Directors; provided, that if any shareholder action at an annual or special meeting of the shareholders has been taken to elect a Director or Directors of the Corporation with the result that Continuing Directors do not constitute a majority of the Board of Directors of the Corporation, no such exception shall be made by the Directors until the 180th day following the effectiveness of such election) such action shall apply uniformly to all outstanding Rights which shall not have become null and void and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Corporation shall issue a public announcement (with prompt written notice thereof to the Rights Agent) stating that the exercisability of the Rights has been temporarily suspended. The Corporation shall thereafter issue a public announcement (with prompt written notice thereof to the Rights Agent) at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of Common Shares shall be the current market price per Common Share (as determined pursuant to Section 11(d) hereof) on the date of the first occurrence of such a Common Share Event.

 

(b) In the event the Corporation shall after the Declaration Date fix a record date for the issuance of any options, warrants or other rights to all holders of Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or (i) shares having the same rights, privileges and preferences as the shares of any number of one one-hundredths of a Preferred Share (“Equivalent Preferred Shares”) or (ii) securities convertible into Preferred Shares (or Equivalent Preferred Shares)), at a purchase price per share of Preferred Shares or Equivalent Preferred Shares (or having a conversion price per Preferred Share or Equivalent Preferred Share, if a security is convertible into Preferred Shares or Equivalent Preferred Shares) less than the current market price per share of Preferred Share (determined in accordance with Section 11(d) hereof) determined as of such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of Preferred Shares outstanding on such record date plus the number of Preferred Shares and/or Equivalent Preferred Shares which the aggregate minimum offering price of the total number of one one-hundredths of a Preferred Share and/or per Equivalent Preferred Share so to be offered (and/or the aggregate minimum conversion price of such convertible securities so to be offered) would purchase at such current market price and the denominator of which shall be the number of Preferred Shares outstanding on such record date plus the maximum number of additional Preferred Shares and/or Equivalent Preferred Shares to be offered for subscription or purchase (or the maximum number of shares into which such convertible securities so to be offered are convertible). In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, for purposes of this Section 11(b) the value of such consideration shall be the fair market value thereof as determined in good faith by the Directors of the Corporation (which determination shall be described in an Officers’ Certificate filed with the Rights Agent). Preferred Shares owned by or held for the account of the Corporation shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed (subject, however, to such other adjustments as are provided herein).

 

(c) In the event that the Corporation shall after the Declaration Date fix a record date for the making of a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger or share exchange in which the Corporation is the surviving or continuing entity) of evidences of indebtedness, cash (other than regular quarterly cash dividends), other property (other than a dividend payable in a number of one one-hundredths of a Preferred Share, but including any dividend payable in shares other than Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, of which the numerator shall be the current market price per Preferred Share (as defined in Section 11(d) hereof) determined as of such record date, less the fair market value, as determined in good faith by the Directors of the Corporation (which determination shall be described in an Officers’ Certificate filed with the Rights Agent) of that portion of such evidences of indebtedness, such other property and/or such subscription rights or warrants applicable to one Preferred Share and of which the denominator shall be such current market price per Preferred Share. Such adjustments shall be made successively whenever such a record date is fixed; and in the event such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed (subject, however, to such other adjustments as are provided herein).

(d) For the purposes of any computation hereunder, the “current market price” per share (or unit) of any security on any date shall be deemed to be the average of the daily Closing Price of such security for the 20 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current market price per share of such security is determined during a period following or including the announcement by the issuer of such security of (i) a dividend or distribution on such security payable in shares (or units) of such security or securities convertible into shares (or units) of such security or (ii) any subdivision, combination or reclassification of such security, and prior to the expiration of 20 Trading Days after (A) the ex-dividend date for such dividend or distribution, or (B) the record date for such subdivision, combination or reclassification, as the case may be, then, and in each such case, the “current market price” shall be the Closing Price of such security on the last day of such 20 Trading Day period. The term “Trading Day” shall mean a day on which the principal national securities exchange on which such security is listed or admitted to trading is open for the transaction of business or, if such security is not listed or admitted to trading on any national securities exchange, a Business Day. For purposes of this Agreement, the “Closing Price” of any security on any day shall be the last sale price, regular way, with respect to shares (or units) of such security, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, with respect to such security, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange; or, if such security is not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such security is listed or admitted to trading; or, if such security is not so listed or admitted to trading, the last quoted price with respect to shares (or units) of such security, or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market with respect to shares (or units) of such security, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System or such other similar system then in use; or, if on any such date such security is not quoted by any such organization, the average of the closing bid and asked prices with respect to shares (or units) of such security, as furnished by a professional market maker making a market in such security selected by the Directors of the Corporation in good faith; or, if no such market maker is available, the fair market value of shares (or units) of such security as of such day as determined in good faith by the Directors of the Corporation (which determination shall be described in an Officers’ Certificate filed with the Rights Agent); provided, however, that if the Closing Price of a Preferred Share as of any Trading Day cannot be reasonably determined by the foregoing provisions, the “Closing Price” of one one-hundredth of a Preferred Share on such Trading Day shall be the average of the Closing Prices of a Class A Common Share and an Original Common Share on such Trading Day.

 

(e) No adjustment in the Purchase Price shall be required unless adjustment would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this Section 11(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent or to the nearest (x) ten-thousandth of a Common Share or securities other than Preferred Shares or Equivalent Preferred Shares or (y) one-millionth of a Preferred Share or Equivalent Preferred Share. Notwithstanding the first sentence of this Section 11(e), any adjustment required by this Section 11 hereof shall be made no later than the earlier of (i) three years from the date of the transaction which mandates the adjustment or (ii) the Expiration Date.

 

(f) In the event that at any time, as a result of an adjustment made in respect of a Common Share Event, the holder of any Right thereafter exercised shall become entitled to receive any shares of capital stock of the Corporation other than Preferred Shares, thereafter the number of such other shares so receivable upon exercise of any Right shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to such other shares contained in Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m) hereof, and the provisions of Sections 7, 9, 10, 11(d) and 13 hereof with respect to the Preferred Shares shall apply on like terms to any such other shares.

 

(g) All Right Certificates originally issued by the Corporation subsequent to any adjustment made to the Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the number of one one-hundredths of a Preferred Share purchasable from time to time hereunder upon exercise of the Rights represented thereby, all subject to further adjustment as provided herein.

 

(h) Unless the Corporation shall have exercised its election as provided in Section 11(i) hereof, upon each adjustment of the Purchase Price as a result of the calculations made pursuant to Sections 11(b) and 11(c) hereof, each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of one one-hundredths of a Preferred Share (calculated to the nearest one-millionth) obtained by (i) multiplying (x) the number of one one-hundredths of a Preferred Share covered by a Right immediately prior to this adjustment by (y) the Purchase Price in effect immediately prior to such adjustment and (ii) dividing the product so obtained by the Purchase Price in effect immediately after such adjustment of the Purchase Price.

 

(i) The Corporation may elect on or after the date of any adjustment of the Purchase Price to adjust the number of Rights in substitution for any adjustment in the number of one one-hundredths of a Preferred Share purchasable upon the exercise of a Right. Each of the Rights outstanding after such adjustment of the number of Rights shall be exercisable for the number of one one-hundredths of a Preferred Share for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest ten-thousandth) obtained by dividing (x) the Purchase Price in effect immediately prior to such adjustment by (y) the Purchase Price in effect immediately after such adjustment of the Purchase Price. The Corporation shall make a public announcement (with prompt written notice thereof to the Rights Agent) of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Right Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Right Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 11(i) the Corporation shall, as promptly as practicable, cause to be distributed to holders of record of Right Certificates on such record date Right Certificates evidencing, subject to Section 14 hereof, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Corporation, shall cause to be distributed to such holders of record in substitution and replacement for the Right Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Corporation, new Right Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Right Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein (and may bear, at the option of the Corporation, the adjusted Purchase Price) and shall be registered in the names of the holders of record of Right Certificates on the record date specified in the public announcement.

(j) Irrespective of any adjustment or change in the Purchase Price or the number of Preferred Shares issuable upon exercise of such Rights, the Right Certificates theretofore and thereafter issued may continue to express the Purchase Price per one one-hundredth of a Preferred Share and such number of one one-hundredths of a Preferred Share which were expressed in the initial Right Certificates issued hereunder.

 

(k) Before taking any action that would cause an adjustment reducing the Purchase Price below the then par value of the Preferred Shares times a fraction the numerator of which is the number of one one-hundredths of a Preferred Share issuable upon exercise of the Rights and the denominator of which is one hundred, the Corporation shall take any corporate action which may, in the opinion of its counsel, be necessary in order that the Corporation may validly and legally issue fully paid and nonassessable such number of one one-hundredths of a Preferred Share at such adjusted Purchase Price.

 

(l) In any case in which this Section 11 shall require that an adjustment in the Purchase Price be made effective as of a record date for a specified event, the Corporation may elect to defer (with prompt written notice thereof to the Rights Agent) until the occurrence of such event the issuing to the holder of any Right exercised after such record date the number of one one-hundredths of a Preferred Share and other beneficial shares or securities of the Corporation, if any, issuable upon such exercise over and above the number of one one-hundredths of a Preferred Share and other beneficial shares or securities of the Corporation, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment; provided, however, that the Corporation shall deliver to such holder a due bill or other appropriate instrument evidencing such holder’s right to receive such additional securities upon the occurrence of the event requiring such adjustment.

 

(m) Anything in this Section 11 to the contrary notwithstanding, the Corporation shall be entitled to make such reductions in the Purchase Price, in addition to those adjustments expressly required by this Section 11, as and to the extent that it, by means of a resolution of the Directors acting in good faith, shall determine to be advisable in order that any consolidation or subdivision of the Preferred Shares, issuance wholly for cash of any Preferred Shares at less than the current market price thereof, issuance wholly for cash of Preferred Shares or other securities which by their terms are convertible into or exchangeable for Preferred Shares, share dividends or issuance of rights, options or warrants referred to hereinabove in this Section 11, hereafter made or declared by the Corporation to the holders of its Preferred Shares, shall not be taxable to such holders or shall reduce the taxes payable by such holders.

 

(n) The Corporation covenants and agrees that it shall not at any time after the Distribution Date, (i) consolidate with any other Person (other than a Subsidiary of the Corporation in a transaction which complies with Section 11(p) hereof), (ii) merge with or into, or consummate a share exchange with, any other Person (other than a Subsidiary of the Corporation in a transaction which complies with Section 11(p) hereof) or (iii) sell or transfer (or permit any Subsidiary to sell or transfer), in one transaction or a series of related transactions, assets or earning power aggregating more than 50% of the assets (taken at asset value as stated on the books of the Corporation determined in accordance with generally accepted accounting principles consistently applied) or earning power of the Corporation (on an individual basis) or the Corporation and its Subsidiaries (on a consolidated basis) to any other Person or Persons (other than the Corporation or any of its Subsidiaries in one or more transactions each of which complies with Section 11(p) hereof), if at the time of or immediately after such consolidation, merger, share exchange or sale there are any rights, warrants or other instruments or securities outstanding or agreements or arrangements in effect which would substantially diminish or otherwise eliminate the benefits intended to be afforded by the Rights.

(o) Anything in this Agreement to the contrary notwithstanding, in the event that the Corporation shall at any time after the Declaration Date and prior to the Distribution Date (i) declare a dividend on the outstanding Common Shares payable in Common Shares, (ii) subdivide the outstanding Common Shares, (iii) combine the outstanding Common Shares into a smaller number of shares or (iv) issue any of its beneficial shares in a reclassification of the outstanding Common Shares (including any such reclassification in connection with a consolidation or merger or share exchange in which the Corporation is the continuing or surviving entity), the number of Rights associated with each Common Share or other such beneficial shares then outstanding, or issued or delivered thereafter but prior to the Distribution Date, shall be proportionately adjusted so that the number of Rights thereafter associated with each Common Share or other such beneficial shares following any such event shall equal the result obtained by multiplying the number of Rights associated with each Common Share immediately prior to such event by a fraction the numerator of which shall be the total number of Common Shares outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of Common Shares outstanding immediately following the occurrence of such event.

(a) The Corporation shall not be required to issue fractions of Rights or to distribute Right Certificates which evidence fractional Rights. In lieu of issuing such fractional Rights, there may, at the option of the Corporation, be paid to the registered holders of the Rights with regard to which such fractional Rights would otherwise be issuable, an amount in cash equal to the same fraction of the current market value of a whole Right. For the purposes of this Section 14(a) the current market value of a whole Right shall be the Closing Price of the Rights for the Trading Day immediately prior to the date on which such fractional Rights would have been otherwise issuable.

 

(b) The Corporation shall not be required to issue fractions of shares of its beneficial interests upon exercise of the Rights or to distribute certificates which evidence fractional shares (other than, in each case with respect to Preferred Shares or Equivalent Preferred Shares, fractions which are integral multiples of one one-hundredth of a Preferred Share or Equivalent Preferred Share, as the case may be). In lieu of fractional shares, there may, at the option of the Corporation, be paid to the registered holders of Rights at the time such Rights are exercised as herein provided an amount in cash equal to the same fraction of the current market value of a share of its beneficial interests. For purposes of this Section 14(b), the current market value of a share of such beneficial interests shall be the Closing Price of such shares of beneficial interests for the Trading Day immediately prior to the date of such exercise.

Every holder of a Right by accepting the same consents and agrees with the Corporation and the Rights Agent and with every other holder of a Right that:

 

(a) prior to the Distribution Date, the Rights will be transferable only in connection with the transfer of Common Shares;

 

(b) after the Distribution Date, the Right Certificates are transferable only on the registry books of the Rights Agent if surrendered at the office of the Rights Agent designated for such purpose, duly endorsed or accompanied by a proper instrument of transfer;

 

(c) the Corporation and the Rights Agent may deem and treat the person in whose name a Right Certificate (or, prior to the Distribution Date, the associated Common Share certificate) is registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any notations of ownership or writing on the Right Certificates, or, prior to the Distribution Date, the associated Common Share certificates, made by anyone other than the Corporation or the Rights Agent) for all purposes whatsoever, and neither the Corporation nor the Rights Agent shall be affected by any notice to the contrary; and

 

(d) notwithstanding anything in this Agreement to the contrary, neither the Corporation nor the Rights Agent shall have any liability to any holder of a Right or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority prohibiting or otherwise restraining performance of such obligation; provided, however, the Corporation must use its best efforts to have any such order, decree or ruling lifted or otherwise overturned.

No holder, as such, of any Right shall be entitled to vote, receive dividends or otherwise be deemed for any purpose the holder of any securities of the Corporation which may be issuable on the exercise of the Rights represented thereby, nor shall anything contained herein or in any Right Certificate be construed to confer upon the holder of any Right Certificate, as such, any of the rights of a shareholder of the Corporation or any right to vote in the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting shareholders (except as provided in Section 24), or to receive dividends or preemptive rights, or otherwise, until the time specified in Section 10 hereof.

The Rights Agent undertakes only the duties and obligations expressly imposed upon it by this Agreement and no implied duties or obligations shall be read into this Agreement against the Rights Agent. The Rights Agent shall perform its duties and obligations hereunder upon the following terms and conditions:

 

(a) The Rights Agent may consult with legal counsel of its selection (who may be legal counsel to the Corporation), and the advice or opinion of such counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken or omitted by it in good faith and in accordance with such advice or opinion.

 

(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person) be proved or established by the Corporation prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate (an “Officers’ Certificate”) signed by the Chairman of the Corporation, the President or any Vice President and by the Treasurer or any Assistant Treasurer or the Secretary or any Assistant Secretary of the Corporation and delivered to the Rights Agent, provided, however, that so long as any Person is an Acquiring Person hereunder, such Officers’ Certificate shall be signed and delivered by a majority of the Directors; and such Officers’ Certificate shall be full and complete authorization to the Rights Agent for any action taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such Officers’ Certificate.

 

(c) The Rights Agent shall be liable hereunder only for its own gross negligence, bad faith or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction).  Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for special, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage.

 

(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Right Certificates (except its countersignature on such Right Certificate) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Corporation only.

(e) The Rights Agent shall not have any liability for or be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution hereof by the Rights Agent) or in respect of the validity or execution of any Right Certificate (except its countersignature thereof); nor shall it be responsible for any breach by the Corporation of any covenant or condition contained in this Agreement or in any Right Certificate; nor shall it be responsible for any adjustment required under the provisions of Sections 11 or 13 hereof or responsible for the manner, method or amount of any such adjustment or procedures or the ascertaining of the existence of facts that would require any such adjustment or procedures (except with respect to the exercise of Rights evidenced by Right Certificates after the Rights Agent’s actual receipt of an Officers’ Certificate describing any such adjustment or procedures); nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Preferred Shares or other securities to be issued pursuant to this Agreement or any Right Certificate or as to whether any number of one one-hundredths of a Preferred Share, or any shares or similar units of other securities, will, when issued, be validly authorized and issued, fully paid and nonassessable, nor shall the Rights Agent be responsible for the legality of the terms hereof in its capacity as an administrative agent.

 

(f) The Corporation agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.

 

(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chairman of the Corporation, the President or any Vice President or the Secretary or any Assistant Secretary or the Treasurer or any Assistant Treasurer of the Corporation, and to apply to such officers for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer. Any application by the Rights Agent for written instructions from the Corporation may, at the option of the Rights Agent, set forth in writing, any action proposed to be taken or omitted by the Rights Agent with respect to its duties or obligations under this Rights Agreement and the date on and/or after which such action shall be taken or omitted, and the Rights Agent shall not be liable for any action taken or omitted in accordance with a proposal included in any such application on or after the date specified therein (which date shall not be less than three Business Days after the date any such officer of the Corporation actually receives such application, unless any such officer shall have consented in writing to an earlier date) unless, prior to taking or omitting any such action, the Rights Agent has received in response to such application written instructions specifying the action to be taken or omitted.

 

(h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or other securities of the Corporation or become pecuniarily interested in any transaction in which the Corporation may be interested, or contract with or lend money to the Corporation or otherwise act as fully and freely as though it were not Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Corporation or for any other entity.

(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Corporation resulting from any such act, default, neglect or misconduct, provided reasonable care was exercised in the selection thereof.

 

(j) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.

 

(k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certification appearing on the reverse side thereof following the form of election to purchase has either not been completed or indicates an affirmative response to clause 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise of transfer without first consulting with the Corporation.

 

(l) In addition to the foregoing, the Rights Agent shall be fully protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement if such acts or omissions are in reliance upon (i) the proper execution of the certification concerning beneficial ownership appended to the form of assignment and the form of election to purchase attached hereto unless the Rights Agent shall have actual knowledge that, as executed, such certification is in fact untrue, or (ii) the non-execution of such certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution.

(a) The Directors then in office may, at any time prior to the earlier of (i) the close of business on the tenth Business Day following the date any Person (other than the Corporation, any Subsidiary of the Corporation, any employee benefit plan of the Corporation or of any Subsidiary of the Corporation, any Exempted Person or any Person or entity organized, appointed or established by the Corporation for or pursuant to the terms of any such plan), alone or together with its Affiliates, shall, at any time on or after the Declaration Date, become the Beneficial Owner of 10% or more of the total combined voting power of the Common Shares then outstanding, or (ii) the Expiration Date, at their option, upon the affirmative vote or written consent of not less than a majority of such Directors redeem all (but not less than all) of the then outstanding Rights at a redemption price of $.01 per Right, appropriately adjusted to reflect any share split, share dividend, combination of Common Shares or similar transaction occurring after the Declaration Date (such redemption price being hereinafter referred to as the “Redemption Price”); provided, however, if the Corporation is then restricted or prohibited from paying the Redemption Price in cash, then the Corporation may, at its option, pay the Redemption Price by delivery of such other consideration, including without limitation, Common Shares or units of

 

 

(a) Prior to the Distribution Date and subject to the last sentence of this Section 26(a), the Directors then in office may, upon the affirmative vote or written consent of not less than a majority of such Directors, supplement or amend any provision of this Agreement from time to time without the approval of any holders of certificates representing Common Shares. From and after the Distribution Date and subject to the penultimate sentence of this Section 26(a), the Directors then in office may, upon the affirmative vote or written consent of not less than a majority of such Directors, supplement or amend this Agreement from time to time without the approval of any holders of Right Certificates in order (i) to cure any ambiguity, (ii) to correct or supplement any provision contained herein which may be defective or inconsistent with any other provisions herein, (iii) to shorten or lengthen any time period hereunder, or (iv) to change or supplement the provisions hereunder in any manner which such Directors may deem necessary or desirable and which shall not adversely affect the interests of the holders of Right Certificates (other than an Acquiring Person, an Affiliate of an Acquiring Person or a Disqualified Transferee); provided, however, that this Agreement may not be supplemented or amended to lengthen, pursuant to clause (iii) of this sentence, any time period unless such lengthening is for the purpose of protecting, enhancing or clarifying the rights of, and/or the benefits to, the holders of Rights. Prior to the Distribution Date, the interests of the holders of Rights shall be deemed coincident with the interests of the holders of Common Shares. Notwithstanding anything contained in this Agreement to the contrary, (a) no supplement or amendment shall be made which decreases the Redemption Price, changes the Expiration Date, changes the manner of calculating the Purchase Price, decreases the Purchase Price other than pursuant to Section 11 hereof, decreases the number of one one-hundredths of a Preferred Share for which a Right is exercisable or affects any right vested in the Rights Agent; and (b) the Rights Agent may, but shall not be obligated to, enter into any supplement or amendment that affects the Rights Agent’s own rights, duties, obligations or immunities under this Agreement. Upon the delivery of a certificate from an appropriate officer of the Corporation which states that the proposed supplement or amendment is in compliance with the terms of this Section, the Rights Agent shall execute such supplement or amendment.