EXHIBIT 10.18
URSTADT XXXXXX PROPERTIES INC.
and
THE BANK OF NEW YORK
as Rights Agent
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Amendment to Rights Agreement
Dated as of September 22, 1999
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") dated as of
September 22, 1999, by and between URSTADT XXXXXX PROPERTIES INC., a Maryland
corporation (the "Corporation"), and THE BANK OF NEW YORK, a New York banking
corporation, as Rights Agent (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, the Corporation previously entered into that certain
Rights Agreement, dated as of July 31, 1998 (the "Rights Agreement"), by and
between the Corporation and the Rights Agent, whereby the Board of Directors of
the Corporation (the "Board") authorized the issuance of, and agreed to issue,
one right (as such number may be appropriately adjusted) to purchase one
one-hundredth of a share of the Corporation's Series A Participating Preferred
Shares in respect of every share of the Corporation's Common Stock, par value
$.01 per share (the "Original Common Shares"), and every share of the
Corporation's Class A Common Stock, par value $.01 per share (the "Class A
Common Shares"), outstanding as of the close of business on November 13, 1998
(collectively, the "Rights," and individually a "Right");
WHEREAS, the Maryland legislature has amended the Corporations
and Associations Article of the Maryland Code to authorize Maryland corporations
to, inter alia, adopt certain provisions in connection with rights plans, which
provisions would have the effect of limiting for a period not to exceed 180 days
the power of certain directors to vote for the redemption of the Rights and/or
the amendment of the Rights Agreement (the "Newly Authorized Provisions");
WHEREAS, the Board has accordingly determined that it is
advisable and in the best interests of the Corporation and its shareholders to
amend the Rights Agreement to include the Newly Authorized Provisions, as well
as certain other provisions related to the protection of the Corporation and its
shareholders; and
WHEREAS, in furtherance of the foregoing, the Corporation
desires to amend the Rights Agreement as set forth herein, effective as of the
date hereof.
NOW, THEREFORE, the parties hereby agree as follows:
Article I
DEFINITIONS AND INTERPRETATION
Except as otherwise defined or expressly provided herein, capitalized
terms shall have the respective meanings attributed thereto in the Rights
Agreement. On or after the date hereof, each reference in the Rights Agreement
to the "Agreement," "hereunder," "hereof," "herein," "hereby," or words of like
import shall mean and be a reference to the Rights Agreement, as amended by this
Amendment.
Article II
AMENDMENTS TO THE RIGHTS AGREEMENT
2.01 Amendment to Section 1. Section 1 of the Rights Agreement is hereby amended
by adding the following definition in alphabetical order among the existing
definitions:
"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 or (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."
2.02 Amendment to Section 11(a)(i). The parenthetical phrase in the first
sentence of Section 11(a)(i) of the Rights Agreement is hereby amended to read
as follows:
"(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)".
2.03 Amendment to Section 11(a)(ii)(C). Section 11(a)(ii)(C) of the Rights
Agreement is hereby amended by inserting "or share exchange" following the
phrase "any merger or consolidation".
2.04 Amendment to Section 11(a)(iii). The parenthetical phrase of the
penultimate sentence of Section 11(a)(iii) of the Rights Agreement is hereby
amended to read as follows:
"(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 Company with the result that Continuing Directors do
not constitute a majority of the Board of Directors of the Company, no
such exception shall be made by the Directors until the 180th day
following the effectiveness of such election)".
2.05 Amendment to Section 11(c). Section 11(c) of the Rights Agreement is hereby
amended by inserting "or share exchange" following the phrase "in connection
with a consolidation or merger".
2.06 Amendments to Section 11(n). Section 11(n) of the Rights Agreement is
hereby amended as set forth below.
(a) Clause (ii) of Section 11(n) is hereby amended to read as follows:
"(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".
(b) Clause (iii) of Section 11(n) is hereby amended by inserting
", share exchange" following the phrase "after such
consolidation, merger".
2.07 Amendment to Section 11(o). Clause (iv) of Section 11(o) of the Rights
Agreement is hereby amended by inserting "or share exchange" following the
phrase "in connection with a consolidation or merger".
2.08 Amendments to Section 13. Section 13 of the Rights Agreement is hereby
amended as set forth below.
(a) The heading to Section 13 is hereby amended to read as follows:
SECTION 13. CONSOLIDATION, MERGER, SHARE EXCHANGE OR SALE OR TRANSFER OF
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ASSETS OR EARNING POWER."
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(b) The first paragraph of Section 13 is hereby amended by
inserting "following the Share Acquisition Date," following
the phrase "In the event that,".
(c) Clause (a) of the first paragraph of Section 13 is hereby
amended by inserting "or consummate a share exchange with"
after the phrase "or merge with or into,".
(d) Clause (b) of the first paragraph of Section 13 is hereby
amended to read as follows:
"(b) any Person (other than a Subsidiary of the
Corporation in a transaction which complies with
Section 11(p) hereof) shall consolidate with, or
merge with and into or consummate a share exchange
with the Corporation, the Corporation shall be the
continuing or surviving entity of such consolidation
or merger or share exchange and, in connection with
such consolidation or merger or share exchange, all
or part of the Original Common Shares of the
Corporation shall be changed or otherwise transformed
into stock or other securities of any other Person or
the Corporation or cash or any other property or".
(e) Clause (i)(y) of the first paragraph of Section 13 is hereby
amended by inserting "share exchange," following the phrase
"of such consolidation, merger,".
(f) Clause (ii) of the first paragraph of Section 13 is hereby
amended by inserting "share exchange," following the phrase
"of such consolidation, merger,".
(g) The penultimate paragraph of Section 13 is hereby amended by
inserting "share exchange," after the phrase "any such
consolidation, merger,".
2.09 Amendments to Section 23. Section 23 of the Rights Agreement is hereby
amended as set forth below.
(a) Section 23 is hereby amended by inserting "(a)" at the beginning of
the text therof.
(b) Section 23 is hereby amended by inserting a new Section 23(b) to read
as follows:
"(b) Notwithstanding the provision of Section 23(a),
in the event that shareholder action at an annual or
special meeting of shareholders is taken to elect a
Director or Directors of the Company with the result
that Continuing Directors do not constitute a
majority of the Board of Directors of the Company,
then until the 180th day following the effectiveness
of such election, the Rights shall not be redeemed."
2.10 Amendment to Section 24. Clause (d) of Section 24 of the Rights Agreement
is hereby amended by inserting "or share exchange with" following the phrase
"any consolidation or merger into or with".
2.11 Amendments to Section 26. Section 26 of the Rights Agreement is hereby
amended as set forth below.
(a) Section 26 is hereby amended by inserting "(a)" at the beginning of
the text thereof.
(b) Section 26 is hereby amended by inserting "(a)" following all
references to Section 26.
(c) Section 26 is hereby amended by inserting a new Section 26(b) to read
as follows:
"(b) Notwithstanding the provision of Section 26(a),
in the event that shareholder action at an annual or
special meeting of shareholders is taken to elect a
Director or Directors of the Company with the result
that Continuing Directors do not constitute a
majority of the Board of Directors of the Company,
then until the 180th day following the effectiveness
of such election, this Agreement shall not be
supplemented or amended in any manner."
Article III
MISCELLANEOUS
3.01 Binding Effect. This Amendment shall bind and inure to the benefit
of the respective successors andpermitted assigns of the parties.
3.02 Counterparts. This Amendment may be executed in any number of counterparts
or counterpart signature pages, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same agreement and shall
become binding upon the parties when each party has executed at least one
counterpart.
3.03 Severability. Whenever possible, each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Amendment shall be unenforceable or invalid under
applicable law, such provision shall be ineffective only to the extent of such
enforceability or invalidity, and the remanining provisions of the Amendment
shall continue to be binding and in full force and effect. In the event that all
or any part of a provision of this Amendment shall be unenforceable or invalid
under applicable law, the parties agree to negotiate in good faith another
provision which is as similar as possible in terms and effect to the first
mentioned provision but which is enforceable and valid.
3.04 Governing Law. This Amendment shall be governed by and construed
and enforced in accordance with the laws of the State of New York applicable
to agreements made and to be performed entirely within the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, all as of the day and year first above written.
URSTADT XXXXXX PROPERTIES INC.
By: _____________________________
Name:
Title:
THE BANK OF NEW YORK, as Rights Agent
By: _____________________________
Name:
Title:
