Exhibit (10)(iii)(A)(2)
CINCINNATI BELL
INC.
DEFERRED COMPENSATION PLAN FOR
OUTSIDE DIRECTORS
(As amended and restated effective
as of January 1, 2005)
1. Introduction to Plan
.
1.1 Name and Sponsor of
Plan . The name of
this Plan is the Cincinnati Bell Inc. Deferred Compensation Plan
for Outside Directors, and its sponsor is CBI.
1.2 Purpose of Plan
. The purpose of the Plan
is to provide deferred compensation for the Outside Directors of
CBI.
1.3 Effective Amendment Date
of Plan and Effect of Plan On Prior Deferrals .
(a) Deferred Compensation
Subject To Following Terms of This Document .
In order to conform the Plan to the
requirements of the American Jobs Creation Act of 2004, this
document amends and restates the Plan effective as of the Effective
Amendment Date (January 1, 2005). The provisions of sections 2
through 9 hereof apply to but only to:
(1) amounts that are attributable to
compensation that is deferred under section 3 hereof on or after
the Effective Amendment Date;
(2) amounts that are attributable to
compensation that was deferred under the provisions of the Prior
Plan prior to the Effective Amendment Date but was not earned and
vested (within the meaning of Section 1.409A-6(a)(2) of the
Treasury Regulations) prior to the Effective Amendment Date;
and
(3) amounts that are attributable to
compensation that was deferred under the provisions of the Prior
Plan prior to the Effective Amendment Date and was earned and
vested (within the meaning of Section 1.409A-6(a)(2) of the
Treasury Regulations) prior to the Effective Amendment Date, but
only if the provisions of the Prior Plan that apply to any such
compensation are materially modified (within the meaning of
Section 1.409A-6(a)(4) of the Treasury Regulations). This
document does not by itself materially modify such
provisions.
(b) Effective Date of
Following Terms of This Document When Applied To Pre-Effective
Amendment Date Deferred Compensation . Any amounts described in paragraph (a)(2) and
(3) of this subsection 1.3 shall, beginning as of the
Effective Amendment Date, be subject to the terms of sections 2
through 9 hereof as if this document had been in effect at the time
that such amounts were originally deferred under the provisions of
the Prior Plan.
(c) Incorporation of Terms of
Prior Plan . Notwithstanding any other provision of the
Plan, except as provided in paragraph (a)(2) and (3) of this
subsection 1.3, all rules (including rules as to assumed
investments and distributions) that relate to amounts deferred
under the Prior Plan, adjusted by assumed earnings and losses
thereon as determined under the provisions of the Prior Plan, shall
be governed solely by the terms of the Prior Plan (which terms are
incorporated herein by reference).
2. General Definitions
. For all purposes of the
Plan, the following terms shall have the meanings hereinafter set
forth, unless the context clearly indicates otherwise.
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2.1 “Account” means,
with respect to any Participant, the bookkeeping account maintained
for the Participant under the terms of this Plan and to which
amounts are credited or otherwise allocated under section 4 hereof
in order to help determine the Participant’s benefits under
the Plan.
2.2 “Beneficiary” means,
with respect to any Participant, the person or entity designated by
the Participant, on forms furnished and in the manner prescribed by
the Committee, to receive any benefit payable under the Plan after
the Participant’s death. If a Participant fails to designate
a beneficiary or if, for any reason, such designation is not
effective, his or her “Beneficiary” shall be deemed to
be his or her surviving spouse or, if none, his or her
estate.
2.3 “Board” means the
Board of Directors of CBI.
2.4 “CBI” means
Cincinnati Bell Inc. (and, except for purposes of determining
whether a Change in Control has occurred, any legal successor to
Cincinnati Bell Inc. that results from a merger or similar
transaction).
2.5 “Change in Control”
means the occurrence of any of the events described in paragraphs
(a), (b), and (c) of this subsection 2.5. All of such events
shall be determined under and, even if not so indicated in the
following paragraphs of this subsection 2.5, shall be subject to
all of the terms of Section 1.409A-3(i)(5) of the Treasury
Regulations.
(a) A change in the ownership of CBI
(within the meaning of Section 1.409A-3(i)(5)(v) of the
Treasury Regulations). In very general terms,
Section 1.409A-3(i)(5)(v) of the Treasury Regulations provides
that a change in the ownership of CBI occurs when a person or more
than one person acting as a group acquires outstanding voting
securities of CBI that, together with stock held by such person or
group, constitutes more than 50 percent of the total fair market
value or total voting power of the stock of CBI.
(b) A change in the effective
control of CBI (within the meaning of
Section 1.409A-3(i)(5)(vi) of the Treasury Regulations). In
very general terms, Section 1.409A-3(i)(5)(vi) of the Treasury
Regulations provides that a change in the effective control of CBI
occurs either:
(1) when a person or more than one
person acting as a group acquires (or has acquired during the
twelve-month period ending on the date of the most recent
acquisition by such person or persons) ownership of stock of CBI
possessing 30% or more of the total voting power of the stock of
CBI; or
(2) when a majority of members of
the Board is replaced during any twelve-month period by directors
whose appointment or election is not endorsed by a majority of the
members of the Board prior to the date of the appointment or
election.
(c) A change in the ownership of a
substantial portion of the assets of CBI (within the meaning of
Section 1.409A-3(i)(5)(vii) of the Treasury Regulations). In
very general terms, Section 1.409A-3(i)(5)(vii) of the
Treasury Regulations provides that a change in the ownership of a
substantial portion of the assets of CBI occurs when a person or
more than one person acting as a group acquires (or has acquired
during the twelve-month period ending on the
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date of the most recent acquisition by such
person or persons) assets from CBI that have a total gross fair
market value equal to or more than 40% of the total gross fair
market value of all of the assets of CBI immediately prior to such
acquisition or acquisitions.
2.6 “Code” means the
Internal Revenue Code of 1986, as it exists as of the Effective
Amendment Date and as it may thereafter be amended. A reference to
a specific section of the Code shall be deemed to be a reference
both (i) to the provisions of such section as it exists as of
the Effective Amendment Date and as it is subsequently amended,
renumbered, or superseded (by future legislation) and (ii) to
the provisions of any section of the Treasury Regulations that is
issued under such section.
2.7 “Committee” means
the committee appointed to administer the Plan under the provisions
of subsection 6.1 hereof.
2.8 “Common Shares”
means common shares, par value $0.01 per share, of CBI.
2.9 “Credited Service”
shall mean, with respect to any Participant, his or her active
service as an Outside Director, including service as an Outside
Director prior to the Effective Amendment Date. One year of
Credited Service shall be given for each twelve full months of
active service as an Outside Director, whether or not consecutive.
A fraction of a year of Credited Service shall be rounded up or
down to the nearest whole year.
2.10 “Effective Amendment
Date” means January 1, 2005.
2.11 “Other Fee” shall
mean, with respect to any Outside Director, any fee for the Outside
Director established by the Board for attending Board or committee
meetings or for serving as a chair of a Board committee, but shall
not include a Retainer or expense reimbursements. An Other Fee
payable for any meeting is earned on the date of the meeting (if
the Outside Director attends such meeting). An Other Fee payable
for serving as a chair of a Board committee is earned by the
Outside Director on a quarterly basis (regardless of whether or not
the Board fixes such fee for an annual period or refers to it as an
annual fee), with such fee payable for any quarter being earned on
the first day of such quarter (if the Outside Director serves as a
chair of a Board committee on such day).
2.12 “Outside Director”
shall mean any member of the Board who is not an employee of CBI
(or any other member of CBI’s controlled group, as such term
is defined in section 9.4(c) hereof), but shall not include any
person serving as Director Emeritus.
2.13 “Participant” means
a person who as an Outside Director has any amounts credited to an
Account established for him or her under this Plan. Such person
shall remain a Participant until the amounts allocated to his or
her Account have been fully paid and/or forfeited, as the case may
be.
2.14 “Plan” means the
Cincinnati Bell Inc. Deferred Compensation Plan for Outside
Directors. This document amends and restates the Plan effective as
of the Effective Amendment Date to the extent indicated by
subsection 1.3 hereof.
2.15 “Prior Plan” means
the versions of the Plan that were in effect before the Effective
Amendment Date.
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2.16 “Retainer” shall
mean, with respect to any Outside Director, the annual fee for
serving as an Outside Director that is established by the Board,
but shall not include meeting fees, fees for serving as a chair of
a Board committee, or expense reimbursements. A Retainer is earned
by an Outside Director on a quarterly basis (regardless of whether
or not the Board fixes the Retainer for an annual period or refers
to it as an annual retainer), with the Retainer payable for any
quarter being earned on the first day of such quarter (if the
Outside Director is a member of the Board on such day).
2.17 “Tax Year” means,
with respect to any Outside Director, the Outside Director’s
taxable year for federal income tax purposes. Unless CBI or the
Committee is notified otherwise by the Outside Director, CBI and
the Committee may assume for purposes of this Plan that an Outside
Director’s Tax Year is a calendar year.
2.18 “Treasury
Regulations” means all final regulations issued by the U.S.
Department of the Treasury under the Code, as such regulations
exist as of the date on which this document is executed on its
final page by an officer or representative of CBI and as they are
subsequently amended, renumbered, or superseded. A reference to a
specific section or paragraph of the Treasury Regulations shall be
deemed to be a reference to the provisions of such section or
paragraph as it exists as of the date on which this document is
executed on its final page by an officer or representative of CBI
and as it is subsequently amended, renumbered, or
superseded.
3. Deferral Elections
.
3.1 Election of Deferrals of
Retainer and Other Fees .
(a) Initial Deferral
Election .
(1) Subject to such administrative
rules as the Committee may prescribe, an Outside Director may elect
for any Tax Year (for purposes of this paragraph (a), the
“subject Tax Year”), by completing a deferral form or
forms and filing such form or forms with the Committee but not in
any event after the last day of the immediately preceding Tax Year
(or, if the subject Tax Year is the Tax Year in which he or she
first becomes an Outside Director, not in any event beyond 30 days
after the date on which he or she first becomes an Outside
Director), to defer the receipt of any whole percent (up to 100%)
of his or her Retainer and/or Other Fees that are earned by him or
her in the subject Tax Year (and also, if the subject Tax Year is
the Tax Year in which he or she first becomes an Outside Director,
that are earned by him or her after his or her deferral election is
filed with the Committee).
(2) Subject to such administrative
rules as the Committee may prescribe, an Outside Director may
change, or terminate and thereby void, any deferral election that
he or she has made for the subject Tax Year under the provisions of
subparagraph (1) of this paragraph (a), by completing an
appropriate form and filing such form with the Committee, up to but
not after the latest day by which he or she could still make a
deferral election for the subject Tax Year under the provisions of
subparagraph (1) of this paragraph (a) (and provided
that, if the subject Tax Year is the Tax Year in which he or she
first becomes an Outside Director, prior to his or her initial
deferral election being used to defer the receipt of any Retainer
or Other Fees of the Outside Director).
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3.2 Special Pre-March 15,
2005 Deferral Election Right . Notwithstanding any other provision of the Plan
and pursuant to and in accordance with the terms of Q&A-21 of
Internal Revenue Service Notice 2005-1, the requirements of
subsection 3.1 hereof relating to the timing of deferral elections
shall not be applicable to any election that is made by an Outside
Director on or before March 15, 2005 to defer the receipt of
any Retainer or Other Fees that both are subject to the terms of
this Plan under the provisions of subsection 1.3 hereof and relates
to services performed by the Outside Director on or before
December 31, 2005, provided that (i) the Retainer or
Other Fees to which the deferral election relates has not or had
not been paid or become payable by the time of the election and
(ii) the election to defer is or was made in accordance with
the terms of the Plan or the Prior Plan that at the time of the
election were then in effect.
4. Maintenance and Valuation
of Account .
4.1 Account .
An Account shall be established for
each Participant in accordance with the following paragraphs of
this subsection 4.1 to reflect the amounts of (i) his or her
Retainer and/or Other Fees that are to be credited to such Account
under the provisions of paragraph (a) of this subsection 4.1,
(ii) all other credits to be made to such Account under the
provisions of paragraphs (b) and (c) of this subsection
4.1, and (iii) the assumed investment of such amounts. The
Committee shall create subaccounts under any Participant’s
Account to the extent needed administratively ( e.g. , to
account for different distribution rules that apply to different
portions of the Participant’s Account). For purposes of this
Plan, the net investment returns and losses of the assumed
investment of any credits made to a Participant’s Account
shall be deemed to be “attributable” to the portion of
such Account that reflects such credits.
(a) Crediting To Account of
Deferred Retainer or Other Fees . Subject to such administrative rules as the
Committee may prescribe, any amount of Retainer or Other Fees
deferred by a Participant under the Plan pursuant to the provisions
of section 3 hereof shall be credited to the Account of the
Participant as of the day on which such deferred amount would
otherwise have been paid to the Participant.
(b) Crediting To Account of
Automatic Annual Credit .
(1) As of the first business day of
2005, there shall be credited to the Account of each person who is
an Outside Director on such day an amount equal to the value on
such day of 6,000 Common Shares.
(2) In its discretion but subject to
the other terms of this Plan, the Board may, as of any business day
that occurs in 2006 or any subsequent calendar year (each such day
referred to in this subparagraph (2) as a “credit
day”), credit to the Account of each person who is an Outside
Director on such credit day an amount equal to the value on such
credit day of a number of Common Shares that is set by the Board.
The Board shall exercise its discretion in crediting amounts to the
Accounts of Outside Directors pursuant to the immediately preceding
sentence with the intent that such credited amounts, together with
other compensation that is either paid in the form of Common Shares
or has its value determined in relation to the value of Common
Shares (such credited amounts and such other compensation referred
to in this sentence as “equity-based compensation”) and
taking into account the fair market value of a Common Share when
crediting or providing any such equity-based compensation, provide
equity-based compensation for the Outside Directors that each
applicable year is approximately equal to the median level of the
value of equity-based compensation provided by a group of
comparable peer group companies to their non-employee
directors.
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(c) Special Automatic
Pre-Effective Amendment Date Credits . To the extent but only to the extent that any of
the Account credits described in the following subparagraphs of
this paragraph (c) reflect amounts identified in subsection
1.3(a)(2) and (3) hereof, such following described Account
credits shall be subject to the provisions of sections 2 through 9
of this document. Otherwise, the Account credits described in the
following subparagraphs of this paragraph (c) shall not be
subject to the provisions of sections 2 through 9 of this document
but instead shall, in accordance with the provisions of subsection
1.3(c) hereof, only be subject to the terms of the Prior
Plan.
(1) If the Participant was
participating in the Prior Plan immediately prior to
December 31, 1996, the balance then credited to the
Participant’s account under the Prior Plan, adjusted by
assumed earnings and losses thereon allocated to the
Participant’s account under the Prior Plan from
December 31, 1996 to the Effective Amendment Date, shall be
credited to the Participant’s Account as of the Effective
Amendment Date.
(2) If the Participant was
participating in the Cincinnati Bell Inc. Retirement Plan for
Outside Directors (for purposes of this subparagraph (2), the
“Retirement Plan”) on July 1, 1996, an amount
equal to the present value of the Participant’s accrued
benefit under the Retirement Plan as of December 31, 1996 (as
determined by the Board), adjusted by assumed earnings and losses
thereon allocated to the Participant’s account under the
Prior Plan from December 31, 1996 to the Effective Amendment
Date, shall be credited to the Participant’s Account as of
the Effective Amendment Date. For purposes of this subparagraph
(2), each Participant who was an Outside Director on July 1,
1996 shall be deemed to have been participating in the Retirement
Plan on that date.
(3) If the Participant was an
Outside Director on January 4, 1999, an amount equal to the
value on such date of the number of Common Shares that are produced
by dividing $100,000 (or, in the event the Participant was the
Chairman of the Board on January 4, 1999, $200,000) by the
product of 0.88 and the average of the high and low sale prices on
the New York Stock Exchange of a Common Share for January 4,
1999, adjusted by assumed earnings and losses thereon allocated to
the Participant’s account under the Prior Plan from
January 4, 1999 to the Effective Amendment Date, shall be
credited to the Participant’s Account as of the Effective
Amendment Date.
(4) If the Participant was a
participant in the Prior Plan on December 31, 1998, an amount
equal to the value on December 31, 1998 of a number of common
shares of Convergys Corporation that is the same number as the
number of Common Shares which were assumed to be held in his or her
Prior Plan account on such date, adjusted by assumed earnings and
losses thereon allocated to the Participant’s account under
the Prior Plan from December 31, 1998 to the Effective
Amendment Date, shall be credited to the Participant’s
Account as of the Effective Amendment Date.
(5) If the Participant was an
Outside Director on the first business day of any calendar year
that began on or after January 1, 2000 and ended prior to the
Effective Amendment Date, an amount equal to the value on such day
of 1,500 Common Shares, adjusted by assumed earnings and losses
thereon allocated to the Participant’s account under the
Prior Plan from such day to the Effective Amendment Date, shall be
credited to the Participant’s Account as of the Effective
Amendment Date.
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(d) Assumed Investment of
Account . Any amounts
credited to the Account of a Participant under paragraphs (a), (b),
and/or (c) of this subsection 4.1 shall be assumed to have
been invested in certain investments, and adjusted by reason of
such assumed investments, in accordance with the provisions of
subsection 4.2 hereof.
4.2 Assumed Investments
.
(a) General Rules on Assumed
Investments . At all
times on and after the Effective Amendment Date:
(1) any amounts credited to a
Participant’s Account under the provisions of subsection
4.1(a) hereof and/or the provisions of subsection 4.1(c)(1) hereof
shall be assumed to be invested in the investments designated or
deemed to be designated by the Participant on a form provided by
and filed with the Committee in accordance with the provisions of
paragraph (b) of this subsection 4.2;
(2) any amounts credited to a
Participant’s Account under the provisions of subsection
4.1(b) hereof and/or the provisions of subsection 4.1(c)(2), (3),
and (5) hereof shall be assumed to be invested exclusively in
Common Shares; and
(3) any amounts credited to a
Participant’s Account under the provisions of subsection
4.1(c)(4) hereof shall be assumed to be invested exclusively in
common shares of Convergys Corporation (or exclusively in Common
Shares if an election to that effect was made by the applicable
Participant between February 1, 1999 and February 12,
1999 under the terms of the Prior Plan).
(b) Committee-Designated
Assumed Investment Rules . If and to the extent that any portion of a
Participant’s Account is to be assumed to be invested in the
investments designated or deemed to be designated by the
Participant on a form provided by and filed with the Committee
(under the provisions of paragraph (a)(1) of this subsection 4.2),
then the following subparagraphs of this paragraph (b) shall
apply to such assumed investments.
(1) The Committee shall designate in
notices or other documents provided to Participants a limited
number of “assumed investments” for purposes of the
Plan. Such assumed investments will generally be (but will not be
required to be) limited to mutual funds or similar types of
investments but may and generally will include an assumed
investment in Common Shares. Some or all of the assumed investments
designated for the Plan may be changed by the Committee to other
assumed investments, effective as of any date, in which case prior
written notice of such change shall be provided by the Committee to
all Participants.
(2) The credits to any
Participant’s Account referred to in paragraph (a)(1) of this
subsection 4.2 shall be assumed to have been invested among such
assumed investments, and in such proportions, as is elected in a
writing filed by the Participant with the Committee, except that
any investment direction of the Participant is subject to such
reasonable administrative rules concerning such assumed investment
directions as are adopted or used by the Committee.
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(3) The Participant must elect, on
or before the first date a credit referred to in the provisions of
paragraph (a)(1) of this subsection 4.2 is made to his or her
Account, the assumed investments in which such Account credits are
to be initially assumed to be invested and the proportions of each
credit initially assumed to be invested in each designated assumed
investment. Otherwise, the Participant shall be deemed to have
elected that such Account credits will not be assumed to be
invested in any investment until he or she makes an investment
election under the provisions of this paragraph (b) (or, if
the Committee in its discretion so decides, the Participant shall
be deemed to have elected that such Account credits will be assumed
to be initially invested in an investment or investments chosen by
the Committee).
(4) Further, the Participant may
request a change in the assumed investments of the portion of his
or her Account attributable to the credits referred to in the
provisions of paragraph (a)(1) of this subsection 4.2, and the
proportions of his or her new Account credits referred to in such
provisions, assumed to be invested in each designated investment to
other assumed investments and/or proportions effective as of any
January 1, or as of any other date as the Committee may
provide in its discretion, upon written notice to the Committee
prior to such date (or such earlier date as may be established by
the Committee).
(c) Adjustment of Account for
Assumed Investment Returns and Losses . The amounts credited to any Participant’s
Account shall be adjusted as of each December 31, and as of
such other dates as the Committee may provide in its discretion, to
reflect the assumed investment returns or losses (since the last
prior adjustment in the Account) that are attributable to the
assumed investments in which his or her Account is deemed to be
invested.
4.3 Nonvested Portions of
Account .
(a) Vesting Conditions on
Portions of Account . Notwithstanding any other provision of this
Plan, the right to receive payments with respect to any portion of
the Participant’s Account that is attributable to the credits
made to such Account under the provisions of subsection 4.1(b),
(c)(2), (c)(4), or (c)(5) hereof shall be conditioned on the
Participant either completing at least five years of Credited
Service or dying while a member of the Board. Until and unless the
Participant satisfies such condition, the amounts allocated to any
portion of such Account that is subject to such condition shall be
considered to be “nonvested.”
(b) Effect of Nonvested Status
of Portion of Account . Any portion of the Account of a Participant that
is at any time nonvested under the provisions of paragraph
(a) of this subsection 4.3 shall not in any event, even when
the provisions of section 5 hereof would otherwise permit a
distribution of such Account portion at such time and
notwithstanding any provision of section 5 hereof which may be read
to the contrary, be able to be distributed to the Participant or
any other party claiming through the Participant until such Account
portion is no longer nonvested (and any distribution of such
Account portion otherwise called for under section 5 hereof shall
to the extent necessary be deferred until, and shall be made as of,
the date such portion is no longer nonvested).
(1) Consistent with the rule set
forth in the foregoing provisions of this paragraph (b) and
notwithstanding any other provision of section 5 hereof, any
reference in any provision of section 5 hereof to the amounts
allocated to a portion of the Account of a Participant at any time
shall be deemed not to include the amounts allocated to any part of
such Account portion that is then nonvested and such part shall be
treated as if it were a separate class of Account until it is no
longer nonvested.
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(2) Further, if a Participant
separates from service with CBI (other than by reason of his or her
death) when any portion of the Account established for him or her
is nonvested, he or she shall never be entitled to receive the
amounts allocated to such Account portion and such amounts shall be
forfeited on the date he or she so separates from service with
CBI.
4.4 Valuation
.
(a) Valuation of Account
. The balance of the
Account of a Participant shall be determined periodically (under
procedures adopted by the Committee) to reflect all amounts
credited to the Account under the foregoing provisions of this
section 4 since the latest preceding date on which the Account
balance was determined, any gains and losses in the value of the
Account’s assumed investments since the latest date on which
the Account balance was determined, and any payments or forfeitures
since the latest preceding date on which the Account balance was
determined.
(b) Account Statements
. As soon as practical
following the end of each calendar year, each Participant (or, in
the event of his or her death, his or her Beneficiary) shall be
furnished a statement as of December 31 of such calendar year
showing the balance of the Participant’s Account, the total
increases and reductions made in the balance of such Account during
such calendar year, and, if amounts allocated to such Account are
assumed to have been invested in securities, a description of such
securities including the number of shares assumed to have been
purchased by the amounts allocated to such Account.
4.5 Common Shares Adjustment
Rules . To the extent
a Participant’s Account is assumed to have been invested in
Common Shares, the following provisions of this subsection 4.5
shall apply.
(a) Cash Dividends
. Whenever any cash
dividends are paid with respect to Common Shares, additional
amounts shall be allocated to the Participant’s Account as of
the dividend payment date. The additional amount to be allocated to
the Account shall be determined by multiplying the per share cash
dividend paid with respect to the Common Shares on the dividend
payment date by the number of assumed Common Shares allocated to
the Account on the day preceding the dividend payment date. Subject
to such administrative rules as the Committee may prescribe, such
additional amount allocated to the Participant’s Account
shall be assumed to have been invested in additional Common Shares
on the day on which such dividends are paid.
(b) Changes in Common
Shares . If there is
any change in Common Shares through the declaration of a stock
dividend or a stock split, through a recapitalization resulting in
a stock split, or through a combination or a change in shares, the
number of shares assumed to have been allocated to each Account
shall be appropriately adjusted.
4.6 Fair Market Value of
Common Shares . Whenever Common Shares are to be valued for
purposes of the Plan as of any date (such as a date on which a
credit based on such shares is made to a Participant’s
Account or a date on which distribution of such shares is to
be
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made by CBI), the value of each such share shall
be: (i) when such date occurs prior to January 1, 2007,
the average of the high and low price per share as reported on the
New York Stock Exchange on the latest business day preceding the
subject date for which the valuation is being made; or
(ii) when such date occurs on or after January 1, 2007,
the closing price of a Common Share on the New York Stock Exchange
on the latest date preceding the subject date on which Common
Shares were traded on such exchange. Notwithstanding the foregoing,
if Comm
