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EXHIBIT 99.9
AMENDMENT TO RIGHTS AGREEMENT
This Amendment (the "Amendment") is made as of the 31st day of May, 2000,
to the Rights Agreement dated as of December 10, 1998, as previously amended
(the "Rights Agreement"), between ALTERRA HEALTHCARE CORPORATION, a Delaware
corporation formerly known as Alternative Living Services, Inc. (the "Company"),
and AMERICAN STOCK TRANSFER & TRUST COMPANY, as Rights Agent (the "Rights
Agent").
WITNESSETH:
WHEREAS, the Board of Directors of the Company on December 10, 1998,
authorized the issuance of certain rights to purchase Common Stock of the
Company and declared a dividend of such rights;
WHEREAS, as of December 10, 1998, the Company and the Rights Agent entered
into the Rights Agreement to set forth their mutual agreements with respect to
the rights authorized by the Board of Directors on December 10, 1998; and
WHEREAS, the Board of Directors of the Company on April 25, 2000 authorized
an amendment to the Rights Agreement in connection with the execution of that
certain Purchase Agreement dated as of April 26, 2000 by and among the Company,
RDVEPCO, L.L.C., Group One Investors, L.L.C., and Holiday Retirement 2000, LLC,
as the same may be amended (the "Purchase Agreement");
WHEREAS, the Board of Directors of the Company wishes to further amend the
definition of "Exempt Person" in the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
1. All terms used in this Amendment which are not defined in this
Amendment have the meaning given those terms in the Agreement.
2. Section 1(g)-1 of the Rights Agreement is hereby amended and restated
in its entirety as follows:
"(g)-1 "Exempt Person" shall mean (i) each Purchaser (as defined
in that certain Purchase Agreement (as amended, the "Purchase
Agreement") dated as of April 26, 2000 by and among the Company
and each such Purchaser referenced therein, including any
permitted assignee of any Purchaser, and any Person acquiring
Purchased Securities (hereinafter defined) from the Company
pursuant to Section 2.2.(a) or Section 8.2 of the Purchase
Agreement (each a "First Tier Owner" and, collectively, the
"First Tier Owners"); (ii) the Affiliates and Associates of each
such First
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Tier Owner; and (iii) any Person not covered by (ii), above, who or
which is the beneficial Owner of Common Shares beneficially owned by a
First Tier Owner solely by reason of the relationship of such Person
to such First Tier Owner or to any Affiliate or Associate of such
First Tier Owner (each Person described in this clause (iii), a
"Second Tier Owner"); provided, however, any such (x) First Tier
Owner, (y) Affiliate and Associate of each such First Tier Owner, and
(z) Second Tier Owner (each such Person described in the foregoing
clauses (x), (y) and (z), a "Subject Owner") shall cease to be an
Exempt Person at the time that such Subject Owner is the Beneficial
Owner of a percentage of the outstanding Common Shares of the Company
that is more than the sum of (A) the lowest percentage of the
outstanding Common Shares of the Company beneficially owned by such
Subject Owner at the close of business on the date that such Subject
Owner first became the Beneficial Owner of Purchased Securities
(hereinafter defined) (including for purposes thereof the Common
Shares that may be beneficially owned by such Subject Owner, upon or
after such date, resulting from (1) the purchase or the exercise of
any exchange, conversion, put or similar right or feature (including,
without limitation, the right to receive securities in the form of
dividends or interest), of (a) the securities to be purchased by any
First Tier Owner or for which any such First Tier Owner has an option
to purchase pursuant to the Purchase Agreement (the "Purchased
Securities") or (b) the securities so issued or issuable pursuant to
such rights or features (the "Derivative Securities") or the payment
of any interest or dividends in respect of the Purchased Securities
or Derivative Securities and (2) any or all Subject Owners being
deemed a "group" within the meaning of Rule 13d-5 under the Exchange
Act solely as a result of (a) their acquisition of Purchased
Securities pursuant to the Purchase Agreement or (b) the exercise of
their respective rights as equity or beneficial owners of any other
Subject Owner in accordance with the terms of the organizational or
constituent documents of such other Subject Owner, as such
organizational or constituent documents may be amended or modified
from time to time in accordance with applicable law) or at any time
thereafter, (B) any increase in such percentage referred to in the
foregoing clause (A) caused solely by the acquisition of Common
Shares by the Company, and (C) 3%.
3. This Amendment shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such state applicable to contracts to be
made and performed entirely within such state.
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4. The Amendment may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same
instrument.
5. If any term, provision, covenant or restriction of this Amendment is held
by a court of competent jurisdiction or other authority to be invalid,
illegal, or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this First Amendment shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
6. Except as specifically set forth in this Amendment, the Rights Agreement
shall remain in full force and effect.
7. The Amendment shall become effective simultaneously with the "Initial
Closing" under the Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ALTERRA HEALTHCARE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: Senior Vice President & CFO
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Attest:
/s/ X.X. Xxxxxx
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AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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Attest:
/s/ Xxxxx Xxxxxx
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Assistant Secretary
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