EXHIBIT I
Sixth Amendment to Rights Agreement
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This Sixth Amendment (this "Amendment") dated as of May 22, 2000 to
the Rights Agreement (the "Rights Agreement") dated as of July 20, 1993 between
Vencor, Incorporated, a Delaware corporation, now known as Ventas, Inc. (the
"Company"), and National City Bank, Rights Agent, a national banking association
existing under the laws of the State of Ohio (the "Rights Agent"), as amended by
the First Amendment to Rights Agreement, dated as of August 11, 1995, as amended
by the Second Amendment to the Rights Agreement, dated as of February 1, 1998,
as amended by the Third Amendment to the Rights Agreement, dated as of July 27,
1998, as amended by the Fourth Amendment to Rights Agreement, dated as of April
15, 1999, and as amended by the Fifth Amendment to the Rights Agreement, dated
as of December 15, 1999 (the "Fifth Amendment") (as amended, the "Rights
Amendment"). All capitalized terms not defined herein shall have the meanings
ascribed to such terms in the Rights Agreement.
WHEREAS, the Board of Directors of the Company declared a dividend of
one preferred stock purchase right for each share of Common Stock outstanding as
of the close of business on August 1, 1993; and
WHEREAS, each currently issued and outstanding share of the Common
Stock entitles the holder thereof to one Right; and
WHEREAS, each of the Rights is currently represented only by the share
of Common Stock entitled to such Right; and
WHEREAS, Section 27 of the Rights Agreement provides that the Company
may amend the Rights Agreement without the approval of any holders of Rights
Certificates in order, among other things, to correct or supplement any
provision in the Rights Agreement, to cure any ambiguity or to make any other
provisions with respect to the Rights which the Company may deem necessary or
desirable; and
WHEREAS, the Board of Directors of the Company has deemed it necessary
and desirable to amend the Rights Agreement as set forth in this Amendment.
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged the Company and the Rights Agent hereby agree as follows:
1. Section 1(a). The definition of "Acquiring Person" set forth in
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Section 1(a) of the Rights Agreement is hereby amended by deleting it in its
entirety and amending it to read as follows:
"Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 9.9% or more of the then outstanding shares of Common Stock
(other than as a result of a Permitted Offer (as hereinafter defined)) or
becomes such a Beneficial Owner at any time after the date hereof, whether or
not such Person continues to be the Beneficial Owner of 9.9% or more of the then
outstanding shares of Common Stock. Notwithstanding the foregoing, (A) the term
'acquiring person' shall not include:
(i) the Corporation;
(ii) any Subsidiary of the Corporation;
(iii) any employee benefit plan of the Corporation
or of any Subsidiary of the Corporation;
(iv) any Person or entity organized, appointed or
established by the Corporation for or pursuant to the terms of any such plan;
(v) any Person who or which, together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of 9.9%
or more of the then outstanding shares of Common Stock, as a result of the
acquisition of shares of Common Stock directly from the Corporation;
(vi) any Person who or which, together with all
Affiliates and Associates of such Person, was the Beneficial Owner of 9.9%
or more of the outstanding shares of Common Stock on February 1, 1998, until
such time thereafter as any such Person shall become the Beneficial Owner of
any additional shares of Common Stock (other than by means of a stock dividend
or stock split); provided, however, that this clause (vi) shall cease to apply
to any Person who was the Beneficial Owner of 9.9% or more of the outstanding
shares of Common Stock on February 1, 1998, but who shall subsequently become,
for any reason, including as a result of the issuance by the Company of
additional shares of Common Stock, the Beneficial Owner of less than 9.9% of
the outstanding shares of Common Stock;
(vii) Franklin Mutual Advisers, Inc., an investment
adviser registered under the Investment Advisers Act of 1940, together with all
Affiliates and Associates of Franklin Mutual Advisors, Inc. (collectively,
"FMAI") and any other person who would constitute along with FMAI or any of its
advisory clients, a "group" as that term is used for
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purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (collectively, the "FMAI Group"), until such time hereafter
as the FMAI Group shall become the Beneficial Owner in the aggregate of more
than 14.9% of the then outstanding shares of Common Stock;
(viii) The Baupost Group, L.L.C., an investment
adviser registered under the Investment Advisers Act of 1940, together with all
Affiliates and Associates of The Baupost Group, L.L.C. (collectively, "TBG")
and any other person who would constitute along with TBG or any of its
advisory clients, a "group" as that term is used for purposes of
Section 13(d)(3) of the Exchange Act (collectively, the "TBG Group"), until
such time hereafter as the TBG Group shall become the Beneficial Owner in
the aggregate of more than 14.9% of the then outstanding shares of Common
Stock; and
(ix) Xxxxx & Steers Management, Inc., an investment
adviser registered under the Investment Advisers Act of 1940, together with
all Affiliates and Associates of Xxxxx & Steers Management, Inc. (collectively,
"Xxxxx & Steers") and any other person who would constitute along with Xxxxx &
Steers or any of its advisory clients, a "group" as that term is used for
purposes of Section 13(d)(3) of the Exchange Act (collectively, the "Xxxxx &
Steers Group"), until the earlier of (a) such time hereafter as the Xxxxx &
Steers Group shall become the Beneficial Owner in the aggregate of more than
10.32% of the then outstanding shares of Common Stock, and (b) the expiration
of a period of three months following the date the plan of reorganization
of Vencor, Inc. becomes effective under the United States Bankruptcy Code.
(B) no Person shall be deemed to be an 'Acquiring Person'
either (x) as a result of the acquisition of shares of Common Stock by the
Corporation which, by reducing the number of shares of Common Stock outstanding,
increases the proportional number of shares beneficially owned by such Person;
except that if (i) a Person would become an Acquiring Person (but for the
operation of this subclause (x)) as a result of the acquisition of shares of
Common Stock by the Corporation and (ii) after such share acquisition by the
Corporation, such Person becomes the Beneficial Owner of any additional shares
of Common Stock, then such Person shall be deemed an Acquiring Person or (y) if
(i) within 5 days after such Person would otherwise have become an Acquiring
Person (but for the operation of this subclause (y)), such Person notifies the
Board of Directors that such Person did so inadvertently and (ii) within 2 days
after such notification, such Person is the Beneficial Owner of less than 9.9%
of the outstanding shares of Common Stock or, in the case of the FMAI Group, is
the Beneficial Owner of 14.9% or less of the outstanding shares of Common Stock
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or, in the case of the TBG Group, is the Beneficial Owner of 14.9% or less of
the outstanding shares of Common Stock or, in the case of the Xxxxx & Steers
Group, is the Beneficial Owner of 10.32% or less of the outstanding shares of
Common Stock."
2. Section 3(d). Section 3(d) of the Rights Agreement is hereby amended
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by deleting the legend set forth in Section 3(d) in its entirety and amending it
to read as follows:
"This certificate also evidences and entitles the holder hereof to
certain rights as set forth in a Rights Agreement between Vencor, Incorporated
(now known as Ventas, Inc.) and National City Bank, Rights Agent, dated as of
July 20, 1993, as amended by the First Amendment to Rights Agreement dated as of
August 11, 1995, the Second Amendment to Rights Agreement, dated as of February
1, 1998, the Third Amendment to Rights Agreement, dated as of July 27, 1998, the
Fourth Amendment to Rights Agreement, dated as of April 15, 1999, the Fifth
Amendment to Rights Agreement, dated as of December 15, 1999 and the Sixth
Amendment to the Rights Agreement, dated as of May 22, 2000 (as so amended, the
"Rights Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive offices of
Ventas, Inc. Under certain circumstances, as set forth in the Rights Agreement,
such Rights will be evidenced by separate certificates and will no longer be
evidenced by this certificate. Ventas, Inc. will mail to the holder of this
certificate a copy of the Rights Agreement without charge after receipt of a
written request therefor. Under certain circumstances set forth in the Rights
Agreement, Rights issued to, or held by any Person who is or becomes an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement) and certain related persons, whether currently held by or on behalf
of such Person or by any subsequent holder, may become null and void."
3. Exhibit II to Rights Agreement. Exhibit II to the Rights Agreement
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shall be deleted in its entirety and replaced with a new Exhibit II, attached to
this Amendment as Annex A.
4. Governing Law. This amendment shall be deemed to be a contract made
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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.
5. Counterparts. This Amendment may be executed in counterparts and
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each of such counterparts shall for all
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purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first above written.
VENTAS, INC.
By: /s/ T. Xxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: T. Xxxxxxx Xxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President, Title: President and Chief
General Counsel Executive Officer
and Secretary
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NATIONAL CITY BANK, AS RIGHTS AGENT
By: /s/ Xxxxxx X. Xxxxxx By: /s/ J. Xxxx Xxxxxxx
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Name: Xxxxxx X. Xxxxxx Name: J. Xxxx Xxxxxxx
Title: Vice President Title: Vice President
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