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EXHIBIT 4.3
AMENDMENT TO RIGHTS AGREEMENT
This Amendment (the "Amendment") is made as of the 26th day of April,
2000, to the Rights Agreement dated as of December 10, 1998 (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; and
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 terms of 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(a) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
(a) "Acquiring Person" shall mean any Person (as
such term is hereinafter defined) who or
which, together with all Affiliates and
Associates (as such terms are hereinafter
defined) of such Person, shall be the
Beneficial Owner (as such term is
hereinafter defined) of 15% or more of the
Common Shares of the Company then
outstanding, but shall not include (i) the
Company, (ii) any Subsidiary (as such term
is hereinafter defined) of the Company,
(iii) any employee benefit plan of the
Company or any Subsidiary of the Company,
(iv) any entity holding Common Shares for or
pursuant to the terms of any such plan or
(v) any Exempt Person. Notwithstanding the
foregoing, no Person shall become an
"Acquiring Person" as the result of an
acquisition of Common Shares by the Company
which, by reducing the number of shares
outstanding, increases the proportionate
number of shares beneficially owned by such
Person to 15% or more of the Common Shares
of the Company then outstanding; provided,
however, that if a Person shall become the
Beneficial Owner of 15% or more of
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the Common Shares of the Company then
outstanding by reason of share purchases by
the Company and shall, after such share
purchases by the Company, become the
Beneficial Owner of any additional Common
Shares of the Company, then such Person
shall be deemed to be an "Acquiring Person".
Notwithstanding the foregoing, if the Board
of Directors of the Company determines in
good faith that a Person who would otherwise
be an "Acquiring Person", as defined
pursuant to the foregoing provisions of this
paragraph (a), has become such
inadvertently, and such Person divests as
promptly as practicable a sufficient number
of Common Shares so that such Person would
no longer be an "Acquiring Person", as
defined pursuant to the foregoing provisions
of this paragraph (a), then such Person
shall not be deemed to be an "Acquiring
Person" for any purposes of this Agreement.
3. Section 1 of the Rights Agreement is hereby amended by adding
a new Section 1(g)-1 to read in its entirety as follows:
"(g)-1 "Exempt Person" shall mean (i) each Purchaser
(as defined in that certain Purchase Agreement (the
"Purchase Agreement") dated as of April 26, 2000 (the
"Purchase Date") by and among the Company and each
such Purchaser referenced therein, including any
permitted assignee of any Purchaser (each a "First
Tier Owner" and, collectively, the "First Tier
Owners"); (ii) the Affiliates and Associates of each
such First 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 Purchase Date (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
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interest or dividends in respect of the Purchased
Securities or Derivative Securities and (2) all First
Tier Owners being deemed a "group" within the meaning
of Rule 13d-5 under the Exchange Act solely as a
result of their acquisition of Purchased Securities
pursuant to the Purchase Agreement) 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) 1%.
4. 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.
5. 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.
6. 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.
7. Except as specifically set forth in this Amendment, the Rights
Agreement shall remain in full force and effect.
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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/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: President & CEO
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Attest:
/s/ Xxxx X. Xxxxxxxxx
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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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