EXHIBIT 99.4
SECOND AMENDMENT TO SHAREHOLDER PROTECTION RIGHTS AGREEMENT
SECOND AMENDMENT TO SHAREHOLDER PROTECTION RIGHTS AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of the 19th day of April 1998, by
and between Atria Communities, Inc., a Delaware corporation (the "Company"), and
National City Bank, as Rights Agent (the "Rights Agent"), constitutes the Second
Amendment to the Shareholder Protection Rights Agreement dated February 15, 1998
by and between the Company and the Rights Agent (the "Rights Agreement").
W I T N E S S E T H:
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WHEREAS, the parties hereto desire to amend the Rights Agreement in certain
respects on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. The Rights Agreement is hereby amended by:
(a) Adding the following sentence at the end of the definition of
"Acquiring Person" in Section 1.1 of the Rights Agreement:
"Notwithstanding any of the terms of the foregoing definition, no Person
shall become an "Acquiring Person" solely as the result of the execution
and delivery of, or the consummation of any of the transactions
contemplated by, the Agreement and Plan of Merger dated as of April 19,
1998, by and among the Company, Kapson Senior Quarters Corp. ("Parent"),
and KA Acquisition Corp. ("Sub") (the "Merger Agreement"), and any
agreements, documents or instruments executed or entered into in connection
with the Merger Agreement (collectively with the Merger Agreement, the
"Parent Transaction Documents")."
(b) Deleting the definition of "Expiration Time" in Section 1.1 of the
Rights Agreement in its entirety, and inserting the following:
"Expiration Time" shall mean the earliest of (i) the Exchange Time, (ii)
the Termination Time, (iii) February 15, 2008, (iv) upon the merger of the
Company into another corporation pursuant to an agreement entered into
prior to a Flip-In Date, and (v) upon the closing of the merger of Sub into
the Company pursuant to the terms of the Parent Transaction Documents."
(c) Adding the following sentence at the end of the definition of
"Separation Time" in Section 1.1 of the Rights Agreement:
"Notwithstanding any of the terms of the foregoing definition, no
"Separation Time" will occur solely as the result of the execution and
delivery of, or the consummation of any of the transactions contemplated
by, the Parent Transaction Documents."
(d) Adding the following sentence at the end of the definition of "Stock
Acquisition Date" in Section 1.1 of the Rights Agreement:
"Notwithstanding any of the terms of the foregoing definition, no "Stock
Acquisition Date" will occur solely as the result of the execution and
delivery of, or the consummation of any of the transactions contemplated
by, the Parent Transaction Documents, or any public announcement of any of
the foregoing."
2. All terms defined in the Rights Agreement which are used herein shall
have the meanings defined in the Rights Agreement, unless specifically defined
otherwise herein.
3. The term "Agreement" as used in the Rights Agreement shall mean the
Rights Agreement, as amended by the First Amendment to the Rights Agreement and
this Agreement, or as it may from time to time be amended in the future by one
or more other written amendment or modification agreements entered into pursuant
to the applicable provisions of the Rights Agreement.
4. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
5. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware.
6. Except as expressly herein amended, the terms and conditions of the
Rights Agreement shall remain in full force and effect.
7. This Agreement is not intended to be, nor shall it be construed to be,
a novation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ATRIA COMMUNITIES, INC.
By: /s/ W. Xxxxxxx Xxxxxx, XX
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W. Xxxxxxx Xxxxxx, XX
President and Chief Executive Officer
NATIONAL CITY BANK
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Vice President
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