Exhibit 4.8
[Letterhead of Ventas, Inc.]
T. Richard Riney
Executive Vice President
and General Counsel
Direct Dial: 502-357-9020
February 25, 2002
Mr. Lawrence B. Stoller
Senior Vice President
and General Counsel
Cohen & Steers Capital Management, Inc.
757 Third Avenue
New York, NY 10017
RE: Request by Cohen & Steers Capital Management, Inc. for a Waiver of the
Provisions of Article XII of the Certificate of Incorporation of
Ventas, Inc. (the "Company")
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Dear Mr. Stoller:
This letter is in response to the request by Cohen & Steers Capital
Management, Inc. ("C&S") for a waiver of the provisions of Article XII of the
Certificate of Incorporation of the Company with respect to C&S as described in
the letter from C&S to the Company dated February 25, 2002, which is attached
hereto (the "Request Letter"). Capitalized terms used but not defined herein
shall have the meaning set forth in the Request Letter.
The Board hereby Waives, on the terms and subject to the conditions
set forth in this letter and the Request Letter, the application of Article XII
to C&S with respect to the provisions thereof limiting Beneficial Ownership of
Common Stock of the Company for the Waiver Period. The breach of any
representation, warranty, covenant or agreement contained in the Request Letter,
or the failure to comply with the covenants and agreements in the Request
Letter, shall cause the Waiver granted in this letter to become retroactively
null and void, and shall retroactively cause any Common Shares owned by C&S in
excess of the otherwise applicable 9.0% Ownership Limit to become designated
Excess Shares under Article XII, in addition to any other remedy available to
the Company.
Notwithstanding the foregoing, the ownership of the Company's Common
Shares by C&S shall remain subject to the otherwise applicable 9.0% Ownership
Limit in the event that such ownership should result in (i) any "individual"
(within the meaning of Section 542(a)(2) of the Internal Revenue Code of 1986,
as amended (the "Code"), as modified by Section 856(h) of the Code) owning
(after taking into account the constructive ownership rules of Section 544 of
Mr. Lawrence B. Stoller
Febriary 25,2002
Page 2
the Code, as modified by Section 856(h) of the Code) in excess of 9.0% of the
Common Shares or (ii) any 10.0% Company Shareholder, alone or in combination
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with other 10.0% Company Shareholders, owning (either directly or by operation
of the attribution rules of Section 318 of the Code, as modified by Section
856(d)(5) of the Code), any interest in the stock of Kindred Healthcare, Inc. or
in the stock, assets, or net profits of any other present or future tenant of
the Company. For purposes of the preceding sentence, the term "10.0% Company
Shareholder" means a person who, but for the 9.0% Ownership Limit, would
beneficially own 10.0% or more of the total combined voting power, total number,
or total value of all of shares of stock of the Company, either directly or by
operation of the attribution rules of Section 318 of the Code, as modified by
Section 856(d)(5) of the Code.
If this letter accurately sets forth our understanding, please sign
the letter where indicated below and return a signed copy to me. This letter
shall be of no force and effect, and may be revoked at any point in time prior
to the Company's receipt of a signed copy from C&S.
Very truly yours,
VENTAS, INC.
By: /s/ T. Richard Riney
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Name: T. Richard Riney
Title: Executive Vice President and
General Counsel
ACCEPTED AND AGREED
This 25/th/ day of February, 2002
COHEN & STEERS CAPITAL MANAGEMENT, INC.
By: /s/ Lawrence B. Stoller
-----------------------------------------
Name: Lawrence B. Stoller
Senior Vice President and General Counsel
Attachment
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[Letterhead of Cohen & Steers Capital Management, Inc.]
February 25, 2002
Board of Directors
Ventas, Inc.
4360 Brownsboro Road
Suite 115
Louisville, Kentucky 40207-1642
Re: Request by Cohen & Steers Capital Management, Inc. for Waiver to Provisions
of Article XII of the Certificate of Incorporation of Ventas, Inc. (the
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"Company")
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To the Directors of Ventas, Inc.:
Cohen & Steers Capital Management, Inc. ("C&S") is an investment advisor
registered under the Investment Advisers Act of 1940. As of September 30, 2001,
C&S has purchased on behalf of its investment advisory clients (the "Advisory
Clients"), in the aggregate, 5,808,980 shares of the outstanding common stock,
(the "Common Shares") of the Company (the "Shares"). Pursuant to advisory
contracts with the Advisory Clients, C&S exercises sole investment discretion
over such shares and in certain cases sole voting discretion. No other person
who would constitute, along with C&S and with any one or more of the Advisory
Clients, a "group" as that term is used for purposes of Section 13(d)(3)
("Section 13(d)") of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") owns any shares of the Company. Because that portion of the
Shares which exceed the Ownership Limit (capitalized terms in this letter are
used as defined in Article XII of the Certificate of Incorporation of the
Company) is subject to being designated as Excess Shares under Article XII, C&S
requests that the Board of Directors of the Company (the "Board") grant a waiver
to C&S and the Advisory Clients from certain of the provisions of Article XII
that relate to limitations upon ownership of Common Shares, so that C&S, its
Advisory Clients, and any other Person who would constitute, along with C&S and
any Advisory Client, a "group" as that term is used for purposes of Section
13(d) of the Exchange Act, may Beneficially Own, in the aggregate, up to 9.9%,
in number of shares or value, of the Common Shares during the period (the
"Waiver Period") from the date hereof, until the expiration of the Waiver Period
(the "Waiver Expiration Date") on the terms and subject to the conditions set
forth herein.
In consideration and as a condition to such waiver, C&S agrees, on behalf
of itself and with respect to assets C&S manages for the Advisory Clients, that
it shall not take any of the actions described below with respect to any
Additional Shares for so long as such shares shall constitute Additional Shares
or until any of the Events (as defined below) shall occur. "Additional Shares"
shall mean the number of Common Shares owned by all of C&S, the Advisory Clients
and any other persons who would constitute, along with C&S and any Advisory
Client, a "group" under Section 13(d), that exceeds 9.0% of the Common Shares of
the
Company outstanding. The undersigned has the legal authority to bind C&S and the
Beneficial Owners of C&S to the terms of this letter and the related Waiver.
This letter does not request a waiver in respect of any Common Shares held,
owned, or Beneficially Owned by any Advisory Client that are not managed by C&S.
Nothing in this letter or the Waiver shall restrict the application of Article
XII to such other Common Shares, it being understood that all such other Common
Shares remain subject to Article XII of the Certificate of Incorporation of the
Company.
In support of its request for the Waiver, C&S makes the following
representations, warranties, covenants and agreements:
1. Expiration of Waiver. The Waiver shall expire, and the Waiver
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Period shall terminate, on the first to occur of (a) after C&S Beneficially Owns
more than the Ownership Limitation, on the date that C&S Beneficially Owns less
than the Ownership Limitation, (b) a breach by C&S of any of the
representations, warranties, covenants or agreements contained in this Request
Letter or (c) ninety (90) days after C&S's receipt of notice from the Company
terminating the Waiver. Upon expiration of the Waiver and the Waiver Period with
respect to any Additional Shares, such Additional Shares shall automatically be
designated as "Excess Shares" under Article XII. Such designation will be
effective as of the close of business on the business day prior to the date of
the relevant event. C&S understands and acknowledges that the "Excess Share"
designation shall be in addition to any other remedy that the Company may have
upon a breach by C&S of any representation, warranty, covenant or agreement
contained herein.
2. Representations and Warranties. C&S represents and warrants to the
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Company as follows:
a) As of February 25, 2002, and with respect to any Common Stock under
C&S management, the Advisory Clients Beneficially Owned in the aggregate
5,730,615 shares of the outstanding Common Stock of the Company. C&S is not
in a partnership (as determined for federal income tax purposes) composed
of C&S and one or more Advisory Clients, and C&S' Advisory Clients do not
own more than 9.9% of C&S or any corporation controlled or managed by C&S.
b) No other person who would constitute, along with C&S, a "group" as
that term is used for purposes of Section 13(d)(3) ("Section 13(d)") of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), owns any
shares of Common Stock.
3. Covenants Regarding Ownership Attributes of the Additional Shares.
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During the Waiver Period, C&S agrees that it shall not take any of the following
actions with respect to any Additional Shares (it being understood that the
limitations of this Section 3 shall not apply to Shares that are not Additional
Shares):
a) Solicit proxies from stockholders of the Company, the power to
vote, become a "participant" in any "election contest" (as such terms
are used in Rule
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14a-11 of the Exchange Act), with respect to the Company, or make any
communication (other than as required by law) referred to in Rule
14a-1(l)(2)(iv) of the Exchange Act in connection with any election
contest or other vote by stockholders of the Company or otherwise that
is contrary to or conflicts with actions taken or omitted or to be
omitted by the Board;
b) Seek or vote for the removal of any member of the Board, except
removal "for cause" as such term is used under the Delaware General
Corporation Law;
c) Vote for any individual nominated for election to the Board thereof
other than those individuals nominated by the Board or a Committee thereof;
d) Call or seek to have called any meeting of the stockholders of the
Company;
e) Otherwise act, alone or in concert with others to (i) solicit,
propose, seek to effect or negotiate with any other person with respect to
(A) any business combination with the Company or (B) any restructuring,
recapitalization or similar transaction of the Company, (ii) solicit,
propose, seek to effect or negotiate with any other person with respect to,
or announce an intent to make, any tender offer or exchange offer for any
voting securities of the Company, or (iii) assist, participate in,
facilitate or solicit any effort or attempt by any persons to do or seek to
do any of the foregoing; or
f) Form, join or participate in a "group" (within the meaning of
Section 13(d) of the Exchange Act) with respect to any of the matters
described above.
4. Additional Covenants Regarding Ownership of Common Stock. During
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the Waiver Period:
a) C&S shall limit the aggregate Beneficial Ownership by it, any
Advisory Client and any Person who would constitute, along with C&S or C&S
with any such Person or Advisory Client, a "group", as that term is used
for purposes of Section 13(d) of the Exchange Act, of the Company's Common
Stock to no more than 9.9% of the shares of Common Stock outstanding.
b) Neither 10% or greater Beneficial Owners of C&S, C&S nor any of its
Advisory Clients, taken separately or taken together in any combination
with C&S, have been during 2000 or 2001, are, and shall not in the future
be, partners in any partnership between or among C&S and any one or more of
them as determined for federal income tax purposes which partnership
Beneficially Owns any of the Company's Common Stock. With respect to assets
under C&S' management, no single Advisory Client or combination of Advisory
Clients with a mutual 10.0% or greater owner or any Person in control of
them, Beneficially Owns or will at any time in the future Beneficially Own
more than 9.0% of the Company's Common Stock outstanding. Neither C&S nor
any Advisory Client, with respect to assets under C&S' management,
currently Beneficially
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Owns, and will not Beneficially Own, more than 9.0% of the Company's Common
Stock outstanding (excluding for this purpose Beneficial Ownership of
Common Stock in excess of such amounts to the extent such Beneficial
Ownership results solely from it being treated, along with the Advisory
Clients, as a "group" under Section 13(d) of the Exchange Act).
c) C&S, its Advisory Clients and any Person who would constitute,
along with C&S or any Advisory Client, a "group" under Section 13(d) of the
Exchange Act, shall comply with the terms of Article XII, except as
expressly waived by the Board.
d) Notwithstanding any other provision of this letter or the related
waiver, if any 10.0% or greater Beneficial Owners of C&S, C&S, its Advisory
Clients, or any other person who would, along with C&S or the Beneficial
Owners of C&S or any of them, either constitute a "group" under Section
13(d)(3) or a partnership for federal income tax purposes, Beneficially
Owns (excluding for this purpose Beneficial Ownership of Common Stock that
results solely from being treated as part of a "group" under Section 13(d))
more than 9.9% of the stock of the Company while Beneficially Owning,
singly or taken together in any combination, any of the stock, warrants,
options, convertible debt or any other rights to acquire the stock of
Kindred Healthcare, Inc. or, after written notice from the Company to C&S
of a proposed new tenant after the date hereof, any other such tenant of
the Company, the Additional Shares owned will be automatically designated
as "Excess Shares" under Article XII. Such designation will be effective as
of the close of business on the business day prior to the date of the
relevant event.
e) This letter does not request a waiver in respect of any Common
Shares held, owned, or Beneficially Owned by any Advisory Client that are
not managed by C&S. Nothing in this letter or the Waiver shall restrict the
application of Article XII to such other Common Shares, it being understood
that all such other Common Shares remain subject to Article XII of the
Certificate of Incorporation of the Company.
5. Breach of Representations and Warranties. C&S understands that the
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breach of any representation, warranty or covenant contained herein or the
failure to comply with its covenants and undertakings in this letter, in
addition to any other remedy available to the Company, subjects the Additional
Shares to being designated as "Excess Shares" under Article XII. In such event,
any waiver granted by the Board shall terminate and the Company may proceed in
any manner permitted under Article XII.
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6. Reduction and Termination of the Waiver. If at any time after C&S
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Beneficially Owns more than the Ownership Limitation the ownership of Common
Shares by any Person covered by this waiver falls below the 9% limitation, this
waiver shall, as to each such Person, lapse and be of no further effect, with
the consequence that thereafter any subsequent purported acquisition of Common
Shares in violation of such limitation shall result in any shares above the 9%
limitation being Excess Shares.
Very truly yours,
COHEN & STEERS CAPITAL MANAGEMENT, INC.
By: /s/ Lawrence B. Stoller
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Name: Lawrence B. Stoller
Title: Senior Vice President and General
Counsel
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