EXHIBIT 4.3
[LETTERHEAD OF VENTAS, INC.]
September 27, 2000
VIA FACSIMILE AND FEDERAL EXPRESS
Mr. Bradley Takahashi
Franklin Mutual Advisors, LLC
51 John F. Kennedy Parkway
Short Hills, NJ 07078
Re: Article XII of the Certificate of Incorporation of Ventas, Inc. (the
"Company")
Dear Mr. Takahashi:
Reference is made to (i) the letter dated October 27, 1999 from Franklin Mutual
Advisors, LLC, ("FMA") on behalf of itself and on behalf of the Advisory
Clients, to the Board of Directors of the Company a copy of which letter is
attached hereto as Exhibit A (the "Request Letter") and (ii) the letter dated
October 27, 1999 from the Company to FMA a copy of which letter is attached
hereto as Exhibit B (the "Waiver Letter") regarding the waiver of the
application of the provisions of Article XII of the Certificate of Incorporation
of the Company relating to limitations on the Beneficial Ownership of Common
Stock of the Company with respect to FMA and its Advisory Clients. Capitalized
terms used but not defined herein shall have the meaning set forth in the
Request Letter.
This letter confirms the agreement of FMA and the Company that:
(i) each of the Request Letter and the Waiver Letter are hereby
terminated and cancelled as of the date hereof and such Letters shall have
no further force or effect on and after the date hereof;
(ii) no party thereto shall have any rights or obligations thereunder with
respect to either the Request Letter or the Waiver Letter or the
termination thereof other than rights and obligations under the Request
Letter and the Waiver Letter relating to or arising out of breaches of the
Waiver Letter on or prior to the date hereof; and
(iii) commencing on the date hereof and at all times hereafter FMA and the
Advisory Clients shall be subject to and must comply with all the
provisions of Article XII of the Certificate of Incorporation of the
Company, including, without limitation, the beneficial Ownership
Limitations contained in Article XII of the Certificate of Incorporation of
the Company, and, without limiting the foregoing, any portion of the Shares
that exceeds the ownership limitation shall be subject to designation as
Excess Stock under Article XII of the Certificate of Incorporation of the
Company.
This letter constitutes the entire understanding between FMA and the Company
with respect to the subject matter hereof and supercedes all prior and
contemporaneous oral and written communications and agreements with respect
thereto.
Please indicate your agreement with the foregoing by signing this letter where
indicated below and returning the signed copy to me. This letter may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which shall constitute the same instrument.
Very truly yours,
VENTAS, INC.
By: /s/ T. Richard Riney
--------------------
Name: T. Richard Riney
Title: Executive Vice President
and General Counsel
ACCEPTED AND AGREED
This 27th day of
September, 2000
FRANKLIN MUTUAL ADVISORS, LLC,
on behalf of itself and on behalf of the Advisory Clients
By: /s/ Jeffrey A. Altman
---------------------
Name: Jeffrey A. Altman
Title: Senior Vice President
-2-
Exhibit A
[LETTERHEAD OF FRANKLIN MUTUAL ADVISORS, LLC]
October 27, 1999
Board of Directors
Ventas, Inc.
3300 Aegon Center
400 West Market Street
Louisville, KY 40202
RE: Request by Franklin Mutual Advisers, LLC for a Waiver of Provisions of
Article XII of the Certificate of Incorporation of Ventas, Inc. (the
"Company")
To the Directors of Ventas, Inc.:
Franklin Mutual Advisers, LLC ("FMA") is an investment adviser registered
under the Investment Advisers Act of 1940. Its clients (collectively, "Advisory
Clients") own 3,709,600 shares of the outstanding common stock of the Company
(the "Shares"). Pursuant to advisory contracts with the Advisory Clients, FMA
exercises sole voting and investment discretion over such shares. No other
person who would constitute, along with FMA or 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 Limitation (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 Excess Stock under Article XII, FMA
requests that the Board of Directors of the Company (the Board of Directors of
Ventas, Inc. as same exists on the date hereof shall be referred to herein as
the "Board") grant a waiver to FMA and the Advisory Clients from the provisions
of Article XII.
In consideration and as a condition to such waiver, each of FMA and the
Advisory Clients agree 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. "Additional Shares" shall mean the number of
shares of common stock of the Company owned by all of FMA, the Advisory Clients
and any other person who would constitute, along with FMA or any Advisory
Client, a "group" under section 13(d), that exceeds 9.73% of the common stock of
the Company outstanding, which is the percentage of the shares of outstanding
common stock owned by FMA and/or the Advisory Clients as of April 30, 1998. The
undersigned has the legal authority to bind each Advisory Client to the terms of
this letter and the related Waiver. With respect to Additional Shares, FMA
shall not, and it shall not permit any Advisory Clients to:
(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 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 14a1(1)(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.
In support of its request, FMA makes the following representations,
warranties and covenants:
1. FMA will limit the aggregate Beneficial Ownership (as defined in
Article XII) by it and any Person who would constitute, along with FMA or any
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 14.9% of the
shares of Common Stock outstanding.
2. The name and tax identification number of each Advisory Client which
beneficially owns the Company's Common Stock and the date and the number of
shares beneficially owned by each Advisory Client is as set forth in Exhibit A.
3. No Person (as defined in Article XII) Beneficially Owns or, is
believed by FMA to be likely to Beneficially Own in the future, more than 5% of
the outstanding shares of any of the Advisory Clients.
4. Neither FMA nor any of its Advisory Clients, taken separately or taken
together in any combination, are, and will not in the future be, partners in any
partnership between or among any two or more of them as determined for federal
income tax purposes which partnership Beneficially Owns any of the Company's
Common Stock. No single Advisory Client or combination of Advisory Clients with
a mutual 10.0% or greater owner, Beneficially Owns or will Beneficially Own more
than 9.0% of the Company's Common Stock outstanding. FMA does not currently
Beneficially Own, and will not Beneficially Own, more than 9.0% of the Company's
Common Stock outstanding (excluding for this purpose its 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).
5. FMA, its Advisory Clients and the Person who would constitute, along
with FMA or any Advisory Client, a "group" under Section 13(d) of the Exchange
Act, will comply with the terms of Article XII, except as expressly waived by
the Board.
6. FMA and its Advisory Clients agree to enter into a reasonable
agreement to memorialize further the representations and commitments set forth
herein.
7. As of April 30, 1998 the Advisory Clients Beneficially Owned 9.73% of
the outstanding common stock of the Company. As of October 26, 1999, the
Advisory Clients Beneficially Owned approximately 5.46% of the outstanding
common stock of the Company.
8. Intentionally Omitted.
9. Intentionally Omitted.
10. Notwithstanding any other provision of this letter or the related
waiver, if any 10.0% or greater Beneficial Owner of FMA, FMA, its Advisory
Clients, or any other person who would, along with FMA 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 9.0% of the stock of the Company while
Beneficially Owning, singly or taken together in any combination, more than 9.0%
of the stock, warrants, options, convertible debt or any other rights to acquire
the stock of Vencor, Inc. or any other 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.
FMA understands that the breach of any representation, warranty or covenant
contained herein or the failure to comply with its covenants and undertakings in
this letter and, 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Upon acceptance of this letter by you, this letter shall supersede our
letter dated July 27, 1998, which was accepted by you on July 28, 1998, which
shall be of no further force and effect.
Very truly yours,
FRANKLIN MUTUAL ADVISERS, LLC
on behalf of itself and on behalf
of the Advisory Clients
By: /s/ Bradley Takahashi
---------------------
Name: Bradley Takahashi
Title: Assistant Vice President
EXHIBIT A
- -------------------------------------------------------------------------
Name of Client: Tax ID of Ventas Sh' owned:
Client:
- -------------------------------------------------------------------------
Mutual Shares Fund 13-6097589 1,285,800
- -------------------------------------------------------------------------
Mutual Qualified Fund 13-3019906 904,500
- -------------------------------------------------------------------------
Mutual Beacon Fund 04-6055276 730,800
- -------------------------------------------------------------------------
Mutual Discovery Fund 22-6586780 653,500
- -------------------------------------------------------------------------
Mutual Shares Securities Fund 65-0750252 72,700
- -------------------------------------------------------------------------
Mutual Discovery Securities Fund 65-0750249 42,700
- -------------------------------------------------------------------------
Mutual Beacon Fund (Canada) (Non-U.S.) 19,600
- -------------------------------------------------------------------------
EXHIBIT B
[LETTERHEAD OF VENTAS, INC.]
October 27, 1999
Mr. Bradley Takahashi
Franklin Mutual Advisers, LLC
51 John F. Kennedy Parkway
Short Hills, NH 07078
RE: Request by Franklin Mutual Advisers, LLC ("FMA") for a Waiver of the
Provisions of Article XII of the Certificate of Incorporation of
Ventas, Inc. (the "Company")
Dear Mr. Takahashi:
This letter is in response to the request by FMA for an amendment of the
previously granted waiver of the provisions of Article XII of the Certificate of
Incorporation of the Company with respect to FMA and its Advisory Clients as
described in the letter from FMA to the Company dated October 26, 1999, which is
attached hereto (the "Request Letter"). Capitalized terms used but not defined
herein shall have the meaning set forth in the Request Letter. This letter
revokes and replaces, with your consent, our prior letter dated July 28, 1998.
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
FMA and its Advisory Clients with respect to the provisions thereof limiting
Beneficial Ownership of Common Stock of the Company. The breach of any
representation, warranty or covenant contained in the Request Letter, or the
failure to comply with the covenants and undertakings in the Request Letter,
shall cause the waiver granted in this letter to become null and void, and shall
cause any Common Shares owned by FMA or its Advisory Clients 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.
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 FMA.
Very truly yours,
VENTAS, INC.
By: /s/ T. Richard Riney
--------------------
Name: T. Richard Riney
Title: Executive Vice President
and General Counsel
ACCEPTED AND AGREED
This 29th day of
October, 1999
FRANKLIN MUTUAL ADVISERS, LLC
on behalf of itself and on behalf of the
Advisory Clients
By: /s/ Bradley Takahashi
---------------------
Name: Bradley Takahashi
Title: Assistant Vice President