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Exhibit 4.3
HEALTH CARE AND RETIREMENT CORPORATION
RIGHTS AMENDMENT
AMENDMENT, dated as of June 10, 1998 (this "Amendment"), to the Rights
Agreement, dated as of May 2, 1995 (the "Rights Agreement"), between HEALTH
CARE AND RETIREMENT CORPORATION, a Delaware corporation (the "Company"), and
HARRIS TRUST AND SAVINGS BANK (the "Rights Agent").
The Company and the Rights Agent have heretofore executed and entered
into the Rights Agreement. Pursuant to Section 26 of the Rights Agreement, the
Company and the Rights Agent may from time to time supplement or amend the
Rights Agreement in accordance with the provisions of Section 26 thereof. All
acts and things necessary to make this Amendment a valid agreement according to
its terms have been done and performed, and the execution and delivery of this
Agreement by the Company and the Rights Agent have been in all respects
authorized by the Company and the Rights Agent.
In consideration of the foregoing premises and mutual agreements set
forth in the Rights Agreement and this Amendment, the parties hereto agree as
follows:
I. The first sentence of Section 1.1 of the Rights Agreement is hereby
modified and amended to read in its entirety as follows:
"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 or any entity holding
Common Shares for or pursuant to the terms of any such plan, (iv)
Stewart Bainum or his spouse or widow, their lineal descendants or
their spouses or widows or widowers (for so long as they remain
spouses) (each a "Member of the Bainum Family"), or the estate of any
of the foregoing persons (but only until such time as the Common Shares
are distributed therefrom), (v) any partnership, trust, corporation or
other entity (each, an "Entity"), but only if a Member or Members of
the Bainum Family or another Entity satisfying the requirements hereof
are the sole Beneficial Owners of the Common Shares held by such
Entity, other than any officer, trustee, director, or other managing
person or managing partner or managing member of any such Entity to the
extent any such person is deemed to be the Beneficial Owner of Common
Shares held by such Entity, provided such person is not the Beneficial
Owner, other than through an Entity
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described in this clause (v), of in excess of 1% of the total
outstanding Common Shares; or (vi) any transferee of a person described
in clause (iv) or (v) so long as such transferee will not, after giving
effect to such transfer, be the Beneficial Owner of more than 20% of
the Common Shares of the Company; provided, however, that no Member of
the Bainum Family will be excepted from this definition of "Acquiring
Person" in the event that any such Member of the Bainum Family or any
such estate or Entity, or all of them in the aggregate (A) prior to the
Effective Time of the "Merger" (as defined in the Agreement and Plan of
Merger, dated as of June 10, 1998, among the Company, Catera
Acquisition Corp. and Manor Care, Inc. (the "Merger Agreement"),
becomes the Beneficial Owner of Common Shares of the Company other than
pursuant to the terms of the HCR Stock Option and (B) after the
Effective Time, becomes the Beneficial Owner of 20.0% or more of the
Common Shares of the Company other than pursuant to an excepted
transaction described in the next sentence."
I. Section 3.1 of the Rights Agreement is hereby amended by adding as
the final sentence thereto the following:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely as a
result of (i) the approval, execution and delivery of the Merger
Agreement or the Ancillary Agreements (as defined in the Merger
Agreement), or (ii) the consummation of the Merger (as defined in the
Merger Agreement) or the other transactions contemplated thereby or the
exercise of the HCR Option (as defined in the Merger Agreement)."
3. Section 13.1 of the Rights Agreement is hereby amended by adding as
the final sentence thereto the following:
"Notwithstanding anything in this Agreement to the contrary, a
transaction of the kind referred to in this Section 13.1 shall not be
deemed to have occurred solely as a result of (i) the approval,
execution and delivery of the Merger Agreement or the Ancillary
Agreements (as defined in the Merger Agreement), or (ii) the
consummation of the Merger (as defined in the Merger Agreement) or the
other transactions contemplated thereby or the exercise of the HCR
Option (as defined in the Merger Agreement)."
4. Each of Section 7.1 or 13.2 of the Rights Agreement is hereby
amended by adding the following proviso: "; provided, however, none of the
Merger, the Merger Agreement, the Ancillary Agreements or the transaction
contemplated by any of such agreements shall be subject to this Section.
5. Except as expressly amended hereby, the Rights Agreement remains in
full force and effect in accordance with its terms.
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6. The Rights Agreement, as amended by this Amendment, and each Right
and each Rights Certificate exist under and pursuant to the Delaware General
Corporation Law.
7. This Amendment to the Rights Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
8. This Amendment to the Rights Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
an original, and all such counterparts shall together constitute but one and
the same instrument.
9. Except as expressly set forth herein, this Amendment to the Rights
Agreement shall not by implication or otherwise alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Rights Agreement, all of which are ratified and affirmed in
all respects and shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
the Rights Agreement to be duly executed as of the day and year first above
written.
HEALTH CARE AND RETIREMENT
CORPORATION
By:
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Title:
HARRIS TRUST AND SAVINGS BANK
By:
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Title: