EXHIBIT 4.1
AMENDMENT NO. 1 TO
RIGHTS AGREEMENT
AMENDMENT NO. 1 (the "Amendment"), dated as of May 12, 2006, to the
Rights Agreement, dated as of November 18, 1998, between American Retirement
Corporation, a Tennessee corporation (the "Company"), and American Stock
Transfer and Trust Company (the "Rights Agent") (the "Rights Agreement").
RECITALS
WHEREAS, Brookdale Senior Living Inc., a Delaware corporation
("Purchaser"), Beta Merger Sub Corporation, a Delaware corporation and
wholly-owned subsidiary of Purchaser ("Sub"), and the Company contemplate
entering into the Merger Agreement (as defined below) pursuant to which Sub will
merge with and into the Company (the "Merger"). The Board of Directors of the
Company has approved the Merger Agreement.
WHEREAS, pursuant to Section 27 of the Rights Agreement, prior to the
Distribution Date (as defined in the Rights Agreement), the Company may, and the
Rights Agent shall if the Company so directs, from time to time supplement and
amend the Rights Agreement without the approval of any holders of certificates
representing shares of Common Stock.
WHEREAS, no Distribution Date has yet occurred and there is not any
Acquiring Person and, in accordance with Section 27 of the Rights Agreement, an
officer of the Company has delivered a certificate as to the compliance of this
Amendment with said Section 27.
WHEREAS, the Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and desirable
in connection with the foregoing and the Company and the Rights Agent desire to
evidence such amendment in writing.
WHEREAS, all other acts and things necessary to make this Amendment a
valid agreement, enforceable according to its terms, have been done and
performed, and the execution and delivery of this Amendment by the Company and
the Rights Agent have been in all respects duly authorized by the Company and
the Rights Agent.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and in the Rights Agreement, the parties hereto, intending to
be legally bound, agree as follows:
A. Amendment of Section 1. Section 1 of the Rights Agreement is hereby
amended and supplemented to add the following definitions in the appropriate
locations:
"Purchaser" means, collectively, Brookdale Senior Living Inc., a
Delaware
corporation, and Beta Merger Sub Corporation , a Delaware corporation.
"Merger" shall mean the "Merger" as such term is defined in the Merger
Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated
as of May 12, 2006, by and among the Company, Brookdale Senior Living
Inc. and Beta Merger Sub Corporation, as it may be amended from time to
time.
B. Amendment of the definition of "Acquiring Person". The definition of
"Acquiring Person" in Section 1(a) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, neither Purchaser nor any of its Affiliates or Associates
shall be deemed to be an Acquiring Person for purposes of this Rights
Agreement solely by virtue of one or more of (i) the approval,
execution or delivery of the Merger Agreement, (ii) the public or other
announcement of the Merger Agreement or the transactions contemplated
thereby, (iii) the consummation of the Merger or (iv) the consummation
of any other transaction contemplated in the Merger Agreement (each
such event, to the extent such event occurs prior to the termination of
the Merger Agreement in accordance with its terms, an "Exempt Event")."
C. Amendment of the definition of "Stock Acquisition Date". The
definition of "Stock Acquisition Date" in Section 1(t) of the Rights Agreement
is hereby amended and supplemented by adding the following sentence at the end
thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Stock Acquisition Date shall not be deemed to have occurred
solely as the result of an Exempt Event."
D. Amendment of definition of "Section 11(a)(ii) Event". The definition
of "Section 11(a)(ii) Event" in Section 1(r) of the Rights Agreement is hereby
amended and supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Section 11(a)(ii) Event shall not be deemed to have
occurred solely as a result of an Exempt Event."
E. Amendment of definition of "Section 13 Event". The definition of
"Section 13 Event" in Section 1(s) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Section 13 Event shall not be deemed to have occurred
solely as a result of an Exempt Event."
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F. Amendment of definition of "Triggering Event". The definition of
"Triggering Event" in Section 1(v) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Triggering Event shall not be deemed to have occurred
solely as a result of an Exempt Event."
G. Amendment to Section 3(a). Section 3(a) of the Rights Agreement is
hereby amended and supplemented by adding the following proviso immediately
following the words "...the earlier of (i) and (ii) above being the
'Distribution Date'" in the third parenthetical in Section 3(a):
"; provided however, that notwithstanding anything in this
Rights Agreement to the contrary, a Distribution Date shall not be
deemed to have occurred solely as the result of an Exempt Event."
H. Amendment of Section 3. Section 3 of the Rights Agreement is hereby
amended and supplemented to add the following sentence at the end thereof as
Section 3(d):
"Nothing in this Rights Agreement shall be construed to give
any holder of Rights or any other Person any legal or equitable rights,
remedies or claims under this Rights Agreement by virtue of an Exempt
Event."
I. Amendment of Section 11. Section 11 of the Rights Agreement is
hereby amended and supplemented to add the following clause at the end thereof
as Section 11(a)(iv):
"(iv) Notwithstanding the foregoing or anything else in this
Rights Agreement to the contrary, this Section 11(a) shall not apply to
any Exempt Event."
J. Amendment of Section 13. Section 13 of the Rights Agreement is
hereby amended and supplemented to add the following clause at the end thereof
as Section 13(f):
"(f) Notwithstanding the foregoing or anything else in this
Rights Agreement to the contrary, an Exempt Event shall not cause the
Rights to be adjusted or exercisable in accordance with, or any other
obligation to arise pursuant to, this Section 13."
K. Amendment of the Rights Agreement to add a new Section. The Rights
Agreement is hereby amended and supplemented to add the following Section 35:
"Section 35. Termination of this Agreement.
As of the Effective Time (as defined in the Merger Agreement),
this Agreement shall terminate and shall forthwith become void and have
no effect, without any liability or obligation on the part of the
Company, the Rights Agent or the holders of any Rights."
L. Effectiveness. This Amendment shall be deemed effective as of, and
immediately prior to, the execution and delivery of the Merger Agreement. Except
as amended
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hereby, the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
M. Miscellaneous. This Amendment shall be deemed to be a contract made
under the laws of the State of Tennesee and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts executed in and to be performed entirely in such state. This Amendment
may be executed in any number of counterparts, 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. If any 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 Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Except as otherwise expressly provided herein, or unless the context otherwise
requires, all terms used herein have the meanings assigned to them in the Rights
Agreement. The Rights Agent and the Company hereby waive any notice requirement
under the Rights Agreement pertaining to the matters covered by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the date and year first written above.
AMERICAN RETIREMENT CORPORATION
By:
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Name:
Title:
AMERICAN STOCK TRANSFER AND TRUST COMPANY
By:
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Name:
Title:
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