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Exhibit 4.1
MANOR CARE, INC.
THIRD RIGHTS AMENDMENT
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THIRD AMENDMENT, dated as of March 11, 2000 (this "Amendment"), to the
Rights Agreement, dated as of May 2, 1995, as amended, (the "Rights Agreement"),
between MANOR CARE, INC., as successor to 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:
1. The definition of "Acquiring Person" set forth in Section 1.1 of the
Rights Agreement is hereby modified by and amended by adding the following
sentence at the end thereof:
Notwithstanding the foregoing, none of (i) Stewart Bainum,
Jr., (ii) any other Person or group approved by the Board of
Directors or the Special Committee of the Board of Directors
of the Company (any of Stewart Bainum, Jr. and each such other
Person or group being an "Approved Person") and (iii) each
other stockholder of the Company with whom an Approved Person
may from time to time be deemed to have formed a group shall
become an Acquiring Person solely as a result of Permitted
Actions (as such term is hereinafter defined) taken on or
after March 10, 2000 and prior to the Company's announcement
of either an Extraordinary Transaction (as hereinafter
defined) with a Person other than the Approved Person or that
the Company is no longer exploring the possibility of an
Extraordinary Transaction (the "Termination Time"). "Permitted
Action" means having non-public discussions with stockholders
of the Company solely to inquire whether they would be
interested in becoming participants
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in the submission by an Approved Person of a proposal for a
negotiated acquisition of the Company pursuant to an
invitation from the Special Committee of the Company's Board
of Directors (and provided no information is disclosed to such
stockholders in violation of any agreement between the
Approved Person and the Company) or entering into any
arrangements, agreements or understandings with such
stockholders solely regarding such participation, provided
that all parties (including the Approved Person) party to such
agreements, arrangements or understandings do not in the
aggregate beneficially own more than 35% of the then
outstanding Common Shares of the Company and any such
arrangement, agreement or understanding must, by its terms,
automatically terminate at the Termination Time.
"Extraordinary Transaction" shall occur if the Board of
Directors of the Company approves a transaction (or a binding
agreement relating thereto) with any person or group that
would result in such person or group beneficially owning more
than 35% of the outstanding voting securities of the Company
(or a successor to the Company in a merger or consolidation
transaction) or all or substantially all of its assets, a
transaction with any person or group involving a merger,
consolidation, tender or exchange offer, recapitalization or
other business combination or similar transaction involving
the Company or its subsidiaries or that would result in any
person or group (other than the Company's Board of Directors)
having the right to elect or appoint a majority of the members
of the Company's Board of Directors, or any person or "group"
(as defined in the Exchange Act) has commenced or publicly
announced its intention to commence a tender or exchange offer
for more than 35% of the outstanding voting securities of the
Company.
2. This Amendment to the Rights Agreement shall be effective as of
March 10, 2000.
3. Except as expressly amended hereby, the Rights Agreement remains in
full force and effect in accordance with its terms.
4. The Rights Agreement, as amended by this Agreement, and each Right
and each Rights Certificate exist under and pursuant to the Delaware General
Corporation Law.
5. This Amendment to the Rights Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
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6. 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.
7. 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.
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.
MANOR CARE, INC.
By:__________________________
Name:
Title:
HARRIS TRUST AND SAVINGS BANK
By:__________________________
Name:
Title:
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