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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 7, 1997
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FORM 8-A
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
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AMERICAN HEALTH PROPERTIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 95-4084878
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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6400 SOUTH FIDDLER'S GREEN CIRCLE 80111
SUITE 1800 (ZIP CODE)
ENGLEWOOD, COLORADO
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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If this Form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [X]
If this Form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [ ]
Securities Act registration statement file number to which this form relates:
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
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TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
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Depositary Shares, each representing a The New York Stock Exchange, Inc.
one one-hundredth (1/100) interest in a
share of the Registrant's 8.60%
Cumulative Redeemable Preferred Stock,
Series B, par value $0.01 per share
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
NONE
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
American Health Properties, Inc. (the "Company," which term refers to the
Company and its subsidiaries unless the context otherwise requires) has issued a
new series of preferred stock, par value $0.01 per share, designated as "8.60%
Cumulative Redeemable Preferred Stock, Series B" (the "Series B Preferred
Stock"), which is represented by depositary shares (the "Depositary Shares"),
each representing a one one-hundredth (1/100) interest in one share of Series B
Preferred Stock.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below of certain provisions of the Deposit
Agreement (as defined below) and of the Depositary Shares and Depositary
Receipts does not purport to be complete and is subject to and qualified in its
entirety by reference to the Deposit Agreement and Depositary Receipts relating
to the Depositary Shares, which has been filed as an Exhibit to this
Registration Statement on Form 8-A.
GENERAL
The Company has elected to offer fractional interests in shares of Series B
Preferred Stock, rather than whole shares of Series B Preferred Stock. The
Company has provided for the issuance by a Depositary to the public of receipts
for Depositary Shares, each of which represents a one one-hundredth (1/100)
interest in one share of Series B Preferred Stock.
Each Depositary Share represents a one one-hundredth (1/100) interest in a
share of Series B Preferred Stock. The shares of Series B Preferred Stock
underlying the Depositary Shares have been deposited with ChaseMellon
Shareholder Services, L.L.C., as depositary (the "Depositary"), located at 300
South Hope Street, Los Angeles, California, 90071 under a Deposit Agreement
dated October 27, 1997 (the "Deposit Agreement") among the Company, the
Depositary and the Holders from time to time of the depositary receipts issued
by the Depositary thereunder (the "Depositary Receipts"). The Depositary
Receipts so issued will evidence the Depositary Shares. Subject to the terms of
the Deposit Agreement, each owner of a Depositary Share is entitled through the
Depositary, in proportion to the one one-hundredth (1/100)interest in a share of
Series B Preferred Stock underlying such Depositary Share, to all rights and
preferences of a share of Series B Preferred Stock (including dividend, voting,
redemption and liquidation rights). Since each share of Series B Preferred Stock
entitles the Holder thereof to one vote on matters on which the Series B
Preferred Stock is entitled to vote, each Depositary Share, in effect, entitles
the Holder thereof to one-one-hundredth of a vote thereon, rather than one full
vote.
The Depositary Shares are evidenced by Depositary Receipts issued pursuant
to the Deposit Agreement. From October 27, 1997 through November 7, 1997, the
Depositary Shares have traded in the over-the-counter market. The Depositary
Shares will begin trading on The New York Stock Exchange, Inc. under the symbol
"AHE PrB" on November 10, 1997.
Upon surrender of Depositary Receipts at the office of the Depositary and
upon payment of the charges provided in the Deposit Agreement and subject to the
terms thereof, a holder of Depositary Shares is entitled to have the Depositary
deliver to such holder the whole shares of Series B Preferred Stock underlying
the Depositary Shares evidenced by the surrendered Depositary Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all the dividends or other cash
distributions received in respect of the Series B Preferred Stock to the record
holders of the Depositary Shares in proportion to the numbers of such Depositary
Shares owned by such holders on the relevant record date. Fractions will be
rounded down to the nearest whole cent.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of the Depositary
Shares entitled thereto, unless the Depositary determines that it is not
feasible to make such distribution, in which case the Depositary may, with the
approval of the Company, sell such property and distribute the net proceeds from
such sale to such holders.
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The Deposit Agreement also contains provisions relating to the manner in
which any subscription or similar rights offered by the Company to holders of
the Series B Preferred Stock shall be made available to holders of the
Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If the Company elects to redeem the Series B Preferred Stock, the
Depositary Shares will be redeemed from the proceeds received by the Depositary
resulting from the redemption, in whole or in part, of the Series B Preferred
Stock held by the Depositary. The Depositary shall mail notice of redemption not
less than 30 and not more than 90 days prior to the date fixed for redemption to
the record holders of the Depositary Shares to be so redeemed at their
respective addresses appearing in the Depositary's books. The redemption price
per Depositary Share is $25.00 plus accumulated, accrued and unpaid dividends
thereon to the date fixed for redemption without interest. Whenever the Company
redeems shares of Series B Preferred Stock held by the Depositary, the
Depositary will redeem as of the same redemption date the number of Depositary
Shares relating to shares of Series B Preferred Stock so redeemed. If less than
all of the Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed will be selected by lot or pro rata as may be determined by the
Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE SERIES B PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Series B
Preferred Stock are entitled to vote, the Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Shares. Each record holder of the Depositary Shares on the record date (which
will be the same date as the record date for the Series B Preferred Stock) will
be entitled to instruct the Depositary as to the exercise of the voting rights
pertaining to the number of shares of Series B Preferred Stock underlying such
holder's Depositary Shares. The Depositary will endeavor, insofar as
practicable, to vote the number of shares of Series B Preferred Stock underlying
such Depositary Shares in accordance with such instructions, and the Company has
agreed to take all action that may be deemed necessary by the Depositary in
order to enable the Depositary to do so. The Depositary will refrain from voting
shares of Series B Preferred Stock to the extent it does not receive specific
instructions from the holders of Depositary Shares relating to such Series B
Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment that materially
and adversely alters the rights of the existing holders of Depositary Shares
will not be effective unless such amendment has been approved by the record
holders of at least a majority of the Depositary Shares then outstanding. The
Deposit Agreement may be terminated by the Company or the Depositary only if (i)
all outstanding Depositary Shares have been redeemed or (ii) there has been a
final distribution in respect of the Series B Preferred Stock in connection with
any liquidation, dissolution or winding up of the Company and such distribution
has been distributed to the holders of the Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with the initial deposit of the
Series B Preferred Stock and any redemption of the Series B Preferred Stock.
Holders
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of Depositary Shares will pay other transfer and other taxes and government
charges and such other charges as are expressly provided in the Deposit
Agreement for the accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Company that are delivered to the Depositary and
that the Company is required to furnish to the holders of the Series B Preferred
Stock.
Neither the Depositary nor the Company is liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. Neither the Company nor the Depositary
is subject to any liability under the Deposit Agreement to any holder of a
Depositary Share, other than for their gross negligence or willful misconduct,
and they are not obligated to prosecute or defend any legal proceeding in
respect of any Depositary Shares or Series B Preferred Stock unless satisfactory
indemnity is furnished. They may rely upon written advice of counsel or
accountants, or information provided by persons presenting Series B Preferred
Stock for deposit, holders of Depositary Shares or other persons believed to be
competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
OTHER PROVISIONS; RESTRICTIONS ON TRANSFER
For information regarding certain provisions of the Company's Restated
Certificate of Incorporation and Bylaws, including restriction on ownership of
the Depositary Shares and the Series B Preferred Stock, see "Description of
Provisions Applicable to all Capital Stock of the Company" presented elsewhere
herein.
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DESCRIPTION OF SERIES B PREFERRED STOCK
The following summary sets forth the material terms and provisions of the
Series B Preferred Stock represented by the Depositary Shares, and is qualified
in its entirety by reference to the provisions of the Certificate of Designation
for the Series B Preferred Stock and the Company's Restated Certificate of
Incorporation (the "Certificate of Incorporation), which are included as
Exhibits to this Registration Statement on Form 8-A. Unless the context
otherwise requires, all references to a holder of Series B Preferred Stock shall
refer to a holder of the Depositary Shares.
GENERAL
Subject to limitations prescribed by Delaware law and the Certificate of
Incorporation, the Board of Directors is authorized to issue, from the
authorized but unissued capital stock of the Company, preferred stock in such
classes or series as the Board of Directors may determine and to establish from
time to time the number of shares of preferred stock to be included in any such
series and to fix the designation and any preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends, qualifications
and terms and conditions of redemption of the shares of each such series. The
Board of Directors has authorized the Company to designate and issue the Series
B Preferred Stock.
The Series B Preferred Stock is validly issued, fully paid and
nonassessable. The holders of the Series B Preferred Stock have no preemptive
rights with respect to any shares of the capital stock of the Company or any
other securities of the Company convertible into or carrying rights or options
to purchase any such shares. The Series B Preferred Stock is not subject to any
sinking fund or other obligation of the Company to redeem or retire the Series B
Preferred Stock.
The transfer agent, registrar and dividend disbursing agent for the Series
B Preferred Stock is ChaseMellon Shareholder Services, L.L.C.
RANKING
With respect to payment of dividends and amounts upon liquidation,
dissolution or winding up, the Series B Preferred Stock ranks senior to the
Company's Common Stock, $0.01 par value (the "Common Stock"), the Company's
Preferred Stock, Series A, $0.01 par value (if and when issued, the "Series A
Preferred Stock") and the Company's Psychiatric Group Preferred Stock, $0.01 par
value (the "Psychiatric Group Stock").
While any Series B Preferred Stock is outstanding, the Company may not
authorize, create or increase the authorized amount of any class of security
that ranks senior to the Series B Preferred Stock with respect to the payment of
dividends or amounts payable upon liquidation, dissolution or winding up, or any
class of security convertible into shares of such a class, without the consent
of the holders of two-thirds of the outstanding Series B Preferred Stock and
Parity Shares (as defined below), voting as a single class. However, the Company
may create additional classes of other stock, increase the authorized number of
shares of Preferred Stock, issue series of Junior Shares (as defined below) or
issue series of Preferred Stock ranking on a parity with the Series B Preferred
Stock with respect, in each case, to the payment of dividends and amounts upon
liquidation, dissolution and winding up (a "Parity Share") without the consent
of any holder of Series B Preferred Stock. See "Voting Rights" below.
DIVIDENDS
Holders of the Series B Preferred Stock are entitled to receive, when and
as declared by the Board of Directors, out of funds legally available for the
payment of dividends, cumulative preferential annual cash dividends of $215.00
per share (equivalent to $2.15 per Depositary Share per annum). Such dividends
are cumulative from October 27, 1997 and payable quarterly in arrears on the
last calendar day (or, if such day is not a business day, the next business day)
of each February, May, August and November (each, a "Quarterly Dividend Date").
The first dividend, which will be paid on December 1, 1997, will be for less
than a full quarter. Such first dividend and any dividends payable on the Series
B Preferred Stock for any partial dividend
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period are computed on the basis of the actual number of days in such period.
Dividends are payable to holders of record as they appear in the records of the
Company at the close of business on the applicable record date, which is the
15th day of the calendar month in which the Quarterly Dividend Date falls or
such other date designated as such by the Board of Directors of the Company that
is not more than 50 nor less than 10 days prior to such Quarterly Dividend Date
(each, a "Record Date"). Accrued and unpaid dividends for any past dividend
periods may be declared and paid at any time and for such interim periods to
holders of record on the applicable Record Date. Any dividend payment made on
the Series B Preferred Stock is first credited against the earliest accrued but
unpaid dividend due with respect to the Series B Preferred Stock that remains
payable.
No dividends will be authorized by the Board of Directors or paid or set
aside for payment if any agreement of the Company prohibits such authorization,
payment or setting apart for payment or provides that such authorization,
payment or setting aside of payment would constitute a breach thereof or a
default thereunder, or if such authorization or payment is restricted or
prohibited by law. Dividends on Series B Preferred Stock accrue whether or not
the Company has earnings, whether or not there are funds legally available for
the payment of such dividends and whether or not such dividends are declared. No
interest, or sum of money in lieu of interest, is payable in respect of any
dividend payment or payments on the Series B Preferred Stock that may be in
arrears. Holders of Series B Preferred Stock are not entitled to any dividends,
whether payable in cash, property or shares of stock, in excess of the full
cumulative dividends, as described herein, on the Series B Preferred Stock.
If, for any taxable year, the Company elects to designate as "capital gain
dividends" (as defined in Section 857 of the Internal Revenue Code of 1986, as
amended (the "Code)) any portion (the "Capital Gains Amount") of the dividends
(within the meaning of the Code) paid or made available for the year to holders
of all classes of capital stock (the "Total Dividends"), then the portion of the
Capital Gains Amount that will be allocable to holders of Series B Preferred
Stock will be in the same portion that the Total Dividends paid or made
available to the holders of Series B Preferred Stock for the year bears to the
Total Dividends.
Except as provided in the next sentence, no dividends will be declared or
paid on any Parity Shares unless full cumulative dividends have been declared
and paid or are contemporaneously declared and funds sufficient for the payment
thereof set aside for such payment on the Series B Preferred Stock for all prior
dividend periods. If accrued dividends on the Series B Preferred Stock for all
prior dividend periods have not been paid in full, then any dividend declared on
the Series B Preferred Stock and on any Parity Shares for any dividend period
will be declared ratably in proportion to accrued and unpaid dividends on the
Series B Preferred Stock and such Parity Shares.
The Company will not (i) declare, pay or set apart funds for the payment of
any dividend or other distribution with respect to any Junior Shares (as defined
below) or (ii) redeem, purchase or otherwise acquire for consideration any
Junior Shares through a sinking fund or otherwise (other than a redemption or
purchase or other acquisition of Common Stock made for purposes of any employee
incentive or benefit plan of the Company or any subsidiary), unless (A) all
cumulative dividends with respect to the Series B Preferred Stock and any Parity
Shares at the time such dividends are payable have been paid or declared and
funds have been set apart for payment of such dividends and (B) sufficient funds
have been paid or declared and set apart for the payment of the dividend for the
current dividend period with respect to the Series B Preferred Stock and any
Parity Shares.
As used herein, (i) the term "dividend" does not include dividends or other
distributions payable solely in Fully Junior Shares (as defined below), or in
options, warrants or rights to subscribe for or purchase any Fully Junior
Shares, (ii) the term "Junior Shares" means the Common Stock, the Series A
Preferred Stock, the Psychiatric Group Stock and any other class or series of
shares of capital stock of the Company now or hereafter issued and outstanding
that ranks junior to the Series B Preferred Stock as to the payment of dividends
or in the distribution of assets or amounts upon liquidation, dissolution and
winding up and (iii) the term "Fully Junior Shares" means Junior Shares
(including the Common Stock, the Series A Preferred Stock and the Psychiatric
Group Stock) that rank junior to the Series B Preferred Stock both as to the
payment of dividends and distribution of assets upon liquidation, dissolution
and winding up.
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LIQUIDATION RIGHTS
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Company, the holders of Series B Preferred Stock are entitled to receive out
of assets of the Company legally available for distribution to stockholders a
liquidation preference of $2,500.00 per share of Series B Preferred Stock
($25.00 per Depositary Share), plus an amount per share of Series B Preferred
Stock equal to all dividends (whether or not earned or declared) accrued and
unpaid thereon to the date of final distribution to such holders, and no more.
Until the holders of Series B Preferred Stock and Parity Shares have been
paid their liquidation preference in full, no payment will be made to any holder
of Junior Shares upon the liquidation, dissolution or winding up of the Company.
If upon any liquidation, dissolution or winding up of the Company, the assets of
the Company, or proceeds thereof, distributable among the holders of the Series
B Preferred Stock are insufficient to pay in full the amount payable upon
liquidation with respect to the Series B Preferred Stock and any other Parity
Shares, then such assets, or the proceeds thereof, will be distributed among the
holders of Series B Preferred Stock and any such Parity Shares ratably in
accordance with the respective amounts which would be payable on such Series B
Preferred Stock and any such Parity Shares if all amounts payable thereon were
paid in full. Neither a consolidation nor a merger of the Company with another
entity, a statutory share exchange by the Company or a sale, lease or transfer
of all or substantially all of the Company's assets will be considered a
liquidation, dissolution or winding up, voluntary or involuntary, of the
Company.
REDEMPTION
The Series B Preferred Stock is not redeemable by the Company prior to
October 27, 2002. On and after October 27, 2002, the Company, at its option,
upon publication in a newspaper of general circulation in New York, New York at
least once a week for two successive weeks and written notice to the holders of
Series B Preferred Stock, may redeem the Series B Preferred Stock, in whole or
in part, at any time or from time to time, for cash at a redemption price of
$2,500.00 per share of Series B Preferred Stock ($25.00 per Depositary Share),
plus accumulated, accrued and unpaid dividends thereon to the date fixed for
redemption, without interest. The redemption price of the Series B Preferred
Stock (other than the portion thereof consisting of accrued and unpaid
dividends) is payable solely out of proceeds from the sale of other capital
stock of the Company, which may include Common Stock, preferred stock,
depositary shares, interests, participations or other ownership interests in the
Company however designated (other than debt securities convertible into or
exchangeable for equity securities), and any rights, warrants or options to
purchase any thereof. If fewer than all of the outstanding Series B Preferred
Stock are to be redeemed, the number of shares to be redeemed will be determined
by the Company and such shares may be redeemed pro rata from the holders of
record of such shares in proportion to the number of such shares held by such
holders (with adjustments to avoid redemption of fractional shares), by lot or
by any other method determined by the Company in its sole discretion to be
equitable.
Unless full cumulative dividends on all Series B Preferred Stock and any
Parity Shares have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for payment for all past
dividend periods and the then current dividend period, no Series B Preferred
Stock or Parity Shares may be redeemed or purchased by the Company except
pursuant to a purchase or exchange offer made on the same terms to holders of
all outstanding Series B Preferred Stock or Parity Shares, as the case may be.
Notice of redemption will be mailed at least 30 days but not more than 90
days before the redemption date by the registrar to each holder of record of
Series B Preferred Stock to be redeemed at the address shown on the stock
transfer books of the Company. Each notice shall state: (i) the redemption date;
(ii) the number of Series B Preferred Stock to be redeemed; (iii) the redemption
price per share; (iv) the place or places where certificates for Series B
Preferred Stock are to be surrendered for payment of the redemption price; and
(v) that dividends on the Series B Preferred Stock will cease to accrue on such
redemption date. If fewer than all Series B Preferred Stock are to be redeemed,
the notice mailed to each such holder thereof shall also specify the number of
Series B Preferred Stock to be redeemed from such holder. If notice of
redemption of
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any Series B Preferred Stock has been given and if the funds necessary for such
redemption have been set aside by the Company in trust for the benefit of the
holders of Series B Preferred Stock so called for redemption, then from and
after the redemption date, dividends will cease to accrue on the Series B
Preferred Stock, such Series B Preferred Stock shall no longer be deemed
outstanding and all rights of the holders of such shares will terminate, except
the right to receive the redemption price.
The holders of Depositary Shares at the close of business on a Record Date
are entitled to receive the dividends payable with respect to the Series B
Preferred Stock represented by such Depositary Shares on the corresponding
Quarterly Dividend Date notwithstanding the redemption thereof between such
Record Date and the corresponding Quarterly Dividend Date or the Company's
default in the payment of the dividend due. Except as provided above, the
Company will make no payment or allowance for unpaid dividends, whether or not
in arrears, on Series B Preferred Stock that have been called for redemption.
The Series B Preferred Stock has no stated maturity and will not be subject
to any sinking fund or mandatory redemption.
VOTING RIGHTS
Except as indicated below, or except as otherwise from time to time
required by applicable law, the holders of Series B Preferred Stock have no
voting rights.
If six consecutive quarterly dividends payable on the Series B Preferred
Stock or any Parity Shares are in arrears, whether or not earned or declared,
the number of directors then constituting the Board of Directors of the Company
will be increased by two, and the holders of Series B Preferred Stock, voting
together as a class with the holders of any other series of Parity Shares, have
the right to elect two additional directors to serve on the Company's Board of
Directors at any annual meeting of shareholders or a properly called special
meeting of the holders of the voting Parity Shares until all such dividends and
dividends for the current quarterly period on the Series B Preferred Stock and
such other voting Parity Shares have been declared and paid or set aside for
payment. Such voting rights terminate when all such accrued and unpaid dividends
have been declared and paid or set aside for payment. The term of office of all
directors so elected will terminate with the termination of such voting rights.
The approval of two-thirds of the outstanding Series B Preferred Stock and
all other Parity Shares similarly affected, voting as a single class, is
required in order to (i) amend the Certificate of Incorporation to affect
materially and adversely the rights, preferences or voting power of the holders
of the Series B Preferred Stock or the Parity Shares (except that if such
amendment would materially and adversely affect any right, preference, privilege
or voting power of the Series B Preferred Stock or another series of Parity
Shares that is not enjoyed by the other, then the approval of two thirds of the
holders of all series similarly affected shall be required); (ii) enter into a
share exchange that affects the Series B Preferred Stock, or consolidate the
Company with or merge the Company with another entity, unless in each such case
each share of Series B Preferred Stock remains outstanding without a material
adverse change to its terms and rights or is converted into or exchanged for
preferred stock of the surviving entity having preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends, qualifications
and terms and conditions of redemption thereof identical to that of the Series B
Preferred Stock (except for changes that do not materially and adversely affect
the holders of Series B Preferred Stock); or (iii) authorize, reclassify, create
or increase the authorized or issued amount of any shares of any class, or any
security convertible into shares of any class, having rights senior to the
Series B Preferred Stock with respect to the payment of dividends or the
distribution of assets or amounts upon liquidation, dissolution or winding up of
the Company. However, the Company may create additional classes of Parity Shares
and Junior Shares, increase the authorized number of Parity Shares and Junior
Shares and issue additional series of Parity Shares and Junior Shares without
the consent of any holder of Series B Preferred Stock.
Except as provided above and as required by applicable law, the holders of
Series B Preferred Stock are not entitled to vote on any merger or consolidation
involving the Company, on any share exchange or on a sale of all or
substantially all of the assets of the Company.
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RETIREMENT
Except as otherwise provided in the Certificate of Incorporation, all
Series B Preferred Stock issued and reacquired by the Company shall be restored
to the status of authorized but unissued shares of Preferred Stock, without
designation as to class or series.
CONVERSION
The Series B Preferred Stock is not convertible into or exchangeable for
any other property or securities of the Company at the option of the holder.
RECORD HOLDERS
The Company and its transfer agent may deem and treat the record holder of
any Depositary Share as the true and lawful owner thereof for all purposes, and
neither the Company nor its transfer agent shall be affected by any notice to
the contrary.
OTHER PROVISIONS; RESTRICTIONS ON TRANSFER
For information regarding certain provisions of the Certificate of
Incorporation and Bylaws, including restrictions on ownership of the Series B
Preferred Stock, see "Description of Provisions Applicable to all Capital Stock
of the Company" presented elsewhere herein.
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DESCRIPTION OF CERTAIN PROVISIONS APPLICABLE TO ALL CAPITAL STOCK OF THE COMPANY
The following description is intended as a summary of certain provisions
of, and is qualified in all respects by reference to, the Company's Certificate
of Incorporation and Bylaws previously filed with the Securities and Exchange
Commission.
GENERAL
The Certificate of Incorporation of the Company provides that the Company
is authorized to issue 100,000,000 shares of Common Stock, par value $0.01 per
share, and 1,000,000 shares of Preferred Stock, par value $0.01 per share,
issuable in series by the Board. As of October 27, 1997, the Company had issued
and outstanding approximately 23,559,000 shares of Common Stock. As of October
27, 1997, the Company had outstanding approximately 208,000 shares of
Psychiatric Group Stock, which constitute a separate series of Preferred Stock,
issued and outstanding. Such shares are the only shares of Psychiatric Group
Stock authorized by the Board to be issued, except shares of Psychiatric Group
Stock issuable upon exercise of options granted in connection with the
transaction in which the Company distributed Depositary Shares representing
Psychiatric Group Stock to the holders of the Company's Common Stock (the
"Distribution"). As of October 27, 1997, the Company had issued and outstanding
4,000,000 Depositary Shares representing 40,000 shares of Series B Preferred
Stock. In addition, the Company has authorized the issuance of approximately
257,000 shares of Series A Preferred Stock. See "-- Preferred Stock Purchase
Rights Plan."
The Common Stock trades on The New York Stock Exchange, Inc. under the
symbol "AHE" and the Psychiatric Group Stock is quoted on the National
Association of Securities Dealers Automated Quotations National Market under the
symbol "AHEPZ." The Depositary Shares will begin trading on The New York Stock
Exchange under the symbol "AHE PrB" on November 10, 1997.
DIVIDENDS
Dividends on the Company's capital stock are limited to the amount of funds
of the Company legally available under Delaware law for the payment of dividends
by the Company on its capital stock. As of June 30, 1997 the funds of the
Company legally available for the payment of dividends would have been at least
$319.6 million.
DETERMINATIONS BY THE BOARD
The Company's Certificate of Incorporation provides that a Director will
not be liable to the Company or its stockholders for monetary damages for breach
of fiduciary duty as a Director, except for liability (i) for any breach of the
Director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) pursuant to specific provisions of Delaware law
or (iv) for any transaction from which the Director derived any improper
personal benefit. The liability of Directors will be further eliminated or
limited to the fullest extent permitted by future changes in Delaware law.
PREFERRED STOCK PURCHASE RIGHTS PLAN
On April 20, 1990, the Company distributed to its holders of Common Stock
one preferred stock purchase right (each, a "Right") for each outstanding share
of Common Stock. Under certain conditions, each Right may be exercised to
purchase one one-hundredth (1/100) of a share of Series A Preferred Stock, at a
price of $45. The total number of Rights issued or issuable at June 30, 1997,
including Rights issuable in connection with Common Stock which may be issued
under the Company's stock incentive plans and upon the conversion of the
Company's outstanding Swiss franc convertible bonds, was approximately
25,721,000. Approximately 257,000 shares of Series A Preferred Stock could be
purchased upon the exercise of all Rights currently issued or issuable. The
number of Rights outstanding and shares of Series A Preferred Stock issuable
upon exercise, as well as the Series A Preferred Stock purchase price, are
subject to customary antidilution adjustments.
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<PAGE> 11
The Rights are evidenced by the certificates for shares of Common Stock,
and in general are not transferable apart from the Common Stock or exercisable
until after a party has acquired beneficial ownership of or made a tender offer
for 10% or more of the outstanding Common Stock of the Company (an "Acquiring
Person"), or the occurrence of other events as specified in the Rights Plan.
Under certain conditions as specified in the Rights Plan, including but not
limited to the acquisition by a party of 15% or more of the outstanding Common
Stock of the Company or the acquisition of the Company in a merger or other
business combination, each holder of a Right (other than an Acquiring Person,
whose Rights will be void) will receive upon exercise thereof and payment of the
exercise price that number of shares of Common Stock of the Company or of the
other party, as applicable, having a market value of two times the exercise
price of the Right.
The Rights expire on April 20, 2000, and until exercised, the holder
thereof, as such, will have no rights as a shareholder of the Company. At the
Company's option, the Rights may be redeemed in whole at a price of $.01 per
Right at any time prior to becoming exercisable. In general, the Company may
also exchange the Rights at a ratio of one share of Common Stock per Right after
becoming exercisable but prior to the acquisition of 50% or more of the
outstanding shares of Common Stock by any party.
Series A Preferred Stock issuable upon exercise of the Rights will not be
redeemable. Each share of Series A Preferred Stock will have 100 votes and will
be entitled to (a) dividends in an amount equal to the greater of $1.00 or 100
times the amount of the dividends per share paid on the Common Stock, (b) a
liquidation preference in an amount equal to the greater of $100 or 100 times
the amount per share paid on the Common Stock and (c) a payment in connection
with a business combination (in which shares of Common Stock are exchanged)
equal to 100 times the amount per share paid on the Common Stock.
Neither the Psychiatric Group Stock nor the Series B Preferred Stock
includes, nor do they entitle the holders thereof to receive, the Rights, which
are applicable only to the Common Stock.
LIMITS ON STOCK OWNERSHIP
The Company's Certificate of Incorporation provides that as a condition to
the transfer and/or registration of transfer of any shares of capital stock of
the Company which would result in any stockholder owning, directly or
indirectly, shares in excess of 9% of the issued and outstanding capital stock
of the Company, the proposed transferee must file with the Company an affidavit
setting forth the number of shares owned, directly or indirectly, by such
transferee. Any acquisition of shares, transfer of shares or any options,
warrants or other securities convertible into shares that would result in the
disqualification of the Company as a REIT will be deemed void to the fullest
extent permitted under applicable law and the intended transferee shall be
deemed never to have had an interest therein. If more than 9.8% of the capital
stock of the Company has become concentrated in the hands of one beneficial
owner, (i) such beneficial owner and its affiliates and associates will be
deemed to have offered to sell to the Company or its designee on the date
specified in the Company's notice of acceptance of such offer to sell such
number of shares sufficient, in the opinion of the Board, to maintain or bring
the direct or indirect ownership of the capital stock of the Company held by
such beneficial owner to a level of no more than 9.8% of the issued and
outstanding capital stock of the Company, and (ii) the Board also will refuse to
transfer or issue shares of capital stock to any person whose acquisition of
such shares would result in the direct or indirect ownership by that person of
more than 9.8% of the issued and outstanding capital stock of the Company. The
purchase price for any shares of capital stock of the Company so redeemed will
be equal to the fair market value of the shares reflected in the closing sales
price for the shares, if then listed on a national securities exchange, or the
average of the closing sales prices for the shares if then listed on more than
one national securities exchange, or if the shares are not then listed on a
national securities exchange, the latest bid quotation for the shares if then
traded over-the-counter, on the last business day immediately preceding the day
on which notice of acceptance of the offer of sale is sent by the Company, or,
if no such closing sales prices or quotations are available, then the purchase
price will be equal to the net asset value of such shares as determined in good
faith by the Board. The purchase price of any such shares acquired by the
Company, or its designee, will be paid, at the option of the Company, in cash or
in the form of an unsecured, subordinated promissory note of the Company, or its
designee, bearing interest and having a term to maturity (to be not less than 5
nor more than 20 years) as determined by the Board. From and after
11
<PAGE> 12
the tender by the Company of the purchase price therefor, the holder of any
shares of capital stock of the Company so called for purchase will cease to be
entitled to any rights as a holder of such shares, except the right to payment
of the purchase price therefor.
BUSINESS COMBINATION PROVISIONS
The Certificate of Incorporation requires that Business Combinations (as
defined in the Certificate of Incorporation) between the Company and a
Beneficial Owner (as defined in the Certificate of Incorporation) of 10% or more
of the Company's outstanding shares of Voting Stock (as defined in the
Certificate of Incorporation) (a "Related Person"), and any Affiliate (as
defined in the Certificate of Incorporation) or Associate (as defined in the
Certificate of Incorporation) of such person, be approved by (i) the affirmative
vote of the holders of not less than 80% of the outstanding shares of Voting
Stock and (ii) the holders of a majority of the outstanding shares of Voting
Stock other than such Related Person and such person's Associates and
Affiliates, unless a majority of the Continuing Directors (as defined in the
Certificate of Incorporation) shall have approved the Business Combination or
shall have approved the acquisition of outstanding shares of Voting Stock which
caused the Related Person to become a Related Person. In general, Voting Stock
means the capital stock of the Company entitled to vote generally in the
election of directors, including the Psychiatric Group Stock, and each share is
allocated for this purpose the number of votes granted to it generally in the
election of directors.
A "Business Combination" is defined in the Certificate of Incorporation as
(a) any merger or consolidation of the Company or any subsidiary (other than
pursuant to Section 253 of the Delaware General Corporation Law with or into any
corporation which owns at least 90% of the outstanding shares of each class of
stock of the Company or its subsidiary, as applicable) with a Related Person or
any other corporation (whether or not itself a Related Person) which is, or
after such merger or consolidation would be, an Affiliate or Associate of a
Related Person, (b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or with a
Related Person or such person's Affiliates or Associates of any assets of the
Company (including the securities of a subsidiary) or a subsidiary having a fair
market value of $20 million or more, (c) the issuance or transfer of any
securities of the Company or a subsidiary by the Company or such subsidiary to
any Related Person having an aggregate fair market value of $20 million or more,
other than by any distribution pro rata to, or exchange offer made to, all
holders of a publicly held class or series of stock of the Company or any of its
subsidiaries, or upon the exercise, conversion or exchange of securities of the
Company or any of its subsidiaries which are exercisable, convertible or
exchangeable into or for securities of the Company or any of its subsidiaries,
(d) the adoption of any plan or proposal for the liquidation or dissolution of
the Company by or on behalf of a Related Person or any of such person's
Affiliates or Associates or (e) any reclassification of securities or
recapitalization of the Company (including any reverse stock split), or any
merger or consolidation of the Company with any of its subsidiaries or any other
transaction involving the Company or any of its subsidiaries (whether or not
with or into or otherwise involving a Related Person) which has the effect,
directly or indirectly, of increasing the proportionate share of the outstanding
shares of any class of voting stock of the Company or of any of its subsidiaries
directly or indirectly owned by any Related Person or such person's Associates
or Affiliates.
The Company is also subject to the provisions of Section 203 of the
Delaware General Corporation Law, which relate to business combinations.
STAGGERED BOARD; REMOVAL OF DIRECTORS
The Board is divided into three classes, each class consisting, as nearly
as may be possible, of one-third of the total number of Directors. Directors are
elected for a three-year term and the term of one class expires each year. A
Director holds office until the annual meeting for the year in which his or her
term expires. If the number of Directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number of Directors
in each class as nearly equal as possible, but in no case will a decrease in the
number of Directors shorten the term of any incumbent Director. Under Delaware
law, because the Board is divided into classes, no Director may be removed from
office before expiration of his or her term except for cause.
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<PAGE> 13
VOTE REQUIRED TO CHANGE CERTAIN PROVISIONS
The provisions described under "Limits on Stock Ownership" and "Business
Combination Provisions" above may not be amended without the affirmative vote of
stockholders holding at least 80% of the Voting Stock of the Company and, with
respect to the provisions under "Business Combination Provisions" only, a
majority vote of the stockholders of Voting Stock who are Disinterested
Stockholders (as defined in the Certificate of Incorporation). The provisions
described under "Staggered Board" above may not be amended without the
affirmative vote of stockholders holding at least 66 2/3% of the outstanding
shares of capital stock of the Company entitled to vote generally in the
election of Directors.
CERTAIN ANTI-TAKEOVER EFFECTS
The provisions described under "-- Preferred Stock Purchase Rights Plan,"
"-- Limits on Stock Ownership," "-- Business Combination Provisions" and
"-- Staggered Board" above may have the effect of discouraging unilateral tender
offers or other takeover proposals which certain stockholders might deem in
their interests or in which they might receive a substantial premium over market
price for their shares. The Board's authority to issue and establish the terms
of currently authorized preferred stock without stockholder approval may also
have the effect of discouraging takeover attempts. The provisions could also
have the effect of insulating current management against the possibility of
removal and could, by possibly reducing temporary fluctuations in market price
caused by accumulations of Common Stock, deprive stockholders of opportunities
to sell at a temporarily higher market price. However, the Board believes that
the Preferred Stock Purchase Rights Plan and inclusion of the Business
Combination and Staggered Board provisions may help assure fair treatment of
stockholders and continuity of management and that the Limits on Stock Ownership
provision is reasonably necessary to safeguard the Company's REIT status.
STOCK REGISTRAR AND TRANSFER AGENT
ChaseMellon Shareholder Services, L.L.C. is the registrar and transfer
agent for the Common Stock and the Psychiatric Group Stock. ChaseMellon
Shareholder Services, L.L.C. is also depositary for the depositary shares with
respect to the Psychiatric Group Stock and the Series B Preferred Stock.
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<PAGE> 14
ITEM 2. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
3.1 -- Restated Certificate of Incorporation of the Registrant,
incorporated herein by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-3 dated
September 26, 1995 (No. 33-61895).
3.2 -- Amended and Restated By-laws of the Registrant, as
amended, incorporated herein by reference to Exhibit 3.2
to the Annual Report on Form 10-K for the year ended
December 31, 1992 (Commission File No. 1-9381).
4.1 -- Certificate of Designations with respect to the Series B
Preferred Stock.
4.2 -- Specimen Stock Certificate with respect to the Series B
Preferred Stock, par value $0.01 per share, of the
Registrant.
4.3 -- Deposit Agreement (including form of Depositary Receipt)
dated October 27, 1997 between the Registrant and
ChaseMellon Shareholder Services, L.L.C.
4.4 -- Specimen Depositary Receipt with respect to the
Depositary Shares.
4.5 -- Specimen Stock Certificate with respect to the Common
Stock, incorporated by reference to Exhibit 4.9 to the
Company's Registration Statement on Form S-3 dated
September 26, 1995 (No. 33-61895).
4.6 -- Rights Agreement dated as of April 10, 1990, incorporated
by reference from Exhibit 2 to the Company's Registration
Statement on Form 9-A dated April 10, 1990 (Commission
File No. 1-9381).
</TABLE>
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<PAGE> 15
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
AMERICAN HEALTH PROPERTIES, INC.
By: /s/ MICHAEL J. MCGEE
----------------------------------
Michael J. McGee
Senior Vice President,
Chief Financial Officer
Date: November 7, 1997
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<PAGE> 16
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.1 -- Certificate of Designations with respect to the Series B
Preferred Stock.
4.2 -- Specimen Stock Certificate with respect to the Series B
Preferred Stock, par value $0.01 per share, of the
Registrant.
4.3 -- Deposit Agreement (including form of Depositary Receipt)
dated October 27, 1997 between the Registrant and
ChaseMellon Shareholder Services, L.L.C.
4.4 -- Specimen Depositary Receipt with respect to the
Depositary Shares.
</TABLE>
<PAGE> 1
Exhibit 4.1
CERTIFICATE OF DESIGNATIONS
OF THE
8.60% CUMULATIVE REDEEMABLE PREFERRED STOCK, SERIES B
(PAR VALUE $0.01 PER SHARE)
OF
AMERICAN HEALTH PROPERTIES, INC.
----------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
----------------------------
The undersigned duly authorized officer of American Health Properties,
Inc., a corporation organized and existing under the General Corporation Law of
the State of Delaware (the "Company"), in accordance with the provisions of
Section 103 thereof, and pursuant to Section 151 thereof, DOES HEREBY CERTIFY:
That the Certificate of Incorporation of the Company provides that the
Company is authorized to issue 1,000,000 shares of Preferred Stock, par value
$0.01 per share ("Preferred Stock"), issuable in series by the Board. On July
7, 1995, the Company authorized the issuance of 220,000 shares of Psychiatric
Group Preferred Stock, $0.01 par value (the "Psychiatric Group Preferred
Stock"), which constitute a separate series of Preferred Stock, which shares
are either issued and outstanding, or reserved for issuance. On April 12,
1990, the Company authorized and reserved for issuance 250,000 shares of
Preferred Stock, Series A, $0.01 par value (the "Series A Preferred Stock").
Such shares are the only shares of Preferred Stock authorized by the Board to
be issued, except additional shares of Series A Preferred Stock issuable in
connection with the issuance of additional shares of the Company's common
stock, $0.01 par value; and
That pursuant to the authority conferred upon the Board of Directors
(the "Board") by the Certificate of Incorporation of the Company, the Board on
October 15, 1997, approved the creation, issuance and the voting powers of
shares of Preferred Stock to be issued in one or more series as determined by a
duly authorized committee of the Board, and, on October 22, 1997, such duly
authorized committee of the Board adopted the following resolution creating a
series of up to 46,000 shares of Preferred Stock designated as set forth below:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board by provisions of the Certificate of Incorporation of the
Company, as amended (the "Certificate of Incorporation"), and the General
Corporation Law of the State of Delaware, the issuance of a series of Preferred
Stock, which shall consist of up to 46,000 shares of the remaining
approximately 530,000 shares of Preferred Stock that the Company now has
authority to issue, be, and the same hereby is, authorized, and this committee
of the Board hereby fixes the powers, designations,
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<PAGE> 2
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, of the shares of such
series (in addition to the powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, set forth in the Certificate of
Incorporation which may be applicable to the Preferred Stock) authorized by
this resolution as follows:
1. Designation and Rank. The designation of such series of
Preferred Stock authorized by this resolution shall be 8.60% Cumulative
Redeemable Preferred Stock, Series B (the "Series B Preferred Stock"). The
maximum number of shares of Series B Preferred Stock shall be forty-six
thousand (46,000). Shares of the Series B Preferred Stock shall have a
liquidation preference of $2,500.00 per share. The Series B Preferred Stock
shall rank senior to the Company's Common Stock, to the Series A Preferred
Stock, to the Psychiatric Group Preferred Stock and to all other classes and
series of equity securities of the Company now or hereafter authorized, issued
or outstanding (the Common Stock, the Series A Preferred Stock, the Psychiatric
Group Preferred Stock and such other classes and series of equity securities
collectively may be referred to herein as the "Junior Stock"), other than any
classes or series of equity securities of the Company ranking on a parity with
(the "Parity Stock") or senior to (the "Senior Stock") the Series B Preferred
Stock as to dividend rights and rights upon liquidation, winding up or
dissolution of the Company; provided, however, that with respect to any Senior
Stock, the Company has satisfied the provisions of Section 4(c) hereof. The
Series B Preferred Stock shall be junior to all outstanding debt of the
Company. The Series B Preferred Stock shall be subject to creation of Parity
Stock and Junior Stock to the extent not expressly prohibited by the Company's
Certificate of Incorporation.
2. Cumulative Dividends; Priority.
(a) Payment of Dividends. The holders of record of shares of Series
B Preferred Stock shall be entitled to receive, when, as, and if declared by
the Board, out of funds legally available therefor, cumulative cash dividends
at the rate of 8.60% per annum per share, which shall accrue from the original
issue date and be payable quarterly in arrears on the last day of February,
May, August and November of each year, commencing in November 1997, or, if such
day is a non-business day, on the next business day (each of such dates, a
"Dividend Payment Date"). Each declared dividend shall be payable to holders
of record as they appear on the stock books of the Company at the close of
business on the record dates therefor, which will be the 15th day of the
calendar month in which the Dividend Payment Date falls or such other date
designated as such, that is not more than 50 nor less than 10 days preceding
the payment dates therefor, as is determined by the Board or a duly authorized
committee thereof (each of such dates, a "Record Date"). Quarterly dividend
periods (each a "Dividend Period") shall commence on and include the either (i)
the original issuance date or (ii) first day after the immediately preceding
Dividend Period and shall end on and include the next scheduled Dividend
Payment Date, without regard to whether it falls on a business day.
The amount of dividends payable per share for each full Dividend
Period shall be computed by dividing by four the amount determined by applying
the 8.60% annual dividend rate to the $2,500.00 liquidation preference of such
share. Dividends on the Series B Preferred Stock shall accrue day by day and
shall be cumulative. The initial quarterly dividend payable in respect of
- 2 -
<PAGE> 3
November 1997 and the amount of any dividend payable for any other period
shorter than a full Dividend Period shall be computed on the basis of a 360-day
year composed of twelve 30-day months and the actual number of days elapsed in
such period.
(b) Priority as to Dividends. No full dividends shall be declared or
paid or set apart for payment on Preferred Stock of any series ranking, as to
dividends, on a parity with or junior to the Series B Preferred Stock for any
period unless full dividends for the current Dividend Period on the Series B
Preferred Stock (including any accumulation in respect of unpaid dividends from
prior Dividend Periods) have been or contemporaneously are declared and paid
(or declared and a sum sufficient for the payment thereof set apart for such
payment). When dividends are not paid in full (or declared and a sum
sufficient for such full payment is not so set apart) upon the Series B
Preferred Stock and any other Preferred Stock ranking on a parity as to
dividends with the Series B Preferred Stock, dividends declared upon shares of
Series B Preferred Stock and such other Preferred Stock ranking on a parity as
to dividends shall be declared pro rata, so that the amount of dividends
declared per share on the Series B Preferred Stock and such other Preferred
Stock shall bear in all cases to each other the same ratio that accrued
dividends for the then-current Dividend Period per share on the shares of
Series B Preferred Stock (including any accumulation in respect of unpaid
dividends for prior Dividend Periods) and accrued dividends, including required
or permitted accumulations, if any, of such other Preferred Stock, bear to each
other.
Unless full dividends on the Series B Preferred Stock have been
declared and paid or set apart for payment for the current Dividend Period
(including any accumulation in respect of unpaid dividends for prior Dividend
Periods) (i) no cash dividend or other distribution (other than in shares of
Junior Stock or options, warrants or right to subscribe for or purchase same)
shall be declared or paid or set aside for payment on the Junior Stock, (ii)
the Company may not, directly or indirectly, repurchase, redeem or otherwise
acquire any shares of its Junior Stock (or any moneys paid to or made available
for a sinking fund for the redemption of any shares except by conversion into
or exchange for Junior Stock) and (iii) the Company may not, directly or
indirectly, repurchase, redeem or otherwise acquire any shares of Series B
Preferred Stock or Parity Stock (or any moneys paid to or made available for a
sinking fund for the redemption of any shares of any such stock) otherwise than
pursuant to a pro rata offer to purchase or a concurrent redemption of all, or
a pro rata portion, of the outstanding shares of Series B Preferred Stock and
Parity Stock (except by conversion into or exchange for Junior Stock).
The Company shall not permit any subsidiary of the Company to purchase
or otherwise acquire for consideration any shares of stock of the Company if,
under the preceding paragraph, the Company would be prohibited from purchasing
or otherwise acquiring such shares at such time and in such manner.
The Series B Preferred Stock will not be entitled to any dividends in
excess of full cumulative dividends as described above and shall not be
entitled to participate in the earnings or assets of the Company, and no
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Series B Preferred Stock which may be
in arrears.
- 3 -
<PAGE> 4
Any dividend payment made on the Series B Preferred Stock shall first
be credited against the earliest accrued but unpaid dividend due with respect
to such shares which remains payable.
If, for any taxable year, the Company elects to designate as "capital
gain dividends" (as defined in Section 857 of the Code), any portion (the
"Capital Gains Amount") of the dividends paid or made available for the year to
holders of all classes of shares (the "Total Dividends"), then the portion of
the Capital Gains Amount that shall be allocated to the holders of the Series B
Preferred Stock shall equal (i) the Capital Gains Amount multiplied by (ii) a
fraction that is equal to (a) the total dividends paid or made available to the
holders of the Series B Preferred Stock for the year over (b) the Total
Dividends.
No dividends on the Series B Preferred Stock shall be authorized by
the Board of Directors or be paid or set apart for payment by the Company at
such time as the terms and provisions of any agreement of the Company,
including any agreement relating to its indebtedness, prohibit such
authorization, payment or setting apart for payment or provide that such
authorization, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such authorization or payment shall be
restricted or prohibited by law. Notwithstanding the foregoing, dividends on
the Series B Preferred Stock will accrue whether or not the Company has
earnings, whether or not there are funds legally available for the payment of
such dividends and whether or not such dividends are authorized.
3. Redemption.
(a) General. Subject to the last sentence of this paragraph, the
shares of the Series B Preferred Stock will not be redeemable prior to October
27, 2002. At any time on or after October 27, 2002, subject to the applicable
restrictions set forth in this Section 3 and applicable law, the shares of
Series B Preferred Stock may be redeemed, in whole or in part, at the election
of the Company, upon notice as provided in Section 3(b) hereof, by resolution
of its Board of Directors, at any time or from time to time, at the redemption
price of $2500.00 per share, plus, in each case, an amount equal to all accrued
and unpaid dividends to the date fixed for redemption. Notwithstanding the
foregoing, the Company may redeem all or any portion of the Series B Preferred
Stock or Parity Stock to preserve the Company's status of a real estate
investment trust.
If less than all the outstanding shares of Series B Preferred Stock
are to be redeemed, the Company will select those to be redeemed pro rata, by
lot or by a substantially equivalent method. On and after the redemption date,
dividends shall cease to accrue on the shares of Series B Preferred Stock
called for redemption, and they shall be deemed to cease to be outstanding,
provided that the redemption price (including any accrued and unpaid dividends
to the date fixed for redemption) has been duly paid or provided for.
No Series B Preferred Stock may be redeemed except from proceeds from
the sale of other capital stock of the Company, including but not limited to
common stock, preferred stock, depositary shares, interests, participations or
other ownership interests (however designated) and any rights
- 4 -
<PAGE> 5
(other than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(b) Notice of Redemption. Notice of any redemption, setting forth
(i) the date and place fixed for said redemption and the number of shares of
Series B Preferred Stock to be redeemed, (ii) the redemption price and (iii) a
statement that dividends on the shares of Series B Preferred Stock to be
redeemed will cease to accrue on such redemption date, shall be given by
publication in a newspaper of general circulation in New York, New York at
least once a week for two successive weeks and shall be mailed, postage
prepaid, at least 30 days but not more than 90 days prior to said redemption
date to each holder of record of the Series B Preferred Stock to be redeemed at
his address as the same shall appear on the books of the Company. If less than
all the shares of the Series B Preferred Stock owned by such holder are then to
be redeemed, the notice shall specify the number of shares thereof which are to
be redeemed and the numbers of the certificates representing such shares.
If such notice of redemption shall have been so given and mailed, and
if on or before the redemption date specified in such notice all funds
necessary for such redemption shall have been set aside by the Company separate
and apart from its other funds in trust for the account of the holders of the
shares of the Series B Preferred Stock so to be redeemed (so as to be and
continue to be available therefor), then, on and after said redemption date,
notwithstanding that any certificate for shares of the Series B Preferred Stock
so called for redemption shall not have been surrendered for cancellation, the
shares of the Series B Preferred Stock so called for redemption shall be deemed
to be no longer outstanding, the dividends thereon shall cease to accrue, and
all rights with respect to such shares of the Series B Preferred Stock so
called for redemption shall forthwith cease and terminate, except only the
right of the holders thereof to receive out of the funds so set aside in trust
the amount payable on redemption thereof, but without interest, upon surrender
(and endorsement or assignment for transfer, if required by the Company) of
their certificates.
However, if such notice of redemption shall have been so given and
mailed, and if prior to the date of redemption specified in such notice all
said funds necessary for such redemption shall have been irrevocably deposited
in trust for the account of the holders of the shares of the Series B Preferred
Stock to be redeemed (so as to be and continue to be available therefor) with a
bank or trust company named in such notice doing business in the City of New
York or the State of Colorado and having capital surplus and undivided profits
of at least $50,000,000, thereupon and without awaiting the redemption date,
all shares of the Series B Preferred Stock with respect to which such notice
shall have been so mailed and such deposit shall have been so made shall be
deemed to be no longer outstanding, and all rights with respect to such shares
of the Series B Preferred Stock shall forthwith upon such deposit in trust
cease and terminate, except only the right of the holders thereof on or after
the redemption date to receive from such deposit the amount payable upon the
redemption, but without interest, upon surrender (and endorsement or assignment
to transfer, if required by the Company) of their certificates.
In case the holders of shares of the Series B Preferred Stock which
shall have been redeemed shall not within two years (or any longer period if
required by law) after the redemption date claim
- 5 -
<PAGE> 6
any amount so deposited in trust for the redemption of such shares, such bank
or trust company shall, upon demand and if permitted by applicable law, pay
over to the Company any such unclaimed amount so deposited with it, and shall
thereupon be relieved of all responsibility in respect thereof, and thereafter
the holders of such shares shall, subject to applicable escheat laws, look only
to the Company for payment of the redemption price thereof, but without
interest from the date of redemption.
(c) Status of Shares Redeemed. Shares of Series B Preferred Stock
redeemed, purchased or otherwise acquired for value by the Company, shall,
after such acquisition, have the status of authorized and unissued shares of
Preferred Stock and may be reissued by the Company at any time as shares of any
series of Preferred Stock other than as shares of Series B Preferred Stock.
4. Voting Rights.
The voting rights of the Series B Preferred Stock shall be those
voting rights established by resolution of the Board adopted on August 16,
1995, which established such rights as follows (together with an additional
paragraph added at the end of subparagraph (c) below):
(a) General Voting Rights. Except as expressly provided hereinafter
in this Section, or as otherwise from time to time required by applicable law,
this Series of Preferred Stock shall have no voting rights.
(b) Voting Rights Upon Dividend Arrears.
(i) Right to Elect Directors. In the event that an amount
equal to six quarterly dividend payments on this Series of Preferred
Stock shall have accrued and be unpaid, the holders of this Series of
Preferred Stock shall have the right, voting separately as a class
together with holders of shares of any Parity Stock upon which like
voting rights have been conferred and are exercisable ("Voting Parity
Stock"), to elect two members of the Board of Directors, each member
to be in addition to the then authorized number of directors, at the
next annual meeting of stockholders and thereafter until dividends on
this Series of Preferred Stock have been paid in full for four
consecutive Dividend Periods, including the last preceding Dividend
Period.
(ii) Term of Office of Directors. Any director who shall
have been elected by holders of this Series of Preferred Stock and
Voting Parity Stock entitled to vote in accordance with this
subparagraph (b) shall hold office for a term expiring (subject to the
earlier payment, or declaration and setting aside for payment, of
dividends on this Series of Preferred Stock for four consecutive
Dividend Periods as described below) at the next annual meeting of
stockholders and during such term may be removed at any time, either
for or without cause, by, and only by, the affirmative vote of the
holders of record of a majority of the shares of this Series of
Preferred Stock and Voting Parity Stock present and voting, in person
or by proxy, at a special meeting of such stockholders called for such
purpose, and
- 6 -
<PAGE> 7
any vacancy created by such removal may also be filled at such
meeting. A meeting for the removal of a director elected by the
holders of this Series of Preferred Stock and Voting Parity Stock and
the filling of the vacancy created thereby shall be called by the
Secretary of the Company as promptly as possible and in any event
within 10 days after receipt of a request therefor signed by the
holders of not less than 25% of the outstanding shares of this Series
of Preferred Stock, subject to any applicable notice requirements
imposed by law or regulation. Such meeting shall be held at the
earliest practicable date thereafter, provided that no such meeting
shall be required to be held during the 90-day period preceding the
date fixed for the annual meeting of stockholders.
Upon payment, or declaration and setting aside for payment, of
dividends on this Series of Preferred Stock for four consecutive
Dividend Periods the terms of office of all directors elected by the
holders of the shares of this Series of Preferred Stock and the Voting
Parity Stock pursuant thereto then in office shall, without further
action, thereupon terminate unless otherwise required by law. Upon
such termination the number of directors constituting the Board of
Directors of the Company shall, without further action, be reduced by
two, subject always to the increase of the number of directors
pursuant to the foregoing provisions in the case of the future right
of holders of the shares of this Series of Preferred Stock and Voting
Parity Stock to elect directors as provided above.
(iii) Vacancies. Any vacancy caused by the death or
resignation of a director who shall have been elected in accordance
with this subparagraph (b) may be filled by the remaining director so
elected or, if not so filled, by a vote of holders of a plurality of
the shares of this Series of Preferred Stock and Voting Parity Stock
present and voting, in person or by proxy, at a meeting called for
such purpose. Unless such vacancy shall have been filled by the
remaining director as aforesaid, such meeting shall be called by the
Secretary of the Company at the earliest practicable date after such
death or resignation, and in any event within 10 days after receipt of
a written request signed by the holders of record of at least 25% of
the outstanding shares of this Series of Preferred Stock, subject to
any applicable notice requirements imposed by law or regulation.
Notwithstanding the provisions of this paragraph, no such special
meeting shall be required to be held during the 90-day period
preceding the date fixed for the annual meeting of stockholders.
(iv) Stockholders' Right to Call Meeting. If any meeting of
the holders of this Series of Preferred Stock and Voting Parity Stock
required by this subparagraph (b) to be called shall not have been
called within 30 days after personal service of a written request
therefor upon the Secretary of the Company or within 30 days after
mailing the same within the United States of America by registered
mail addressed to the Secretary of the Company at its principal
executive offices, subject to any applicable notice requirements
imposed by law or regulation, then the holders of record of at least
25% of the outstanding shares of this Series of Preferred Stock may
designate in writing one of their number to call such meeting at the
expense of the Company, and such meeting may be called by such person
so designated upon the notice required for annual meetings of
stockholders or such shorter notice (but in no event shorter than
permitted by law or regulation) as may be acceptable to
- 7 -
<PAGE> 8
the holders of a majority of the total number of shares of this Series
of Preferred Stock. Any holder of this Series of Preferred Stock so
designated shall have access to the Preferred Stock books of the
Company for this Series of Preferred Stock for the purpose of causing
such meeting to be called pursuant to these provisions.
(v) Quorum. At any meeting of the holders of this Series of
Preferred Stock called in accordance with the provisions of this
subparagraph (b) for the election or removal of directors, the
presence in person or by proxy of the holders of a majority of the
total number of shares of this Series of Preferred Stock and Voting
Parity Stock shall be required to constitute a quorum; in the absence
of a quorum, a majority of the holders present in person or by proxy
shall have power to adjourn the meeting from time to time without
notice other than an announcement at the meeting, until a quorum shall
be present.
(c) Voting Rights on Extraordinary Matters. So long as any shares of
this Series of Preferred Stock shall be outstanding and unless the consent or
approval of a greater number of shares shall then be required by law, without
first obtaining the approval of the holders of at least two-thirds of the
number of shares of this Series of Preferred Stock at the time outstanding
(voting separately as a class together with the holders of shares (on a one
vote per share basis) of Voting Parity Stock) given in person or by proxy at a
meeting at which the holders of such shares shall be entitled to vote
separately as a class, the Company shall not either directly or indirectly or
through merger or consolidation with any other company, (i) authorize, create
or issue, or increase the authorized or issued amount, of any class or series
of stock ranking prior to the shares of this Series of Preferred Stock in
rights and preferences or (ii) approve any amendment to (or otherwise alter or
repeal) its Certificate of Incorporation (or this resolution) which would
materially and adversely change the specific terms of this Series of Preferred
Stock.
An amendment which increases the number of authorized shares of any
class or series of Preferred Stock or authorizes the creation or issuance of
other classes or series of Preferred Stock, in each case ranking junior to or
on a parity with this Series of Preferred Stock with respect to the payment of
dividends and distribution of assets upon liquidation, dissolution or winding
up, or substitutes the surviving entity in a merger or consolidation,
reorganization or other business combination for the Company, shall not be
considered to be such an adverse change.
A share exchange that affects this Series of Preferred Stock shall be
treated similarly to any merger or consolidation, if such share exchange would
have one of the effects referenced in clauses (i) or (ii) of the second
preceding paragraph. Any merger, consolidation or share exchange, in which
each share of this Series of Preferred Stock remains outstanding without a
material adverse change to its terms and rights, or is converted into or
exchanged for preferred stock of the surviving entity having preferences,
rights, voting powers, restrictions, limitations, qualifications and terms and
conditions that are otherwise identical to those of this Series of Preferred
Stock (except for changes that do not materially and adversely affect the
holders of this Series of Preferred Stock), shall not be considered to
implicate the foregoing Voting Rights on Extraordinary Matters. Except as
provided above and as required by applicable law, the holders of this Series of
Preferred Stock are
- 8 -
<PAGE> 9
not entitled to vote on any merger or consolidation involving the Company, on
any share exchange or on a sale of all or substantially all of the assets of
the Company.
(d) One Vote Per Share. In connection with any matter on which
holders of this Series of Preferred Stock are entitled to vote as provided in
paragraphs (b) and (c) of this Section, or any matter on which the holders of
this Series of Preferred Stock are entitled to vote as one class or otherwise
pursuant to law or the provisions of the Certificate of Incorporation, each
holder of this Series of Preferred Stock shall be entitled to one vote for each
share of this Series of Preferred Stock held by such holder."
5. No Sinking Fund; No Conversion, Etc.. No sinking fund and no
mandatory redemption provision or maturity date will be established for the
retirement or redemption of shares of Series B Preferred Stock. The shares of
Series B Preferred Stock are not convertible into or exchangeable for any other
property or securities of the Company.
6. Liquidation Rights; Priority.
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Company, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the Company, the
holders of shares of the Series B Preferred Stock shall be entitled to receive,
out of the assets of the Company, whether such assets are capital or surplus
and whether or not any dividends as such are declared, $2,500.00 per share plus
an amount equal to all accrued and unpaid dividend for prior Dividend Periods,
and no more, before any distribution shall be made to the holders of the Common
Stock, the Series A Preferred Stock, the Psychiatric Group Preferred Stock or
any other class of stock or series thereof ranking junior to the Series B
Preferred Stock with respect to the distribution of assets. After payment of
the full amount of the liquidation preference, the holders of shares of the
Series B Preferred Stock shall not be entitled to any further participation.
(b) Nothing contained in this Section 6 shall be deemed to prevent
redemption of shares of the Series B Preferred Stock by the Company in the
manner provided in Section 3. Neither the merger nor consolidation of the
Company into or with any other company, nor the merger or consolidation of any
other company into or with the Company, nor a statutory share exchange by the
Company, nor a sale, transfer or lease of all or any part of the assets of the
Company, shall be deemed to be a liquidation, dissolution or winding up of the
Company within the meaning of this Section 6.
(c) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, stating a payment date
and the place where the distributable amounts shall be payable, shall be given
by mail, postage prepaid, no less than 30 days prior to the payment date stated
therein, to the holders of record of the Series B Preferred Stock at their
respective addresses as the same shall appear on the books of the Company.
- 9 -
<PAGE> 10
(d) If the amounts available for distribution with respect to the
Series B Preferred Stock and all other outstanding stock of the Company ranking
on a parity with the Series B Preferred Stock upon liquidation are not
sufficient to satisfy the full liquidation rights of all the outstanding Series
B Preferred Stock and stock ranking on a parity therewith, then the holders of
each series of such stock will share ratably in any such distribution of assets
in proportion to the full respective preferential amount (which in the case of
the Series B Preferred Stock and any other preferred stock may include
accumulated dividends) to which they are entitled.
- 10 -
<PAGE> 11
IN WITNESS WHEREOF, American Health Properties, Inc. has caused this
Certificate to be signed by Joseph P. Sullivan, its Chairman, President and
Chief Executive Officer, and attested by Steven A. Roseman, its Secretary, this
24th day of October, 1997.
AMERICAN HEALTH PROPERTIES, INC.
By: /s/ JOSEPH P. SULLIVAN
-----------------------------------------------
Joseph P. Sullivan
Chairman, President and Chief Executive Officer
Attest:
/s/ STEVEN A. ROSEMAN
- ---------------------
Steven A. Roseman
Secretary
- 11 -
<PAGE> 1
EXHIBIT 4.2
INCORPORATED UNDER THE LAWS OF THE STATE OF
DELAWARE
NUMBER SHARES
AMERICAN HEALTH PROPERTIES, INC.
SHARES ARE WITH A $.01 PAR VALUE
$8.60% Cumulative Redeemable Preferred Stock Series B
THIS CERTIFIES THAT is the owner of
-------------------------------
- ------------------------- Shares of the Capital Stock of
AMERICAN HEALTH PROPERTIES, INC. FULLY PAID AND NON-ASSESSABLE
transferable only on the books of the Corporation, by the holder hereof, in
person or by Attorney upon surrender of this Certificate properly endorsed.
IN WITNESS WHEREOF, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed this day of A.D. 19
--------- ----------------- ------
- ----------------------------- ------------------------------
Secretary President
<PAGE> 2
THE COMPANY WILL FURNISH WITHOUT CHARGE TO ANY
SHAREHOLDER WHO SO REQUESTS, A STATEMENT OF THE
POWERS, DESIGNATIONS, PREFERENCES, AND RELATIVE
PARTICIPATING, OPTIONAL, OR OTHER SPECIAL RIGHTS OF
EACH CLASS OF STOCK OR SERIES THEREOF AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS. SUCH REQUEST SHOULD BE
MADE TO THE COMPANY.
CERTIFICATE
FOR
---------------
SHARES
OF
CAPITAL STOCK
ISSUED TO
--------------
DATED
--------------
For Value Received, hereby sell, assign and transfer unto
--------
Shares
- -----------------------------------------------------------
of the Capital Stock represented by the within Certificate,
and do hereby irrevocably constitute and appoint
- --------------------------------------------- Attorney to transfer
the said Stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated 19
------------- -----
----------------------------------
In the presence of
- -----------------------------------
NOTICE: THE SIGNATURE OF THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT AFTERVIEW
OR ENLARGEMENT, OR ANY CHANGE WHATSOEVER.
<PAGE> 1
EXHIBIT 4.3
- --------------------------------------------------------------------------------
AMERICAN HEALTH PROPERTIES, INC.,
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY SHARES
DESCRIBED HEREIN
----------------------------
DEPOSIT AGREEMENT
----------------------------
DATED AS OF OCTOBER 27, 1997
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER, REDEMPTION OF RECEIPTS . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.1 Form and Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.2 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3 Redemption of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.4 Registration of Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.5 Split-ups and Combinations of Receipts; Surrender
of Depositary Shares and Withdrawal of Stock . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.6 Limitations on Execution and Delivery Transfer,
Surrender and Exchange of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.7 Lost Receipts. etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS
AND THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.1 Filing Proofs Certificates and Other Information . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.2 Payment of Taxes or Other Governmental Charges . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.3 Warranty as to Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV THE DEPOSITED SECURITIES; NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.1 Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.2 Distributions Other than Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.3 Subscription Rights, Preferences or Privileges . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.4 Notice of Dividends. etc.; Fixing of Record Date
for Holders of Depositary Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.5 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.7 Delivery of Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.8 List of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE
REGISTRAR AND THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
-ii-
<PAGE> 3
<TABLE>
<S> <C>
SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.2 Prevention of or Delay in Performance by the Depositary
the Depositary's Agents, any Registrar or the Company . . . . . . . . . . . . . . . . . . . 12
SECTION 5.3 Obligations of the Depositary, the Depositary's Agents
and Registrar and the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.5 Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.6 Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.7 Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VI AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.1 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.2 Exclusive Benefit of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.3 Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.5 Depositary's Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.6 Holders of Receipts Are Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.8 Inspection of Deposit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.9 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
-iii-
<PAGE> 4
DEPOSIT AGREEMENT
This Deposit Agreement, dated as of October 27, 1997, is entered into
by and among American Health Properties, Inc., a Delaware corporation (together
with its successors, the "Company"), ChaseMellon Shareholder Services, L.L.C.,
a New Jersey limited liability company, (together with any successor as
depositary hereunder, the "Depositary"), and the holders from time to time of
the Depositary Shares described herein.
WITNESSETH:
WHEREAS the parties hereto desire to provide, as hereinafter set forth
in this Deposit Agreement, for the deposit of shares of Stock (as hereinafter
defined) of the Company with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares, in respect of the Stock so deposited;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" means the certificate of designations filed with the
Secretary of State of Delaware establishing the Stock as a series of preferred
stock of the Company.
"Deposit Agreement" means this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary Shares" means Depositary Shares evidenced by a Receipt or
Receipts issued hereunder, and representing the interests in the Stock
deposited with the Depositary hereunder. Each Depositary Share shall, as
provided herein, represent a one-one-hundredth interest in a share of Stock and
the same proportionate interest in any and all other property received by the
Depositary in respect of such shares of Stock and held at the time under this
Deposit Agreement.
"Depositary's Agent" means an agent appointed by the Depositary
pursuant to Section 7.5. "Depositary's Office" means the office of the
Depositary at 400 South Hope Street in Los Angeles, California, at which its
depositary receipt business shall be administered.
<PAGE> 5
"Receipt" means a depositary receipt issued hereunder, whether in
definitive or temporary form and evidencing a Depositary Share or Depositary
Shares.
"Record Holder" as applied with respect to a Depositary Share means
the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"Redemption Date" shall have the meaning set forth in Section 2.3.
"Registrar" means any bank or trust company that shall be appointed to
register ownership and transfers of Receipts as herein provided.
"Stock" means shares of the Company's 8.60% Cumulative Redeemable
Preferred Stock, Series B, par value $0.01 per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER, AND REDEMPTION OF RECEIPTS
SECTION 2.1 Form and Transfer of Receipts.
Definitive Receipts shall be engraved or printed or lithographed and
shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance with
Section 2.2, shall execute and deliver temporary Receipts that are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine, as evidenced by their execution
of such Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without unreasonable
delay. After the preparation of definitive Receipts, the temporary Receipts
shall be exchangeable for definitive Receipts upon surrender of the temporary
Receipts at an office designated by the Depositary as contemplated by the third
paragraph of Section 2.2, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall
execute and deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as are represented by the surrendered
temporary Receipt or Receipts. Such exchange shall be made at the Company's
expense and without any charge therefor. Until so exchanged, the temporary
Receipts shall in all respects be entitled to the same benefits under this
Deposit Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such
-2-
<PAGE> 6
Receipts are countersigned by manual signature of a duly authorized officer of
the Registrar. No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless it shall have been
executed manually by a duly authorized officer of the Depositary or, if a
Registrar for the Receipts (other than the Depositary) shall have been
appointed, by facsimile signature of a duly authorized officer of the
Depositary and countersigned manually by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Company or the Depositary or
required to comply with any applicable law or any regulations of any securities
exchange upon which the Stock, the Depositary Shares or the Receipts may be
listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are
subject.
Title to Depositary Shares evidenced by a Receipt that is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall
be transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share shall
be registered on the books of the Depositary as provided in Section 2.4, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.2 Deposit of Stock: Execution and Delivery of
Receipts in Respect Thereof.
Subject to the terms and conditions of this Deposit Agreement, the
Company may from time to time deposit shares of Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for
the stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places in the State of California as the
Depositary shall determine.
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Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together
with the other documents required as above specified, and upon recordation of
the Stock so deposited on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver to or upon the order of
the person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section, a Receipt or Receipts for
the number of Depositary Shares relating to the Stock so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate if requested by any such person or persons. Delivery at other offices
shall be at the risk and expense of the person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more
than forty-six thousand (46,000) shares of Stock.
SECTION 2.3 Redemption of Stock.
Whenever the Company shall elect to redeem shares of Stock in
accordance with the provisions of the Certificate, it shall (unless otherwise
agreed in writing with the Depositary) mail notice to the Depositary of such
proposed redemption, by first class mail, postage prepaid not less than 35 or
more than 95 days prior to the date fixed for redemption of Stock in accordance
with Section 3 of the Certificate. On the date of such redemption, provided
that the Company shall then have paid in full to the Depositary the redemption
price of the Stock to be redeemed, plus any accrued and unpaid dividends
thereon (the "Redemption Price"), the Depositary shall redeem the Depositary
Shares relating to such Stock. The Company shall publish notice of redemption
of the Stock as required by the Certificate. The Depositary shall mail notice
of such redemption and the proposed simultaneous redemption of the number of
Depositary Shares relating to the Stock to be redeemed, by first-class mail,
postage prepaid, not less than 30 and not more than 90 days prior to the date
fixed for redemption of such Stock and Depositary Shares (the "Redemption
Date"), to the Record Holders of the Depositary Shares to be so redeemed, at
the addresses of such holders as they appear on the records of the Depositary;
but neither failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency
of the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder
are to be redeemed, the number of such Depositary Shares held by such holder to
be so redeemed; (iii) the Redemption Price; (iv) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for payment of the
redemption price; and (v) that dividends in respect of the Stock underlying the
Depositary Shares to be redeemed will cease to accrue and accumulate at the
close of business on such Redemption Date. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
so redeemed
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shall be selected by lot, pro rata or such other method as may be determined by
the Depositary to be equitable.
If the Redemption Date is after the record date for determining
holders of Depositary Shares entitled to any dividend or distribution, such
dividend or distribution shall be payable to the holders of such Depositary
Shares at the close of business on such record date, notwithstanding such
redemption.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph), all dividends in respect of the
Depositary Shares so called for redemption shall cease to accrue and
accumulate, the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except (i) the right to receive the
Redemption Price, and (ii) the right to receive dividends the record date for
which is prior to the Exchange Date or Redemption Date, as set forth in the
preceding paragraph) shall, to the extent of such Depositary Shares, cease and
terminate and, upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at the Redemption Price.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
SECTION 2.4 Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books from time to time transfers of
Depositary Shares upon any surrender of the Receipt or Receipts evidencing such
Depositary Shares by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of transfer.
Thereupon the Depositary shall execute a new Receipt or Receipts evidencing the
same aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.5 Split-ups and Combinations of Receipts:
Surrender of Depositary Shares and Withdrawal of Stock.
Upon surrender of a Receipt or Receipts at the Depositary's Office or
at such other offices as it may designate for the purpose of effecting a
split-up or combination of such Receipt or Receipts, and subject to the terms
and conditions of this Deposit Agreement, the Depositary
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<PAGE> 9
shall execute and deliver a new Receipt or Receipts in the denominations
requested, evidencing the aggregate number of Depositary Shares evidenced by
Receipt or Receipts surrendered.
Any holder of Depositary Shares may withdraw the number of whole
shares of Stock underlying such Depositary Shares and all money and other
property, if any, underlying such Depositary Shares by surrendering Receipts
evidencing such Depositary Shares at the Depositary's Office or at such other
offices as the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
underlying the Depositary Shares so surrendered for withdrawal, but holders of
such whole shares of Stock will not thereafter be entitled to deposit such
Stock hereunder or to receive Receipts evidencing Depositary Shares therefor.
If a Receipt delivered by a holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares relating to other than
a number of whole shares of Stock, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Section 3.2) upon his or her order, a new Receipt evidencing such excess number
of Depositary Shares. In no event will fractional shares of Stock be
distributed by the Depositary. Delivery of the Stock and money and other
property being withdrawn may be made by delivery of such certificates,
documents of title and other instruments as the Depositary may deem
appropriate.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the Record Holder of the
Depositary Shares evidenced by the Receipts being surrendered for withdrawal of
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer.
Delivery of the Stock and money and other property, if any, underlying
the Depositary Shares surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Depositary Shares and for the account
of such holder, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.6 Limitations on Execution and Delivery
Transfer, Surrender and Exchange of Receipts.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination, surrender or exchange of any Receipt, the
Depositary, any of the Depositary's Agents or the Company may require payment
to it of a sum sufficient for the payment (or, in the event that the Depositary
or the Company shall have made such payment, the reimbursement to it) of any
charges or expenses payable by the holder of a Receipt pursuant to Section 5.7,
may
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<PAGE> 10
require the production of evidence satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary
Shares may be suspended (i) during any period when the register of stockholders
of the Company is closed or (ii) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's Agents or the Company at
any time from time to time because of any requirement of law or of any
government or governmental body or commission or under any provision of this
Deposit Agreement.
SECTION 2.7 Lost Receipts. etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary in its discretion may execute and deliver a Receipt of like form and
tenor in exchange and substitution for such mutilated Receipt, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt, upon (i) the
filing by the holder thereof with the Depositary of evidence satisfactory to
the Depositary of such destruction or loss or theft of such Receipt, or the
authenticity thereof and of his or her ownership thereof and (ii) the
furnishing to the Depositary of reasonable indemnification satisfactory to it.
SECTION 2.8 Cancellation and Destruction of Surrendered
Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent
shall be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs Certificates and Other
Information.
Any holder of a Depositary Share may be required from time to time to
file such proof of residence, or other matters or other information, to execute
such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Depositary Share or the withdrawal
of any Stock underlying Depositary Shares or the distribution of any dividend
or other distribution or the sale of any rights or of the proceeds thereof
until such proof or other information is filed or such certificates are
executed or such representations and warranties are made.
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SECTION 3.2 Payment of Taxes or Other Governmental
Charges.
Holders of Depositary Shares shall be obligated to make payments to
the Depositary of certain charges and expenses, as provided in Section 5.7.
Registration of transfer of any Depositary Share or any withdrawal of Stock and
delivery of all money or other property, if any, underlying such Depositary
Share may be refused until any such payment due is made, and any dividends or
other distributions may be withheld or all or any part of the Stock or other
property relating to such Depositary Shares and not theretofore sold may be
sold for the account of the holder thereof (after attempting by reasonable
means to notify such holder prior to such sale), and such dividends or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Depositary Share remaining liable
for any deficiency.
SECTION 3.3 Warranty as to Stock.
The Company hereby represents and warrants that the Stock, when
issued, will be validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the deposit of the Stock and the
issuance of the Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to Sections 3.1 and
3.2, promptly distribute to the Record Holder of Depositary Shares on the
record date fixed pursuant to Section 4.4 such amounts of such dividend or
distribution as are, as nearly as practicable in proportion to the respective
numbers of Depositary Shares held by such holders; provided, however, that in
case the Company or the Depositary shall be required to withhold and shall
withhold from any cash dividend or other cash distribution in respect of the
Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares to the Record Holders shall be
reduced accordingly. Fractions will be rounded down to the nearest whole cent.
SECTION 4.2 Distributions Other than Cash.
Whenever the Depositary shall receive any distribution other than cash
on the Stock, the Depositary shall, subject to Sections 3.1 and 3.2, promptly
distribute to the Record Holders of Depositary Shares on the record date fixed
pursuant to Section 4.4 such amounts of the securities or property received by
it as are, as nearly as practicable, in proportion to the respective numbers
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of Depositary Shares held by such holders, in any manner that the Depositary
may deem equitable and practicable for accomplishing such distribution. If in
the opinion of the Depositary such distribution cannot be made proportionately
among such Record Holders, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount on account of
taxes or governmental charges) the Depositary deems, after consultation with
the Company, such distribution not to be feasible, the Depositary may, with the
written approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Sections 3.1 and
3.2, be distributed or made available for distribution, as the case may be, by
the Depositary to the Record Holders of Depositary Shares entitled thereto as
provided by Section 4.1 in the case of a distribution received in cash. The
Company shall not make any distribution of such securities unless the Company
shall have provided an opinion of counsel to the effect that such securities
have been registered under the Securities Act of 1933, as amended (the "1933
Act"), or do not need to be registered.
SECTION 4.3 Subscription Rights, Preferences or
Privileges.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature, such
rights, preferences or privileges shall in each such instance be made available
by the Depositary to the Record Holders of Depositary Shares in such manner as
the Depositary may determine, either by the issue to such Record Holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary with the written approval of the
Company; provided, however, that (a) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Depositary Shares by
the issuance of warrants or otherwise, or (b) if and to the extent so
instructed by holders of Depositary Shares who do not desire to exercise such
rights, preferences or privileges, then the Depositary, in its discretion (with
the approval of the Company, in any case where the Depositary has determined
that it is not feasible to make such rights, preferences or privileges
available), may, if applicable laws or the terms of such rights, preferences or
privileges permit such transfer, sell such rights, preferences or privileges at
public or private sale, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sale shall, subject to Section 3.1
and 3.2, be distributed by the Depositary to the Record Holders of Depositary
Shares entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
such rights, preferences or privileges unless the Company shall have provided
an opinion of counsel to the Depositary to the effect that such rights,
preferences or privileges have been registered under the 1933 Act or do not
need to be registered.
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If registration under the 1933 Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Depositary Shares to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that
it will file promptly a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Depositary Shares any right, preference or
privilege to subscribe for or to purchase any securities unless and until such
a registration statement shall have become effective, or unless the offering
and sale of such securities to such holders are exempt from registration under
the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to the
holders of Depositary Shares, the Company agrees with the Depositary that the
Company will use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4 Notice of Dividends. etc.: Fixing of Record
Date for Holders of Depositary Shares.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to the
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote, or of which holders of Stock are
entitled to notice, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by the Company with
respect to the Stock) for the determination of the holders of Depositary Shares
who shall be entitled to receive a distribution in respect of such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to receive notice of such meeting.
SECTION 4.5 Voting Rights.
Upon receipt of notice of any meeting at which the holders of the
Stock are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the Record Holders of Depositary Shares a notice that shall
be provided by the Company and that shall contain (a) such information as is
contained in such notice of meeting and (b) a statement informing holders of
Depositary Shares that they may instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Stock underlying their respective
Depositary Shares and a brief statement as to the manner in which such
instructions may be given. Upon the written request of
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the holders of Depositary Shares on the record date established in accordance
with Section 4.4, the Depositary shall endeavor insofar as practicable to vote
or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of whole shares of Stock underlying the Depositary
Shares as to which any particular voting instructions are received. The Company
hereby agrees to take all action that may be deemed necessary by the Depositary
in order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a Depositary
Share, the Depositary will refrain from voting to the extent of the Stock
underlying the Depositary Shares.
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations. etc.
Upon any change in par or liquidation value, split-up, combination or
any other reclassification of the Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company or
to which it is a party, the Depositary may in its discretion, with the approval
of, and shall upon the instructions of, the Company, and (in either case) in
such manner as the Depositary may deem equitable, (i) make such adjustments in
(a) the fraction of an interest in one share of Stock underlying one Depositary
Share and (b) the ratio of the redemption price per Depositary Share to the
redemption price of a share of the Stock, in each case as may be necessary
fully to reflect the effects of such change in par or liquidation value,
split-up, combination or other reclassification of the Stock, or of such
recapitalization, reorganization, merger, amalgamation or consolidation and
(ii) treat any securities that shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Stock as new deposited
securities so received in exchange for or upon conversion of or in respect of
such Stock. In any such case the Depositary may in its discretion, with the
approval of the Company, execute and deliver additional Receipts, or may call
for the surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Furthermore, by mutual
agreement of the Company and the Depositary, the Depositary may at any time
make adjustments in (i) the fraction of an interest in one share of Stock
underlying one Depositary Share and (ii) the ratio of the redemption price or
exchange price per Depositary Share to the redemption price or exchange price
of a share of the Stock.
SECTION 4.7 Delivery of Reports.
The Depositary will forward to Record Holders of Receipts, at their
respective addresses appearing in the Depositary's books, all notices, reports
and communications received from the Company that are delivered to the
Depositary and that the Company is required to furnish to the holders of Stock
or Receipts.
SECTION 4.8 List of Holders.
Promptly upon each and every request from time to time by the Company,
the Depositary shall furnish to it a list, as of a recent date, of the names,
addresses and holdings of Depositary
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Shares of all persons in whose names Depositary Shares are registered on the
books of the Depositary or Registrar, as the case may be.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar.
Upon execution of this Deposit Agreement, the Depositary shall
maintain at the Depositary's Offices, or at any Registrar's Office, at which
the Depositary shall have complete access to all books and records maintained
on the Company's behalf, facilities for the execution and delivery, surrender
and exchange of Receipts and the registration and registration of transfer of
Depositary Shares, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, surrender and exchange of Receipts and the
registration of transfer of Depositary Shares, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the Record Holders of
Depositary Shares; provided, however, that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares and any such holder requesting to exercise such right shall
certify such fact in writing to the Depositary and the Company.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Stock underlying such Depositary Shares shall be listed on The New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such exchange) may be removed
and a substitute registrar appointed by the Depositary upon the written request
or with the written approval of the Company. If the Receipts, such Depositary
Shares or such Stock are listed on one or more other stock exchanges, the
Depositary will, at the request of the Company, arrange such facilities for the
execution, delivery, registration, registration of transfer, surrender and
exchange of such Receipts, such Depositary Shares or such Stock as may be
required by law or applicable stock exchange regulation.
SECTION 5.2 Prevention of or Delay in Performance by the
Depositary the Depositary's Agents, any Registrar or the Company.
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Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall incur any liability to any holder of any Depositary Share
if by reason of any provision of any present or future law, or regulation
thereunder, of the United States of America or of any other governmental
authority or, in the case of the Depositary, any Depositary's Agent or any
Registrar, by reason of any provision, present or future, of the Company's
Certificate of Incorporation (including the Certificate) or by reason of any
act of God or war or other circumstance beyond the control of the relevant
party, the Depositary, any Depositary's Agent, any Registrar or the Company
shall be prevented or forbidden from doing or perform the any act or thing that
the terms of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary, any Depositary's Agent, any Registrar or the Company
incur any liability to any holder of a Depositary Share (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing that the terms of this Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused
by the gross negligence or willful misconduct of the party charged with such
exercise or failure to exercise.
SECTION 5.3 Obligations of the Depositary. the
Depositary's Agents, any Registrar and the Company.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company assumes any obligation or shall be subject to any liability
under this Deposit Agreement to holders of Depositary Shares other than for
such person's own gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts that in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or failure to act by it in
reliance upon the written advice of legal counsel or accountants, or
information from any person presenting Stock for deposit, any holder of a
Depositary Share or any other person believed by it in good faith to be
competent to give such information. The Depositary, any Depositary's Agent, any
Registrar and the Company may each rely and shall each be protected in acting
upon any written notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no
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<PAGE> 17
implied covenants or obligations shall be read into this Deposit Agreement
against the Depositary or any Registrar. The Depositary shall not be subject to
any liability under this Deposit Agreement to the Company other than for any
liability that may arise out of acts performed or omitted by the Depositary or
its agents due to its or their negligence, bad faith or willful misconduct. The
Depositary, the Depositary's agents, any Registrar and the Company may own and
deal in any class of securities of the Company and its affiliates and in
Depositary Shares. The Depositary may also act as transfer agent or registrar
of any of the securities of the Company and its affiliates.
Anything herein to the contrary notwithstanding, in no event shall the
Depositary be liable for special, indirect or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits), even if the
Depositary has been advised of the likelihood of such loss or damage and
regardless of the form of action.
SECTION 5.4 Resignation and Removal of the Depositary:
Appointment of Successor Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to be delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
such successor's written acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor Depositary and such successor's written
acceptance of such appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon the written
request of the Company, shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Stock and any
moneys or property held hereunder to such successor and shall deliver to such
successor a list of the Record Holders of all outstanding Depositary Shares.
Any successor Depositary shall
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<PAGE> 18
promptly mail notice of its appointment to the Record Holders of Depositary
Shares. Thereafter, any predecessor Depositary shall deliver any correspondence
received from any holders of Depositary Shares to the successor Depositary.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.5 Corporate Notices and Reports.
The Company agrees that it will transmit to the Depositary all
notices, reports and communications (including without limitation financial
statements) required by law, the rules of any national securities exchange upon
which the Stock, the Depositary Shares or the Receipts are listed or by the
Company's Certificate of Incorporation (including the Certificate) to be
furnished by the Company to holders of the Stock.
SECTION 5.6 Indemnification by the Company.
The Company shall indemnify the Depositary, any Depositary's Agent and
any Registrar against, and hold each of them harmless from, any loss, liability
or expense (including the costs and expenses of defense) that may arise out of
(i) acts performed or omitted in connection with this Deposit Agreement and the
Depositary Shares (a) by the Depositary, any Registrar or any of their
respective agents (including any Depositary's Agent), except for any liability
arising out of gross negligence, willful misconduct or bad faith on the
respective parts of any such person or persons, or (b) by the Company or any of
its agents, arising out of the Company's or its agents' gross negligence,
willful misconduct or bad faith, or (ii) the offer, sale or registration under
the securities laws of the United States of the Depositary Shares or the Stock.
The obligations of the Company set forth in this Section 5.6 shall survive any
succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.7 Charges and Expenses.
The Company shall pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Company shall pay all charges of the Depositary agreed upon by the Company and
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Receipts, any redemption of the Stock at the option of
the Company and any withdrawals of Stock by holders of Depositary Shares. All
other transfer and other taxes and governmental charges shall be at the expense
of holders of Depositary Shares. If, at the request of a holder of a Depositary
Share, the Depositary incurs charges or expenses for which it is not otherwise
liable hereunder, such holder will be liable for such charges and expenses. The
Company shall pay the Depositary reasonable compensation for all services
rendered by the Depositary under this Deposit Agreement according to the fee
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<PAGE> 19
schedule agreed to by the Company and the Depositary. All other charges and
expenses of the Depositary, any Depositary's Agent hereunder and any Registrar
(including, in each case, fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment that shall materially and
adversely alter the rights of the existing holders of Depositary Shares shall
be effective unless such amendment shall have been approved by the holders of
at least a majority of the Depositary Shares then outstanding. Every holder of
any outstanding Depositary Share at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Depositary Share, to
consent and agree to such amendment and to be bound by this Deposit Agreement
as amended thereby.
SECTION 6.2 Termination.
This Deposit Agreement may be terminated by the Company or the
Depositary only after (i) all outstanding Depositary Shares shall have been
redeemed and any unpaid dividends on the Stock represented by the Depositary
Shares, together with all other moneys and property, if any, to which holders
of the related Receipts are entitled under the terms of such Receipts or this
Deposit Agreement, have been paid or distributed as provided in this Deposit
Agreement or provision therefor has been duly made pursuant to Section 2.3 or
(ii) there shall have been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Receipts
pursuant to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agents and any Registrar under
Sections 5.6 and 5.7.
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<PAGE> 20
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts.
This Deposit Agreement may be executed in any number of counterparts,
and by each of the parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument.
SECTION 7.2 Exclusive Benefit of Parties
This Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.3 Invalidity of Provisions.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4 Notices.
Any and all notices to be given to the Company hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or telegram or telex confirmed by letter,
addressed to the Company at 6400 South Fiddler's Green Circle, Suite 1800,
Englewood, Colorado 80111, to the attention of the General Counsel, or at any
other address of which the Company shall have notified the Depositary in
writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at 400 South
Hope Street, 4th Floor, Los Angeles, California 90071, or at any other address
of which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any Record Holder of a Depositary
Share hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram
or telex confirmed by letter, addressed to such Record Holder at the address of
such Record Holder as it appears on the books of the Depositary, or if
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<PAGE> 21
such bolder shall have filed with the Depositary a written request that notices
intended for such bolder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or
Company may, however, act upon any telegram or telex message received by it
from the other or from any holder of a Depositary Share, notwithstanding that
such telegram or telex message shall not subsequently be confirmed by letter or
as aforesaid.
SECTION 7.5 Depositary's Agents.
The Depositary may from time to time, upon written notice to, and with
the prior approval of, the Company, appoint Depositary' s Agents to act in any
respect for the Depositary for the purposes of this Deposit Agreement and may
terminate the appointment of such Depositary's Agents. The Depositary will
notify the Company of any such termination.
SECTION 7.6 Holders of Receipts Are Parties.
The holders of Depositary Shares from time to time shall be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts evidencing such Depositary Shares by acceptance of
delivery thereof.
SECTION 7.7 Governing Law.
THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTS HEREUNDER AND
THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA WITHOUT
REFERENCE TO CHOICE OR CONFLICT OF LAW PRINCIPLES.
SECTION 7.8 Inspection of Deposit Agreement.
Copies of this Deposit Agreement shall be filed with the Depositary
and the Depositary's Agents and shall be open Lo inspection during business
hours al the Depositary's Office and the respective offices of the Depositary's
Agents, if any, by any bolder of a Depositary Share.
SECTION 7.9 Headings.
The headings of articles and sections in this Deposit Agreement and in
the form of Receipt set forth in Exhibit A hereto have been inserted for
convenience only and are not to be regarded as part of this Deposit Agreement
or the Receipts or to have any bearing upon the meaning or interpretation of
any provision contained herein or in the Receipts.
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<PAGE> 22
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders of Depositary Shares shall become parties hereto by and upon acceptance
by them of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
AMERICAN HEALTH PROPERTIES, INC.
By: /s/ JOSEPH P. SULLIVAN
-----------------------------
Authorized Officer
CHASEMELLON SHAREHOLDER SERVICES,
L.L.C.
By; /s/ MICHAEL E. DZIECIOLOWSKI
-----------------------------
Authorized Officer
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<PAGE> 23
EXHIBIT A
[FORM OF DEPOSITARY RECEIPT]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES
EACH REPRESENTING A ONE-ONE-HUNDREDTH INTEREST IN A SHARE OF
8.60% CUMULATIVE REDEEMABLE PREFERRED STOCK, SERIES B,
PAR VALUE $0.01 PER SHARE
AMERICAN HEALTH PROPERTIES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS DEPOSITARY RECEIPT IS TRANSFERABLE
IN THE CITIES OF LOS ANGELES, RIDGEFIELD PARK OR NEW YORK
ChaseMellon Shareholder Services, L.L.C., as Depositary (the
"Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
---------------------------
("Depositary Shares"), each Depositary Share representing a one-one-hundredth
interest in one share of 8.60% Cumulative Redeemable Preferred Stock, Series B,
par value $0.01 per share (the "Stock"), of American Health Properties, Inc., a
Delaware corporation (the "Company"), on deposit with the Depositary, subject
to the terms and entitled to the benefits of the Deposit Agreement, dated as of
October 27, 1997 (the "Deposit Agreement"), between the Company, the Depositary
and all holders from time to time of Depositary Receipts. By accepting this
Depositary Receipt the holder hereof becomes a party to and agrees to be bound
by all the terms and conditions of the Deposit Agreement. This Depositary
Receipt shall not be valid or obligatory for any purpose or entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if executed
in facsimile by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by the manual signature of a duly authorized officer
thereof.
Dated:
----------------------------
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Depositary and Registrar
By:
------------------------------------------
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<PAGE> 24
AMERICAN HEALTH PROPERTIES, INC.
1. Depositary Shares. Subject to the terms of the Deposit
Agreement each owner of a Depositary Share is entitled through the Depositary
proportionately to all the rights and preferences of the Stock relating thereto
including dividend, voting, redemption and liquidation rights contained in the
Certificate of Designations adopted by the Company's Board of Directors setting
forth the number, terms, powers, descriptions, rights, preferences,
qualifications, restrictions and limitations of the Stock (the "Certificate")
copies of which are on file at the Depositary's Office at 400 South Hope
Street, 4th Floor, Los Angeles, California 90071. Certain terms used herein but
not defined are defined in the Certificate.
2. The Deposit Agreement. Depositary Receipts (the "Receipts"),
of which this Receipt is one, are made available upon the terms and conditions
set forth in the Deposit Agreement. The Deposit Agreement sets forth the rights
of holders of the Receipts and the Depositary Shares evidenced thereby and the
rights and duties of the Depositary and the Company in respect of the Stock
deposited, and any and all other property and cash deposited from time to time
thereunder. The statements made on the face and the reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are subject to the
detailed provisions thereof, to which reference is hereby made. Unless
otherwise expressly herein provided, all defined terms used herein shall have
the meanings ascribed thereto in the Deposit Agreement.
3. Redemption. Whenever the Company shall elect to redeem shares
of Stock in accordance with the provisions of the Certificate, it shall (unless
otherwise agreed in writing with the Depositary) mail notice to the Depositary
of such proposed redemption, by first class mail, postage prepaid not less than
35 or more than 95 days prior to the date fixed for redemption of Stock in
accordance with Section 3 of the Certificate. On the date of such redemption,
provided that the Company shall then have paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus any accrued and unpaid
dividends thereon (the "Redemption Price"), the Depositary shall redeem the
Depositary Shares relating to such Stock. The Company shall publish notice of
the redemption of the Stock as required by the Certificate. The Depositary
shall mail notice of such redemption and the proposed simultaneous redemption
of the number of Depositary Shares relating to the Stock to be redeemed, by
first-class mail, postage prepaid, not less than 30 and not more than 90 days
prior to the date fixed for redemption of such Stock and Depositary Shares (the
"Redemption Date"), to the Record Holders of the Depositary Shares to be so
redeemed, at the addresses of such holders as they appear on the records of the
Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any notice to one or more such holders shall affect
the sufficiency of the proceedings for redemption as to other holders. Each
such notice shall state: (i) the Redemption Date; (ii) the number of Depositary
Shares to be redeemed and, if less than all the Depositary Shares held by any
such holder are to be redeemed, the number of such Depositary Shares held by
such holder to be so redeemed; (iii) the Redemption Price; (iv) the place or
places where Receipts evidencing
<PAGE> 25
Depositary Shares are to be surrendered for payment of the redemption price;
and (v) that dividends in respect of the Stock underlying the Depositary Shares
to be redeemed will cease to accrue and accumulate at the close of business on
such Redemption Date. In case less than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be so redeemed shall be selected
by lot, pro rata or such other method as may be determined by the Depositary to
be equitable.
If the Redemption Date is after the record date for determining
holders of Depositary Shares entitled to any dividend or distribution, such
dividend or distribution shall be payable to the holders of such Depositary
Shares at the close of business on such record date, notwithstanding such
redemption.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the
Depositary Shares so called for redemption shall cease to accrue and
accumulate, the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except (i) the right to receive the
Redemption Price, and (ii) the right to receive dividends the record date for
which is prior to the Exchange Date or Redemption Date, as set forth in the
preceding paragraph) shall, to the extent of such Depositary Shares, cease and
terminate and, upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at the Redemption Price.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
4. Transfer, Split-Ups and Combinations. The Depositary Shares
evidenced by this Receipt are transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary, properly endorsed or accompanied
by a properly executed instrument of transfer, and upon such transfer the
Depositary shall execute a new Receipt to or upon the order of the person
entitled thereto as provided in the Deposit Agreement. This Receipt may be
split into other Receipts or combined with other Receipts into one Receipt
representing the same aggregate number of Depositary Shares as the Receipt or
Receipts surrendered.
5. Suspension of Delivery, Transfer, etc. The transfer or
surrender of this Receipt may be suspended during any period when the register
of stockholders of the Company is closed or if any such action is deemed
necessary or advisable by the Depositary, any agent of the Depositary or the
Company at any time or from time to time because of any requirement of law
<PAGE> 26
or of any government or governmental body or commission, or under any provision
of the Deposit Agreement.
6. Filing Proofs, Certificates and Other Information. Any holder
of a Depositary Share may be required to file such proof of residence or other
matters or other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may reasonably
deem necessary or proper. The Depositary or the Company may withhold
the-delivery or delay the registration of transfer or redemption of any
Depositary Share or the distribution of any dividend or other distribution or
the sale of any rights or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or such representations
and warranties are made.
7. Payment of Taxes or Other Governmental Charges. If any tax or
other governmental charge shall become payable by or on behalf of the
Depositary with respect to this Receipt, such tax (including transfer taxes, if
any) or governmental charge shall be payable by the holder hereof. Transfer of
Depositary Shares may be refused until such payment is made, and any dividends
or other distributions may be withheld or all or any part of the Stock or other
property underlying the Depositary Share or Shares evidenced by this Receipt
and not theretofore sold may be sold for the account of the holder hereof
(after attempting by reasonable means to notify such holder prior to such sale)
and such dividends or other distributions or the proceeds of any such sale may
be applied to any payment of such charges or expenses, the holder of this
Receipt remaining liable for any deficiency.
8. Warranty by Company. The Company has warranted that the Stock
when issued will be validly issued, fully paid and nonassessable.
9. Amendment. The form of the Receipts and any provisions of the
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable; provided, however, that no such amendment which shall
materially and adversely alter the rights of the existing holders of Depositary
Shares shall be effective unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares then outstanding. A
holder of a Receipt at the time any such amendment so becomes effective shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
10. Charges of Depositary. The Company will pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements and all charges of the Depositary in connection with
the initial deposit of the Stock and the initial issuance of the Receipts, any
redemption of the Stock at the option of the Company and any withdrawals of
Stock by holders of Depositary Shares. All other transfer and other taxes and
other governmental charges shall be at the expense of holders of Depositary
Shares. All other
<PAGE> 27
charges and expenses of the Depositary, any Depositary's Agent and any
Registrar will be paid upon consultation and agreement between the Depositary
and the Company.
11. Title to Receipts. This Receipt (and the Depositary Shares
evidenced hereby) when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that until transfer of
the Depositary Share or Shares evidenced by a Receipt shall be registered on
the books of the Depositary, the Depositary may, notwithstanding any notice to
the contrary, treat the Record Holder of such Depositary Share or Shares at
such time as the absolute owner thereof for the purpose of determining the
person entitled to distributions of dividends or other distributions or to any
notice provided for in the Deposit Agreement and for all other purposes.
12. Dividends and Distributions. Whenever the Depositary receives
any cash dividend or other cash distribution on the Stock, the Depositary will,
subject to the provisions of the Deposit Agreement, make such distribution to
the holders of Depositary Shares on the relevant record date as nearly as
practicable in proportion to the number of Depositary Shares held by such
holders; provided, however, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. Fractions will be rounded down to the nearest
whole cent.
13. Fixing of Record Date. Whenever any cash dividend or other
cash distribution shall become payable or any distribution other than cash
shall be made, or if rights, preferences or privileges shall at any time be
offered with respect to the Stock, or whenever the Depositary shall receive
notice of any meeting at which holders of Stock are entitled to vote or of
which holders of Stock are entitled to notice, the Depositary shall in each
instance fix a record date (which shall be the record date fixed by the Company
with respect to the Stock) for the determination of the holders of Depositary
Shares who shall be entitled to receive such dividend distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting or who shall
be entitled to notice of such meeting.
14. Voting Rights. Upon receipt of notice of any meeting or action
to be taken by written consent at which holders of the Stock are entitled to
vote or consent, the Depositary shall, as soon as practicable thereafter, mail
to the record holders of Depositary Shares a notice which shall contain (i)
such information as is contained in such notice of meeting or action and (ii) a
statement informing holders of Depositary Shares that they may instruct the
Depositary as to the exercise of the voting rights or the giving or refusal of
consent pertaining to the amount of Stock underlying their respective
Depositary Shares and a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of a Depositary
Share on the record date established in accordance with paragraph 13 hereof,
the Depositary shall endeavor
<PAGE> 28
insofar as practicable to vote or cause to be voted or give or withhold consent
the amount of Stock underlying such Depositary Share in accordance with the
instructions set forth in such request. In the absence of specific instructions
from the holder of a Depositary Share, the Depositary will refrain from voting
to the extent of the Stock underlying such Depositary Share.
15. Changes Affecting Deposited Securities. Upon any change in
par or liquidation value, split-up, combination or any other reclassification
of the Stock or upon any recapitalization, reorganization, merger, amalgamation
or consolidation affecting the Company or to which it is a party, the
Depositary may in its discretion, with the approval of the Company, and in such
manner as the Depositary may deem equitable (i) make such adjustments in (a)
the fraction of an interest in one share of Stock underlying one Depositary
Share and (b) the ratio of the Redemption Price per Depositary Share to the
redemption price of a share of Stock, in each case as may be necessary fully to
reflect the effect of such change and (ii) treat any securities which shall be
received by the Depositary in exchange for or upon conversion of or in respect
of the Stock as new deposited securities so received in exchange for or upon
conversion of or in respect of such Stock. In any such case the Depositary may
in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities. Furthermore, by mutual agreement of the Company and the Depositary,
the Depositary may at any time make adjustments in (i) the fraction of an
interest in one share of Stock underlying one Depositary Share and (ii) the
ratio of the Redemption Price per Depositary Share to the redemption price or
exchange price of a share of the Stock.
16. Liability and Obligations of the Depositary, the Depositary's
Agents or the Company. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company assumes any obligations or shall be subject to
any liability under the Deposit Agreement to any holder of any Depositary
Share, other than for such person's own gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall incur any liability to any holder of any Depositary Share if by
reason of any provision of any present or future law, or regulation thereunder
of the United States of America or of any other governmental authority or, in
the case of the Depositary, any Depositary's Agent or any Registrar, by reason
of any provision, present or future, of the Company's Certificate of
Incorporation (including the Certificate) or by reason of any act of God or war
or other circumstance beyond their control, the Depositary, any Depositary's
Agent, any Registrar or the Company shall be prevented or forbidden from doing
or performing any act or thing which the terms of the Deposit Agreement provide
shall be done or performed, nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability to any holder of a Depositary
Share by reason of nonperformance or delay, caused as aforesaid, in performance
of any act or thing which the terms of the Deposit Agreement provide shall or
may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement, other than for
its or their gross negligence or willful misconduct. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
<PAGE> 29
proceeding in respect of the Stock, the Depositary Shares or the Receipts,
which in its opinion may involve it in expense or liability unless indemnity
satisfactory to it against all expense and liability be furnished. The Deposit
Agreement contains various other exculpatory, indemnification and related
provisions, to which reference is hereby made. Anything herein or in the
Deposit Agreement notwithstanding, in no event shall the Depositary be liable
for special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Depositary has been
advised of the likelihood of such loss or damage and regardless of the form of
action.
17. Resignation and Removal of Depositary. The Depositary may at
any time (i) resign by written notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and such successor's written acceptance of such appointment, or (ii)
be removed by the Company effective upon the appointment of a successor
Depositary and such successor's written acceptance of such appointment.
18. Termination of Deposit Agreement. The Deposit Agreement may be
terminated by the Company or the Depositary only after (i) all outstanding
Depositary Shares shall have been redeemed or (ii) there shall have been made a
final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares. Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations
thereunder except for its obligations to the Depositary, any Depositary's Agent
and any Registrar with respect to indemnification, charges and expenses.
19. Governing Law. THIS RECEIPT AND THE DEPOSIT AGREEMENT AND ALL
RIGHTS HEREUNDER AND THEREUNDER AND THE PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED
STOCK. THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE
VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH
THE DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES AS TO THE VALIDITY OR
SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES
OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THE RECEIPTS TO
THE DEPOSITARY SHARES.
AMERICAN HEALTH PROPERTIES, INC. WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPT HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND THE
CERTIFICATE. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE SECRETARY OF AMERICAN
HEALTH PROPERTIES, INC.
------------------------------------------
<PAGE> 1
EXHIBIT 4.4
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES
EACH REPRESENTING A ONE-ONE-HUNDREDTH INTEREST IN A SHARE OF
8.60% CUMULATIVE REDEEMABLE PREFERRED STOCK, SERIES B,
PAR VALUE $0.01 PER SHARE
AMERICAN HEALTH PROPERTIES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS DEPOSITARY RECEIPT IS TRANSFERABLE
IN THE CITIES OF LOS ANGELES, RIDGEFIELD PARK OR NEW YORK
ChaseMellon Shareholder Services, L.L.C., as Depositary (the "Depositary"),
hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing a one-one-hundredth
interest in one share of 8.60% Cumulative Redeemable Preferred Stock, Series B,
par value $0.01 per share (the "Stock"), of American Health Properties, Inc., a
Delaware corporation (the "Company"), on deposit with the Depositary, subject
to the terms and entitled to the benefits of the Deposit Agreement, dated as of
October 27, 1997 (the "Deposit Agreement"), between the Company, the Depositary
and all holders from time to time of Depositary Receipts. By accepting this
Depositary Receipt the holder hereof becomes a party to and agrees to be bound
by all the terms and conditions of the Deposit Agreement. This Depositary
Receipt shall not be valid or obligatory for any purpose or entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if executed
in facsimile by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by the manual signature of a duly authorized officer
thereof.
Dated: CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Depositary and Registrar
By:
Authorized Signature
<PAGE> 2
AMERICAN HEALTH PROPERTIES, INC.
(1) Depositary Shares. Subject to the terms of
the Deposit Agreement each owner of a Depositary Share is entitled through the
Depositary proportionately to all the rights and preferences of the Stock
relating thereto including dividend, voting, redemption and liquidation rights
contained in the Certificate of Designations adopted by the Company's Board of
Directors setting forth the number, terms, powers, descriptions, rights,
preferences, qualifications, restrictions and limitations of the Stock (the
"Certificate") copies of which are on file at the Depositary's Office at 400
South Hope Street, 4th Floor, Los Angeles, California 90071. Certain terms
used herein but not defined are defined in the Certificate.
(2) The Deposit Agreement. Depositary Receipts
(the "Receipts"), of which this Receipt is one, are made available upon the
terms and conditions set forth in the Deposit Agreement. The Deposit Agreement
sets forth the rights of holders of the Receipts and the Depositary Shares
evidenced thereby and the rights and duties of the Depositary and the Company
in respect of the Stock deposited, and any and all other property and cash
deposited from time to time thereunder. The statements made on the face and the
reverse of this Receipt are summaries of certain provisions of the Deposit
Agreement and are subject to the detailed provisions thereof, to which
reference is hereby made. Unless otherwise expressly herein provided, all
defined terms used herein shall have the meanings ascribed thereto in the
Deposit Agreement.
(3) Redemption. Whenever the Company shall elect
to redeem shares of Stock in accordance with the provisions of the Certificate,
it shall (unless otherwise agreed in writing with the Depositary) mail notice
to the Depositary of such proposed redemption, by first class mail, postage
prepaid not less than 35 or more than 95 days prior to the date fixed for
redemption of Stock in accordance with Section 3 of the Certificate. On the
date of such redemption, provided that the Company shall then have paid in full
to the Depositary the redemption price of the Stock to be redeemed, plus any
accrued and unpaid dividends thereon (the "Redemption Price"), the Depositary
shall redeem the Depositary Shares relating to such Stock. The Company shall
publish notice of the redemption of the Stock as required by the Certificate.
The Depositary shall mail notice of such redemption and the proposed
simultaneous redemption of the number of Depositary Shares relating to the
Stock to be redeemed, by first-class mail, postage prepaid, not less than 30
and not more than 90 days prior to the date fixed for redemption of such Stock
and Depositary Shares (the "Redemption Date"), to the Record Holders of the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice to one or more such holders nor any defect in any notice to one or more
such holders shall affect the sufficiency of the proceedings for redemption as
to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of
such Depositary Shares held by such holder to be so redeemed; (iii) the
Redemption Price; (iv) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; and (v) that
<PAGE> 3
dividends in respect of the Stock underlying the Depositary Shares to be
redeemed will cease to accrue and accumulate at the close of business on such
Redemption Date. In case less than all the outstanding Depositary Shares are
to be redeemed, the Depositary Shares to be so redeemed shall be selected by
lot, pro rata or such other method as may be determined by the Depositary to be
equitable.
If the Redemption Date is after the record date for determining
holders of Depositary Shares entitled to any dividend or distribution, such
dividend or distribution shall be payable to the holders of such Depositary
Shares at the close of business on such record date, notwithstanding such
redemption.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the
Depositary Shares so called for redemption shall cease to accrue and
accumulate, the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except (i) the right to receive the
Redemption Price, and (ii) the right to receive dividends the record date for
which is prior to the Exchange Date or Redemption Date, as set forth in the
preceding paragraph) shall, to the extent of such Depositary Shares, cease and
terminate and, upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at the Redemption Price.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
(4) Transfer, Split-Ups and Combinations. The
Depositary Shares evidenced by this Receipt are transferable on the books of
the Depositary upon surrender of this Receipt to the Depositary, properly
endorsed or accompanied by a properly executed instrument of transfer, and upon
such transfer the Depositary shall execute a new Receipt to or upon the order
of the person entitled thereto as provided in the Deposit Agreement. This
Receipt may be split into other Receipts or combined with other Receipts into
one Receipt representing the same aggregate number of Depositary Shares as the
Receipt or Receipts surrendered.
(5) Suspension of Delivery, Transfer, etc. The
transfer or surrender of this Receipt may be suspended during any period when
the register of stockholders of the Company is closed or if any such action is
deemed necessary or advisable by the Depositary, any agent of the Depositary or
the Company at any time or from time to time because of any requirement of law
or of any government or governmental body or commission, or under any provision
of the Deposit Agreement.
<PAGE> 4
(6) Filing Proofs, Certificates and Other
Information. Any holder of a Depositary Share may be required to file such
proof of residence or other matters or other information, to execute such
certificates and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold the-delivery or delay the registration of transfer or
redemption of any Depositary Share or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
(7) Payment of Taxes or Other Governmental
Charges. If any tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to this Receipt, such tax (including
transfer taxes, if any) or governmental charge shall be payable by the holder
hereof. Transfer of Depositary Shares may be refused until such payment is
made, and any dividends or other distributions may be withheld or all or any
part of the Stock or other property underlying the Depositary Share or Shares
evidenced by this Receipt and not theretofore sold may be sold for the account
of the holder hereof (after attempting by reasonable means to notify such
holder prior to such sale) and such dividends or other distributions or the
proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of this Receipt remaining liable for any deficiency.
(8) Warranty by Company. The Company has
warranted that the Stock when issued will be validly issued, fully paid and
nonassessable.
(9) Amendment. The form of the Receipts and any
provisions of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect
which they may deem necessary or desirable; provided, however, that no such
amendment which shall materially and adversely alter the rights of the existing
holders of Depositary Shares shall be effective unless such amendment shall
have been approved by the holders of at least a majority of the Depositary
Shares then outstanding. A holder of a Receipt at the time any such amendment
so becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby.
(10) Charges of Depositary. The Company will pay
all transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements and all charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of
the Receipts, any redemption of the Stock at the option of the Company and any
withdrawals of Stock by holders of Depositary Shares. All other transfer and
other taxes and other governmental charges shall be at the expense of holders
of Depositary Shares. All other charges and expenses of the Depositary, any
Depositary's Agent and any Registrar will be paid upon consultation and
agreement between the Depositary and the Company.
<PAGE> 5
(11) Title to Receipts. This Receipt (and the
Depositary Shares evidenced hereby) when properly endorsed or accompanied by a
properly executed instrument of transfer, is transferable by delivery with the
same effect as in the case of a negotiable instrument; provided, however, that
until transfer of the Depositary Share or Shares evidenced by a Receipt shall
be registered on the books of the Depositary, the Depositary may,
notwithstanding any notice to the contrary, treat the Record Holder of such
Depositary Share or Shares at such time as the absolute owner thereof for the
purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in the Deposit Agreement and
for all other purposes.
(12) Dividends and Distributions. Whenever the
Depositary receives any cash dividend or other cash distribution on the Stock,
the Depositary will, subject to the provisions of the Deposit Agreement, make
such distribution to the holders of Depositary Shares on the relevant record
date as nearly as practicable in proportion to the number of Depositary Shares
held by such holders; provided, however, that in case the Company or the
Depositary shall be required to withhold and shall withhold from any cash
dividend or other cash distribution in respect of the Stock an amount on
account of taxes, the amount made available for distribution or distributed in
respect of Depositary Shares shall be reduced accordingly. Fractions will be
rounded down to the nearest whole cent.
(13) Fixing of Record Date. Whenever any cash
dividend or other cash distribution shall become payable or any distribution
other than cash shall be made, or if rights, preferences or privileges shall at
any time be offered with respect to the Stock, or whenever the Depositary shall
receive notice of any meeting at which holders of Stock are entitled to vote or
of which holders of Stock are entitled to notice, the Depositary shall in each
instance fix a record date (which shall be the record date fixed by the Company
with respect to the Stock) for the determination of the holders of Depositary
Shares who shall be entitled to receive such dividend distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting or who shall
be entitled to notice of such meeting.
(14) Voting Rights. Upon receipt of notice of any
meeting or action to be taken by written consent at which holders of the Stock
are entitled to vote or consent, the Depositary shall, as soon as practicable
thereafter, mail to the record holders of Depositary Shares a notice which
shall contain (i) such information as is contained in such notice of meeting or
action and (ii) a statement informing holders of Depositary Shares that they
may instruct the Depositary as to the exercise of the voting rights or the
giving or refusal of consent pertaining to the amount of Stock underlying their
respective Depositary Shares and a brief statement as to the manner in which
such instructions may be given. Upon the written request of a holder of a
Depositary Share on the record date established in accordance with paragraph 13
hereof, the Depositary shall endeavor insofar as practicable to vote or cause
to be voted or give or withhold consent the amount of Stock underlying such
Depositary Share in accordance with the instructions set forth in such
<PAGE> 6
request. In the absence of specific instructions from the holder of a
Depositary Share, the Depositary will refrain from voting to the extent of the
Stock underlying such Depositary Share.
(15) Changes Affecting Deposited Securities. Upon
any change in par or liquidation value, split-up, combination or any other
reclassification of the Stock or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Company or to which it is a
party, the Depositary may in its discretion, with the approval of the Company,
and in such manner as the Depositary may deem equitable (i) make such
adjustments in (a) the fraction of an interest in one share of Stock underlying
one Depositary Share and (b) the ratio of the Redemption Price per Depositary
Share to the redemption price of a share of Stock, in each case as may be
necessary fully to reflect the effect of such change and (ii) treat any
securities which shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities so
received in exchange for or upon conversion of or in respect of such Stock. In
any such case the Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or may call for the surrender
of all outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited securities. Furthermore, by mutual agreement of
the Company and the Depositary, the Depositary may at any time make adjustments
in (i) the fraction of an interest in one share of Stock underlying one
Depositary Share and (ii) the ratio of the Redemption Price per Depositary
Share to the redemption price or exchange price of a share of the Stock.
(16) Liability and Obligations of the Depositary,
the Depositary's Agents or the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligations or
shall be subject to any liability under the Deposit Agreement to any holder of
any Depositary Share, other than for such person's own gross negligence or
willful misconduct. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall incur any liability to any holder of any
Depositary Share if by reason of any provision of any present or future law, or
regulation thereunder of the United States of America or of any other
governmental authority or, in the case of the Depositary, any Depositary's
Agent or any Registrar, by reason of any provision, present or future, of the
Company's Certificate of Incorporation (including the Certificate) or by reason
of any act of God or war or other circumstance beyond their control, the
Depositary, any Depositary's Agent, any Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing which the
terms of the Deposit Agreement provide shall be done or performed, nor shall
the Depositary, any Depositary's Agent, any Registrar or the Company incur any
liability to any holder of a Depositary Share by reason of nonperformance or
delay, caused as aforesaid, in performance of any act or thing which the terms
of the Deposit Agreement provide shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement, other than for its or their gross negligence or
willful misconduct. Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts, which in its opinion may involve it in
expense or liability unless indemnity satisfactory to it against all expense
and liability be furnished. The
<PAGE> 7
Deposit Agreement contains various other exculpatory, indemnification and
related provisions, to which reference is hereby made. Anything herein or in
the Deposit Agreement notwithstanding, in no event shall the Depositary be
liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Depositary
has been advised of the likelihood of such loss or damage and regardless of the
form of action.
(17) Resignation and Removal of Depositary. The
Depositary may at any time (i) resign by written notice of its election to do
so delivered to the Company, such resignation to take effect upon the
appointment of a successor Depositary and such successor's written acceptance
of such appointment, or (ii) be removed by the Company effective upon the
appointment of a successor Depositary and such successor's written acceptance
of such appointment.
(18) Termination of Deposit Agreement. The
Deposit Agreement may be terminated by the Company or the Depositary only after
(i) all outstanding Depositary Shares shall have been redeemed or (ii) there
shall have been made a final distribution in respect of the Stock in connection
with any liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the holders of Depositary Shares.
Upon the termination of the Deposit Agreement, the Company shall be discharged
from all obligations thereunder except for its obligations to the Depositary,
any Depositary's Agent and any Registrar with respect to indemnification,
charges and expenses.
(19) Governing Law. THIS RECEIPT AND THE DEPOSIT
AGREEMENT AND ALL RIGHTS HEREUNDER AND THEREUNDER AND THE PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED
STOCK. THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE
VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH
THE DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES AS TO THE VALIDITY OR
SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES
OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THE RECEIPTS TO
THE DEPOSITARY SHARES.
AMERICAN HEALTH PROPERTIES, INC. WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPT HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND THE
CERTIFICATE. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE SECRETARY OF AMERICAN
HEALTH PROPERTIES, INC.
-----------------------------------
<PAGE> 8
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the entreaties -------- --------
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not under Uniform Gifts
as tenants in common to Minors Act
--------------------
(State)
UNIF TRF MIN ACT -
-------------------
Custodian (until age )
------
------------------- under Uniform Transfers
Minor
to Minor Act
--------------------
(State)
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell(s),
----------------------------------------
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Depositary Shares represented by
the within Receipt and all rights thereunder, and do hereby irrevocably
constitute and appoint
Attorney
to transfer the said stock on the books of the within named Depositary with
full power of substitution in the premises.
Dated
-------------------------------------------
- --------------------------------------------------------------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAMES(S)
AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
