Exhibit 1.1
EXECUTION COPY
3,200,000 SHARES
HEALTH CARE REIT, INC.
Common Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
----------------------
September 23, 2003
Deutsche Bank Securities Inc.
UBS Securities LLC
As Representatives of the Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10005
Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the "Company"),
proposes to sell to the several underwriters (the "Underwriters") named in
Schedule I hereto for whom you are acting as representatives (the
"Representatives"), an aggregate of 3,200,000 shares (the "Firm Shares") of the
Company's Common Stock, $1.00 par value per share ("Common Stock"). The Company
also proposes to sell at the Underwriters' option an aggregate of up to 480,000
additional shares of the Company's Common Stock (the "Option Shares") as set
forth below.
As the Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement and (b) that the Underwriters are
willing to purchase the Firm Shares, plus such Option Shares if the Underwriters
elect to exercise the over-allotment option in whole or in part for the account
of the Underwriters. The Firm Shares and the Option Shares (to the extent such
option is exercised) are herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants as follows:
(i) A registration statement on Form S-3 (File No.
333-107280) with respect to the Shares has been carefully prepared by
the Company in conformity with the requirements of the Securities Act
of 1933, as amended (the "Act"), and the Rules and Regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission under
the Act. The Company has complied with the conditions for the use of
Form S-3. Copies of such registration statement, including any
amendments thereto, the preliminary prospectuses (meeting the
requirements of Rule 430A of the Rules and Regulations) contained
therein, the exhibits, financial statements and schedules, as
finally amended and revised, and all documents incorporated by
reference have heretofore been delivered by the Company to you. Such
registration statement, herein referred to as the "Registration
Statement," which shall be deemed to include all information omitted
therefrom in reliance upon Rule 430A and contained in the Prospectus
referred to below and all information incorporated by reference
therein, has been declared effective by the Commission under the Act
and no post-effective amendment to the Registration Statement has been
filed as of the date of this Agreement. The form of prospectus first
filed by the Company with the Commission pursuant to its Rule 424(b)
and Rule 430A, or if no such filing is required, the form of final
prospectus included in the Registration Statement at the time the
Registration Statement is declared effective, is herein referred to as
the "Prospectus." Each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective is herein
referred to as a "Preliminary Prospectus." Any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein and any
supplements or amendments thereto filed with the Commission as of the
date of such Preliminary Prospectus or Prospectus, as the case may be,
and in the case of any reference herein to any Preliminary Prospectus
or Prospectus, also shall be deemed to include any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
and any supplements or amendments thereto, filed with the Commission
after the date of the filing of the Prospectus under Rule 424(b) or
430A, and prior to the termination of the offering of the Shares by the
Underwriters. Any reference to any amendment or supplement to any
Preliminary Prospectus or Prospectus, as the case may be, shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference into such Preliminary Prospectus
or Prospectus, as the case may be; and any reference to any amendment
to the Registration Statement shall be deemed to refer to and include
any report of the Company filed pursuant to Section 13(a) or 15(d) of
the Exchange Act after the effective date of the Registration Statement
that is incorporated by reference into the Registration Statement. Any
reference to the Prospectus herein shall be deemed to refer to and
include the most recent prospectus supplement filed with respect to the
Shares and shall also be deemed to include any documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Act.
(ii) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Registration Statement;
the Company is duly qualified to transact business in all jurisdictions
in which the conduct of its business requires such qualification, and
in which the failure to qualify would (a) have a materially adverse
effect upon the business of the Company and its Subsidiaries, taken as
a whole, (b) adversely affect the issuance, validity or enforceability
of the Shares or (c) adversely affect the consummation of the
transactions contemplated by this Agreement (each of (a), (b) and (c)
above, a "Material Adverse Effect"); except for HCRI Pennsylvania
Properties, Inc., HCRI Texas Properties, Inc., HCRI Overlook Green,
Inc., HCRI Nevada Properties, Inc., Health Care REIT International,
Inc., HCRI Southern Investments I, Inc., HCN BCC Holdings, Inc., HCRI
Tennessee Properties, Inc., HCRI Limited Holdings, Inc., HCRI Texas
Properties, Ltd., Pennsylvania BCC Properties, Inc., HCN Atlantic GP,
Inc., HCN Atlantic LP, Inc., HCRI Louisiana Properties, L.P., HCRI
North Carolina Properties, LLC, HCRI Massachusetts Properties, Inc.,
HCRI Massachusetts Properties Trust, HCRI Indiana Properties, Inc.,
HCRI Indiana Properties, LLC, HCRI Holdings Trust, HCRI Maryland
Properties LLC, HCRI Satyr Hill, LLC, HCRI Friendship, LLC, HCRI St.
Xxxxxxx, LLC, HCRI Massachusetts Properties Trust II, HCRI Beachwood,
Inc., HCRI Broadview, Inc., HCRI Westlake, Inc., HCRI Xxxxxxxxxxxx,
Inc., HCRI Wisconsin Properties, LLC, HCRI North Carolina Properties I,
Inc., HCRI North
2
Carolina Properties II, Inc., HCRI North Carolina Properties III,
Limited Partnership, HCRI Kentucky Properties, LLC, HCRI Laurel, LLC,
HCRI Mississippi Properties, Inc., HCRI Illinois Properties, LLC, HCRI
Missouri Properties, LLC, HCRI Surgical Properties, LLC, HCRI Tucson
Properties, Inc., HCRI Stonecreek Properties, LLC, HCRI Cold Springs
Properties, LLC, HCRI Xxxx Xxxx Properties Trust and HCRI Investments,
Inc., the Company has no operating Subsidiaries.
(iii) The outstanding shares of Common Stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable and are duly listed on the New York Stock Exchange; the
Shares to be issued and sold by the Company have been duly authorized
and when issued and paid for as contemplated herein will be validly
issued, fully-paid and non-assessable; and no preemptive or similar
rights of stockholders exist with respect to any of the Shares or the
issue and sale thereof.
(iv) The shares of authorized capital stock of the Company,
including the Shares, conform with the statements concerning them in
the Registration Statement and the Prospectus.
(v) The Commission has not issued an order preventing or
suspending the use of any Preliminary Prospectus relating to the
proposed offering of the Shares nor instituted proceedings for that
purpose. As of the date it became effective the Registration Statement
contained, and the Prospectus, and any amendments or supplements
thereto will contain, as of the date the Prospectus, such amendment or
supplement is filed with the Commission, all statements which are
required to be stated therein by, and in all material respects conform
to or will conform to, as the case may be, the requirements of the Act
and the Rules and Regulations. The documents incorporated by reference
in the Prospectus, at the time they were or will be filed with the
Commission, as the case may be, conformed or will conform at the time
of filing, in all material respects to the requirements of the Exchange
Act or the Act, as applicable, and the Rules and Regulations of the
Commission thereunder. The Registration Statement did not, as of the
date it became effective, contain and any amendment thereto, including
any documents incorporated by reference therein, will not contain, any
untrue statement of a material fact and did not omit and will not omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus and any
amendments and supplements thereto, as of the date of the Prospectus,
the date such amendment or supplement is filed with the Commission and
the Closing Date and the Option Closing Date, including any documents
incorporated by reference therein, do not contain and will not contain,
as the case may be, any untrue statement of a material fact and do not
omit and will not omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to information contained in or omitted
from the Registration Statement or the Prospectus, or any such
amendment or supplement, or any documents incorporated by reference
therein, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Underwriters,
specifically for use in the preparation thereof.
(vi) The financial statements of the Company, together with
related notes and schedules as set forth or incorporated by reference
in the Registration Statement, present fairly the financial position
and the results of operations of the Company at the indicated dates and
for the indicated periods. Such financial statements and the related
notes and schedules have been prepared in accordance with generally
accepted accounting principles, consistently applied throughout the
periods involved, and all adjustments necessary for a fair presentation
of results for such periods have been made. The summary financial and
statistical data included or incorporated by reference in the
Registration Statement present fairly the information shown
3
therein and, to the extent based upon or derived from the financial
statements, have been compiled on a basis consistent with the financial
statements presented therein.
(vii) There is no action or proceeding pending or, to the
knowledge of the Company, threatened against the Company or involving
any property of the Company before any court or administrative agency
which might reasonably be expected to result in any Material Adverse
Effect, except as set forth in the Registration Statement.
(viii) The Company has good and marketable title to all of the
properties and assets reflected in the financial statements hereinabove
described (or as described in the Registration Statement as owned by
it), subject to no lien, mortgage, pledge, charge or encumbrance of any
kind except those reflected in such financial statements (or as
described in the Registration Statement) or which are not material in
amount or which do not interfere with the use made or proposed to be
made of the property. The leases, agreements to purchase and mortgages
to which the Company is a party, and the guaranties of third parties
(a) are the legal, valid and binding obligations of the Company and, to
the knowledge of the Company, of all other parties thereto, and the
Company knows of no default or defenses currently existing with respect
thereto which might reasonably be expected to result in any Material
Adverse Effect, and (b) conform to the descriptions thereof set forth
in the Registration Statement. Each mortgage which the Company holds on
the properties described in the Registration Statement constitutes a
valid mortgage lien for the benefit of the Company on such property.
(ix) The Company has filed all Federal, state and foreign
income tax returns which have been required to be filed and has paid
all taxes indicated by said returns and all assessments received by it
to the extent that such taxes have become due and are not being
contested in good faith. All tax liabilities have been adequately
provided for in the financial statements of the Company.
(x) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or
supplemented, there has not been any material adverse change or any
development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, of the Company or the
earnings, business affairs, management, or business prospects of the
Company, whether or not occurring in the ordinary course of business,
and the Company has not incurred any material liabilities or
obligations and there has not been any material transaction entered
into by the Company, other than transactions in the ordinary course of
business and changes and transactions contemplated by the Registration
Statement, as it may be amended or supplemented. The Company has no
material contingent obligations which are not disclosed in the
Registration Statement, as it may be amended or supplemented.
(xi) The Company is not (a) in default under any agreement,
lease, contract, indenture or other instrument or obligation to which
it is a party or by which it or any of its properties is bound or the
Company's certificate of incorporation or by-laws, (b) in violation of
any statute, or (c) in violation of any order, rule or regulation
applicable to the Company or its properties, of any court or of any
regulatory body, administrative agency or other governmental body, any
of which defaults or violations described in clauses (a) through (c)
will have, or after any required notice and passage of any applicable
grace period would have, a Material Adverse Effect. The consummation of
the transactions herein contemplated and the fulfillment of the terms
hereof will not conflict with or constitute a violation of any statute
or conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company is
a party or by which the Company
4
or the Company's properties may be bound, or of the certificate of
incorporation or by-laws of the Company or any order, rule or
regulation applicable to the Company or the Company's properties or of
any court or of any regulatory body, administrative agency or other
governmental body.
(xii) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated (except for the
filing of a supplement to the Prospectus relating to the Shares or such
additional steps as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") or may be necessary to qualify
the Shares for public offering by the Underwriters under state
securities or Blue Sky laws) has been obtained or made by the Company,
and is in full force and effect.
(xiii) The Company holds all material licenses, certificates and
permits from governmental authorities which are necessary to the
conduct of its businesses and the Company has not received any notice
of infringement or of conflict with asserted rights of others with
respect to any patents, patent rights, trade names, trademarks or
copyrights, which infringement is material to the business of the
Company.
(xiv) The Company qualifies as a real estate investment trust
pursuant to Sections 856 through 860 of the Internal Revenue Code of
1986, as amended, has so qualified for the taxable years ended December
31, 1984 through December 31, 2002 and no transaction or other event
has occurred or is contemplated which would prevent the Company from so
qualifying for its current taxable year.
(xv) To the best of the Company's knowledge, Ernst & Young
LLP, who have certified certain of the financial statements and related
schedules filed with the Commission as part of, or incorporated by
reference in, the Registration Statement, are independent public
accountants as required by the Act and the Rules and Regulations.
(xvi) To the knowledge of the Company, after inquiry of its
officers and directors, there are no affiliations with the NASD among
the Company's officers, directors, or principal stockholders, except as
set forth in the Registration Statement or as otherwise disclosed in
writing to the Underwriters.
(xvii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xviii) Neither the Company nor any of its officers or
directors has taken nor will any of them take, directly or indirectly,
any action resulting in a violation of Regulation M promulgated under
the Exchange Act, or designed to cause or result in, or which has
constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of the Company's Common
Stock. The Company acknowledges that the Underwriters may engage in
transactions that stabilize, maintain or otherwise affect the price of
the Common Stock, including stabilizing bids, syndicate covering
transactions and the imposition of penalty bids.
(xix) The Shares have been approved for listing upon official
notice of issuance on the New York Stock Exchange.
(xx) The Company is not, and immediately after the sale of the
Shares pursuant to the terms and conditions of this Agreement will not
be, an "investment company" or a company
5
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the
representations, warranties and covenants herein contained, and subject to the
conditions herein set forth, the Company agrees to sell to the Underwriters, and
each Underwriter agrees, severally and not jointly, to purchase, at a price of
$28.74 per share, the Firm Shares.
Payment for the Firm Shares to be sold hereunder is to be made
by Federal Funds wire transfer to an account designated by the Company for the
Firm Shares to be sold by the Company against delivery of the Firm Shares
therefor to the Representatives through the facilities of The Depository Trust
Company ("DTC"). Such payment and delivery are to be made at 10:00 a.m. New York
time, on the third business day after the date of this Agreement or at such
other time and date not later than three business days thereafter as you and the
Company shall agree upon, such time and date being herein referred to as the
"Closing Date." (As used herein, "business day" means a day on which the New
York Stock Exchange is open for trading and on which banks in New York are open
for business and not permitted by law or executive order to be closed).
In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants an option to the Underwriters to purchase
severally the Option Shares at the price per share as set forth in the first
paragraph of this Section 2. The option granted hereby may be exercised in whole
or in part by giving notice (i) at any time before the Closing Date and (ii)
only once thereafter within 30 days after the date of this Agreement, by the
Representatives to the Company setting forth the number of Option Shares as to
which the several Underwriters are exercising the option and the time and date
at which such certificates are to be delivered. The time and date at which the
Option Shares are to be delivered shall be determined by the Representatives but
shall not be earlier than three nor later than 10 full business days after the
exercise of such option, nor in any event prior to the Closing Date (such time
and date being herein referred to as the "Option Closing Date"). If the date of
exercise of the option is three or more days before the Closing Date, the notice
of exercise shall set the Closing Date as the Option Closing Date. The option
with respect to the Option Shares granted hereunder may be exercised only to
cover over-allotments in the sale of the Firm Shares by the Underwriters. You,
as Representatives of the several Underwriters, may cancel such option at any
time prior to its expiration by giving written notice of such cancellation to
the Company. To the extent, if any, that the option is exercised, payment for
the Option Shares shall be made by Federal Funds wire transfer to an account
designated by the Company for the Option Shares to be sold by the Company
against delivery of the Option Shares through the facilities of DTC. Such
payment and delivery are to be made at 10:00 a.m. New York time on the Option
Closing Date.
3. OFFERING BY THE UNDERWRITERS. It is understood that the several
Underwriters are to make a public offering of the Shares as soon as the
Representatives deem it advisable to do so. The Shares are to be initially
offered to the public at the public offering price and upon the terms set forth
in the Prospectus. The Representatives may from time to time thereafter change
the public offering price and other selling terms.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriters that:
(i) The Company will (a) prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations, if the final
form of the prospectus is not included in the Registration Statement at
the time the Registration Statement is declared effective, a Prospectus
6
containing information previously omitted at the time of effectiveness
of the Registration Statement in reliance on Rule 430A, if applicable,
of the Rules and Regulations, (b) use its best efforts to cause the
Registration Statement to remain in effect as to the Shares for so long
as the Representatives may deem necessary in order to complete the
distribution of the Shares, (c) not file any amendment to the
Registration Statement or supplement to the Prospectus, or document
incorporated by reference therein, of which the Representatives shall
not previously have been advised and furnished with a copy or to which
the Representatives shall have reasonably objected in writing or which
is not in compliance with the Rules and Regulations for so long as the
Representatives may deem necessary in order to complete the
distribution of the Shares and (d) file on a timely basis all reports
and any definitive proxy or information statements required to be filed
by the Company with the Commission subsequent to the date of the
Prospectus and prior to the termination of the offering of the Shares
by the Underwriters; provided, however, that for each such report or
definitive proxy or information statement, the Company will not file
any such report or definitive proxy or information statement, or
amendment thereto, of which the Representatives shall not previously
have been advised and furnished with a copy or to which the
Representatives shall have reasonably objected in writing or which is
not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly of
any request of the Commission for amendment of the Registration
Statement or for supplement to the Prospectus or for any additional
information, of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the use
of the Prospectus or of the institution of any proceedings for that
purpose for so long as the Representatives may deem necessary in order
to complete the distribution of the Shares, or of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
and the Company will use its best efforts to prevent (a) the issuance
of any such stop order preventing or suspending the use of the
Prospectus, or (b) any such suspension of the qualification of the
Shares for offering or sale in any jurisdiction, and to obtain as soon
as possible the lifting of any such stop order, if issued, or such
suspension of qualification.
(iii) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company
will deliver to, or upon the order of, the Representatives during the
period when delivery of a Prospectus is required under the Act, as many
copies of the Prospectus in final form, or as thereafter amended or
supplemented, as the Representatives may reasonably request. The
Company will deliver to the Representatives at or before the Closing
Date, one signed copy of the Registration Statement and all amendments
thereto including all exhibits filed therewith, and will deliver to the
Representatives such number of copies of the Registration Statement,
including documents incorporated by reference therein, but without
exhibits, and of all amendments thereto, as the Representatives may
reasonably request.
(iv) Subject to the provisions of Section 4(i) above, if
during the period in which a prospectus is required by law to be
delivered by an Underwriter or a dealer any event shall occur as a
result of which, in the judgment of the Company or in the opinion of
counsel for the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading, or, if it is necessary at any
time to amend or supplement the Prospectus to comply with any law, the
Company promptly will either (a) prepare and file with the Commission
an appropriate amendment to the Registration Statement or supplement to
the Prospectus or (b) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated
by reference in the Prospectus so that the Prospectus
7
as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with law.
(v) The Company will timely file such reports pursuant to the
Exchange Act as are necessary in order to make generally available to
securityholders as soon as practicable an earnings statement in
conformity with Rule 158 under the Act for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section
11(a) of the Act.
(vi) The Company will, for a period of five years from the
Closing Date, deliver to the Representatives copies of annual reports
and copies of all other documents, reports and information furnished by
the Company to its stockholders or filed with any securities exchange
pursuant to the requirements of such exchange or with the Commission
pursuant to the Act or the Exchange Act. The Company will deliver to
the Representatives similar reports with respect to significant
subsidiaries, as that term is defined in the Rules and Regulations,
which are not consolidated in the Company's financial statements.
(vii) No offering, sale or other disposition of any Common
Stock of the Company will be made for a period of 90 days after the
date of this Agreement, directly or indirectly, by the Company
otherwise than hereunder or with the prior written consent of the
Representatives except that the Company may, without such consent, (i)
issue securities under the Company's equity compensation plans for
officers, employees, and non-employee directors described in the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 2002; (ii) issue shares upon the exercise of options or other stock
rights issued pursuant to the Company's equity compensation plans for
officers, employees, and non-employee directors described in the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 2002; (iii) sell shares of Common Stock pursuant to the Amended and
Restated Dividend Reinvestment and Stock Purchase Plan filed with the
Commission on May 21, 2003; or (iv) issue up to $30.0 million worth of
one or more new series of convertible Preferred Stock, par value $1.00,
and issue shares of Common Stock as required upon the exercise of the
conversion rights of such Preferred Stock.
5. COSTS AND EXPENSES. The Company will pay all costs, expenses and
fees incident to the performance of its obligations under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the
Underwriter, copies of the Registration Statement, Preliminary Prospectuses, the
Prospectus, this Agreement, the applicable listing agreement for the New York
Stock Exchange; the filing fees of the Commission; the filing fees and expenses
(including legal fees and disbursements) incident to securing any required
review by the NASD of the terms of the sale of the Shares; the fees incident to
the listing agreement for the New York Stock Exchange. Any transfer taxes
imposed on the sale of the Shares to the several Underwriters will be paid by
the Company. The Company shall not, however, be required to pay for any of the
Underwriters' expenses except that, if this Agreement shall not be consummated
because the conditions in Section 7 hereof are not satisfied, or because this
Agreement is terminated by the Representatives pursuant to Section 6 hereof, or
this Agreement is terminated pursuant to Section 10(i)(a) hereof, or by reason
of any failure, refusal or inability on the part of the Company to perform any
undertaking or satisfy any condition of this Agreement or to comply with any of
the terms hereof on its part to be performed, unless such failure to satisfy
said condition or to comply with said terms be due to the default or omission of
any Underwriter, then the Company shall reimburse the several Underwriters for
reasonable out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred in connection with investigating, marketing and proposing to
market the Shares or in contemplation of performing its
8
obligations hereunder, but the Company shall not in any event be liable to any
of the several Underwriters for damages on account of loss of anticipated
profits from the sale by it of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several
obligations of the Underwriters to purchase the Firm Shares on the Closing Date
and the Option Shares, if any, on the Option Closing Date is subject to the
accuracy, as of the Closing Date or the Option Closing Date, as the case may be,
of the representations and warranties of the Company contained herein, and to
the performance by the Company of its covenants and obligations hereunder and to
the following additional conditions:
(i) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been taken or, to
the knowledge of the Company, shall be contemplated or threatened by
the Commission.
(ii) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion of
Xxxxxxxx, Loop & Xxxxxxxx, LLP, counsel for the Company, dated the
Closing Date or the Option Closing Date, as the case may be, and
addressed to the Representatives, as representatives of the several
Underwriters, to the effect that:
(a) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus.
(b) The Company is duly qualified to transact
business in all jurisdictions in which the conduct of its
business requires such qualification, and in which the failure
to qualify would have a Material Adverse Effect.
(c) The Company has authorized and outstanding
capital stock as set forth under the caption "Capitalization"
in the Prospectus or a referenced amendment or supplement
thereto; the authorized shares of its Common Stock have been
duly authorized; the outstanding shares of its Common Stock
have been duly authorized and validly issued and are fully
paid and nonassessable; all of the Shares conform in all
material respects to the description thereof contained in the
Prospectus; the certificates for the Shares are in due and
proper form; the shares of Common Stock, including Option
Shares, if any, to be sold by the Company pursuant to this
Agreement have been duly authorized and will be validly
issued, fully paid and non-assessable when issued and paid for
as contemplated by this Agreement; and no preemptive or
similar rights of stockholders exist with respect to any of
the Shares or the issue and sale thereof.
(d) The Registration Statement has become effective
under the Act and, to such counsel's knowledge no stop order
proceedings with respect thereto have been instituted or are
pending or threatened under the Act.
(e) The Registration Statement, the Prospectus and
each amendment or supplement thereto and documents
incorporated by reference therein comply as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and Rules and Regulations (except
that such counsel need express no opinion as to the financial
statements, schedules and other financial or statistical
information included or incorporated by reference therein).
9
(f) The statements under the caption "Description of
Our Common Stock" in the Prospectus, insofar as such
statements constitute a summary of documents referred to
therein or matters of law, are accurate summaries and fairly
and correctly present in all material respects the information
called for with respect to such documents and matters.
(g) The statements under the caption "Certain
Government Regulations" in the Company's Annual Report on Form
10-K, and any amendments thereto, for the fiscal year ended
December 31, 2002 as to matters of law stated therein, have
been reviewed by such counsel and constitute fair summaries of
the matters described therein which are material to the
business or condition (financial or otherwise) of the Company.
(h) Such counsel does not know of any contracts or
documents required to be filed as exhibits to or incorporated
by reference in the Registration Statement or described in the
Registration Statement or the Prospectus or any amendment or
supplement thereto which are not so filed, incorporated by
reference or described as required, and such contracts and
documents as are summarized in the Registration Statement or
the Prospectus or any amendment or supplement thereto are
fairly summarized in all material respects.
(i) Such counsel knows of no material legal
proceedings pending or threatened against the Company except
as set forth in the Prospectus or any amendment or supplement
thereto.
(j) The execution and delivery of this Agreement and
the consummation of the transactions herein contemplated do
not and will not conflict with or constitute a violation of
any statute or conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, the
certificate of incorporation or by-laws of the Company, any
material agreement or instrument known to such counsel to
which the Company is a party or by which the Company or the
Company's properties may be bound or any order known to such
counsel or rule or regulation applicable to the Company or the
Company's properties of any court or governmental agency or
body.
(k) This Agreement has been duly authorized,
executed and delivered by the Company.
(l) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in
connection with the execution and delivery of this Agreement
and the consummation of the transactions herein contemplated
(other than as may be required by the NASD or as required by
state securities and Blue Sky laws as to which such counsel
need express no opinion) except such as have been obtained or
made by the Company, specifying the same.
(m) The Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940.
In addition, either such counsel or Xxxxxx & Xxxxxx, special
tax counsel to the Company, will provide an opinion, based on such
counsel's own review of the Company's certificate of incorporation,
stating that the Company was organized and continues to be organized in
10
conformity with the requirements for qualification as a real estate
investment trust under subchapter M of the Internal Revenue Code of
1986, as amended, (the "Code") and, based on such counsel's review of
the Company's federal income tax returns and discussions with
management and independent public accountants for the Company, that the
Company, taking into account operations for its taxable and fiscal
years ended December 31, 1999 through December 31, 2002, satisfied the
requirements for qualification and taxation as a real estate investment
trust under the Code for such years and that its proposed method of
operation will enable it to meet the requirements for qualification and
taxation as a real estate investment trust under the Code for its
taxable and fiscal year ending December 31, 2003. Furthermore, such
counsel shall opine that the statements contained under the heading
"U.S. Federal Income Tax Considerations" in the Registration Statement
or Prospectus and under the heading "Taxation" in the Company's Annual
Report on Form 10-K, and any amendments, for the fiscal year ended
December 31, 2002 are correct and accurate in all material respects and
present fairly and accurately the material aspects of the federal
income tax treatment of the Company and of its stockholders.
In rendering such opinion, such counsel may rely as to matters
governed by the laws of states other than the laws of State of Ohio,
the corporate laws of the State of Delaware or Federal laws on local
counsel in such jurisdictions, provided that in such case such counsel
shall state that they believe that they and the Underwriters are
justified in relying on such other counsel and such other counsel shall
indicate that the Underwriters may rely on such opinion. As to matters
of fact, to the extent they deem proper, such counsel may rely on
certificates of officers of the Company and public officials so long as
such counsel states that they have no reason to believe that either the
Representatives or they are not justified in relying on such
certificates. In addition to the matters set forth above, the opinion
of Xxxxxxxx, Loop & Xxxxxxxx, LLP shall also include a statement to the
effect that nothing has come to the attention of such counsel which
leads them to believe that (a) the Registration Statement or any
amendment thereto, as of the time it became effective under the Act, or
any of the documents incorporated by reference therein, as of the date
of effectiveness of the Registration Statement or, in the case of
documents incorporated by reference into the Prospectus after the date
of effectiveness of the Registration Statement, as of the respective
date when such documents were filed with the Commission, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (b) the Prospectus or any supplement
thereto, on the date it was filed pursuant to Rule 424(b), contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (y) the
Registration Statement or any amendment thereto, or any of the
documents incorporated by reference therein, as of the date of
effectiveness of the Registration Statement or, in the case of
documents incorporated by reference into the Prospectus after the date
of effectiveness of the Registration Statement, as of the respective
date when such documents were filed with the Commission, or as of the
Closing Date or the Option Closing Date, as the case may be, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading (except that such counsel need express no view
as to financial statements, schedules and other financial information
included therein), and (z) the Prospectus or any supplement thereto, as
of the date it was filed pursuant to Rule 424(b), or as of the Closing
Date or the Option Closing Date, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading (except that such counsel
need express no view as to financial statements, schedules and other
financial information included therein). With respect to such
statement, Xxxxxxxx, Loop &
11
Xxxxxxxx, LLP, may state that this statement is based upon the
procedures set forth or incorporated by reference therein, but is
without independent check and verification.
(iii) The Representatives shall have received from Xxxxxx,
Halter & Xxxxxxxx LLP, counsel for the Underwriters, an opinion dated
the Closing Date or the Option Closing Date, as the case may be, with
respect to the organization of the Company, the validity of the Shares,
the Registration Statement, the Prospectus and other related matters as
the Representatives reasonably may request and such counsel shall have
received such papers and information as they reasonably request to
enable them to pass upon such matters.
(iv) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a signed
letter, in form and substance satisfactory to the Representatives,
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Act and are in compliance with
the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission and
(ii) stating, as of the date hereof (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of
a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(v) With respect to the letter or letters of Ernst & Young LLP
referred to in the preceding paragraph and delivered to the
Representatives concurrently with the execution of this Agreement (the
"initial letters"), the Company shall have furnished to the
Representatives a letter, in form and substance satisfactory to the
Representatives (the "bring-down letter"), of such accountants, dated
the Closing Date and the Option Closing Date, if any, (i) confirming
that they are independent public accountants within the meaning of the
Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of the bring-down letter
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior to
the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters
covered by the initial letters and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letters.
(vi) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a certificate or
certificates of the Chairman of the Board and Chief Executive Officer
and the President and Chief Financial Officer of the Company to the
effect that as of the Closing Date or the Option Closing Date, as the
case may be, each of them severally represents as follows:
(a) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness
of the Registration Statement has been issued, and no
proceedings for such purpose have been taken or are, to his
knowledge, contemplated by the Commission.
(b) He does not know of any litigation instituted or
threatened against the Company of a character required to be
disclosed in the Registration Statement which is not so
disclosed; he does not know of any material contract required
to be filed as an exhibit to the Registration Statement which
is not so filed; and the representations and
12
warranties of the Company contained in Section 1 hereof are
true and correct as of the Closing Date or the Option Closing
Date, as the case may be.
(c) He has carefully examined the Registration
Statement and the Prospectus and in his opinion, as of the
effective date of the Registration Statement, the statements
contained in the Registration Statement, including any
document incorporated by reference therein, were true and
correct, and such Registration Statement and Prospectus, or
any document incorporated by reference therein, did not omit
to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading and, in his opinion, since the effective date of
the Registration Statement, no event has occurred which should
have been set forth in a supplement to or an amendment of the
Prospectus which has not been so set forth in such supplement
or amendment.
(vii) The Representatives shall have received at or prior to
the Closing Date, an agreement, in form and substance satisfactory to
the Representatives, signed by the directors and executive officers of
the Company to the effect that they will not, prior to the expiration
of 90 days from the date of this Agreement, offer, sell or otherwise
dispose of any shares of Common Stock of the Company or any securities
that the directors and executive officers has, or will have the right
to acquire through the exercise of options, warrants, subscription or
other rights without the prior written consent of the Representatives,
except pursuant to (i) bona fide gifts to transferees who agree in
writing to be bound by the restrictions on transfer set forth in this
paragraph (vii), (ii) routine dispositions under Rule 10b5-1 Sales
Plans entered into by certain directors and officers of the Company as
of the date hereof, and (iii) the Company's equity compensation plans
for officers, employees, and non-employee directors, but in no event
shall the sales under this subsection (iii) of the executive officers
and directors exceed 300,000 shares of Common Stock in the aggregate.
(viii) The Shares to be sold by the Company as of the Closing
Date or the Option Closing Date, as the case may be, shall have been
duly listed, subject to notice of issuance, on the New York Stock
Exchange.
The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects reasonably satisfactory to the Representatives and to
Xxxxxx, Halter & Xxxxxxxx LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Representatives by notifying the Company of such termination in writing
or by telegram at or prior to the Closing Date or the Option Closing Date, as
the case may be. In such event, the Company and the Underwriters shall not be
under any obligation to each other (except to the extent provided in Sections 5
and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of the
Company to sell and deliver the portion of the Shares required to be delivered
as and when specified in this Agreement are subject to the conditions that at
the Closing Date or the Option Closing Date, as the case may be, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and in effect or proceedings therefor initiated or threatened.
13
8. INDEMNIFICATION.
(i) The Company agrees to indemnify and hold harmless each
Underwriter, its officer and directors, and each person, if any, who
controls any Underwriter within the meaning of the Act against any
losses, claims, damages or liabilities to which such Underwriter or
such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (a) any
untrue statement or alleged untrue statement of any material fact
contained or incorporated by reference in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, (b) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances under which they were made, or (c) any act or failure to
act, or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Shares or the
offering contemplated hereby, and will reimburse each such Underwriter
and each such controlling person for any legal or other expenses
reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim,
damage, liability, action or proceeding; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or alleged
omission made or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or such
amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by or through the
Representatives specifically for use in the preparation thereof; and
provided further that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any Underwriter, its
officers and directors, or any person controlling the Underwriter on
account of any loss, claim, damage, liability or action arising from
the sale of any Shares to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Prospectus, as the
same may be amended or supplemented, to that person within the time
required by the Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the
Company with Sections 4(iii), 4(iv) or 4(v). This indemnity agreement
will be in addition to any liability which the Company may otherwise
have.
(ii) Each Underwriter severally, but not jointly, will
indemnify and hold harmless the Company, each of its directors, each of
its officers who have signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of the Act,
against any losses, claims, damages or liabilities to which the Company
or any such director, officer or controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of
any material fact contained or incorporated by reference in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made; and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding; provided,
however, that each Underwriter will be liable in each case to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission has been made or
incorporated by reference in the Registration Statement, any
Preliminary Prospectus, the Prospectus or such amendment or supplement,
in reliance upon and in conformity with written information furnished
to the
14
Company by or through the Representatives specifically for use in the
preparation thereof. This indemnity agreement will be in addition to
any liability which such Underwriter may otherwise have.
(iii) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to this Section 8, such person
(the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Sections 8(i) or (ii) shall be
available to any party who shall fail to give notice as provided in
this Section 8(iii) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and
was prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the indemnifying party or parties
from any liability which it or they may have to the indemnified party
for contribution or otherwise than on account of the provisions of
Sections 8(i) or (ii). In case any such proceeding shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified
party and shall pay as incurred the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel at its
own expense. Notwithstanding the foregoing, the indemnifying party
shall pay as incurred the fees and expenses of the counsel retained by
the indemnified party in the event (a) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (b) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them, in which case the indemnifying party shall not
be entitled to assume the defense of such suit notwithstanding its
obligation to bear the fees and expenses of such counsel. It is
understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees and expenses of more than one separate
firm for all such indemnified parties and one local counsel. Such firm
shall be designated in writing by you in the case of parties
indemnified pursuant to Section 8(i) and by the Company in the case of
parties indemnified pursuant to Section 8(ii). The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the fifth sentence of
this paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written
consent to which the indemnification obligations of the Company
hereunder are applicable if (a) such settlement is entered into more
than 60 days after receipt by such indemnifying party of the aforesaid
request and (b) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement.
(iv) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless to the extent required
therein an indemnified party under Sections 8(i) or (ii) above in
respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such
proportion as is
15
appropriate to reflect the relative benefits received by the Company
and the Underwriters from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under Section 8(iii) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
and the Underwriters in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company and the Underwriters shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Underwriters bear
to the total proceeds of the offering (the proceeds received by the
Underwriters being equal to the total underwriting discounts and
commissions received by the Underwriters), in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 8(iv) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this Section 8(iv). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
above in this Section 8(iv) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(iv), (a) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares
purchased by such Underwriter and (b) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in
this Section 8(iv) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(v) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or
amendment thereto, each party against whom contribution may be sought
under this Section 8 hereby consents to the jurisdiction over any other
contributing party, agrees that process issuing from such court may be
served upon him or it by any other contributing party and consents to
the service of such process and agrees that any other contributing
party may join him or it as an additional defendant in any such
proceeding in which such other contributing party is a party.
9. NOTICES. All communications hereunder shall be in writing and,
except as otherwise provided herein, will be mailed, delivered or telegraphed
and confirmed as follows: if to the Underwriters, to Deutsche Bank Securities
Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Equity
Syndicate; if to the Company, to Health Care REIT, Inc., Xxx XxxXxxx, Xxxxx
0000, Xxxxxx, Xxxx 00000-0000, Attention: Xxxxxx X. Xxxxxxx, Chairman of the
Board and Chief Executive Officer.
16
10. TERMINATION. This Agreement may be terminated by you by notice to
the Company as follows:
(i) at any time prior to the Closing Date or any Option
Closing Date (if different from the Closing Date and then only as to
the Option Shares) if any of the following has occurred: (a) since the
date as of which information is given in the Prospectus (excluding any
amendment, supplement thereto or document incorporated by reference
therein filed after the date of this Agreement), any material adverse
change or any development involving a prospective material adverse
change in or affecting the condition, financial or otherwise, of the
Company or the earnings, business affairs, management or business
prospects of the Company, whether or not arising in the ordinary course
of business, (b) any outbreak or escalation of hostilities or
declaration of war or national emergency after the date hereof or other
national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial
markets of the United States would, in your judgment, make the offering
or delivery of the Shares impracticable or inadvisable, (c) trading in
securities generally or in the Company's securities on the New York
Stock Exchange or the American Stock Exchange shall have been suspended
or materially limited (other than limitations on hours or numbers of
days of trading) or minimum prices shall have been established for
securities on either such Exchange, (d) the enactment, publication,
decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority
which in your reasonable opinion materially and adversely affects or
will materially or adversely affect the business or operations of the
Company, (e) declaration of a banking moratorium by either federal or
New York State authorities or material disruption in securities
settlement or clearance services in the United States, (f) the taking
of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your reasonable
opinion has a material adverse effect on the securities markets in the
United States, or (g) any litigation or proceeding is pending or
threatened against any Underwriter which seeks to enjoin or otherwise
restrain, or seeks damages in connection with, or questions the
legality or validity of this Agreement or the transactions contemplated
hereby; or
(ii) as provided in Sections 6 and 11 of this Agreement.
11. DEFAULT BY UNDERWRITERS. If, on the Closing Date or on the Option
Closing Date, as the case may be, any one or more of the Underwriters shall fail
or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date (except in the event of a default on the part of the
Company), and the aggregate principal amount of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is ten
percent or less of the aggregate principal amount of Shares to be purchased on
such date, the other Underwriters may make arrangements satisfactory to the
Representatives, for the purchase of such Shares by other persons (who may
include one or more of the non-defaulting Underwriters, including the
Representatives), but if no such arrangements are made by the Closing Date or
the Option Closing Date, as the case may be, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Shares set
forth opposite their respective names in Schedule I hereto bears to the
aggregate principal amount of Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date.
If, on the Closing Date or on the Option Closing Date, as the
case may be, any Underwriter or Underwriters shall fail or refuse to purchase
Shares and the aggregate principal amount of Shares with respect to which such
default (except in the event of a default on the part of the Company) occurs is
more than ten percent of the aggregate principal amount of Shares to be
purchased, and
17
arrangements satisfactory to the Representatives and the Company for the
purchase of such Shares are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Representatives or the
Company shall have the right to postpone the Closing Date or the Option Closing
Date, as the case may be, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and/or in the
Prospectus or in any other documents or arrangements may be effected. As used in
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 11. Any action taken under this Section 11 shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
12. SUCCESSORS. This Agreement has been and is made solely for the
benefit of the Underwriters and the Company and their respective successors,
executors, administrators, heirs and assigns, and the officers, directors and
controlling persons referred to herein, and no other person will have any right
or obligation hereunder. The term "successors" shall not include any purchaser
of the Shares merely because of such purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS. The Company and the
Underwriters acknowledge and agree that the only information furnished or to be
furnished by the Underwriters to the Company for inclusion in any Prospectus or
Registration Statement consists of the information set forth under the caption
"Underwriting" in the Prospectus (other than the sixth (relating to expenses of
the offering), seventh (relating to indemnification and contribution) and eighth
(relating to lock-up arrangements) paragraphs thereof).
14. MISCELLANEOUS. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers and (iii) delivery of and payment for
the Shares under this Agreement.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
[SIGNATURE PAGE TO FOLLOW.]
18
If the foregoing letter is in accordance with your
understanding of our agreement, please sign and return to us the enclosed
duplicates hereof, whereupon it will become a binding agreement among the
Company and the Underwriters in accordance with its terms.
Very truly yours,
HEALTH CARE REIT, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx, President and
Chief Financial Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
DEUTSCHE BANK SECURITIES INC.
UBS SECURITIES LLC
As Representatives of the Underwriters listed on Schedule I
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxxx XxxXxxxxx
-------------------------------------------------
Name: Xxxxxx XxxXxxxxx
-----------------------------------------------
By: /s/ Xxxxx Xxxxx
-------------------------------------------------
Name: Xxxxx Xxxxx
-----------------------------------------------
By: UBS SECURITIES LLC
By: /s/ Xxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------------------
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
-----------------------------------------------
19
SCHEDULE I
SCHEDULE OF UNDERWRITERS
NUMBER OF SHARES TO
UNDERWRITER BE PURCHASED
----------- --------------------------
Deutsche Bank Securities Inc............................ 1,040,000
UBS Securities LLC...................................... 720,000
X.X. Xxxxxxx & Sons, Inc................................ 480,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated.................... 480,000
Banc of America Securities LLC.......................... 320,000
McDonald Investments Inc., a KeyCorp Company............ 160,000
--------------------------
Total.......................................... 3,200,000
==========================
20
