Exhibit 1.1
869,565 Shares
NATIONWIDE HEALTH PROPERTIES, INC.
Common Stock
(Par Value $0.10 per share)
UNDERWRITING AGREEMENT
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February 25, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Nationwide Health Properties, Inc., a Maryland corporation (the "Company"),
proposes to issue and sell 869,565 shares of its Common Stock (par value $0.10
per share) ("Common Stock"), to Xxxxxxx Xxxxx Barney Inc. (the "Underwriter")
and to grant to the Underwriter the option described in Section 2(b) hereof to
purchase all or any part of 130,435 additional shares of Common Stock. The
aforesaid 869,565 shares of Common Stock (the "Initial Shares") to be purchased
by the Underwriter and all or any part of the shares of Common Stock subject to
the option described in Section 2(b) hereof (the "Option Shares") are
collectively hereinafter called the "Shares." The Company understands that the
Underwriter intends to deposit the Shares with the trustee of The Equity Focus
Trusts--REIT Portfolio Series, 2002-A (the "Trust"), a registered unit
investment trust under the Investment Company Act of 1940, as amended, in
exchange for units in the Trust. The Underwriter is acting as a sponsor and
depositor of the Trust and is therefore considered an affiliate of the Trust.
The Company wishes to confirm as follows its agreement with the Underwriter
in connection with the purchase of the Shares by the Underwriter.
1. Registration Statement and Prospectus. The Company has prepared and
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filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations (the "Rules and Regulations") of the Commission
thereunder (collectively, the "Act"), a registration statement on Form S-3
(Registration No. 333-17061) under the Act (the "registration statement"),
including a prospectus for the registration of debt securities, depositary
shares, Common Stock, securities warrants and preferred stock; and such
amendments to such registration statement as may have been required prior to the
date hereof have been filed with the Commission, and such amendments have been
similarly prepared. Such registration statement and any post-effective
amendments thereto have become effective under the Act. The Company also has
filed, or
proposes to file, with the Commission pursuant to Rule 424(b) under the Act, a
prospectus supplement relating to the offering of the Shares.
The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it became effective, as supplemented or amended prior to the
execution of this Agreement. If it is contemplated, at the time this Agreement
is executed, that a post-effective amendment to the registration statement will
be filed and must be declared effective before the offering of the Shares may
commence, the term "Registration Statement" as used in this Agreement means the
registration statement as amended by said post-effective amendment. The term
"Prospectus" as used in this Agreement means the prospectus in the form included
in the Registration Statement at the time it was declared effective (the "Base
Prospectus") together with the prospectus supplement relating to the offering of
the Shares dated the date hereof in the form first filed with the Commission on
or after the date hereof (the "Prospectus Supplement"). Any reference in this
Agreement to the registration statement, the Registration Statement, the Base
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of the registration statement, the Registration
Statement or the Prospectus, as the case may be, and any reference to any
amendment or supplement to the registration statement, the Registration
Statement or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") which, upon filing, are incorporated by reference
therein, as required by paragraph (b) of Item 12 of Form S-3. As used herein,
the term "Incorporated Documents" means the documents which at the time are
incorporated by reference in the registration statement, the Registration
Statement, the Prospectus, or any amendment or supplement thereto.
2. Agreements to Sell and Purchase. (a) The Company hereby agrees, subject
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to all the terms and conditions set forth herein, to issue and sell to the
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, the Underwriter agrees to purchase from the
Company, at a purchase price of $18.61 per Share (the "purchase price per
share"), the Initial Shares.
(b) 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 Underwriter to purchase up to an additional
130,435 shares of Common Stock at the purchase price per share. The option
hereby granted will expire 30 days after the date hereof, and may be exercised
in whole or in part from time to time upon notice by the Underwriter to the
Company setting forth the number of Option Shares as to which the Underwriter is
then exercising the option and the time, date and place of payment and delivery
for such Option Shares. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Underwriter, but shall not be later than
seven full business days after the exercise of said option, nor in any event
prior to the Closing Date, as hereinafter defined, unless otherwise agreed upon
by the Underwriter and the Company.
3. Terms of Public Offering. The Company has been advised by the
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Underwriter that the Underwriter proposes to deposit the Shares with the trustee
of the Trust, a registered unit
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investment trust under the Investment Company Act of 1940, as amended, for which
Xxxxxxx Xxxxx Xxxxxx Inc. acts as sponsor and depositor, in exchange for units
in the Trust as soon after this Agreement has become effective as in its
judgment is advisable.
4. Delivery of the Shares and Payment Therefor. Delivery to the
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Underwriter of and payment for the Initial Shares shall be made at the offices
of the Company, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000-0000, at 10:00 A.M., New York City time, on February 28, 2002 (the
"Closing Date"). The documents required to be delivered by this Agreement shall
be delivered at the office of O'Melveny & Xxxxx LLP, 000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000 on the Closing Date. The place
of closing for the Shares and the Closing Date may be varied by agreement
between the Underwriter and the Company.
In addition, in the event that any or all of the Option Shares are
purchased by the Underwriter, payment of the purchase price for and delivery of
certificates for such Option Shares shall be made at the above-mentioned office
of the Company, or at such other place as shall be mutually agreed upon by the
Underwriter and the Company, on each Date of Delivery as specified in the notice
from the Underwriter to the Company.
Certificates for the Initial Shares and the Option Shares, if any, to be
purchased hereunder shall be registered in such names and in such denominations
as the Underwriter shall request prior to 10:00 A.M., New York City time, on the
second business day preceding the Closing Date. Such certificates for the
Initial Shares and the Option Shares, if any, shall be made available to the
Underwriter in New York City for inspection and packaging not later than 10:00
A.M., New York City time, on the business day next preceding the Closing Date or
the Date of Delivery, as the case may be. The certificates evidencing the
Initial Shares and the Option Shares, if any, to be purchased hereunder shall be
delivered to the Underwriter on the Closing Date or the Date of Delivery, as the
case may be, against payment of the purchase price therefor in immediately
available funds.
5. Agreements of the Company. The Company agrees with the Underwriter as
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follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Company will endeavor to cause the Registration Statement or
such post-effective amendment to become effective as soon as possible and
will advise you promptly and, if requested by you, will confirm such advice
in writing, when the Registration Statement or such post-effective
amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement or the
Prospectus or for additional information; (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares
for offering or sale in any jurisdiction or the initiation of any
proceeding for such
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purpose; and (iii) within the period of time referred to in the first sentence
of paragraph (f) below, of any change in the Company's condition, financial or
other, business, prospects, properties, net worth or results of operations, or
of the happening of any event, which makes any statement of a material fact made
in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act to be stated
therein or necessary in order to make the statements therein not misleading, or
of the necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will use its reasonable efforts to obtain
the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you upon your request, without charge (i)
one signed copy of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the registration statement, (ii) such number of conformed copies of
the registration statement as originally filed and of each amendment thereto,
but without exhibits, as you may reasonably request, (iii) such number of copies
of the Incorporated Documents, without exhibits, as you may reasonably request,
and (iv) such number of copies of the exhibits to the Incorporated Documents as
you may reasonably request.
(d) The Company will not file any amendment to the Registration Statement
or make any amendment or supplement to the Prospectus or, prior to the end of
the period of time referred to in the first sentence in paragraph (f) below,
file any document which, upon filing becomes an Incorporated Document, of which
you shall not previously have been advised or to which, after you shall have
received a copy of the document proposed to be filed, you shall reasonably
object.
(e) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" (a "REIT") under the Internal
Revenue Code of 1986, as amended (the "Code") unless the Company's Board of
Directors determines by resolution that it is in the best interests of the
Company's stockholders not to so qualify.
(f) As soon after the execution and delivery of this Agreement as possible
and thereafter from time to time for such period as in the opinion of counsel
for the Underwriter a prospectus is required by the Act to be delivered in
connection with sales by the Underwriter or any dealer, the Company will
promptly deliver to the Underwriter and each dealer, without charge, as many
copies of the Prospectus (and of any amendment or supplement thereto) as you may
reasonably request; provided, however, subsequent to the period ending nine
months after the date of this Agreement, the Company shall not be required to
pay the costs and expenses of the delivery of such requested copies of the
Prospectus (and of any amendment or supplement thereto). The Company consents to
the use of the Prospectus (and of any amendment or supplement thereto) in
accordance with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in the United States in which the Shares are offered
by the
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Underwriter and by all dealers to whom Shares may be sold, both in connection
with the offering and sale of the Shares and for such period of time thereafter
as the Prospectus is required by the Act to be delivered in connection with
sales by the Underwriter or any dealer. If during such period of time any event
shall occur that in the judgment of the Company or in the opinion of counsel for
the Underwriter is required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary to supplement or amend the Prospectus (or to
file under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act or any other law, the
Company will promptly prepare and, subject to the provisions of paragraph (d)
above, file with the Commission an appropriate supplement or amendment thereto
(or to such document), and will promptly furnish to the Underwriter and any
dealers a reasonable number of copies thereof. In the event that the Company and
you agree that the Prospectus should be amended or supplemented, the Company, if
reasonably requested by you, will promptly issue a press release announcing or
disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the
Underwriter in connection with the registration or qualification of the Shares
for offering and sale by the Underwriter and by any dealers under the securities
or Blue Sky laws of such jurisdictions in the United States as you may designate
and will file such consents to service of process or other documents necessary
or appropriate in order to effect such registration or qualification; provided
that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not now so
subject.
(h) The Company will make generally available to its security holders a
consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than by notice given by
you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or
if this Agreement shall be terminated by the Underwriter because of any failure
or refusal on the part of the Company to comply with the terms or fulfill any of
the conditions of this Agreement, the Company agrees to reimburse the
Underwriter for all reasonable out-of-pocket expenses (including reasonable fees
and expenses of counsel for the Underwriter) incurred by the Underwriter in
connection herewith, but the Company shall not in any event be liable to the
Underwriter for damages on account of loss of anticipated profits from the sale
by them of the Shares.
(j) The Company will apply the net proceeds from the sale of the Shares
substantially in accordance with the description set forth in the Prospectus
Supplement.
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(k) The Company will (i) prepare and timely file with the Commission under
Rule 424(b) of the Act a Prospectus Supplement containing information previously
omitted at the time of effectiveness of the Registration Statement and (ii) file
on a timely basis all reports required to be filed by the Company with the
Commission subsequent to the date of the Prospectus Supplement and prior to the
termination of the offering of the Shares.
6. Representations and Warranties of the Company. The Company represents
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and warrants to each Underwriter that:
(a) The Company and the transactions contemplated by this Agreement meet
the requirements for using Form S-3 under the Act. The registration statement
has become effective under the Act and no stop order suspending the
effectiveness of the registration statement has been issued under the Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been complied with.
The registration statement in the form in which it became effective and also in
such form as it may be when any post-effective amendment thereto shall become
effective and the Prospectus and any supplement or amendment thereto when filed
with the Commission under Rule 424(b) under the Act, complied or will comply in
all material respects with the provisions of the Act and will not at any such
times 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
in light of the circumstances under which they were made not misleading, except
that this representation and warranty does not apply to statements in or
omissions from the registration statement or the prospectus made in reliance
upon and in conformity with information relating to the Underwriter furnished to
the Company in writing by the Underwriter expressly for use therein.
(b) The Incorporated Documents, at the time they were filed with the
Commission, complied in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder, and, when read together
and with the other information in or incorporated by reference in the
Prospectus, did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) The Company has an authorized capitalization as set forth in the
Prospectus. All of the issued shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable. The
Shares have been duly authorized and, when issued and delivered to the
Underwriter against payment therefor in accordance with the terms hereof, will
be validly issued, fully paid and nonassessable, and will not be subject to any
preemptive or similar rights. The shares of capital stock of the Company conform
to the description thereof in the Registration Statement and the Prospectus.
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(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Maryland with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse effect on
the business or financial condition of the Company and its subsidiaries
considered as one enterprise.
(e) Each subsidiary of the Company which is a significant
subsidiary as defined in Rule 405 of Regulation C under the Act (each a
"Subsidiary" and collectively the "Subsidiaries") is listed on Schedule I
hereto and has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement and the Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify would not have a material adverse effect on the business or
financial condition of the Company and its subsidiaries considered as one
enterprise; and all of the issued and outstanding capital stock of each
such Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and, except for directors' qualifying shares, is owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(f) Except as set forth in the Registration Statement or the
Prospectus, there is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement or the Prospectus or which might in the opinion of the Company
result in any material adverse change in the business or financial
condition of the Company and its subsidiaries considered as one enterprise,
or which might materially and adversely affect the properties or assets
thereof or which might materially and adversely affect the consummation of
this Agreement; all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement or the Prospectus, including ordinary routine
litigation incidental to its business, are, considered in the aggregate,
not material; and there are no contracts or documents of the Company or any
of its subsidiaries which are required to be filed as exhibits to the
Registration Statement or any Incorporated Documents which have not been so
filed.
(g) Neither the Company nor any of its subsidiaries is in default
in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or any of them may be bound, or to which
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any of their property or assets is subject, which default would materially
adversely affect the business or financial condition of the Company and its
subsidiaries considered as one enterprise; neither the Company nor any of
its subsidiaries is in violation of its charter or bylaws; the execution,
delivery and performance of this Agreement, and the consummation of the
transactions contemplated herein will not conflict with, or constitute a
breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or
any such subsidiary is subject, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company or, to
the best knowledge of the Company, any law, administrative regulation or
administrative or court order or decree; and no consent, approval,
authorization, order or decree of any court or governmental agency or body
is required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under the
Act, the Exchange Act or the rules and regulations thereunder or as may be
required by state securities or Blue Sky laws.
(h) The accountants, Xxxxxx Xxxxxxxx LLP, who have certified or
shall certify the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) are independent public accountants as
required by the Act.
(i) The financial statements and any supporting schedules of the
Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the consolidated results of
their operations for the periods specified; and, except as stated therein,
said financial statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a consistent
basis; and any supporting schedules included or incorporated by reference
in the Registration Statement present fairly the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement and the
Prospectus. In addition, any pro forma financial statements of the Company
and its subsidiaries and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein.
(j) The Company has duly authorized, executed and delivered this
Agreement and this Agreement constitutes the valid and binding agreement of
the Company.
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(k) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
there have been no material transactions entered into by the Company or any
of its subsidiaries, other than those in the ordinary course of business,
and (C) except for regular quarterly dividends on the Common Stock and the
Company's preferred stock, in amounts per share that are consistent with
past practice or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(l) The Company and its subsidiaries have good title to all real
property or interests in real property owned by it or any of them, in each
case free and clear of all liens, encumbrances and defects except such as
are described in the Registration Statement or such as do not materially
adversely affect the value of such property and interests as reflected in
the Company's financial statements and do not materially interfere with the
use made and proposed to be made of such property and interests by the
Company and its subsidiaries; the instruments securing the Company's and
its subsidiaries' real estate mortgage loans create valid liens upon the
real properties described in such instruments enjoying the priorities
intended, subject only to exceptions to title which do not materially
adversely affect the value of such real properties and interests as
reflected in the Company's financial statements; and no material real
property or buildings are held under lease by the Company or any of its
subsidiaries.
(m) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate each property and to carry on its business as presently conducted
where its ownership or lease of any property or the conduct of its business
requires such ownership or possession or the obtaining of such governmental
licenses, permits, consents, orders, approvals and other authorizations and
where the failure to do so would materially adversely affect the business
or financial condition of the Company and its subsidiaries considered as
one enterprise.
(n) The Company has at all times since December 31, 1985 operated
in such manner as to qualify as a REIT under the Code and intends to
continue to operate in such manner.
(o) The Company is not required to be registered under the
Investment Company Act of 1940, as amended (the "Investment Company Act").
7. Indemnification and Contribution.
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(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses arising
out of or based upon any untrue statement or alleged untrue statement of a
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material fact contained in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to the Underwriter
furnished in writing to the Company by the Underwriter expressly for use in
connection therewith. The foregoing indemnity agreement shall be in addition to
any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against the
Underwriter or any person controlling the Underwriter in respect of which
indemnity may be sought against the Company, the Underwriter or such controlling
person shall promptly notify the Company and the Company shall assume the
defense thereof, including the employment of counsel satisfactory to the
Underwriter and payment of all reasonable fees and expenses. The Underwriter or
any such controlling person shall have the right to employ separate counsel in
any such action, suit or proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of the
Underwriter or such controlling person unless (i) the Company has agreed in
writing to pay such fees and expenses, (ii) the Company has failed to assume the
defense and employ counsel, or (iii) the named parties to any such action, suit
or proceeding (including any impleaded parties) include both the Underwriter or
such controlling person and the Company and the Underwriter or such controlling
person shall have been advised by its counsel that representation of such
indemnified party and the Company by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or potential
differing interests between them (in which case the Company shall not have the
right to assume the defense of such action, suit or proceeding on behalf of the
Underwriter or such controlling person). It is understood, however, that the
Company shall, in connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
the Underwriter and controlling persons not having actual or potential differing
interests with you or among themselves, which firm shall be designated in
writing by the Underwriter, and that all such reasonable fees and expenses shall
be reimbursed as they are incurred. The Company shall not be liable for any
settlement of any such action, suit or proceeding effected without its written
consent, but if settled with such written consent, or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the Company
agrees to indemnify and hold harmless the Underwriter, to the extent provided in
the preceding paragraph, and any such controlling person from and against any
loss, claim, damage, liability or expense by reason of such settlement or
judgment.
(c) The Underwriter agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement, and any person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, to the same extent as the foregoing indemnity from the
Company to the Underwriter, but only with respect to information relating to the
Underwriter furnished in writing by the Underwriter expressly for use in the
Registration Statement or the Prospectus or any amendment or
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supplement thereto. If any action, suit or proceeding shall be brought against
the Company, any of its directors, any such officer, or any such controlling
person based on the Registration Statement or the Prospectus, or any amendment
or supplement thereto, and in respect of which indemnity may be sought against
the Underwriter pursuant to this paragraph (c), the Underwriter shall have the
rights and duties given to the Company by paragraph (b) above (except that if
the Company shall have assumed the defense thereof the Underwriter shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
Underwriter's expense), and the Company, its directors, any such officer, and
any such controlling person shall have the rights and duties given to the
Underwriter by paragraph (b) above. The foregoing indemnity agreement shall be
in addition to any liability which the Underwriter may otherwise have.
(d) If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under paragraphs (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriter on the other hand from the offering of the
Shares, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriter on the other in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriter, in each case as set forth on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriter on the other
hand 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
on the one hand or by the Underwriter on the other hand and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by a pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 7, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price of the Shares underwritten by it exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation
11
(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.
(f) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action, suit or
proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of the Underwriter or any person controlling
the Underwriter, the Company, its directors or officers, or any person
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to the
Underwriter or any person controlling the Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
8. Conditions of Underwriter's Obligations. The several obligations of the
---------------------------------------
Underwriter to purchase the Shares hereunder are subject to the following
conditions:
(a) At the Closing Date, all filings, if any, required by Rules 424 and
430A under the Act shall have been timely made and any request of the
Commission for additional information (to be included in the registration
statement or the prospectus or otherwise) shall have been complied with.
(b) Subsequent to the effective date of this Agreement, there shall not
have occurred any event or development relating to or involving the Company
or any officer or director of the Company which makes any statement made in
the Prospectus untrue in any material respect or which, in the opinion of
the Company and its counsel or the Underwriter and its counsel, requires
the making of any addition to or change in the Prospectus in order to state
a material fact required by the Act or any other law to be stated therein
or necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or
development would, in your opinion, have a material adverse effect on the
market for the Shares.
(c) You shall have received on the Closing Date, an opinion of O'Melveny
& Xxxxx LLP, counsel for the Company, dated the Closing Date and addressed
to you substantially in the form of Annex A hereto.
(d) You shall have received on the Closing Date, an opinion of Sidley
Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriter, dated the Closing
Date and addressed to you with respect to the matters referred to in
clauses (v), (vi) (with respect to the third
12
sentence only), (viii), (ix) and (xviii) (excluding Incorporated Documents)
of Annex A hereto and such other related matters as you may request.
(e) You shall have received letters addressed to you and dated the date
hereof and the Closing Date from Xxxxxx Xxxxxxxx LLP, independent certified
public accountants, in the quantities and substantially in the form
heretofore approved by you.
(f) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been taken or, to the knowledge of the Company, shall be contemplated
by the Commission at or prior to the Closing Date; (ii) there shall not
have been any change in the capital stock of the Company nor any material
increase in the short-term or long-term debt of the Company (other than in
the ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), except as may otherwise be stated
in the Registration Statement and Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition,
financial or other, business, prospects, properties, net worth or results
of operations of the Company and the Subsidiaries taken as a whole; (iv)
the Company and the Subsidiaries shall not have any liabilities or
obligations, direct or contingent (whether or not in the ordinary course of
business), that are material to the Company and the Subsidiaries, taken as
a whole, other than those reflected or incorporated by reference in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto); and (v) all the representations and warranties of the Company
contained in this Agreement shall be true and correct on and as of the date
hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the Closing
Date and signed on behalf of the Company by the President or Vice President
and the chief financial officer of the Company (or such other officers as
are acceptable to you), to the effect set forth in this Section 8(f) and in
Section 8(g) hereof.
(g) The Company shall not have failed at or prior to the Closing Date to
have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to
the Closing Date.
(h) The Company shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have reasonably
requested.
(i) At the Closing Date the Shares shall have been duly listed, subject
to notice of issuance, on the New York Stock Exchange.
(j) In the event the Underwriter exercises its option provided in
Section 2(b) hereof to purchase all or any portion of the Option Shares,
the representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery, and the Underwriter shall
have received (unless the Closing Date and the Date
13
of Delivery are the same day, in which case the Company shall not be
required to deliver the documents listed in this Section 8(j)):
(1) The opinion of O'Melveny & Xxxxx LLP, counsel for the
Company, dated such Date of Delivery, relating to the Option Shares
and otherwise to the same effect as the opinion required by Section
8(c) hereof.
(2) The opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for
the Underwriter, dated such Date of Delivery, relating to the Option
Shares and otherwise to the same effect as the opinion required by
Section 8(d) hereof.
(3) A certificate signed on behalf of the Company by the
President or Vice President and the chief financial officer of the
Company (or such other officers as are acceptable to you), dated
such Date of Delivery, confirming that the certificate delivered at
the Closing Date pursuant to Section 8(f) hereof remains true and
correct as of such Date of Delivery.
(4) A letter from Xxxxxx Xxxxxxxx LLP, dated such Date of
Delivery, substantially in the form heretofore approved by you.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriter by notifying the Company at any time at or prior to Closing Time or
a Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof. Notwithstanding any such termination, the provisions of Sections 1, 4,
6, 7 and 8 shall remain in effect.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
delivered to you or to your counsel shall be deemed a representation and
warranty by the Company to you as to the statements made therein.
9. Expenses. The Company agrees to pay the following costs and expenses
--------
and all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), the Prospectus, the Prospectus Supplement and
each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, the Prospectus, the
Incorporated Documents, and all amendments or supplements to any of them, as may
be reasonably requested for use in connection with the offering and sale of the
Shares; (iii) the preparation, printing, authentication, issuance and delivery
of certificates for the Shares, including any stamp taxes in connection with the
original issuance and sale of the Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, the Blue Sky Memorandum and all other agreements
or documents printed (or reproduced) and delivered in connection with the
offering of the Shares; (v) the registration of the Shares under the Exchange
Act if required by the Exchange Act;
14
(vi) the registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of the several states as provided in Section
5(g) hereof (including the reasonable fees, expenses and disbursements of
counsel for the Underwriter relating to the preparation, printing or
reproduction, and delivery of the Blue Sky Memorandum and such registration and
qualification); (vii) the filing fees in connection with any filings required to
be made with the National Association of Securities Dealers, Inc.; (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Shares; and (ix) the fees and expenses of the Company's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Company.
10. Effective Date of Agreement. This Agreement shall become effective: (i)
---------------------------
upon the execution and delivery hereof by the parties hereto; or (ii) if, at the
time this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement to be declared effective
before the offering of the Shares may commence, when notification of the
effectiveness of such post-effective amendment has been released by the
Commission. Until such time as this Agreement shall have become effective, it
may be terminated by the Company, by notifying you, or by you by notifying the
Company.
11. Termination of Agreement. This Agreement shall be subject to
------------------------
termination, without liability on the part of the Underwriter to the Company by
notice to the Company, if prior to the Closing Date: (i) there has been, since
the time of execution of this Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (ii)
trading in any securities of the Company has been suspended or limited by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market shall have been suspended or limited, (iii) a general moratorium on
commercial banking activities in the State of New York or the State of
California shall have been declared by either federal or state authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
international or domestic calamity or crisis, the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable to commence or continue the offering of the units
in the Trust to the public or enforce contracts for the sale of the units in the
Trust. Notice of such termination may be given to the Company by telegram,
telecopy or telephone and shall be subsequently confirmed by letter.
12. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
-------------
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the offices of the
Company at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000, Attention: President; or (ii) if to the Underwriter, at the offices of
the Underwriter at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel.
This Agreement has been and is made solely for the benefit of the
Underwriter, the Company, its directors and officers, and the other controlling
persons referred to in Section 7
15
hereof and their respective successors and assigns, to the extent provided
herein, and no other person shall acquire or have any right under or by virtue
of this Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from the
Underwriter of any of the Shares in his status as such purchaser.
13. Applicable Law; Counterparts. This Agreement shall be governed by and
----------------------------
construed in accordance with the laws of the State of California applicable to
contracts made and to be performed within the State of California.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriter.
Very truly yours,
NATIONWIDE HEALTH PROPERTIES, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
Confirmed as of the date first above mentioned.
XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxx Xxxxxxxxxxx
---------------------------------------------
Name: Xxx Xxxxxxxxxxx
Title: Director
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SCHEDULE I
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Significant Subsidiaries of the Company
(as such term is defined in Rule 405 of Regulation C under the Act)
National Health Properties Finance Corporation,
a Delaware corporation
MLD Financial Capital Corporation,
a Delaware corporation
NH Texas Properties Limited Partnership,
a Texas Limited Partnership
