EXHIBIT 1.1
1,048,128 Shares
NATIONWIDE HEALTH PROPERTIES, INC.
Common Stock
(Par Value $0.10 per share)
UNDERWRITING AGREEMENT
----------------------
April 23, 1998
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Dear Sirs:
Nationwide Health Properties, Inc., a Maryland corporation (the "Company"),
proposes to issue and sell 1,048,128 shares (the "Shares") of its Common Stock
(par value $0.10 per share) ("Common Stock"), to Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated (the "Underwriter"). The Underwriter intends to deposit the
Shares with the trustee of the Equity Investor Fund Xxxxx & Steers Realty Majors
Portfolio (A Unit Investment Trust) (the "Trust"), a registered unit investment
trust under the Investment Company Act of 1940, as amended, for which Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated acts as sponsor and depositor, in
exchange for units in 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,
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subject 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 $22.1478 per Share (the "purchase price per
share"), 1,048,128 shares of Common Stock.
3. Terms of Public Offering. The Company has been advised by the
------------------------
Underwriter that the Underwriter proposes to deposit the Shares with the trustee
of the Trust, a registered unit investment trust under the Investment Company
Act of 1940, as amended, for which Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 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
-------------------------------------------
Underwriter of and payment for the Shares shall be made at the offices of the
Company, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx 92660-
6429, at 10:00 A.M., New York City time, on April 29, 1998 (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
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Shares and the Closing Date may be varied by agreement between the Underwriter
and the Company.
Certificates for the Shares 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 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. The
certificates evidencing the Shares to be purchased hereunder shall be delivered
to the Underwriter on the Closing Date 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 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)
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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 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
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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.
(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
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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.
(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.
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(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 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
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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.
(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
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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 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 any
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
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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 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
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the Company bear to the total underwriting discounts and commissions received by
the Underwriter, in each case as set forth in the table 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 (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.
11
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 Xxxxx &
Wood 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 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,
12
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.
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 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;
13
(v) the registration of the Shares under the Exchange Act if required by the
Exchange Act; (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 materially
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 materially 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 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 of the Trust to the public or enforce contracts for the sale of the
units of 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 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxxxxx X. Xxxxxxxx, Director.
14
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 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.
15
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 LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ XXXX X. XXXXX
------------------------------------------
Authorized Signatory
16
SCHEDULE I
----------
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
ANNEX A
-------
Opinion of O'Melveny & Xxxxx LLP
--------------------------------
(i) The Company has been duly incorporated and is validly existing in
good standing under the laws of the State of Maryland.
(ii) The Company has corporate power to own its properties and assets and
to carry on its business as described in the Registration Statement and the
Prospectus.
(iii) To the best of such counsel's knowledge, 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
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise.
(iv) Nationwide Health Properties Finance Corporation, a Delaware
corporation, has been duly incorporated and is validly existing in good standing
under the laws of the jurisdiction of its incorporation with corporate power to
conduct its business as currently conducted 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 condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and all of the issued
and outstanding capital stock of Nationwide Health Properties Finance
Corporation 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.
(v) The execution, delivery and performance of this Agreement has been
duly authorized by all necessary corporate action on the part of the Company,
and has been duly executed and delivered by the Company.
(vi) 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 of this
Agreement, will be validly issued, fully paid and nonassessable, and will not be
subject to any preemptive or similar rights. The Common Stock conforms in all
material respects to the description thereof contained in the Registration
Statement and the Prospectus.
(vii) The form of certificates for the Shares conform to the requirements
of the Maryland General Corporation Law.
i
(viii) The Registration Statement has been declared effective under the
Act and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued or threatened by the
Commission; and any required filing of the Prospectus pursuant to Rule 424(b)
has been made in accordance with Rule 424(b).
(ix) The Registration Statement, on the date it became effective,
appeared on its face to comply in all material respects with the requirements as
to form for registration statements on Form S-3 under the Act and the related
rules and regulations in effect at the date of effectiveness, except no opinion
need be expressed concerning the financial statements and other financial
information contained or incorporated by reference therein or any Statement of
Eligibility of any trustee on Form T-1 filed as an exhibit thereto.
(x) Each of the Incorporated Documents (other than the financial
statements and other financial data included or incorporated by reference
therein, as to which no opinion need be rendered) on the respective dates they
were filed, appeared on their face to comply in all material respects with the
Exchange Act and the rules and regulations thereunder in effect at the
respective dates of their filing.
(xi) The statements in the Prospectus under the captions "Description of
Common Stock" and "Certain Federal Income Tax Considerations", to the extent
that they constitute matters of law, summaries of legal matters or documents, or
legal conclusions, have been reviewed by such counsel and are correct in all
material respects.
(xii) No order, authorization, consent, permit or approval of any
governmental authority is required on the part of the Company for the
consummation of the transactions contemplated by this Agreement, except such as
may be required under the Act or the Exchange Act or state securities or Blue
Sky laws.
(xiii) The Company is not an "investment company" within the meaning of
the Investment Company Act.
(xiv) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are required to be
disclosed in the Registration Statement or the Prospectus, other than those
disclosed therein.
(xv) To the best of such counsel's knowledge, except as otherwise stated
or incorporated by reference in the Prospectus, the Company's execution and
delivery of and performance of its obligations under this Agreement do not (A)
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 agreement,
indenture, lease or other instrument to which the Company or any of its
subsidiaries is a party or which the Company or any subsidiary may be bound, (B)
result in any violation of the provisions of the charter or bylaws of the
Company or (C) result in any violation of any applicable law, administrative
regulation or administrative or court decree the effect of which would be
material to the Company and its subsidiaries taken as a whole.
ii
(xvi) Such counsel does not know of any contract or other document
required to be described or referred to in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as an exhibit to the
Registration Statement or any Incorporated Document that are not described or
referred to or filed or incorporated by reference as an exhibit thereto.
(xvii) Based upon current law, including relevant statutes, regulations
and judicial and administrative precedent (which is subject to change on a
retroactive basis), and subject to all of the limitations, qualifications,
conditions and factual assumptions set forth herein, the Company has qualified
as a REIT under the Code, for each taxable year commencing with its taxable year
ended December 31, 1993, and the organization and method of operation of the
Company and each of its subsidiaries will enable the Company to continue to meet
the requirements for qualification and taxation as a REIT for its taxable year
ending December 31, 1997 and each taxable year thereafter. However, such counsel
may state that they are unable to opine whether the Company will actually
continue to qualify as a REIT because such qualification will depend on future
transactions and events that cannot be known at the date of such opinion.
(xviii) In connection with such counsel's participation in the preparation
of the Registration Statement and the Prospectus, such counsel has not
independently verified the accuracy, completeness or fairness of the statements
contained or incorporated therein, and the limitations inherent in the
examination made by such counsel and the knowledge available to such counsel are
such that such counsel is unable to assume, and does not assume, any
responsibility for such accuracy, completeness or fairness. However, on the
basis of such counsel's review and participation in conferences in connection
with the preparation of the Registration Statement and the Prospectus, and
relying as to materiality to a large extent upon opinions of officers and other
representatives of the Company, such counsel does not believe that the
Registration Statement as of its effective date contained any 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 such
counsel does not believe that the Prospectus and the Incorporated Documents,
considered as a whole on the date hereof, contain any 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. However, such counsel expresses no
opinion or belief as to any document filed by the Company under the Exchange
Act, whether before or after the effective date of the Registration Statement,
except to the extent that any such document is an Incorporated Document read
together with the Registration Statement or the Prospectus and considered as a
whole, nor does such counsel express any opinion or belief as to the exhibits,
financial statements and other financial information contained or incorporated
by reference in the Registration Statement, the Prospectus or the Incorporated
Documents.
iii
