12,500,000 Shares HEALTH CARE REIT, INC. ($1.00 Par Value) UNDERWRITING AGREEMENT
Exhibit 1.2
Execution copy
12,500,000 Shares
HEALTH CARE REIT, INC.
6.50% Series I Cumulative Convertible Perpetual Preferred Stock
($1.00 Par Value)
March 1, 2011
UBS Securities LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Barclays Capital Inc.
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities LLC
Xxxxx Fargo Securities, LLC
As Representatives of the Several Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Barclays Capital Inc.
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities LLC
Xxxxx Fargo Securities, LLC
As Representatives of the Several Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the “Company”), proposes to sell to the
underwriters (the “Underwriters”) named in Schedule I hereto for whom you are acting as
representatives (the “Representatives”), an aggregate of 12,500,000 shares (the “Firm Shares”) of
the Company’s 6.50% Series I Cumulative Convertible Perpetual Preferred Stock, $1.00 par value per
share (the “Preferred Stock”). The Company also proposes to sell at the Underwriters’ option an
aggregate of up to 1,875,000 additional shares of the Company’s Preferred Stock (the “Option
Shares”) as set forth below. The Preferred Stock shall be convertible into shares (the “Conversion
Shares”) of the Company’s Common Stock, $1.00 par value per share (the “Common Stock”). The
dividend payment dates, conversion provisions, rank and other terms of the Preferred Stock are set
forth in the Certificate of Designation relating to the Preferred Stock (the “Certificate”) to be
filed with Secretary of State of Delaware (the “Secretary”). It is understood that the Company
proposes, and is concurrently entering into an agreement, subject to the terms and conditions
stated therein to issue and sell to the underwriters named therein, an aggregate of 25,000,000
shares (or 28,750,000 shares if the underwriters exercise their overallotment option in full) of
Common Stock. This offering is not conditioned on the completion of the offering of Common Stock
and the offering of Common Stock is not conditioned on the completion of this offering.
As the Representatives, you have advised the Company (a) that you are authorized to enter into
this Agreement and (b) that the Underwriters are willing to purchase, acting severally and not
jointly, the Firm Shares set forth in Schedule I hereto, plus such Option Shares if the
Underwriters elect to exercise the over-allotment option in whole or in part for the account of the
Underwriters. The Firm Shares and the Option Shares (to the extent such option is exercised) are
herein collectively sometimes referred to as the “Shares.”
The Company has entered into a purchase agreement dated as of February 28, 2011 (the
“Acquisition Agreement”) among the Company, FC-GEN Investment, LLC (“FC-GEN”) and FC-GEN
Operations Investment, LLC, pursuant to which the Company will purchase (the “Acquisition”) 100% of
the equity interests of FC-GEN Acquisition Holding, LLC (“FC-GEN Acquisition Holding”), which
indirectly owns senior housing and care facilities.
In consideration of the mutual agreements contained herein and of the interests of the parties
in the transactions contemplated hereby, the parties hereto agree as follows:
(i) An “automatic shelf registration statement” as defined in Rule 405 under the
Securities Act of 1933, as amended (the “Securities Act”), on Form S-3 (File No. 333-159040)
in respect of the Shares and the Conversion Shares, including a form of prospectus (the
“Base Prospectus”), has been prepared and filed by the Company not earlier than three years
prior to the date hereof, in conformity with the requirements of the Securities Act, and the
rules and regulations of the Securities and Exchange Commission (the “Commission”)
thereunder (the “Rules and Regulations”). The Company and the transactions contemplated by
this Agreement meet the requirements and comply with the conditions for the use of Form S-3.
Copies of such registration statement, including any amendments thereto, the Base
Prospectus, as supplemented by any preliminary prospectus (including any preliminary
prospectus supplement) relating to the Shares and the Conversion Shares filed with the
Commission pursuant to Rule 424(b) under the Securities Act (a “Preliminary Prospectus”),
and including the documents incorporated in the Base Prospectus by reference, and the
exhibits, financial statements and schedules to such registration statement, in each case as
finally amended and revised, have heretofore been delivered by the Company to the
Representatives. Such registration statement is herein referred to as the “Registration
Statement,” which shall be deemed to include all information omitted therefrom in reliance
upon Rules 430A, 430B or 430C under the Securities Act and contained in the Prospectus
referred to below, has become effective under the Securities Act and no post-effective
amendment to the Registration Statement has been filed as of the date of this Agreement.
“Prospectus” means the form of prospectus relating to the Shares and the Conversion Shares
first filed with the Commission pursuant to and within the time limits described in Rule
424(b) under the Securities Act and in accordance with Section 4(i) hereof. Any reference
herein to the Registration Statement, any Preliminary Prospectus or to the Prospectus or to
any amendment or supplement to any of the foregoing documents shall be deemed to refer to
and include any documents incorporated by reference therein, and, in the case of any
reference herein to the Prospectus, also shall be deemed to include any documents
incorporated by reference therein, and any supplements or amendments thereto, filed with the
Commission after the date of filing of the Prospectus under Rule 424(b) under the Securities
Act, and prior to the termination of the offering of the Shares by the Underwriters.
(ii) As of the Applicable Time (as defined below), neither (i) the General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time, the
Statutory Prospectus (as defined below) and the information included on Schedule II hereto,
all considered together (collectively, the “General Disclosure Package”), nor (ii) any
individual Limited Use Free Writing Prospectus (as defined below), when considered together
with the General Disclosure Package, included any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, provided, however,
that the Company makes no representations or warranties as to information contained in or
omitted from any Issuer Free
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Writing Prospectus, in reliance upon, and in conformity with, written information furnished
to the Company by or on behalf of any Underwriter through the Representatives, specifically
for use therein, it being understood and agreed that the only such information is that
described in Section 13 herein. As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 11:20 p.m. (New York time) on the date of this Agreement or
such other time as agreed to by the Company and the Representatives.
“Statutory Prospectus” means the Base Prospectus, as amended and supplemented
immediately prior to the Applicable Time, including any document incorporated by reference
therein and any prospectus supplement deemed to be a part thereof.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 under the Securities Act, relating to the Shares in the form filed or required
to be filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g) under the Securities Act.
“General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
identified on Schedule II to this Agreement.
“Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
not a General Use Free Writing Prospectus.
(iii) The Company and each of its Subsidiaries (as defined below) has been duly
organized and is validly existing as a corporation, limited liability company or limited
partnership, as the case may be, in good standing under the laws of the jurisdiction of its
organization, with corporate power and authority to own its properties and conduct its
business as described in the Registration Statement, the General Disclosure Package and the
Prospectus; the Company and each of its Subsidiaries is duly qualified to transact business
in all jurisdictions in which the conduct of its business requires such qualification, and
in which the failure to qualify would (a) have a materially adverse effect upon the business
of the Company and its Subsidiaries, taken as a whole or (b) prevent or materially interfere
with the consummation of the transactions contemplated by this Agreement (each of (a) and
(b) above, a “Material Adverse Effect”). All of the Company’s subsidiaries are listed in
Schedule IV hereto (the “Subsidiaries”).
(iv) The information contained in the line items “Preferred Stock” and “Common Stock”
set forth in the consolidated balance sheet as of December 31, 2010 contained in the
Company’s Annual Report on Form 10-K for the year ended December 31, 2010 and in the section
captioned “Capitalization” in the Prospectus (and any similar section or information
contained in the General Disclosure Package) sets forth the authorized, issued and
outstanding capital stock of the Company at the indicated date, and, except for issuances
since such date of (a) 472,986 shares of Common Stock under the Company’s Dividend
Reinvestment and Stock Purchase Plan, as amended, (b) 193,707 shares of Common Stock under
the Company’s Amended and Restated 2005 Long-Term Incentive Plan, and (c) 349,854 shares of
the Company’s Series H Convertible Preferred Stock, there has been no material change in
such information since December 31, 2010; all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable; the shares of Common Stock of the Company are duly listed on the New York
Stock Exchange (“NYSE”); the Shares to be issued and sold by the Company have been duly
authorized and when issued and paid for as contemplated herein will be validly issued,
fully-paid and non-assessable;
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and no preemptive or similar rights of stockholders exist with respect to any of the Shares
or the issue and sale thereof. The Conversion Shares have been duly authorized and reserved
for issuance by the Company and, when issued and delivered upon conversion and in accordance
with the Certificate, will be validly issued, fully paid and non-assessable, and no
preemptive or similar rights of stockholders will exist with respect to any of the
Conversion Shares or the issuance thereof.
(v) The shares of authorized capital stock of the Company, including the Shares and the
Conversion Shares, conform in all material respects with the statements concerning them in
the Registration Statement, the General Disclosure Package and the Prospectus. The Shares
conform to the provisions of the Certificate and the relative rights, preferences, interests
and powers of such Shares are as set forth in the Certificate.
(vi) The Commission has not issued an order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus relating to the
proposed offering of the Shares, and no proceeding for that purpose or pursuant to Section
8A of the Securities Act has been instituted or, to the Company’s knowledge, threatened by
the Commission. The Registration Statement complies, and the Prospectus and any amendments
or supplements thereto will comply, as to form in all material respects with the
requirements of the Securities Act and the rules and regulations of the Commission
thereunder. The documents incorporated, or to be incorporated, by reference in the
Prospectus, at the time filed with the Commission complied or will comply, as to form in all
material respects to the requirements of the Securities Exchange Act of 1934 (“Exchange
Act”) or the Securities Act, as applicable, and the rules and regulations of the Commission
thereunder. The Registration Statement and any amendment thereto do not contain, and, at
all times during the period that begins on the date hereof and ends as of the Closing Date,
and as of the Closing Date or the Option Closing Date, as the case may be, will not contain,
any untrue statement of a material fact and do not omit, and will not omit, to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus and any amendments and supplements thereto do not contain, and,
at all times during the period that begins on the date hereof and ends as of the Closing
Date, and as of the Closing Date or the Option Closing Date, as the case may be, will not
contain, any untrue statement of a material fact; and do not omit, and will not omit, to
state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to information contained in or omitted
from the Registration Statement or the Prospectus, or any such amendment or supplement, in
reliance upon, and in conformity with, written information furnished to the Company by or on
behalf of any Underwriter through the Representatives, specifically for use therein, it
being understood and agreed that the only such information is that described in Section 13
herein.
(vii) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Shares or until any earlier
date that the Company notified or notifies the Representatives, did not, does not and will
not include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any document
incorporated by reference and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified.
(viii) The Company has not, directly or indirectly, distributed and will not distribute
any offering material in connection with the offering and sale of the Shares other than any
Preliminary Prospectus, the Prospectus and other materials, if any, permitted under the
Securities
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Act and consistent with Section 4(ii) below. The Company will file with the Commission all
Issuer Free Writing Prospectuses required to be filed with the Commission in the time and
manner required under Rules 163(b)(2) and 433(d) under the Securities Act.
(ix) (a) At the time of filing the Registration Statement, (b) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (c) at the
time the Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in
reliance on the exemption of Rule 163 under the Securities Act and (d) at the date hereof,
the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Securities
Act. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2)
under the Securities Act objecting to the use of the automatic shelf registration form.
(x) (a) At the earliest time after the filing the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Securities Act) of the Shares and (b) as of the date hereof (with such
date being used as the determination date for purposes of this clause(b)), the Company was
not and is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act,
without taking into account any determination by the Commission pursuant to Rule 405 under
the Securities Act that it is not necessary that the Company be considered an ineligible
issuer), including, without limitation, for purposes of Rules 164 and 433 under the
Securities Act with respect to the offering of the Shares as contemplated by the
Registration Statement.
(xi) The financial statements of the Company, together with related notes and
schedules, as set forth or incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus, present fairly in all material respects the
consolidated financial position and the results of operations of the Company and its
Subsidiaries at the indicated dates and for the indicated periods. Such financial
statements and the related notes and schedules have been prepared in accordance with
generally accepted accounting principles, consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of results for such periods
have been made. All pro forma financial statements or data included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the Prospectus
comply with the applicable requirements of the Securities Act and the Exchange Act, and the
assumptions used in the preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate to give effect to the
transactions or circumstances described therein and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those statements and data.
The summary financial and statistical data included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus present fairly in
all material respects the information shown therein and, to the extent based upon or derived
from the financial statements, have been compiled on a basis consistent with the financial
statements presented therein. All disclosures contained in the Registration Statement, the
General Disclosure Package and the Prospectus, including the documents incorporated by
reference therein, regarding “non-GAAP financial measures” (as such term is defined by the
Rules and Regulations) comply in all material respects with Regulation G of the Exchange Act
and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
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(xii) There is no action or proceeding pending or, to the knowledge of the Company,
threatened (a) against the Company or its Subsidiaries or (b) involving any property of the
Company or its Subsidiaries before any court or administrative agency which, if determined
adversely to the Company or its Subsidiaries, would reasonably be expected to result in any
Material Adverse Effect, except as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus.
(xiii) The Company, together with its Subsidiaries, has good and marketable title to
all of the properties and assets reflected in the financial statements hereinabove described
(or as described in the Registration Statement, the General Disclosure Package and the
Prospectus as owned by it), subject to no lien, mortgage, pledge, charge or encumbrance of
any kind except those reflected in such financial statements (or as described in the
Registration Statement, the General Disclosure Package and the Prospectus) or which are not
material in amount or which do not materially interfere with the use made or proposed to be
made of the property. The leases, agreements to purchase and mortgages to which the Company
or any of its Subsidiaries is a party, and the guaranties of third parties (a) are the
legal, valid and binding obligations of the Company, its Subsidiaries and, to the knowledge
of the Company, of all other parties thereto, and the Company knows of no default or
defenses currently existing with respect thereto which would reasonably be expected to
result in any Material Adverse Effect, and (b) conform to any descriptions thereof set forth
in the Registration Statement, the General Disclosure Package and the Prospectus. Each
mortgage which the Company or any of its Subsidiaries holds on the properties described in
the Registration Statement, the General Disclosure Package and the Prospectus constitutes a
valid mortgage lien for the benefit of the Company or its Subsidiary, as the case may be, on
such property.
(xiv) The Company has filed all Federal, state and foreign income tax returns which
have been required to be filed and has paid all taxes indicated by said returns and all
assessments received by it to the extent that such taxes have become due and are not being
contested in good faith. All tax liabilities have been adequately provided for in the
financial statements of the Company.
(xv) Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, as each may be amended or
supplemented, except in each case as otherwise disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus, as each may be amended or supplemented (a)
there has not been any material adverse change or any development involving a prospective
material adverse change in or affecting the condition, financial or otherwise, of the
Company and its Subsidiaries considered as one enterprise or the earnings, capital stock
(except that issued and outstanding capital stock of the Company has increased due to
issuances since such date of (a) 472,986 shares of Common Stock under the Company’s Dividend
Reinvestment and Stock Purchase Plan, as amended, (b) 193,707 shares of Common Stock under
the Company’s Amended and Restated 2005 Long-Term Incentive Plan, and (c) 349,854 shares of
the Company’s Series H Convertible Preferred Stock), business affairs, management, or
business prospects of the Company and its Subsidiaries considered as one enterprise, whether
or not occurring in the ordinary course of business, (b) there have been no liabilities or
obligations incurred by the Company or any of its Subsidiaries that are material with
respect to the Company and its Subsidiaries considered as one enterprise, and (c) there have
been no transactions entered into by the Company or any of its Subsidiaries that are
material with respect to the Company and its Subsidiaries considered as one enterprise,
other than transactions in the ordinary course of business. There are no contingent
obligations of the Company or any of its Subsidiaries that are
6
material with respect to the Company and its Subsidiaries considered as one enterprise that
are not disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus.
(xvi) The Company is not in violation of its charter or by-laws. No Subsidiary is in
violation of its charter or by-laws, which violation will have, or after any required notice
and passage of any applicable grace period would have, a Material Adverse Effect. Neither
the Company nor any of its Subsidiaries are (a) in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a party or by which it
or any of its properties is bound, (b) in violation of any statute, or (c) in violation of
any order, rule or regulation applicable to the Company, its Subsidiaries or its properties,
of any court or of any regulatory body, administrative agency or other governmental body,
any of which defaults or violations described in clauses (a) through (c) will have, or after
any required notice and passage of any applicable grace period would have, a Material
Adverse Effect. The issue and sale of the Shares and the performance by the Company of all
of its obligations under this Agreement and the consummation of the transactions herein
contemplated and the transactions described in the General Disclosure Package and the
Prospectus under the caption “The Acquisition” and the fulfillment of the terms hereof will
not after any required notice and passage of any applicable grace period conflict with or
constitute a violation of any statute or conflict with or result in a breach of any of the
terms or provisions of, constitute a default under or result in the imposition of any lien
pursuant to, any indenture, mortgage, deed of trust or other agreement or instrument to
which the Company, or any of its Subsidiaries, is a party or by which it or any of its
properties may be bound, or a violation of its charter or by-laws or any order, rule or
regulation applicable to the Company, its Subsidiaries or its properties of any court or of
any regulatory body, administrative agency or other governmental body.
(xvii) Each approval, consent, order, authorization, designation, declaration or filing
by or with any regulatory, administrative or other governmental body necessary in connection
with the execution and delivery by the Company of this Agreement and the consummation of the
transactions herein contemplated (except such additional steps as may be required by the
Commission, the Financial Industry Regulatory Authority (“FINRA”) or may be necessary to
qualify the Shares and the Conversion Shares for public offering by the Underwriters under
state securities or Blue Sky laws) or the Acquisition Agreement (except as provided in the
Acquisition Agreement with respect to the consummation of the Acquisition and only as
to the Company’s obligations under the Acquisition Agreement) has been obtained or made
by the Company, and is in full force and effect.
(xviii) The Company and its Subsidiaries hold all material licenses, certificates and
permits from governmental authorities which are necessary to the conduct of their businesses
and neither the Company nor any of its Subsidiaries have received any notice of infringement
or of conflict with asserted rights of others with respect to any patents, patent rights,
trade names, trademarks or copyrights, which infringement is material to the business of the
Company and its Subsidiaries.
(xix) The Company qualifies as a real estate investment trust pursuant to Sections 856
through 860 of the Internal Revenue Code of 1986, as amended, has so qualified for the
taxable years ended December 31, 1984 through December 31, 2010 and no transaction or other
event has occurred or is contemplated which would prevent the Company from so qualifying for
its current taxable year.
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(xx) To the best of the Company’s knowledge, the accountants who have certified certain
of the financial statements and related schedules filed with the Commission as part of, or
incorporated by reference in, the Registration Statement, the General Disclosure Package and
the Prospectus, is an independent registered public accounting firm as required by the
Securities Act and the Rules and Regulations and the Public Company Accounting Oversight
Board (the “PCAOB”), in the case of the Company, or as required by Rule 101 of the Code of
Professional Conduct of the AICPA, in the case of FC-GEN Acquisition Holding.
(xxi) The Company and its Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (a) transactions are executed in
accordance with management’s general or specific authorization; (b) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for assets; (c)
access to assets is permitted only in accordance with management’s general or specific
authorization; and (d) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(xxii) The Company has established and maintains disclosure controls and procedures (as
such term is defined in Rules 13a-15 and 15d-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information relating to the
Company, including its Subsidiaries, is made known to the Company’s Chief Executive Officer
and its Chief Financial Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for which they were
established; the Company’s auditors and the Audit Committee of the Board of Directors of the
Company have been advised of: (a) any significant deficiencies in the design or operation of
internal controls which could adversely affect the Company’s ability to record, process,
summarize, and report financial data; and (b) any fraud, whether or not material, that
involves management or other employees who have a role in the Company’s internal controls;
any material weaknesses in internal controls have been identified for the Company’s
auditors; and since the date of the most recent evaluation of such disclosure controls and
procedures, there have been no significant changes in internal controls or in other factors
that could significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses.
(xxiii) Since July 30, 2002, the Company has not, directly or indirectly, including
through any Subsidiary: (a) extended credit, arranged to extend credit, or renewed any
extension of credit, in the form of a personal loan, to or for any director or executive
officer of the Company, or to or for any family member or affiliate of any director or
executive officer of the Company; or (b) made any material modification, including any
renewal thereof, to any term of any personal loan to any director or executive officer of
the Company, or any family member or affiliate of any director or executive officer, which
loan was outstanding on July 30, 2002.
(xxiv) To the knowledge of the Company, after inquiry of its officers and directors,
there are no affiliations with any FINRA member firm among the Company’s officers,
directors, or principal stockholders, except as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus, or as otherwise disclosed in writing to the
Underwriters.
(xxv) This Agreement has been duly authorized, executed and delivered by the Company.
The Certificate has been, or by the Closing Date will be, duly authorized and executed by
the Company and filed by the Company with the Secretary.
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(xxvi) Neither the Company nor any of its officers or directors has taken nor will any
of them take, directly or indirectly, any action resulting in a violation of Regulation M
promulgated under the Exchange Act, or designed to cause or result in, or which has
constituted or which reasonably might be expected to constitute, the stabilization or
manipulation of the price of the Company’s Common Stock or Preferred Stock. The Company
acknowledges that the Underwriters may engage in transactions that stabilize, maintain or
otherwise affect the price of the Company’s Common Stock and the Preferred Stock, including
stabilizing bids, syndicate covering transactions and the imposition of penalty bids.
(xxvii) The Shares and Conversion Shares have been, or as of the Closing Date will be,
approved for listing subject to official notice of issuance on the NYSE.
(xxviii) The Company is not, and immediately after the sale of the Shares pursuant to
the terms and conditions of this Agreement will not be, an “investment company” within the
meaning of the Investment Company Act of 1940.
(xxix) The Acquisition Agreement has been duly authorized, executed and delivered by,
and is a valid and binding agreement of, the Company, enforceable in accordance with its
terms, and, assuming the due authorization, execution and delivery thereof by the other
parties thereto, enforceable against the Company in accordance with its terms, except as
enforcement thereof may be subject to or limited by bankruptcy, insolvency or other similar
laws relating to or affecting creditors’ rights generally or by general equitable
principles. The Company reasonably believes that the Acquisition will be consummated in all
material respects on the terms and by the date and as contemplated by the General Disclosure
Package, the Prospectus and the Acquisition Agreement. The consummation of the Acquisition
would not reasonably be expected to have a Material Adverse Effect, with FC-GEN
Acquisition Holding considered to be a Subsidiary of the Company for purposes of this
Section 1(xxix).
(xxx) To the knowledge of the Company, the representations and warranties contained (A)
in paragraphs (iii), (xii), (xiii), (xv), (xvi) and (xviii) of this Section 1 are true and
correct with each reference to Subsidiary deemed to include FC-GEN Acquisition Holding, for
purposes of this clause (A); (B) in paragraph (vi) of this Section 1 are true and correct
with respect to any information regarding FC-GEN Acquisition Holding contained in the
Registration Statement, the General Disclosure Package and the Prospectus; and (C) in
paragraph (xi) of this Section 1 are true and correct with respect to the financial
statements and any supporting schedules of FC-GEN Acquisition Holding included or
incorporated by reference in the Registration Statement, the General Disclosure Package and
the Prospectus; except in each of (A), (B) and (C) where the failure to be so true and
correct would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, with FC-GEN Acquisition Holding considered to be a Subsidiary of
the Company for purposes of this Section 1(xxx).
2. Purchase, Sale and Delivery of the Shares. On the basis of the representations, warranties
and covenants herein contained, and subject to the conditions herein set forth, the Company agrees
to sell to each Underwriter, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at a price of $48.50 per Share, the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto (plus any additional number of Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of Section 11 hereof).
Payment for the Firm Shares to be sold hereunder is to be made by Federal Funds wire transfer
to an account designated by the Company for the Firm Shares to be sold by the Company against
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delivery of the Firm Shares therefor to the Representatives. Such payment and delivery are to be
made at the offices of Xxxxxx, Halter & Xxxxxxxx LLP, 1400 KeyBank Center, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 at 10:00 a.m. New York time, on March 7, 2011 or at such other time and date
thereafter as the Representatives and the Company shall agree upon, such time and date being herein
referred to as the “Closing Date.” (As used herein, “business day” means a day on which the NYSE
is open for trading and on which banks in New York are open for business and not permitted by law
or executive order to be closed). The Firm Shares will be delivered by Mellon Investor Services
LLC (the “Transfer Agent”) in such denominations and in such registrations as the Representatives
request in writing not later than the second full business day prior to the Closing Date, and will
be delivered through book entry facilities of The Depository Trust Company (“DTC”) and made
available for inspection by the Representatives at least one business day prior to the Closing Date
at such place as the Representatives, DTC and the Company shall agree.
In addition, on the basis of the representations and warranties herein contained and subject
to the terms and conditions herein set forth, the Company hereby grants an option to the
Underwriters to purchase severally the Option Shares at the price per share as set forth in the
first paragraph of this Section 2. The option granted hereby may be exercised in whole or in part
by giving notice at any time and from time to time within 30 days after the date of this Agreement,
by the Representatives to the Company setting forth the number of Option Shares as to which the
several Underwriters are exercising the option and the time and date at which such Option Shares
are to be delivered. The time and date at which the Option Shares are to be delivered shall be
determined by the Representatives but shall not be earlier than three nor later than 10 full
business days after the exercise of such option, nor in any event prior to the Closing Date (such
time and date being herein referred to as the “Option Closing Date”). Notwithstanding the
preceding sentence, if the option is exercised at least one day prior to the Closing Date, the
notice of the exercise shall set the Closing Date as the Option Closing Date. The option with
respect to the Option Shares granted hereunder may be exercised only to cover over-allotments in
the sale of the Firm Shares by the Underwriters. The Representatives may cancel such option at any
time prior to its expiration by giving written notice of such cancellation to the Company. To the
extent, if any, that the option is exercised, payment for the Option Shares shall be made by
Federal Funds wire transfer to an account designated by the Company for the Option Shares to be
sold by the Company against delivery of the Option Shares through the facilities of DTC. Such
payment and delivery are to be made at the offices of Xxxxxx, Halter & Xxxxxxxx LLP, 1400 KeyBank
Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, at 10:00 a.m. New York time, on the Option
Closing Date. To the extent, if any, that the option is exercised, the Option Shares will be
delivered by the Transfer Agent in such denominations and in such registrations as the
Representatives request in writing not later than the second full business day prior to the Option
Closing Date, and will be delivered through book entry facilities of DTC and made available for
inspection by the Representatives at least one business day prior to the Option Closing Date at
such place as the Representatives, DTC and the Company shall agree.
3. Offering by the Underwriters. It is understood that the several Underwriters are to make a
public offering of the Shares as soon as the Representatives deem it advisable to do so. The
Shares are to be initially offered to the public at the price and upon the terms set forth in the
Prospectus. The Representatives may from time to time thereafter change the public offering price
and other selling terms.
4. Covenants of the Company. The Company covenants and agrees with the Underwriters that:
(i) The Company will (a) prepare and timely file with the Commission under Rule 424(b)
(without reliance on Rule 424(b)(8)) under the Securities Act a prospectus in a form
10
approved by the Representatives containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under
the Securities Act, (b) not file any amendment to the Registration Statement or distribute
an amendment or supplement to the General Disclosure Package or the Prospectus or document
incorporated by reference therein of which the Representatives shall not previously have
been advised and furnished with a copy or to which the Representatives shall have reasonably
objected in writing or which is not in compliance with the Rules and Regulations for so long
as the Representatives may deem necessary in order to complete the distribution of the
Shares and (c) file on a timely basis all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission subsequent to the date of
the Prospectus and prior to the termination of the offering of the Shares by the
Underwriters; provided, however, that for each such report or preliminary or definitive
proxy or information statement, the Company will not file any such report or preliminary or
definitive proxy or information statement, or amendment thereto, of which the
Representatives shall not previously have been advised and furnished with a copy or to which
the Representatives shall have reasonably objected in writing or which is not in compliance
with the Exchange Act.
(ii) The Company will (a) not make any offer relating to the Shares that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed
by the Company with the Commission under Rule 433 under the Securities Act unless the
Representatives approve its use in writing prior to first use (each, a “Permitted Free
Writing Prospectus”); provided that the prior written consent of the Representatives hereto
shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es)
included in Schedule II hereto, (b) treat each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus, (c) comply with the requirements of Rules 163, 164 and 433
under the Securities Act applicable to any Issuer Free Writing Prospectus, including the
requirements relating to timely filing with the Commission, legending and record keeping and
(d) not take any action that would result in an Underwriter or the Company being required to
file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise
would not have been required to file thereunder.
(iii) The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting
the final terms of the Shares, in form and substance satisfactory to the Representatives and
as described on Schedule III, and shall file such Final Term Sheet as an Issuer Free Writing
Prospectus pursuant to Rule 433 under the Securities Act prior to the close of business two
business days after the date hereof; provided that the Company shall provide the
Representatives with copies of any such Final Term Sheet a reasonable amount of time prior
to such proposed filing and will not use or file any such document to which the
Representatives or counsel to the Underwriters shall reasonably object.
(iv) The Company will advise the Representatives promptly (a) when any post-effective
amendment to the Registration Statement or new registration statement relating to the Shares
and the Conversion Shares shall have become effective, or any supplement to the Prospectus
shall have been filed, (b) of the receipt of any comments from the Commission, (c) of any
request of the Commission for amendment of the Registration Statement or the filing of a new
registration statement or any amendment or supplement to the General Disclosure Package or
the Prospectus or any document incorporated by reference therein or otherwise deemed to be a
part thereof or for any additional information, and (d) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or such new
registration
11
statement or any order preventing or suspending the use of any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings
for that purpose for so long as the Representatives may deem necessary in order to complete
the distribution of the Shares, or of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, and the Company will use its best efforts to prevent
(x) the issuance of any such stop order suspending the effectiveness of the Registration
Statement or such new registration statement or any order preventing or suspending the use
of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or (y)
any such suspension of the qualification of the Shares for offering or sale in any
jurisdiction, and to obtain as soon as possible the lifting of any such order, if issued, or
such suspension of qualification.
(v) The Company will pay the fees applicable to the Registration Statement in
connection with the offering of the Shares and the Conversion Shares within the time
required by Rule 456(b)(1)(i) under the Securities Act (without reliance on the proviso to
Rule 456(b)(1)(i) under the Securities Act) and in compliance with Rule 456(b) and Rule
457(r) under the Securities Act.
(vi) If at any time when Shares remain unsold by the Underwriters the Company receives
from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or
otherwise ceases to be eligible to use the automatic shelf registration statement form, the
Company will (a) promptly notify the Representatives, (b) promptly file a new registration
statement or post-effective amendment on the proper form relating to the Shares and the
Conversion Shares, in a form satisfactory to the Representatives, (c) use its best efforts
to cause such registration statement or post-effective amendment to be declared effective as
soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule
462 under the Securities Act), and (d) promptly notify the Representatives of such
effectiveness. The Company will take all other action necessary or appropriate to permit
the public offering and sale of the Shares to continue as contemplated in the Registration
Statement that was the subject of the notice under Rule 401(g)(2) under the Securities Act
or for which the Company has otherwise become ineligible. References herein to the
Registration Statement relating to the Shares and the Conversion Shares shall include such
new registration statement or post-effective amendment, as the case may be.
(vii) If immediately prior to the third anniversary (the “Renewal Deadline”) of the
initial effective date of the Registration Statement, any of the Shares remain unsold by the
Underwriters, the Company will, prior to the Renewal Deadline file, if it has not already
done so and is eligible to do so, a new automatic shelf registration statement relating to
the Shares and the Conversion Shares, in a form satisfactory to the Representatives. If the
Company is not eligible to file an automatic shelf registration statement, the Company will,
prior to the Renewal Deadline, if it has not already done so, file a new shelf registration
statement relating to the Shares, in a form satisfactory to the Representatives, and will
use its best efforts to cause such registration statement to be declared effective within
180 days after the Renewal Deadline. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Shares to continue as contemplated
in the expired registration statement. References herein to the Registration Statement
shall include such new automatic shelf registration statement or such new shelf registration
statement, as the case may be.
(viii) The Company will deliver to, or upon the order of, the Representatives, from
time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing
Prospectus as the Representatives may reasonably request. The Company will deliver to, or
upon the order
12
of, the Representatives during the period when delivery of a Prospectus (or, in lieu
thereof, the notice referred to under Rule 173(a) under the Securities Act) is required
under the Securities Act, as many copies of the Prospectus in final form, or as thereafter
amended or supplemented, as the Representatives may reasonably request. The Company will
furnish upon request to the Representatives signed copies of the Registration Statement and
all amendments thereto including all exhibits filed therewith.
(ix) The Company will comply with the Securities Act and the Rules and Regulations and
the Exchange Act, and the rules and regulations of the Commission thereunder, so as to
permit the completion of the distribution of the Shares as contemplated in this Agreement
and the Prospectus. Subject to the provisions of Section 4(i) above, if during the period in
which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the
Securities Act) is required by law to be delivered by an Underwriter or a dealer any event
shall occur as a result of which, in the judgment of the Company or in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any
time to amend or supplement the Prospectus to comply with any law, the Company promptly will
either (a) prepare and file with the Commission an appropriate amendment to the Registration
Statement or supplement to the Prospectus or (b) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented will not, in the light of
the circumstances when it is so delivered, be misleading, or so that the Prospectus will
comply with law.
(x) If the General Disclosure Package is being used to solicit offers to buy the Shares
at a time when the Prospectus is not yet available to prospective purchasers and any event
shall occur as a result of which, in the judgment of the Company or in the reasonable
opinion of the Underwriters, it becomes necessary to amend or supplement the General
Disclosure Package in order to make the statements therein, in the light of the
circumstances, not misleading, or to make the statements therein not conflict with the
information contained in the Registration Statement then on file, or if it is necessary at
any time to amend or supplement the General Disclosure Package to comply with any law, the
Company promptly will either (a) prepare, file with the Commission (if required) and furnish
to the Underwriters and any dealers an appropriate amendment or supplement to the General
Disclosure Package or (b) prepare and file with the Commission an appropriate filing under
the Exchange Act which shall be incorporated by reference in the General Disclosure Package
so that the General Disclosure Package as so amended or supplemented will not, in the light
of the circumstances, be misleading or conflict with the Registration Statement then on
file, or so that the General Disclosure Package will comply with law.
(xi) The Company will make generally available to its security holders, as soon as it
is practicable to do so, but in any event not later than 15 months after the effective date
of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an
earnings statement (which need not be audited) in reasonable detail, covering a period of
twelve consecutive months beginning after the effective date of the Registration Statement,
which earnings statement shall satisfy the requirements of Section 11(a) of the Securities
Act and Rule 158 under the Securities Act.
(xii) The Company will, for a period of five years from the Closing Date, furnish upon
request to the Representatives, as soon as practicable after the end of each fiscal year, a
copy of its annual report to shareholders for such year and the Company will furnish upon
request to the
13
Representatives, as soon as available, a copy of each report and any definitive proxy
statement of the Company filed with the Commission under the Exchange Act or mailed to
stockholders.
(xiii) The Company will use the net proceeds from the sale of the Shares pursuant to
this Agreement in the manner specified under the heading “Use of Proceeds” in the
Prospectus.
(xiv) No offering, sale, other disposition or any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of
any Preferred Stock or Common Stock or any securities of the Company that are convertible
into, exchangeable or exercisable for, or substantially similar to the Preferred Stock or
the Common Stock or on parity with or senior to the Preferred Stock or the Common Stock
(with respect to distribution rights or payments upon the Company’s liquidation, dissolution
or winding up) will be made for a period of 30 days after the date of this Agreement,
directly or indirectly, by the Company otherwise than hereunder or with the prior written
consent of UBS Securities LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Barclays
Capital Inc., Deutsche Bank Securities Inc., X.X. Xxxxxx Securities LLC and Xxxxx Fargo
Securities, LLC, except that the Company may, without such consent, (a) issue securities
under the Company’s equity compensation plans for officers, employees, and non-employee
directors described in the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2010; (b) issue shares upon the exercise of options or other stock rights
issued pursuant to the Company’s equity compensation plans for officers, employees, and
non-employee directors described in the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2010 and the Windrose Medical Properties Trust 2002 Stock Incentive
Plan; (c) sell shares of Common Stock pursuant to the Third Amended and Restated Dividend
Reinvestment and Stock Purchase Plan filed with the Commission on
May 10, 2010; (d) issue shares of Common Stock upon conversion of any 4.75% Convertible Senior Notes due 2026, 4.75%
Convertible Senior Notes due 2027 and 3.00% Convertible Senior Notes due 2029 outstanding as
of the date hereof; (e) issue shares upon conversion of any of the Company’s Series H
Preferred Stock or the Shares. Notwithstanding the foregoing, nothing in this paragraph
(xiv) shall restrict the Company from completing the offering of Common Stock contemplated
to be conducted concurrently with the offering contemplated by this Agreement.
(xv) The Company will use its best efforts to list the Shares and the Conversion
Shares, subject to official notice of issuance, on the NYSE and maintain the listing of the
Shares and the Conversion Shares issuable upon conversion of the Shares on the NYSE. The
Company will reserve and keep available at all times, free of preemptive rights, a
sufficient number of shares of Common Stock for the purpose of enabling the Company to
satisfy any obligation to issue Conversion Shares.
5. Costs and Expenses. The Company will pay all costs, expenses and fees incident to the
performance of its obligations under this Agreement, including, without limiting the generality of
the foregoing, the following: the fees incident to the issuance and delivery of the Shares;
accounting fees of the Company (accounting fees of FC-GEN Acquisition Holding are to be paid by
FC-GEN pursuant to the Acquisition Agreement); the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the Underwriters, copies of
the Registration Statement, the Preliminary Prospectuses, the Issuer Free Writing Prospectuses, the
Prospectus, this Agreement, the applicable listing agreement for the NYSE; the filing fees of the
Commission; the filing fees and expenses (including legal fees and disbursements) incident to
securing any required review by FINRA of the terms of the sale of the Shares; the fees incident to
the listing of the Shares and the Conversion Shares on the NYSE and the applicable listing
agreement with the NYSE. Any transfer taxes imposed on the sale of the
14
Shares to the several Underwriters will be paid by the Company. The Company shall not, however, be
required to pay for any of the Underwriters’ expenses except that, if this Agreement shall not be
consummated because the conditions in Section 7 hereof are not satisfied, or because this Agreement
is terminated by the Representatives pursuant to Section 6 hereof, or this Agreement is terminated
pursuant to Section 10(i)(a) or Section 10(i)(g) hereof, or by reason of any failure, refusal or
inability on the part of the Company to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on its part to be performed, unless such
failure to satisfy said condition or to comply with said terms be due to the default or omission of
any Underwriter, then the Company shall reimburse the several Underwriters for reasonable
out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred in
connection with investigating, marketing and proposing to market the Shares or in contemplation of
performing their obligations hereunder, but the Company shall not in any event be liable to any of
the several Underwriters for damages on account of loss of anticipated profits from the sale by any
of them of the Shares.
6. Conditions of Obligations of the Underwriters. The several obligations of the Underwriters
to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option
Closing Date are subject to the accuracy, as of the Closing Date or the Option Closing Date, as the
case may be, of the representations and warranties of the Company contained herein, and to the
performance by the Company of its covenants and obligations hereunder and to the following
additional conditions:
(i) No stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and no proceedings for that purpose shall
have been taken or, to the knowledge of the Company, shall be contemplated or threatened by
the Commission. The Prospectus and each Issuer Free Writing Prospectus required to be filed
with the Commission shall have been filed as required by Rules 424, 430A, 430B, 430C or 433
under the Securities Act, as applicable, within the time period prescribed by, and in
compliance with, the Rules and Regulations, and any request by the Commission for additional
information (to be included in the Registration Statement or otherwise) shall have been
disclosed to the Representatives and complied with to their reasonable satisfaction.
(ii) Subsequent to the execution and delivery of this Agreement and prior to the
Closing Date, there shall not have occurred any downgrading, nor shall any notice have been
given of (a) any intended or potential downgrading or (b) any review or possible change that
does not indicate an affirmation or improvement in the rating, if any, accorded any
securities of or guaranteed by the Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities
Act.
(iii) The Representatives shall have received on the Closing Date and the Option
Closing Date, if any, the opinion of Xxxxxxxx, Loop & Xxxxxxxx, LLP, counsel for the
Company, dated the Closing Date or the Option Closing Date, as the case may be, and
addressed to the Representatives, as representatives of the several Underwriters, to the
effect that:
(a) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with corporate
power and authority to own its properties and conduct its business as described in
the Registration Statement, the General Disclosure Package and the Prospectus.
15
(b) The Company is duly qualified to transact business in all jurisdictions in
which the Company owns or leases real property, and in which the failure to qualify
would have a Material Adverse Effect.
(c) The information contained in the line items “Preferred Stock” and “Common
Stock” set forth in the consolidated balance sheet as of December 31, 2010 contained
in the Company’s Annual Report on Form 10-K for the year ended December 31, 2010 and
in the section captioned “Capitalization” in the Prospectus (and any similar section
or information contained in the General Disclosure Package) sets forth the
authorized, issued and outstanding capital stock of the Company at the indicated
date; the authorized shares of capital stock of the Company have been duly
authorized; the issued and outstanding shares of the capital stock of the Company
have been duly authorized and validly issued and are fully paid and non-assessable;
the certificates for the Shares or the uncertificated Shares, as the case may be,
are in due and proper form; the shares of Preferred Stock, including Option Shares,
if any, to be sold by the Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and non-assessable when issued and
paid for as contemplated by this Agreement; and no preemptive or similar rights of
stockholders exist with respect to any of the Shares or the issue and sale thereof.
The Conversion Shares have been duly authorized and reserved for issuance by the
Company and, when issued and delivered upon conversion and in accordance with the
Certificate, will be validly issued, fully paid and non-assessable and no preemptive
or similar rights of stockholders will exist with respect to any of the Conversion
Shares or the issuance thereof. The Certificate is in full force and effect. The
Shares conform to the provisions of the Certificate and the relative rights,
preferences, interest and powers of the Shares are as set forth in the Certificate.
(d) The Registration Statement has become effective under the Securities Act
and, to such counsel’s knowledge no stop order proceedings with respect thereto have
been instituted or are pending or threatened under the Securities Act.
(e) The Registration Statement, at the time the Registration Statement became
effective, and the Prospectus, as of the date of the Prospectus and as of the date
hereof, and any amendment or supplement thereto, as of the date thereof, each
complied as to form in all material respects with the requirements of the Securities
Act and the rules and regulations of the Commission promulgated under the Securities
Act (except in each case such counsel need express no opinion as to the financial
statements, schedules and other financial or statistical data included or
incorporated by reference therein or omitted therefrom). The documents incorporated
by reference in the Registration Statement, the General Disclosure Package and the
Prospectus (other than the financial statements, schedules and other financial or
statistical data included or incorporated by reference therein or omitted therefrom,
as to which such counsel need express no opinion), at the respective times such
documents were filed with the Commission, complied as to form in all material
respects with the applicable requirements of the Exchange Act and the rules and
regulations of the Commission promulgated thereunder.
(f) The statements under the captions “Description of Series I Preferred
Stock,” “Description of Our Preferred Stock” and “Description of Our Common Stock”
in the General Disclosure Package and the Prospectus, insofar as such statements
constitute a summary of documents referred to therein or matters of law, fairly
16
summarize in all material respects the information called for with respect to such
documents and matters.
(g) The statements under the caption “Certain Government Regulations” in the
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2010,
and any amendments thereto, as to matters of law stated therein, have been reviewed
by such counsel and fairly summarize in all material respects the matters described
therein which are material to the business or condition (financial or otherwise) of
the Company.
(h) Such counsel does not know of any contracts or documents required to be
filed as exhibits to or incorporated by reference in the Registration Statement or
described in the Registration Statement or the Prospectus or any amendment or
supplement thereto which are not so filed, incorporated by reference or described as
required, and the provisions of such contracts and documents that are required to be
described in the Registration Statement or the Prospectus or any amendment or
supplement thereto are fairly summarized therein in all material respects.
(i) Such counsel knows of no material legal proceedings pending or threatened
against the Company, except as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus.
(j) The execution and delivery of this Agreement and the Certificate and the
consummation of the transactions herein contemplated, including the issuance and
sale of the Shares, the issuance of any Conversion Shares upon conversion of the
Shares and the performance by the Company of its obligations under this Agreement
and the Certificate, do not and will not after any required notice and passage of
any applicable grace period conflict with or constitute a violation of any statute
or conflict with or result in a breach of any of the terms or provisions of,
constitute a default under or result in the imposition of any lien pursuant to (1)
the charter or by-laws of the Company, (2) any agreement or instrument known to such
counsel to which the Company is a party or by which the Company or the Company’s
properties may be bound, which conflict, violation, breach, default or lien could
reasonably be expected to have a Material Adverse Effect or (3) any order known to
such counsel or rule or regulation of any court or governmental agency or body which
in the experience of such counsel is customarily applicable to the transactions
herein contemplated (except that such counsel expresses no opinion with respect to
any requirement of FINRA or pursuant to any state securities or Blue Sky laws).
(k) This Agreement has been duly authorized, executed and delivered by the
Company. The Certificate has been duly authorized, executed and delivered by the
Company and filed on behalf of the Company with the Secretary.
(l) The Shares and the Conversion Shares conform in all material respects to
the descriptions thereof contained in the Registration Statement, the General
Disclosure Package and the Prospectus.
(m) No approval, consent, order, authorization, designation, declaration or
filing by or with any regulatory, administrative or other governmental body is
necessary in connection with the execution and delivery by the Company of this
Agreement and the
17
performance by the Company of its obligations thereunder (other than as may be
required by the Commission or FINRA or as required by state securities and Blue Sky
laws as to which such counsel need express no opinion) except such as have been
obtained or made by the Company, specifying the same.
(n) The Company is not, and immediately after the sale of the Shares pursuant
to the terms and conditions of this Agreement will not be, an “investment company”
within the meaning of the Investment Company Act of 1940.
(o) Any required filing pursuant to Rule 433 under the Securities Act of each
Issuer Free Writing Prospectus that is identified on Schedule II hereto has been
made within the time period required by Rule 433(d) under the Securities Act and any
required filing of the Preliminary Prospectus, the Prospectus and any supplement
thereto pursuant to Rule 424 under the Securities Act has been made in the manner
and within the time period required by Rule 424 under the Securities Act.
In addition, either such counsel or Xxxxxx & Xxxxxx LLP, special tax counsel to the
Company, will provide an opinion, based on such counsel’s own review of the Company’s
certificate of incorporation, stating that the Company was organized and continues to be
organized in conformity with the requirements for qualification as a real estate investment
trust under subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), and,
based on such counsel’s review of the Company’s federal income tax returns and discussions
with management and independent public accountants for the Company, that the Company, taking
into account operations for its taxable and fiscal years ended December 31, 2003 through
December 31, 2010, satisfied the requirements for qualification and taxation as a real
estate investment trust under the Code for such years and that its proposed method of
operation will enable it to meet the requirements for qualification and taxation as a real
estate investment trust under the Code for its taxable and fiscal year ending December 31,
2011. Furthermore, such counsel shall opine that the statements contained under the caption
“Additional U.S. Federal Income Tax Considerations” in the General Disclosure Package and
the Prospectus and under the heading “Taxation” in the Company’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2010, and any amendments thereto, are correct and
accurate in all material respects and present fairly and accurately the material aspects of
the federal income tax (i) treatment of the Company and (ii) considerations that are likely
to be material to a holder of the Preferred Stock.
In rendering such opinion, such counsel may rely as to matters governed by the laws of
states other than the laws of the State of Ohio, the corporate laws of the State of Delaware
or Federal laws on local counsel in such jurisdictions, provided that in such case such
counsel shall state that they believe that they and the Underwriters are justified in
relying on such other counsel and such other counsel shall indicate that the Underwriters
may rely on such opinion. As to matters of fact, to the extent they deem proper, such
counsel may rely on certificates of officers of the Company and public officials so long as
such counsel states that they have no reason to believe that either the Underwriters or they
are not justified in relying on such certificates. In addition to the matters set forth
above, the opinion of Xxxxxxxx, Loop & Xxxxxxxx, LLP shall also include a statement to the
effect that nothing has come to the attention of such counsel which leads them to believe
that (a) the Registration Statement, as of the time of its effectiveness for purposes of
Section 11 of the Securities Act and as of the Applicable Time, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, (b) the
General Disclosure Package, as of the Applicable Time, contained an untrue statement of a
material fact
18
or omitted to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading and (c) the
Prospectus, or any supplement thereto, as of its date and as of the Closing Date or the
Option Closing Date, as the case may be, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading (except that such counsel need express no view as to financial statements,
schedules and other financial data included therein). With respect to such statement,
Xxxxxxxx, Loop & Xxxxxxxx, LLP may state that this statement is based upon the procedures
set forth or incorporated by reference therein, but is without independent check and
verification.
(iv) The Representatives shall have received from Xxxxxx, Halter & Xxxxxxxx LLP and
Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, on the Closing Date and the
Option Closing Date, if any, opinions dated the Closing Date or the Option Closing Date, as
the case may be, with respect to the organization of the Company, the validity of the
Shares, the Registration Statement, the General Disclosure Package and the Prospectus, and
other related matters as the Representatives reasonably may request and such counsel shall
have received such papers and information as they reasonably request to enable them to pass
upon such matters.
(v) At the time of execution of this Agreement, the Representatives shall have received
from Ernst & Young LLP a signed letter, in form and substance satisfactory to the
Representatives, dated the date hereof (a) confirming that they are an independent
registered public accounting firm with respect to the Company and its Subsidiaries within
the meaning of the Securities Act, the Rules and Regulations and the PCAOB and are in
compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission and (b) stating the conclusions and
findings of such firm with respect to the financial information examined by them and
included or incorporated by reference in the Registration Statement and the General
Disclosure Package and containing such other statements and information as is ordinarily
included in accountants’ “comfort letters” to underwriters in connection with registered
public offerings.
(vi) With respect to the letter of Ernst & Young LLP referred to in the preceding
paragraph and delivered to the Representatives concurrently with the execution of this
Agreement (the “initial letter”), the Company shall have furnished to the Representatives a
letter, in form and substance satisfactory to the Representatives (the “bring-down letter”),
of such accountants, dated the Closing Date and the Option Closing Date, if any, (a)
confirming that they are an independent registered public accounting firm with respect to
the Company and its Subsidiaries within the meaning of the Securities Act, the Rules and
Regulations and the PCAOB and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (b)
stating the conclusions and findings of such firm with respect to the financial information
and other matters covered by the initial letter and the financial information examined by
them and included in the Prospectus and (c) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(vii) At the time of execution of this Agreement, the Representatives shall have
received from KPMG LLP a signed letter, in form and substance satisfactory to the
Representatives, dated the date hereof (a) confirming that they are an independent
registered public accounting firm with respect to FC-GEN Acquisition Holding as required by
Rule 101 of the Code of Professional Conduct of the AICPA and (b) stating the conclusions
and findings of such firm with respect to the financial information of FC-GEN Acquisition
Holding examined by
19
them and included or incorporated by reference in the Registration Statement and the
General Disclosure Package and containing such other statements and information as is
ordinarily included in accountants’ “comfort letters” to underwriters in connection with
registered public offerings.
(viii) With respect to the letter of KPMG LLP referred to in the preceding paragraph
and delivered to the Representatives concurrently with the execution of this Agreement (the
“initial letter”), the Company shall have furnished to the Representatives a letter, in form
and substance satisfactory to the Representatives (the “bring-down letter”), of such
accountants, dated the Closing Date and the Option Closing Date, if any, (a) confirming that
they are an independent registered public accounting firm with respect to FC-GEN Acquisition
Holding as required by Rule 101 of the Code of Professional Conduct of the AICPA, (b)
stating the conclusions and findings of such firm with respect to the financial information
and other matters covered by the initial letter and the financial information examined by
them and included in the Prospectus and (c) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(ix) The Representatives shall have received on the Closing Date and the Option Closing
Date, if any, a certificate or certificates of the Chairman of the Board and Chief Executive
Officer and the Senior Vice President and Chief Financial Officer of the Company to the
effect that on and as of the Closing Date or the Option Closing Date, as the case may be,
each of them severally represents as follows:
(a) The Registration Statement has become effective under the Securities Act
and no stop order suspending the effectiveness of the Registration Statement or no
order preventing or suspending the use of any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus has been issued, and no proceedings for
such purpose have been taken or are, to his knowledge, contemplated by the
Commission.
(b) Subsequent to the delivery of this Agreement and prior to the Closing Date
or the Option Closing Date, as the case may be, there shall not have occurred any
downgrading, nor shall any notice have been given of (A) any intended or potential
downgrading or (B) any review or possible change that does not indicate an
affirmation or improvement in the rating, if any, accorded any securities of or
guaranteed by the Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) of the
Securities Act.
(c) He does not know of any litigation instituted or threatened against the
Company of a character required to be disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus which is not so disclosed therein or
in a document incorporated by reference therein; he does not know of any material
contract required to be filed as an exhibit to the Registration Statement which is
not so filed therein or in a document incorporated by reference therein.
(d) He has carefully examined the General Disclosure Package and any individual
Limited Use Free Writing Prospectus and, in his opinion, as of the Applicable Time,
the statements contained in the General Disclosure Package and any individual
Limited Use Free Writing Prospectus did not contain any untrue statement of a
material fact, and such General Disclosure Package and any individual Limited Use
Free Writing Prospectus, when considered together with the General Disclosure
Package, did not omit to
20
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(e) He has carefully examined the Registration Statement and the Prospectus and
in his opinion, as of the effective date of the Registration Statement, the
statements contained in the Registration Statement, including any document
incorporated by reference therein, were true and correct, and such Registration
Statement and Prospectus, or any document incorporated by reference therein, did not
omit to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading and, in his opinion, since the effective
date of the Registration Statement, no event has occurred which should have been set
forth in a supplement to or an amendment of the Prospectus which has not been so set
forth in such supplement or amendment.
(f) The representations and warranties of the Company as set forth in this
Agreement are true and correct as of the Closing Date or the Option Closing Date, as
the case may be, as if made on such date. The Company has performed all of its
obligations under this Agreement as are to be performed at or before the Closing
Date or the Option Closing Date, as the case may be. The representations and
warranties made in this clause (f) shall be deemed made by the Company.
(x) The Representatives shall have received at or prior to the Closing Date, an
agreement, in form and substance satisfactory to the Representatives, signed by the
executive officers of the Company listed on Schedule V hereto (the “Executive Officers”) to
the effect that they will not, prior to the expiration of 30 days from the date of this
Agreement, offer, sell, swap or otherwise dispose of any shares of Preferred Stock, Common
Stock, securities of the Company convertible into, exchangeable or exercisable for, or
substantially similar to the Preferred Stock or Common Stock or on parity with or senior to
the Preferred Stock or Common Stock (with respect to distribution rights or payments upon
the Company’s liquidation, dissolution or winding up), or any securities that the Executive
Officers have, or will have, the right to acquire through the exercise of options, warrants,
subscription or other rights, without the prior written consent of UBS Securities LLC,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Barclays Capital Inc., Deutsche Bank
Securities Inc., X.X. Xxxxxx Securities LLC and Xxxxx Fargo Securities, LLC, except (a)
pursuant to bona fide gifts, provided that the Company shall have delivered to UBS
Securities LLC written consent to such gift, but in no event shall the gifts under this
subsection (a) of the Executive Officers exceed 75,000 shares of Common Stock in the
aggregate, (b) pursuant to routine dispositions under Rule 10b5-1 Sales Plans entered into
by certain Executive Officers prior to or after the date hereof, but in no event shall the
dispositions under this subsection (b) of the Executive Officers exceed 300,000 shares of
Common Stock in the aggregate, and (c) shares obtained pursuant to the Company’s equity
compensation plans for officers, employees, and non-employee directors, provided that the
Company shall have delivered to UBS Securities LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Barclays Capital Inc., Deutsche Bank Securities Inc., X.X. Xxxxxx Securities
LLC and Xxxxx Fargo Securities, LLC written consent to such sale, but in no event shall the
sales under this subsection (c) of the Executive Officers exceed 500,000 shares of Common
Stock in the aggregate.
(xi) The Shares to be sold by the Company and the Conversion Shares as of the Closing
Date or the Option Closing Date, as the case may be, shall have been duly approved for
listing, subject to notice of issuance, on the NYSE.
21
The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in all material respects reasonably satisfactory to the
Representatives and to Xxxxxx, Halter & Xxxxxxxx LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the obligations of the
Underwriters hereunder may be terminated by the Representatives by notifying the Company of such
termination in writing or by telecopy at or prior to the Closing Date. In such event, the Company
and the Underwriters shall not be under any obligation to each other (except to the extent provided
in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company. The obligations of the Company to sell and
deliver the portion of the Shares required to be delivered as and when specified in this Agreement
are subject to the conditions that at the Closing Date or the Option Closing Date, as the case may
be, no stop order suspending the effectiveness of the Registration Statement shall have been issued
and in effect or proceedings therefor initiated or threatened.
(i) The Company agrees to indemnify and hold harmless each Underwriter, its affiliates,
as such term is defined in Rule 501(b) under the Securities Act (each, an “Affiliate”), its
officers and directors, and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against
any losses, claims, damages or liabilities to which such Underwriter or such Affiliate,
officer, director or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) arise out of or are based upon (a) any untrue statement or alleged
untrue statement of any material fact contained or incorporated by reference in the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Prospectus or any amendment or supplement thereto, or (b) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in the case of the Registration Statement or any amendment
thereto, or in the case of any Preliminary Prospectus, any Issuer Free Writing Prospectus or
the Prospectus or any amendment or supplement thereto, in light of the circumstances under
which they were made, and will reimburse each such Underwriter and each such Affiliate,
officer, director or controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such Affiliate, officer, director or controlling person in connection
with investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or alleged omission made or
incorporated by reference in the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the Company by or
through the Representatives specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which the Company may otherwise have.
(ii) Each Underwriter, severally and not jointly, will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the Registration
Statement, and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which the Company or any such director, officer or controlling
person may become
22
subject under the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained or
incorporated by reference in the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading in the case of the Registration Statement or any amendment thereto, or in the
case of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or
any amendment or supplement thereto, in the light of the circumstances under which they were
made, and will reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding; provided, however,
that each Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged omission has
been made or incorporated by reference in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with written information furnished to the
Company by or through the Representatives specifically for use in the preparation thereof as
described in Section 13 of this Agreement. This indemnity agreement will be in addition to
any liability which such Underwriter may otherwise have.
(iii) In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought pursuant to this
Section 8, such person (the “indemnified party”) shall promptly notify the person against
whom such indemnity may be sought (the “indemnifying party”) in writing; provided that the
failure to so notify will not relieve the indemnifying party from any liability that the
indemnifying party may have on account of the provisions of Sections 8(i) or (ii) or
otherwise, except to the extent that the indemnifying party shall not have otherwise learned
of such proceeding and such failure is materially prejudicial to the indemnifying party. In
case any such proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party and shall pay as incurred the fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of the counsel
retained by the indemnified party in the event (a) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or (b) the
named parties to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them,
in which case the indemnifying party shall not be entitled to assume the defense of such
suit notwithstanding its obligation to bear the fees and expenses of such counsel. It is
understood that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses
of more than one separate firm for all such indemnified parties and one local counsel. Such
firm shall be designated in writing by the Representatives in the case of parties
indemnified pursuant to Section 8(i) and by the Company in the case of parties indemnified
pursuant to Section 8(ii). No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement, compromise or consent to the entry of
judgment in any pending or threatened action, suit or
23
proceeding in respect of which such indemnified party is a party and indemnity was sought
hereunder by such indemnified party, unless such settlement, compromise or consent (x)
includes an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding and (y) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or on behalf
of such indemnified party. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the fifth sentence of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent to which the indemnification obligations of the Company
hereunder are applicable if (a) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request and (b) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request prior to the
date of such settlement (unless the indemnified party is contesting in good faith the amount
so reimbursable).
(iv) If the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless to the extent required therein an indemnified party under
Sections 8(i) or (ii) above in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received by the Company
and the Underwriters from the offering of the Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 8(iii) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company and the Underwriters bear to the total proceeds of the offering (the
proceeds received by the Underwriters being equal to the total underwriting discounts and
commissions received by the Underwriters), in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(iv) were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable considerations
referred to above in this Section 8(iv). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above in this Section 8(iv) shall be deemed to include any
legal or other expenses reasonably
24
incurred by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(iv), (a) no Underwriter
shall be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter and (b) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations under this Section 8(iv) to contribute
are several in proportion to their respective underwriting obligations and not joint.
(v) In any proceeding relating to the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any supplement or
amendment thereto, each party against whom contribution may be sought under this Section 8
hereby consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served upon him or it
by any other contributing party and consents to the service of such process and agrees that
any other contributing party may join him or it as an additional defendant in any such
proceeding in which such other contributing party is a party.
9. Notices. All communications hereunder shall be in writing and, except as otherwise
provided herein, will be mailed, delivered or telecopied and confirmed as follows: if to the
Underwriters, to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Syndicate
Department (Fax: (000) 000-0000), to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxx Xxxxxx
Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, with a copy to ECM Legal, to
Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Registration, Fax: (000) 000-0000, to Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Equity Capital Markets with a copy to the General Counsel, to X.X.
Xxxxxx Securities LLC, 000 Xxxxxxx Xxxxxx, XXX 00000, Attention: Equity Syndicate Desk and to Xxxxx
Fargo Securities, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Equity Syndicate; if
to the Company, to Health Care REIT, Inc., 0000 Xxxx Xxxxxx, Xxxxxx, Xxxx 00000, or via fax at
(000) 000-0000, Attention: Xxxxxx X. Xxxxxxx, Chairman of the Board, Chief Executive Officer and
President.
10. Termination. This Agreement may be terminated by the Representatives by notice to the
Company as follows:
(i) at any time prior to the Closing Date or any Option Closing Date (if different from
the Closing Date and then only as to the Option Shares) if any of the following has
occurred: (a) since the date hereof, any adverse change or any development involving a
prospective adverse change in or affecting the condition, financial or otherwise, of the
Company or the earnings, business affairs, management or business prospects of the Company,
whether or not arising in the ordinary course of business, that, in your judgment, is
material so as to make the offering or delivery of the Shares impracticable or inadvisable,
(b) any outbreak or escalation of hostilities or declaration of war or national emergency
after the date hereof or other national or international calamity or crisis or change in
economic or political conditions if the effect of such outbreak, escalation, declaration,
emergency, calamity, crisis or change on the financial markets of the United States would,
in your judgment, make the offering or delivery of the Shares impracticable or inadvisable,
(c) trading in securities generally on the NYSE, the NYSE Amex Equities or the NASDAQ, or in
the Company’s securities on the NYSE, shall have been suspended or materially limited (other
than limitations on hours or numbers of days of trading) or minimum prices shall have been
established for securities on any such exchange, (d) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation,
25
rule or order of any court or other governmental authority which in your
reasonable opinion materially and adversely affects or will materially or
adversely affect the business or operations of the Company, (e) declaration
of a banking moratorium by either federal or New York State authorities or
material disruption in securities settlement or clearance services in the
United States, (f) any litigation or proceeding is pending or threatened
against any Underwriter which seeks to enjoin or otherwise restrain, or
seeks damages in connection with, or questions the legality or validity of
this Agreement or the transactions contemplated hereby, or (g) any
downgrading, or the giving of any notice of (1) any intended or potential
downgrading or (2) any review or possible change that does not indicate an
affirmation or improvement in the rating, if any, accorded to any securities
of or guaranteed by the Company by any “nationally recognized statistical
rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; or
(ii) as provided in Sections 6 and 11 of this Agreement.
12. Successors. This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and their respective successors, executors, administrators, heirs and
assigns, and the officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. The term “successors” shall not include any
purchaser of the Shares merely because of such purchase.
13. Information Provided by Underwriters. The Company and the Underwriters acknowledge and
agree that the only information furnished or to be furnished by the Underwriters to the
26
Company for inclusion in the Registration Statement, any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus consists of the information set forth in the third and
tenth through sixteenth paragraphs (provided that, with respect to such sixteenth paragraph, only
the Underwriter that maintains a website through which information relating to the sale of the
Shares is provided shall be deemed to have provided information through such website for purposes
of this Section 13 and the information so provided shall be deemed to include only the information
contained in such website other than the Prospectus) under the caption “Underwriting” in the
Prospectus.
14. Miscellaneous. The reimbursement, indemnification and contribution agreements contained
in this Agreement and the representations, warranties and covenants in this Agreement shall remain
in full force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or controlling person thereof, or by or on
behalf of the Company or its directors or officers and (iii) delivery of and payment for the Shares
under this Agreement.
The Company hereby acknowledges that each of the Underwriters is acting solely as an
underwriter in connection with the purchase and sale of the Company’s securities. The Company
further acknowledges that the Underwriters are acting pursuant to a contractual relationship
created solely by this Agreement entered into on an arm’s length basis and in no event do the
parties intend that any Underwriter act or be responsible as a fiduciary to the Company, its
management, stockholders, creditors or any other person in connection with any activity that any
Underwriter may undertake or has undertaken in furtherance of the purchase and sale of the
Company’s securities, either before or after the date hereof. The Underwriters hereby expressly
disclaim any fiduciary or similar obligations to the Company, either in connection with the
transactions contemplated by this Agreement or any matters leading up to such transactions, and the
Company hereby confirms its understanding and agreement to that effect. The Company and the
Underwriters agree that they are each responsible for making their own independent judgments with
respect to any such transactions, and that any opinions or views expressed by the Underwriters to
the Company regarding such transactions, including but not limited to any opinions or views with
respect to the price or market for the Company’s securities, do not constitute advice or
recommendations to the Company. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Underwriters with respect to any
breach or alleged breach of any fiduciary or similar duty to the Company in connection with the
transactions contemplated by this Agreement or any matters leading up to such transactions.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with, the laws of the State
of New York. The Company and the Underwriters each submits to the exclusive jurisdiction of the
courts of the State of New York located in the City and County of New York and the United States
District Court for the Southern District of New York with respect to any action or dispute in any
way arising out of or relating to this Agreement. Each of the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and affiliates) and the
Underwriters waives all right to trial by jury in any action, proceeding or counterclaim (whether
based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement.
[The remainder of this page is intentionally left blank.]
27
If the foregoing letter is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among
the Company and the Underwriters in accordance with its terms.
Very truly yours, | ||||||
HEALTH CARE REIT, INC. | ||||||
By: Name: |
/s/ Xxxxxx X. Xxxxxxx
|
|||||
Title: | Chairman, Chief Executive Officer and President |
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
is hereby confirmed and accepted as
of the date first above written.
UBS SECURITIES LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BARCLAYS CAPITAL INC.
DEUTSCHE BANK SECURITIES INC.
X.X. XXXXXX SECURITIES LLC
XXXXX FARGO SECURITIES, LLC
As Representatives of the Underwriters listed on Schedule I
DEUTSCHE BANK SECURITIES INC.
X.X. XXXXXX SECURITIES LLC
XXXXX FARGO SECURITIES, LLC
As Representatives of the Underwriters listed on Schedule I
By: | UBS SECURITIES LLC | |||||
By: Name: |
/s/ Xxxxxx XxXxx
|
|||||
Title: | Managing Director | |||||
By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||||
Title: | Managing Director | |||||
By: | XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
|||||
By: Name: |
/s/ Xxxx Xxxxxxx
|
|||||
Title: | Managing Director | |||||
By: | BARCLAYS CAPITAL INC. | |||||
By: Name: |
/s/ Xxxxxxxx Xxxx
|
|||||
Title: | Vice President |
By: | DEUTSCHE BANK SECURITIES INC. | |||||
By: Name: |
/s/ Xxxxxx Xxx
|
|||||
Title: | Managing Director | |||||
By: Name: |
/s/ Xxxxx Xxxxxxx
|
|||||
Title: | Director | |||||
By: | X.X. XXXXXX SECURITIES LLC | |||||
By: Name: |
/s/ Xxxxxx Xxxxx
|
|||||
Title: | Managing Director | |||||
By: | XXXXX FARGO SECURITIES, LLC | |||||
By: Name: |
/s/ Xxxxx Xxxxxx
|
|||||
Title: | Director |
SCHEDULE I
Schedule of Underwriters
Number of | ||||
Shares to be | ||||
Underwriter | Purchased | |||
UBS Securities LLC |
3,250,000 | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
1,812,500 | |||
Barclays Capital Inc. |
1,812,500 | |||
Deutsche Bank Securities Inc |
1,812,500 | |||
X.X. Xxxxxx Securities .LLC |
1,812,500 | |||
Xxxxx Fargo Securities, LLC |
1,000,000 | |||
KeyBanc Capital Markets Inc |
1,000,000 | |||
Total |
12,500,000 | |||
SCHEDULE II
Pricing Term Sheet, dated March 1, 2011, as attached on Schedule III.
SCHEDULE III
Issuer Free Writing Prospectus
filed pursuant to Rule 433
supplementing the Preliminary
Prospectus Supplement dated
February 28, 2011
Registration Nos. 333-159040
filed pursuant to Rule 433
supplementing the Preliminary
Prospectus Supplement dated
February 28, 2011
Registration Nos. 333-159040
HEALTH CARE REIT, INC.
FINAL PRICING TERM SHEET
FINAL PRICING TERM SHEET
This Pricing Term Sheet is qualified in its entirety by reference to the Preliminary Prospectus
Supplement, dated February 28, 2011. The information in this Pricing Term Sheet supplements the
Preliminary Prospectus Supplement and supersedes the information in the Preliminary Prospectus
Supplement to the extent it is inconsistent with the information in the Preliminary Prospectus
Supplement. Capitalized terms used in this Pricing Term Sheet but not defined have the meanings
given to them in the Preliminary Prospectus Supplement.
Issuer:
|
Health Care REIT, Inc. | |
Common Stock
|
HCN / NYSE | |
Ticker/Exchange: |
||
Title of Securities:
|
6.50% Series I Cumulative Convertible Perpetual Preferred Stock (“Series I Preferred Stock”) | |
Offering Size:
|
$625,000,000 (12,500,000 shares) | |
Over-allotment
Option:
|
$93,750,000 (1,875,000 shares) | |
Joint Book-Running
Managers:
|
UBS Securities LLC Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
|
Barclays Capital Inc. | ||
Deutsche Bank Securities Inc. | ||
X.X. Xxxxxx Securities LLC | ||
Xxxxx Fargo Securities, LLC | ||
Co-Lead Manager:
|
KeyBanc Capital Markets Inc. | |
Maturity:
|
Perpetual | |
Denomination:
|
$50 and integral multiples thereof | |
Issue Price / Liquidation
Preference:
|
$50 per share, plus unpaid accumulated and accrued dividends | |
Underwriting
Discount:
|
$1.50 per share (3.0%) | |
Net Proceeds:
|
HCN estimates that the net proceeds from the Series I Preferred Stock Offering, after deducting underwriting discounts and commissions and estimated offering expenses, will be approximately $605.5 million (or approximately $696.4 million if the underwriters exercise their option to purchase additional shares in full). |
HCN intends to use the net proceeds from the Series I Preferred Stock Offering, the Common Stock Offering (as defined below), cash on hand and any amounts raised in future capital raising activities or refinancings to finance the aggregate purchase price of all of the equity interests of FC-GEN Acquisition Holding, LLC, which indirectly owns, leases and has options to purchase certain senior housing and care facilities, including the repayment of any amounts drawn on HCN’s $2.4 billion bridge loan facility for which HCN has obtained a commitment from UBS Loan Finance LLC, UBS Securities LLC, as joint lead arranger, Bank of America, N.A., as co-syndication agent, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as joint lead arranger, Barclays Bank PLC, as co-syndication agent, Barclays Capital Inc., as joint lead arranger, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., as joint lead arranger and co-documentation agent, JPMorgan Chase Bank, N.A., as co-syndication agent, X.X. Xxxxxx Securities LLC, as joint lead arranger, Xxxxx Fargo Bank, N.A., as co-documentation agent, Xxxxx Fargo Securities, LLC, as joint lead arranger, KeyBank National Association, as senior managing agent, and KeyBanc Capital Markets Inc. If such acquisition is not consummated, HCN intends to use the net proceeds from the Series I Preferred Stock Offering for general corporate purposes, including investing in health care and senior housing properties and repaying borrowings under its unsecured line of credit and other outstanding indebtedness. Pending such use, the net proceeds may be invested in short-term, investment grade, interest-bearing securities, certificates of deposit or indirect or guaranteed obligations of the United States. | ||
Cumulative
Dividends:
|
6.50% per annum ($3.25 per annum per share), payable quarterly in arrears on each January 15, April 15, July 15 and October 15 of each year, commencing July 15, 2011. | |
Cash | ||
Conversion Premium:
|
Approximately 20% above the price to public in the Common Stock Offering. | |
Initial Conversion
Rate:
|
0.8460 shares of HCN common stock per share of Series I Preferred Stock (subject to adjustment). | |
Approximately $59.10 per share of HCN common stock (subject to adjustment). | ||
Standard adjustments to Conversion Rate and Conversion Price for dilutive events, as described in the Preliminary Prospectus Supplement. | ||
Series I Preferred Stock will not be redeemable by HCN. | ||
Mandatory
Conversion:
|
On or after April 20, 2018, HCN may at its option cause all (but not less than all) outstanding shares of the Series I Preferred Stock to be automatically converted into a number of shares of Common Stock for each share of Series I Preferred Stock equal to the then-prevailing Conversion Rate, if the Daily VWAP of the Common Stock equals or exceeds 130% of the then-prevailing conversion price for at least 20 Trading Days in a period of 30 consecutive Trading Days, including the last Trading Day of such 30-day period, ending on the Trading Day prior to HCN’s issuance of a press release announcing the mandatory conversion. | |
In addition, if there are fewer than 1,250,000 shares of Series I Preferred Stock outstanding, HCN may, at any time on or after April 20, 2018, at its option, cause all such outstanding shares of the Series I Preferred Stock to be automatically converted into shares of HCN common stock at the greater of (i) the then-prevailing Conversion Rate and (ii) the liquidation preference divided by the Market Value (as defined in the Preliminary Prospectus Supplement) of the common stock as determined on the second Trading Day immediately prior to the Mandatory Conversion Date. | ||
Ranking:
|
Preferred | |
Listing:
|
We have filed an application to list the Series I Preferred Stock on the NYSE under the symbol “HCN PrI”. If the application is approved, trading of the Series I Preferred Stock is expected to begin within 30 days after the date of initial delivery of the Series I Preferred Stock. | |
Form:
|
Registered | |
Settlement:
|
DTC | |
Governing Law:
|
Delaware |
If a holder converts its Convertible Preferred Stock at any time beginning at the opening of business on the trading day immediately following the fundamental change effective date of a fundamental change (as described in the Preliminary Prospectus Supplement) and ending at the close of business on the 30th trading day immediately following such fundamental change effective date, such conversion will be deemed to be in connection with the fundamental change and the holder will automatically receive for each share of Series I Preferred Stock converted the greater of: | ||
• a number of shares of HCN common stock, as described in the Preliminary Prospectus
Supplement under “Description of Series I preferred stock — Conversion Rights” and subject
to adjustment as described under “Description of Series I preferred stock — Conversion
Rate Adjustment” (with such adjustment or cash payment for fractional shares as HCN may
elect, as described under “Description of Series I preferred stock — No Fractional
Shares”) plus (ii) the make-whole premium, if any, described in the Preliminary Prospectus
Supplement under “— Determination of the make-whole premium”; and |
||
• a number of shares of HCN common stock equal to the lesser of (i) the liquidation
preference divided by the Market Value (as defined in the Preliminary Prospectus
Supplement) of HCN common stock on the fundamental change effective date of such
fundamental change and (ii) 2.0305 (subject to adjustment) |
||
If a holder elects to convert its shares of Series I Preferred Stock upon the occurrence of a fundamental change, in certain circumstances, HCN will increase the conversion rate (the “make-whole premium”) by reference to the table below: |
Fundamental | ||||||||||||||||||||||||||||||||
Change Effective | Stock price ($)(1) | |||||||||||||||||||||||||||||||
Date | 49.25 | 55.00 | 60.00 | 65.00 | 70.00 | 75.00 | 80.00 | 85.00 | ||||||||||||||||||||||||
March 7, 2011 |
0.1692 | 0.1540 | 0.1241 | 0.1012 | 0.0834 | 0.0695 | 0.0584 | 0.0495 | ||||||||||||||||||||||||
April 15, 2012 |
0.1692 | 0.1316 | 0.1045 | 0.0840 | 0.0682 | 0.0559 | 0.0463 | 0.0386 | ||||||||||||||||||||||||
April 15, 2013 |
0.1692 | 0.1177 | 0.0925 | 0.0734 | 0.0589 | 0.0478 | 0.0391 | 0.0323 | ||||||||||||||||||||||||
April 15, 2014 |
0.1692 | 0.1071 | 0.0829 | 0.0647 | 0.0511 | 0.0407 | 0.0328 | 0.0267 | ||||||||||||||||||||||||
April 15, 2015 |
0.1692 | 0.0988 | 0.0749 | 0.0571 | 0.0439 | 0.0341 | 0.0268 | 0.0213 | ||||||||||||||||||||||||
April 15, 2016 |
0.1692 | 0.0925 | 0.0680 | 0.0499 | 0.0367 | 0.0271 | 0.0204 | 0.0156 | ||||||||||||||||||||||||
April 15, 2017 |
0.1692 | 0.0877 | 0.0618 | 0.0423 | 0.0282 | 0.0187 | 0.0125 | 0.0086 | ||||||||||||||||||||||||
April 20, 2018 and thereafter |
0.1692 | 0.0857 | 0.0580 | 0.0351 | 0.0159 | 0.0022 | 0.0000 | 0.0000 |
Fundamental | ||||||||||||||||||||||||||||
Change Effective | Stock price ($)(1) | |||||||||||||||||||||||||||
Date | 90.00 | 100.00 | 110.00 | 125.00 | 150.00 | 175.00 | 200.00 | |||||||||||||||||||||
March 7, 2011 |
0.0422 | 0.0313 | 0.0237 | 0.0159 | 0.0084 | 0.0044 | 0.0022 | |||||||||||||||||||||
April 15, 2012 |
0.0325 | 0.0234 | 0.0172 | 0.0110 | 0.0052 | 0.0021 | 0.0006 | |||||||||||||||||||||
April 15, 2013 |
0.0269 | 0.0191 | 0.0139 | 0.0088 | 0.0040 | 0.0015 | 0.0003 |
Fundamental | ||||||||||||||||||||||||||||
Change Effective | Stock price ($)(1) | |||||||||||||||||||||||||||
Date | 90.00 | 100.00 | 110.00 | 125.00 | 150.00 | 175.00 | 200.00 | |||||||||||||||||||||
April 15, 2014 |
0.0220 | 0.0153 | 0.0110 | 0.0069 | 0.0031 | 0.0011 | 0.0002 | |||||||||||||||||||||
April 15, 2015 |
0.0172 | 0.0117 | 0.0083 | 0.0052 | 0.0023 | 0.0008 | 0.0001 | |||||||||||||||||||||
April 15, 2016 |
0.0122 | 0.0080 | 0.0056 | 0.0035 | 0.0016 | 0.0005 | 0.0000 | |||||||||||||||||||||
April 15, 2017 |
0.0062 | 0.0039 | 0.0028 | 0.0019 | 0.0009 | 0.0002 | 0.0000 | |||||||||||||||||||||
April 20, 2018 and thereafter |
0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
(1) | The stock prices set forth in the table will be adjusted as of any date on which the Conversion Rate of the Series I Preferred Stock is adjusted by multiplying the applicable price in effect immediately before the adjustment by a fraction: |
• whose numerator is the Conversion Rate immediately before the adjustment; and | ||
• whose denominator is the adjusted Conversion Rate | ||
In addition, HCN will adjust the number of additional shares in the table at the same time, in the same manner in which, and for the same events for which, HCN must adjust the Conversion Rate as described in the Preliminary Prospectus Supplement under “Description of preferred stock — Conversion Rate Adjustment.” | ||
The exact stock price and fundamental change effective date may not be set forth on the table, in which case: | ||
• if the stock price is between two stock prices on the table or the fundamental change
effective date is between two fundamental change effective dates on the table, the
make-whole premium will be determined by straight-line interpolation between make-whole
premium amounts set forth for the higher and lower stock prices and the two fundamental
change effective dates, as applicable, based on a 365-day year; |
||
• if the stock price is in excess of $200.00 per share (subject to adjustment in the same
manner as the stock price) no make-whole premium will be paid; and |
||
• if the stock price is less than $49.25 per share (subject to adjustment in the same
manner as the stock price), no make-whole premium will be paid. |
||
However, the Conversion Rate will not be adjusted as described above to the extent the increase will cause the Conversion Rate to exceed 1.0152. HCN also will adjust this maximum Conversion Rate in the same manner in which, and for the same events for which, it must adjust the Conversion Rate as described in the Preliminary Prospectus Supplement. | ||
CUSIP:
|
00000X000 | |
ISIN:
|
US42217K6010 | |
Concurrent Offering:
|
Concurrently with the Series I Preferred Stock Offering, HCN is offering 25,000,000 shares of its common stock (or 28,750,000 shares if the underwriters exercise their overallotment option in full) pursuant to a separate public offering (the “Common Stock Offering”). HCN estimates that the net proceeds from the Common Stock Offering, after deducting underwriting discounts and commissions and estimated offering expenses, will be approximately $1.2 billion ($1.4 billion if the underwriters exercise their over-allotment option in full). HCN intends to use the net proceeds from the Common Stock Offering in the same manner as the net proceeds of the Series I Preferred Stock Offering. The completion of the Series I Preferred Stock Offering is not subject to the completion of the Common Stock Offering and the completion of the Common Stock Offering is not subject to the completion of the Series I Preferred Stock Offering. | |
Pricing Date:
|
March 1, 2011 | |
Trade Date:
|
Xxxxx 0, 0000 | |
Xxxxxxxxxx Date:
|
March 7, 2011 (T + 3) |
The issuer has filed a registration statement (including a base prospectus) and a related
Preliminary Prospectus Supplement dated February 28, 2011 with the SEC for the offering to which
this communication relates. Before you invest, you should read the base prospectus in that
registration statement, the related Preliminary Prospectus Supplement and the other documents the
issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, UBS Securities LLC can arrange to send you the prospectus if you request it by
calling UBS Investment Bank, Attn: Prospectus Dept., 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000,
Telephone: 000-000-0000.
SCHEDULE IV
Schedule of Subsidiaries
State of | ||
Name of Subsidiary | Organization | |
000 Xxxxxxxx Xxxx, LLC
|
Delaware | |
0000 X. Xxxxx Xxxxx Xxxx, XXX
|
Xxxxxxxx | |
00000 Cypresswood Drive, LLC
|
Delaware | |
000 Xxxxxxx Xxxx Xxxx, LLC
|
Delaware | |
0000 X. Xxxxxxxx Xxxxxx, LLC
|
Delaware | |
0000 Xxxxx Xxxxxx Xxxxxx, LLC
|
Delaware | |
0000 Xxxxxxx Xxxxxx, LLC
|
Delaware | |
00000 Xxxxxxxx Xxxxx Xxxxx, LLC
|
Delaware | |
000 Xxxxx Xxxxx Xxxxxx, LLC
|
Delaware | |
0000 Xxxxx Xxxxxx, LLC
|
Delaware | |
0000 X. Xxxxxxxxxx Xxxxxxxxx, LLC
|
Delaware | |
1405 Limekiln Pike, LLC
|
Delaware | |
0000 Xxxxxxxx Xxxx, LLC
|
Delaware | |
0000 Xxxxxxx Xxxxx Xxxx, LLC
|
Delaware | |
00000 Xxxxxxxxxx Xxxx, LLC
|
Delaware | |
1500 Xxxxxx Road, LLC
|
Delaware | |
1565 Virginia Ranch Road, LLC
|
Delaware | |
0000 X. Xxxxxx Xxxxxx, LLC
|
Delaware | |
0000 X.X. Xxxxxx Xxxxxxx, LLC
|
Delaware | |
00000 Xxxx Xxxxxx Xxxx, LLC
|
Delaware | |
0000 Xxxxxxxx Xxxxxx, LLC
|
Delaware | |
0000 Xxxxxx Xxxxx, LLC
|
Delaware | |
1850 Crown Park Court, LLC
|
Delaware | |
0000 Xxxxxxxxx Xxxx West, LLC
|
Delaware | |
000 X. Xxxxxxx Xxxx, LLC
|
Delaware | |
0000 Xxxxx 00 Xxxx, LLC
|
Delaware | |
000 Xxxxxxxx Xxxx, X.X.X.
|
Xxxxxxxx | |
0000 Xxx Xxxx Street, LLC
|
Delaware | |
000 Xxxx Xxxxx Xxxxxx — Jefferson, L.L.C.
|
Delaware | |
0000 Xxxxxxx Xxxx Xxxxx, XXX
|
Xxxxxxxx | |
00000 Eastex Freeway, LLC
|
Delaware | |
00 Xxxxxxxxxxx Xxxxx, LLC
|
Delaware | |
0000 Xxxxxxxx Xxxxx, LLC
|
Delaware | |
0000 X. Xxxxxxx Xxxxxx Xxxxxxx, LLC
|
Delaware | |
000 X. Xxxxx Xxxxxx, LLC
|
Delaware | |
0000 Xxxxxxxxx Xxxxxx, LLC
|
Delaware | |
0000 Xxxxxxxxxx Xxxxxxxxx, LLC
|
Delaware | |
0000 Xxxxxxx Xxxxx, LLC
|
Delaware | |
000 X. Xxxxxxx Xxxxxxx, LLC
|
Delaware | |
0000 Xxxx Xxxxxxxxx Xxxx, LLC
|
Delaware | |
0000 Xxxxxxx Xxxx, LLC
|
Delaware | |
000 Xxxxxx Xxxxx, XXX
|
Xxxxxxxx | |
00000 Seaside Boulevard, LLC
|
Delaware | |
0000 Xxxxx Xxxxx Xxxxxx, LLC
|
Delaware | |
0000 Xxxxx Xxxx Xxxxxx, LLC
|
Delaware | |
000 Xxxxx Xxxxxxxx Xxxxx, LLC
|
Delaware | |
000 Xxxxx Xxxxx Xxxx, LLC
|
Delaware | |
0000 Xxxx Xxxxxx Holdings, LLC
|
Delaware | |
0000 Xxxxxx Xxxx, LLC
|
Delaware | |
000 Xxxxx Xxxxxx Xxxxxxxxx, LLC
|
Delaware | |
000 Xxxx Xxxxxx Xxxxxxxxx, LLC
|
Delaware | |
0000 Xxxxxx Xxxxx Xxxxx, LLC
|
Delaware | |
0000 Xxxxxxx Xxxxx SE, LLC
|
Delaware | |
0000 Xxxxxxxxxx Xxxx, LLC
|
Delaware | |
5521 Village Creek Drive, LLC
|
Delaware | |
0000 Xxx Xxxxxxxxxxxx Xxxxxxx, LLC
|
Delaware | |
5700 Xxxx Road, LLC
|
Delaware | |
0000 Xxxxx Xxxxxx, LLC
|
Delaware | |
000 Xxxxxxx Xxxx, LLC
|
Delaware | |
000 Xxxxxxx Xxxxxx, LLC
|
Delaware | |
0000 Xxxx Xxxxxxxx, LLC
|
Delaware | |
000 Xxx Xxxx Xxxx, LLC
|
Delaware | |
000 Xxxxx Xxxxxxxxxx Xxxxx, LLC
|
Delaware | |
0000 Xxxxxxxxx Xxxxx, LLC
|
Delaware | |
000 Xxxxxxxxxxx Xxxxx, LLC
|
Delaware | |
000 Xxxxxx Xxxxxx, LLC
|
Delaware | |
8503 Mystic Park, LLC
|
Delaware | |
0000 Xxxxx Xxxxxx Xxxxx, LLC
|
Delaware | |
000 Xxxxx Xxxx Xxxx, LLC
|
Delaware | |
965 Xxxxx Drive, LLC
|
Delaware | |
0000 00xx Xxxxx XX, LLC
|
Delaware | |
AMCO I, LLC
|
Wisconsin | |
Anchor HCN Doylestown, LLC
|
Delaware | |
Anchor HCN Properties II, LLC
|
Delaware | |
Anchor HCN Properties, LLC
|
Delaware | |
Badger RE Portfolio I, LLC
|
Wisconsin | |
Badger RE Portfolio II, LLC
|
Wisconsin | |
Badger RE Portfolio III, LLC
|
Wisconsin | |
Badger RE Portfolio IV, LLC
|
Wisconsin | |
Badger RE Portfolio V, LLC
|
Wisconsin | |
BAL Colts Neck LLC
|
Delaware | |
XXX Xxxxxxx Island LLC
|
Delaware | |
BAL Governor’s Crossing LLC
|
Delaware | |
BAL Holdings I, LLC
|
Delaware | |
BAL Holdings II, LLC
|
Delaware | |
BAL Holdings III, LLC
|
Delaware | |
BAL Holdings VII, LLC
|
Delaware | |
XXX Xxxxxx LLC
|
Delaware | |
BAL Longwood LLC
|
Pennsylvania | |
BAL Reflections LLC
|
Delaware | |
XXX Xxxxx Little Neck LLC
|
Delaware | |
BAL Sycamore LLC
|
Delaware | |
BAL Toms River LLC
|
Delaware | |
Xxxxxxx Healthcare Investors, LLC
|
Delaware | |
Bardstown Physicians LLC
|
Delaware | |
Bellevue Healthcare Properties, LLC
|
Delaware | |
Bellevue Physicians, LLC
|
Delaware | |
Boardman Physicians LLC
|
Delaware | |
Brandall Central Avenue, LLC
|
Delaware | |
Bridgeton Healthcare Investors, LLC
|
Delaware | |
Brierbrook Partners, L.L.C.
|
Tennessee | |
BSL Huntington Terrace LLC
|
Delaware | |
CAL-GAT Limited Partnership
|
Florida | |
CAL-LAK Limited Partnership
|
Florida | |
Xxxxxx Holding, L.L.C.
|
Florida | |
Xxxxxx, L.L.C.
|
Delaware |
State of | ||
Name of Subsidiary | Organization | |
CRP/BWN Litchfield L.L.C.
|
Delaware | |
DePaul Physicians, LLC
|
Delaware | |
DRF Xxxxxxxx LLC
|
Minnesota | |
DRF Bridgeton LLC
|
Minnesota | |
DRF Durango LLC
|
Minnesota | |
DRF Great Falls LLC
|
Minnesota | |
DRF Lenexa LLC
|
Minnesota | |
DRF Lincoln LLC
|
Minnesota | |
DRF LSL LLC
|
Minnesota | |
DRF Shawnee Mission LLC
|
Minnesota | |
DRF South Valley LLC
|
Minnesota | |
DRF Southwest Medical Building LLC
|
Minnesota | |
DRF Westminster LLC
|
Minnesota | |
DSG-2010 Loans I, Inc.
|
Delaware | |
Dublin Senior Community DRV, LLC
|
Oklahoma | |
Dublin Senior Community WPP, LLC
|
Oklahoma | |
FC HCN University Park, LLC
|
Delaware | |
FLA-PALM COURT, limited partnership
|
Florida | |
Forest City 40 Landsdowne, LLC
|
Delaware | |
Xxxxxx Xxxx 00 Xxxxxx Xxxxxx, LLC
|
Delaware | |
Frauenshuh Ballard LLC
|
Minnesota | |
Frauenshuh Bridgeton LLC
|
Minnesota | |
Frauenshuh Greeneville LLC
|
Minnesota | |
Frauenshuh HealthCare Properties, LLC
|
Delaware | |
Frauenshuh HealthCare Real Estate Solutions, LLC
|
Minnesota | |
Frauenshuh HealthCare Venture Properties, LLC
|
Delaware | |
Frauenshuh Killeen LLC
|
Minnesota | |
Gemini Xxxxxxxxx, LLC
|
Oklahoma | |
Gemini Las Colinas, L.L.C.
|
Oklahoma | |
Gemini Romeoville, LLC
|
Oklahoma | |
Gemini SS Lessee, LLC
|
Oklahoma | |
Gemini Villa Ventura, L.L.C.
|
Oklahoma | |
Gemini Wexford, L.L.C.
|
Oklahoma | |
Gig Harbor Physicians, LLC
|
Delaware | |
Grand Ledge I, LLC
|
Delaware | |
Great Falls Clinic — Frauenshuh, LLC
|
Minnesota | |
Greeneville Healthcare Investors, LLC
|
Delaware | |
Xxxxxx Company Green Bay I, LLC
|
Wisconsin | |
Xxxxxx Company Green Bay II, LLC
|
Wisconsin | |
HC Mill Creek I, LLC
|
Washington | |
XX Xxxxxxx I, LLC
|
Wisconsin | |
HC Summit I, LLC
|
Wisconsin | |
HCN Access Holdings, LLC
|
Delaware | |
HCN Access Las Vegas I, LLC
|
Delaware | |
HCN Anchor Xxxxxxxxx, LLC
|
Delaware | |
HCN BCC Holdings, Inc.
|
Delaware | |
HCN Capital Holdings, LLC
|
Delaware | |
HCN Development Services Group, Inc.
|
Indiana | |
HCN Emerald Holdings, LLC
|
Delaware | |
HCN FCE Life Sciences, LLC
|
Delaware | |
HCN Interra Lake Xxxxxx LTACH, LLC
|
Delaware | |
HCN Lake Xxxxxx Holdings, LLC
|
Delaware | |
HCN Lake Xxxxxx Property One, LLC
|
Delaware | |
HCN Lake Xxxxxx Property Two, LLC
|
Delaware | |
HCN Medicus Holdings, LLC
|
Delaware | |
HCN Navvis Clarkson Valley, LLC
|
Delaware | |
HCN Xxxxxxx Holdings, LLC
|
Delaware | |
HCN Xxxxxxx Xxxxxx, LLC
|
Delaware | |
HCN-TH Wisconsin I, LLC
|
Delaware | |
HCN-TH Wisconsin II, LLC
|
Delaware | |
HCN-TH Wisconsin III, LLC
|
Delaware | |
HCN-TH Wisconsin IV, LLC
|
Delaware | |
HCN-TH Wisconsin V, LLC
|
Delaware | |
HCN-TH Wisconsin VI, LLC
|
Delaware | |
HCN-TH Wisconsin VII, LLC
|
Delaware | |
HCN-TH Wisconsin VIII, LLC
|
Delaware | |
HCRE Solutions, LLC
|
Delaware | |
HCRI Abingdon Holdings, Inc.
|
North Carolina | |
HCRI Abingdon Properties, LP
|
North Carolina | |
HCRI Akron Properties, LLC
|
Delaware | |
HCRI Ancillary TRS, Inc.
|
Delaware | |
HCRI Asheboro Holdings, Inc.
|
North Carolina | |
HCRI Asheboro Properties, LP
|
North Carolina | |
HCRI Beachwood, Inc.
|
Ohio | |
HCRI Boardman Properties, LLC
|
Delaware | |
HCRI Broadview, Inc.
|
Ohio | |
HCRI Burlington Manor Holdings, Inc.
|
North Carolina | |
HCRI Burlington Manor Properties, LP
|
North Carolina | |
HCRI Cold Spring Properties, LLC
|
Delaware | |
HCRI Concord Place Holdings, Inc.
|
North Carolina | |
HCRI Concord Place Properties, LP
|
North Carolina | |
HCRI Cumberland Properties, LLC
|
Delaware | |
HCRI Dayton Place — Denver Properties, LLC
|
Delaware | |
HCRI Xxxxxx Place Properties Trust
|
Massachusetts | |
HCRI Drum Hill Properties, LLC
|
Delaware | |
HCRI Xxxx Xxxx Properties Trust
|
Massachusetts | |
HCRI Eden Holdings, Inc.
|
North Carolina | |
HCRI Eden Properties, LP
|
North Carolina | |
HCRI Emerald Holdings, LLC
|
Delaware | |
HCRI Exchange Management I, LLC
|
Delaware | |
HCRI Exchange Properties I, LLC
|
Delaware | |
HCRI Fairmont Properties, LLC
|
Delaware | |
HCRI Financial Services, LLC
|
Delaware | |
HCRI Financing, Inc.
|
Delaware | |
HCRI Forest City Holdings, Inc.
|
North Carolina | |
HCRI Forest City Properties, LP
|
North Carolina | |
HCRI Xxxxxx Manor Holdings, Inc.
|
North Carolina | |
HCRI Xxxxxx Manor Properties, LP
|
North Carolina | |
HCRI Greenville Holdings, Inc.
|
North Carolina | |
HCRI Greenville Properties, LP
|
North Carolina | |
HCRI High Point Manor Holdings, Inc.
|
North Carolina | |
HCRI High Point Manor Properties, LP
|
North Carolina | |
HCRI Holdings Trust
|
Massachusetts | |
HCRI Hunters Xxxx Properties, LLC
|
Delaware | |
HCRI Illinois Properties II, LLC
|
Delaware | |
HCRI Illinois Properties, LLC
|
Delaware | |
HCRI Indiana Properties, Inc.
|
Delaware | |
HCRI Indiana Properties, LLC
|
Indiana | |
HCRI Investments, Inc.
|
Delaware | |
HCRI Kansas Properties, LLC
|
Delaware | |
HCRI Kentucky Properties, LLC
|
Kentucky | |
HCRI Xxxxxxxx Properties, LLC
|
Delaware | |
HCRI Limited Holdings, Inc.
|
Delaware | |
HCRI Logistics, Inc.
|
Delaware | |
HCRI Louisiana Properties, L.P.
|
Delaware | |
HCRI Marina Place Properties Trust
|
Massachusetts | |
HCRI Maryland Properties, LLC
|
Maryland | |
HCRI Massachusetts Properties Trust
|
Massachusetts | |
HCRI Massachusetts Properties Trust II
|
Massachusetts | |
HCRI Massachusetts Properties, Inc.
|
Delaware | |
HCRI Merrillville Medical Facility, LLC
|
Delaware | |
HCRI Mississippi Properties, Inc.
|
Mississippi |
State of | ||
Name of Subsidiary | Organization | |
HCRI Missouri Properties, LLC
|
Delaware | |
HCRI Nevada Properties, Inc.
|
Nevada | |
HCRI New Hampshire Properties, LLC
|
Delaware | |
HCRI North Carolina Properties I, Inc.
|
North Carolina | |
HCRI North Carolina Properties II, Inc.
|
North Carolina | |
HCRI North Carolina Properties III, Limited Partnership
|
North Carolina | |
HCRI North Carolina Properties, LLC
|
Delaware | |
HCRI Pennsylvania Properties, Inc.
|
Pennsylvania | |
HCRI Prestonwood Medical Facility, LLC
|
Delaware | |
HCRI Provider Properties, LLC
|
Delaware | |
HCRI Ridgeland Pointe Properties, LLC
|
Delaware | |
HCRI Senior Housing Properties, Inc.
|
Delaware | |
HCRI Skeet Club Manor Holdings, Inc.
|
North Carolina | |
HCRI Skeet Club Manor Properties, LP
|
North Carolina | |
HCRI Smithfield Holdings, Inc.
|
North Carolina | |
HCRI Smithfield Properties, LP
|
North Carolina | |
HCRI Southern Investments I, Inc.
|
Delaware | |
HCRI Statesville Place Holdings I, Inc.
|
North Carolina | |
HCRI Statesville Place Holdings II, Inc.
|
North Carolina | |
HCRI Statesville Place Properties I, LP
|
North Carolina | |
HCRI Statesville Place Properties II, LP
|
North Carolina | |
HCRI Summit Properties, LLC
|
Delaware | |
HCRI Tallahassee Medical Facility, LLC
|
Delaware | |
HCRI Tennessee Properties, Inc.
|
Delaware | |
HCRI Tennessee Properties, LLC
|
Delaware | |
HCRI Texas Properties, Inc.
|
Delaware | |
HCRI Texas Properties, Ltd.
|
Texas | |
HCRI TRS Acquirer II, LLC
|
Delaware | |
HCRI TRS Acquirer, LLC
|
Delaware | |
HCRI Tucson Properties, Inc.
|
Delaware | |
HCRI Van Nuys Medical Facility, LLC
|
Delaware | |
HCRI Weddington Park Holdings, Inc.
|
North Carolina | |
HCRI Weddington Park Properties, LP
|
North Carolina | |
HCRI Westlake, Inc.
|
Ohio | |
HCRI Xxxxxxx Gardens Properties, LLC
|
Delaware | |
HCRI Wisconsin Properties, LLC
|
Wisconsin | |
Healthcare Property Managers of America, LLC
|
Florida | |
Heat Merger Sub, LLC
|
Delaware | |
Heat OP TRS, Inc.
|
Delaware | |
HH Florida, LLC
|
Delaware | |
Xxxxxx Gemini Burgundy, LLC
|
Oklahoma | |
Xxxxxx Gemini Woodland, LLC
|
Oklahoma | |
Killeen Healthcare Investors, LLC
|
Delaware | |
Lake Xxxx Medical Investors Limited Partnership
|
Florida | |
Lenexa Investors, LLC
|
Delaware | |
Med Properties Asset Group, L.L.C.
|
Indiana | |
Medical Real Estate Property Managers
of America, LLC
|
Florida | |
Xxxxxxx Gardens Harbor Court, LLC
|
Xxxxxxxxxx | |
Xxxxxxx Gardens Windsor Manor, LLC
|
Washington | |
MG Landlord, LLC
|
Delaware | |
MG Tenant, LLC
|
Delaware | |
MGP 41, LLC
|
Delaware | |
MGP 42, LLC
|
Delaware | |
MGP 43, LLC
|
Delaware | |
MGP I, LLC
|
Washington | |
MGP V, LLC
|
Washington | |
MGP VI, LLC
|
Washington | |
MGP X, LLC
|
Wisconsin | |
MGP XI, LLC
|
Wisconsin | |
MGP XII, LLC
|
Wisconsin | |
MGP XIII, LLC
|
Wisconsin | |
MGP XIV, LLC
|
Wisconsin | |
MGP XIX, LLC
|
Washington | |
MGP XL, LLC
|
Washington | |
MGP XV, LLC
|
Wisconsin | |
MGP XVI, LLC
|
Wisconsin | |
MGP XVII, LLC
|
Washington | |
MGP XXIX, LLC
|
Washington | |
MGP XXV, LLC
|
Washington | |
MGP XXXII, LLC
|
Washington | |
MGP XXXIII, LLC
|
Washington | |
MGP XXXIX, LLC
|
Washington | |
MGP XXXVII, LLC
|
Washington | |
MGP XXXVIII, LLC
|
Washington | |
Midland I, LLC
|
Delaware | |
Midwest 108th & Q, LLC
|
Delaware | |
Midwest Xxxx, LLC
|
Delaware | |
Midwest Miracle Hills, LLC
|
Delaware | |
Midwest Prestwick, LLC
|
Delaware | |
Midwest Xxx Xxxx, LLC
|
Delaware | |
Midwest Village of Columbus, LLC
|
Delaware | |
Midwest Windermere, LLC
|
Delaware | |
Midwest Woodbridge, LLC
|
Delaware | |
Mill Creek Real Estate Partners, LLC
|
Delaware | |
MIMA Real Estate, L.L.C.
|
Florida | |
Murrieta Healthcare Investors, LLC
|
Delaware | |
Murrieta Healthcare Properties, LLC
|
Delaware | |
Paramount Real Estate Services, Inc.
|
Delaware | |
Pennsylvania BCC Properties, Inc.
|
Pennsylvania | |
Petoskey I, LLC
|
Delaware | |
Petoskey II, LLC
|
Delaware | |
Plymouth I, LLC
|
Delaware | |
PVL Landlord — Hattiesburg, LLC
|
Delaware | |
PVL Landlord — STL Hills, LLC
|
Delaware | |
PVL Tenant — STL Hills, LLC
|
Delaware | |
PVL Tenant- Hattiesburg, LLC
|
Delaware | |
Xxxxxxx Partners, LLC
|
Delaware | |
Senior Star Investments I, LLC
|
Delaware | |
Senior Star Tenant, LLC
|
Delaware | |
Shawnee Mission Investors, LLC
|
Delaware | |
Silverado Senior Living Alhambra, Inc.
|
California | |
Silverado Senior Living Azusa, Inc.
|
California | |
Silverado Senior Living Costa Mesa, Inc.
|
California | |
Silverado Senior Living Dallas, Inc.
|
Delaware | |
Silverado Senior Living Encinitas, Inc.
|
California | |
Silverado Senior Living Escondido, Inc.
|
California | |
Silverado Senior Living Houston, Inc.
|
Delaware | |
Silverado Senior Living Las Colinas, Inc.
|
Delaware | |
Silverado Senior Living Los Angeles, Inc.
|
California | |
Silverado Senior Living of Cypresswood, Inc.
|
Delaware | |
Silverado Senior Living of Kingwood, Inc.
|
Delaware | |
Silverado Senior Living of Sugarland, Inc.
|
Delaware | |
Silverado Senior Living of Woodlands, Inc.
|
Delaware | |
Silverado Senior Living Properties, Inc.
|
Delaware | |
Silverado Senior Living Redondo Beach, Inc.
|
California | |
Silverado Senior Living Salt Lake City, Inc.
|
Delaware | |
Silverado Senior Living San Xxxx Capistrano, Inc.
|
California | |
Silverado Senior Living Scottsdale, Inc.
|
Delaware | |
Silverado Senior Living Turtle Creek, Inc.
|
Delaware | |
Silverado Senior Living Tustin, Inc.
|
California |
State of | ||
Name of Subsidiary | Organization | |
Silverado Senior Living, Inc.
|
California | |
South Valley Medical Building L.L.C.
|
Minnesota | |
South Valley Venture, LLC
|
Minnesota | |
SSL Aspen Park SPE, LLC
|
Delaware | |
SSL Landlord, LLC
|
Delaware | |
SSL Sponsor, LLC
|
Delaware | |
SSL Tenant, LLC
|
Delaware | |
St. Xxxxxx Physicians, LLC
|
Delaware | |
Xxxxxxxx Medical Office Pavilion, LLC
|
Delaware | |
Subtenant 00000 Xxxxxxxxxxx Xxxxx, LLC
|
Delaware | |
Subtenant 0000 X. Xxxxxxxx Xxxxxx, LLC
|
Delaware | |
Subtenant 0000 Xxxxxxx Xxxxxx, LLC
|
Delaware | |
Subtenant 000 X. Xxxxxx Xxxxx Xxxxxx, LLC
|
Delaware | |
Subtenant 0000 Xxxx 0000 Xxxxx, LLC
|
Delaware | |
Subtenant 1500 Xxxxxx Road, LLC
|
Delaware | |
Subtenant 00000 Xxxxxx Xxxxxxx, LLC
|
Delaware | |
Subtenant 000 X. Xxxxx Xxxxxx, LLC
|
Delaware | |
Subtenant 00000 Xxxxxx Xxxxxxxxxx, LLC
|
Delaware | |
Subtenant 000 Xxxxx Xxxxxxxx Xxxxxx, LLC
|
Delaware | |
Subtenant 000 Xxxxxx Xxxx, LLC
|
Delaware | |
Subtenant 000 X. Xxx Xxxxxx, LLC
|
Delaware | |
Subtenant 0000 Xxxxxxxx Xxxxxx, LLC
|
Delaware | |
Subtenant 000 X. Xxxxxxxx Xxxxxx, LLC
|
Delaware | |
Subtenant 0000 Xxxxxxx Xxxxx Xxxxx, LLC
|
Delaware | |
Subtenant 0000 Xxxxxxxxx Xxxxx, LLC
|
Delaware | |
Subtenant 0000 Xxxx Xxxxxx Xxxxx Xxxxxxx, LLC
|
Delaware | |
Subtenant 0000 X. Xxxxxxxxxxx, LLC
|
Delaware | |
Xxxxxxxx Healthcare Properties, LLC
|
Delaware | |
Xxxxxxxx Physicians, LLC
|
Delaware | |
Warrior LP Holdco, LLC
|
Delaware | |
Waterstone I, LLC
|
Delaware | |
West Boynton Investors, LLLP
|
Florida | |
Westminster Junction Venture, LLC
|
Minnesota | |
White Lake I, LLC
|
Delaware | |
Windrose 310 Properties, L.L.C.
|
Tennessee | |
Windrose 4475 Sierra Properties, L.L.C.
|
Delaware | |
Windrose Aberdeen I Properties, L.L.C.
|
Florida | |
Windrose Aberdeen II Properties, L.L.C.
|
Delaware | |
Windrose Atrium Properties, L.L.C.
|
Delaware | |
Windrose AWPC II Properties, LLC
|
Delaware | |
Windrose AZ-Tempe Properties, LLC
|
Delaware | |
Windrose Xxxxxxxx Properties, LLC
|
Delaware | |
Windrose Bethesda Properties, LLC
|
Delaware | |
Windrose Biltmore Properties, L.L.C.
|
Virginia | |
Windrose Central Medical II Properties, L.L.C.
|
Virginia | |
Windrose Central Medical III Properties, L.L.C.
|
Virginia | |
Windrose Central Medical Properties, L.L.C.
|
Delaware | |
Windrose Claremore Properties, LLC
|
Delaware | |
Windrose Columbia Properties, Ltd.
|
Florida | |
Windrose Congress I Properties, L.P.
|
Delaware | |
Windrose Congress II Properties, L.P.
|
Delaware | |
Windrose Xxxxxx Properties, L.L.C.
|
Virginia | |
Windrose Coral Springs Properties, L.L.C.
|
Virginia | |
Windrose Cottonwood Properties, LLC
|
Delaware | |
Windrose Xxxxxx Properties, LLC
|
Delaware | |
Windrose Desert Springs Properties, L.P.
|
Delaware | |
Windrose East Valley Properties, LLC
|
Delaware | |
Windrose East West Properties, L.L.C.
|
Virginia | |
Windrose Fayetteville Properties, L.L.C.
|
Delaware | |
Windrose Fox Valley Properties, L.L.C.
|
Virginia | |
Windrose Frisco I Properties, LLC
|
Delaware | |
Windrose Frisco II Properties, LLC
|
Delaware | |
Windrose Glendale Properties, LLC
|
Delaware | |
Windrose Gwinnett I Properties, L.L.C.
|
Virginia | |
Windrose Lafayette Properties, L.L.C.
|
Delaware | |
Windrose Lake Xxxx Properties, L.L.C.
|
Virginia | |
Windrose Lakewood Properties, L.L.C.
|
Virginia | |
Windrose Las Vegas Properties, LLC
|
Delaware | |
Windrose Los Alamitos Properties, LLC
|
Delaware | |
Windrose Los Gatos Properties, L.L.C.
|
Virginia | |
Windrose Medical Properties Management, L.L.C.
|
Virginia | |
Windrose Medical Properties, L.P.
|
Virginia | |
Windrose Mount Xxxxxx Properties, L.L.C.
|
Virginia | |
Windrose Niagara Falls Properties, LLC
|
Delaware | |
Windrose Northside Properties, Ltd.
|
Florida | |
Windrose Northwest Professional Plaza Properties, LLC |
Delaware | |
Windrose Ocala Urology Properties, L.L.C.
|
Virginia | |
Windrose Okatie I Properties, LLC
|
Delaware | |
Windrose Orange Centre Properties, LLC
|
Delaware | |
Windrose Orange Properties, L.L.C.
|
Delaware | |
Windrose Palm Court Properties, L.L.C.
|
Virginia | |
Windrose Xxxxxx Properties, LLC
|
Delaware | |
Windrose Palms West III Properties, Ltd.
|
Florida | |
Windrose Palms West IV Properties, Ltd.
|
Florida | |
Windrose Palms West V Properties, Ltd.
|
Florida | |
Windrose Park Medical Properties, L.L.C.
|
Virginia | |
Windrose Partell Medical Center, L.L.C.
|
Virginia | |
Windrose Physicians Plaza Properties, LLC
|
Delaware | |
Windrose Princeton Properties, L.L.C.
|
Delaware | |
Windrose Santa Xxxxx Properties, L.L.C.
|
Delaware | |
Windrose Sierra Properties, Ltd.
|
Florida | |
Windrose Southlake Properties, LLC
|
Delaware | |
Windrose Southpointe Properties, L.L.C.
|
Delaware | |
Windrose Southside Properties, Ltd.
|
Florida | |
Windrose SPE Mount Xxxxxx Properties, Inc.
|
Georgia | |
Windrose St. Louis I Properties, LLC
|
Delaware | |
Windrose St. Mary’s Medical Professional
Building, L.L.C.
|
Virginia | |
Windrose Trussville Properties, L.L.C.
|
Delaware | |
Windrose TSM I Properties, LLC
|
Delaware | |
Windrose Tucson Properties, LLC
|
Delaware | |
Windrose Tulsa Properties, L.L.C.
|
Delaware | |
Windrose Union City Properties, L.L.C.
|
Virginia | |
Windrose Xxxxxxx Properties, L.P.
|
Delaware | |
Windrose Wellington Properties, LLC
|
Delaware | |
Windrose Wellington Properties, Ltd.
|
Florida | |
Windrose West Boca Properties, Ltd.
|
Florida | |
Windrose West Seneca Properties, LLC
|
Delaware | |
Windrose West Tower Properties, Ltd.
|
Florida | |
Windrose Xxxx Way Properties, L.L.C.
|
Virginia | |
Windrose WPC Jupiter Properties, LLC
|
Delaware | |
Windrose WPC Properties, L.P.
|
Delaware | |
Windrose Yorkville Properties, L.L.C.
|
Virginia | |
WMP AWPC II Management, LLC
|
Delaware | |
WMP Bethesda Management, LLC
|
Delaware | |
WMP Boynton Beach Management, LLC
|
Delaware | |
WMP Cottonwood Management, LLC
|
Delaware | |
WMP East Valley Management, LLC
|
Delaware | |
WMP Niagara Falls Management, LLC
|
Delaware | |
WMP Northwest Professional Plaza Management, LLC |
Delaware |
State of | ||
Name of Subsidiary | Organization | |
WMP Physicians Plaza Management, LLC
|
Delaware | |
WMP Southlake Management, LLC
|
Delaware | |
WMP TSM I Management, LLC
|
Delaware | |
WMP Wellington Management, LLC
|
Delaware | |
WMP West Seneca Management, LLC
|
Delaware | |
WMPT Aberdeen I Management, L.L.C.
|
Delaware | |
WMPT Aberdeen II Management, L.L.C.
|
Delaware | |
WMPT Atrium Management, L.L.C.
|
Delaware | |
WMPT AZ-Tempe Management, LLC
|
Delaware | |
WMPT Xxxxxxxx Management, LLC
|
Delaware | |
WMPT Bellaire HP Properties, L.L.C.
|
Virginia | |
WMPT Bellaire HP, L.P.
|
Virginia | |
WMPT Bellaire L.P.
|
Virginia | |
WMPT Bellaire POB Properties, L.L.C.
|
Virginia | |
WMPT Bellaire POB, L.P.
|
Virginia | |
WMPT Bellaire Properties, L.L.C.
|
Virginia | |
WMPT Boynton West Management, LLC
|
Delaware | |
WMPT Claremore Management, LLC
|
Delaware | |
WMPT Columbia Management, L.L.C.
|
Delaware | |
WMPT Congress I Management, L.L.C.
|
Delaware | |
WMPT Congress II Management, L.L.C.
|
Delaware | |
WMPT Xxxxxx Management, LLC
|
Delaware | |
WMPT Desert Springs Management, L.L.C.
|
Delaware | |
WMPT Frisco I Management, LLC
|
Delaware | |
WMPT Frisco II Management, LLC
|
Delaware | |
WMPT Glendale Management, LLC
|
Delaware | |
WMPT Gwinnett II Properties, L.L.C.
|
Delaware | |
WMPT Lafayette Management, L.L.C.
|
Delaware | |
WMPT Las Vegas Management, LLC
|
Delaware | |
WMPT Los Alamitos Management, LLC
|
Delaware | |
WMPT Northside Management, L.L.C.
|
Delaware | |
WMPT Okatie I Management, LLC
|
Delaware | |
WMPT Orange Centre Management, LLC
|
Delaware | |
WMPT Xxxxxx Management, LLC
|
Delaware | |
WMPT Palms West III Management, L.L.C.
|
Delaware | |
WMPT Palms West IV Management, L.L.C.
|
Delaware | |
WMPT Palms West V Management, L.L.C.
|
Delaware | |
WMPT Pearland II Properties, L.L.C.
|
Virginia | |
WMPT Pearland II, L.P.
|
Virginia | |
WMPT Pearland Properties, L.L.C.
|
Virginia | |
WMPT Pearland, L.P.
|
Virginia | |
WMPT Princeton Management, L.L.C.
|
Delaware | |
WMPT Sacramento Properties, L.L.C.
|
Virginia | |
WMPT Sacramento, L.P.
|
Virginia | |
WMPT Santa Xxxxx Management, L.L.C.
|
Delaware | |
WMPT Sierra Management, L.L.C.
|
Delaware | |
WMPT Southpointe Management, L.L.C.
|
Delaware | |
WMPT Southside Management, L.L.C.
|
Delaware | |
WMPT St. Louis I Management, LLC
|
Delaware | |
WMPT Stone Oak Properties, L.L.C.
|
Virginia | |
WMPT Stone Oak, L.P.
|
Virginia | |
WMPT Tomball Properties, L.L.C.
|
Virginia | |
WMPT Tomball, L.P.
|
Virginia | |
WMPT Trinity Properties, L.L.C.
|
Virginia | |
WMPT Trinity, L.P.
|
Virginia | |
WMPT Trussville Management, L.L.C.
|
Delaware | |
WMPT Tucson Management, LLC
|
Delaware | |
WMPT Tulsa Management, L.L.C.
|
Delaware | |
WMPT Xxxxxxx Management, L.L.C.
|
Delaware | |
WMPT Wellington Management, L.L.C.
|
Delaware | |
WMPT West Boca Management, L.L.C.
|
Delaware | |
WMPT West Tower Management, L.L.C.
|
Delaware | |
WMPT WPC Jupiter Management, LLC
|
Delaware | |
WMPT WPC Management, L.L.C
|
Delaware | |
WTP Healthcare Properties, LLC
|
Delaware |