EXHIBIT 1.1
Execution Copy
3,000,000 Shares
HEALTH CARE REIT, INC.
Common Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
November 17, 2005
UBS Securities LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the “Company”), proposes to sell to UBS Securities LLC (the “Underwriter”), an aggregate of 3,000,000 shares (the “Firm Shares”) of the Company’s Common Stock, $1.00 par value per share (“Common Stock”). The Company also proposes to sell at the Underwriter’s option an aggregate of up to 450,000 additional shares of the Company’s Common Stock (the “Option Shares”) as set forth below.
As the Underwriter, you have advised the Company (a) that you are authorized to enter into this Agreement and (b) that you are willing to purchase the Firm Shares, plus such Option Shares if you elect to exercise the over-allotment option in whole or in part for your account. The Firm Shares and the Option Shares (to the extent such option is exercised) are herein collectively called the “Shares.”
In consideration of the mutual agreements contained herein and of the interests of the parties in the transactions contemplated hereby, the parties hereto agree as follows:
1. Representations and Warranties of the Company.The Company represents and warrants as follows:
(i) A registration statement on Form S-3 (File No. 333-120917) with respect to the Shares has been carefully prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations (the “Rules and Regulations”) of the Securities and Exchange Commission (the “Commission”) thereunder and has been filed with the Commission under the Securities Act. The Company has complied with the conditions for the use of Form S-3. Copies of such registration statement, including any amendments thereto, the preliminary prospectuses (meeting the requirements of Rule 430A of the Rules and Regulations) contained therein, the exhibits, financial statements and schedules, as finally amended and revised, and all documents incorporated by reference have heretofore been delivered by the Company to you. Such registration statement, herein referred to as the “Registration Statement,” which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A and contained in the Prospectus referred to below and all information incorporated by reference therein, has been declared effective by the Commission
under the Securities Act and no post-effective amendment to the Registration Statement has been filed as of the date of this Agreement; and the Registration Statement and Prospectus as referred to below comply, or will comply, as the case may be, in all material respects with the Securities Act and the Rules and Regulations. The form of prospectus first filed by the Company with the Commission pursuant to its Rule 424(b) and Rule 430A, or if no such filing is required, the form of final prospectus included in the Registration Statement at the time the Registration Statement is declared effective, is herein referred to as the “Prospectus.” Each preliminary prospectus included in the Registration Statement prior to the time it becomes effective is herein referred to as a “Preliminary Prospectus.” Any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein and any supplements or amendments thereto filed with the Commission as of the date of such Preliminary Prospectus or Prospectus, as the case may be, and in the case of any reference herein to any Preliminary Prospectus or Prospectus, also shall be deemed to include any documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the date of such Preliminary Prospectus or Prospectus, and any supplements or amendments thereto, filed with the Commission after the date of the filing of the Prospectus under Rule 424(b) or 430A, and prior to the termination of the offering of the Shares by the Underwriter. Any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus, as the case may be, shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference into such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference into the Registration Statement. Any reference to the Prospectus herein shall be deemed to include the most recent prospectus supplement filed with respect to the Shares and shall also be deemed to include any documents incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act.
(ii) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Registration Statement; the Company is duly qualified to transact business in all jurisdictions in which the conduct of its business requires such qualification, and in which the failure to qualify would (a) have a materially adverse effect upon the business of the Company and its Subsidiaries (as defined below), taken as a whole, (b) adversely affect the issuance, validity, or enforceability of the Shares or (c) adversely affect the consummation of the transactions contemplated by this Agreement (each of (a), (b) and (c) above, a “Material Adverse Effect”). All of the Company’s subsidiaries are listed in Schedule I hereto (the “Subsidiaries”).
(iii) The capitalization of the Company contained in the section of the Prospectus entitled “Capitalization” sets forth the authorized, issued and outstanding capitalization of the Company at the indicated date; all of the issued shares of capital stock of the Company have been duly authorized and validly 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; the Shares to be issued and sold by the Company have been duly authorized and when issued and paid for as contemplated herein will be validly issued, fully-paid and non-assessable; and no preemptive or similar rights of stockholders exist with respect to any of the Shares or the issue and sale thereof.
2
(iv) The shares of authorized capital stock of the Company, including the Shares, conform with the statements concerning them in the Registration Statement and the Prospectus.
(v) The Commission has not issued an order preventing or suspending the use of any Preliminary Prospectus relating to the proposed offering of the Shares nor instituted proceedings for that purpose. As of the date it became effective, the Registration Statement contained, and the Prospectus and any amendments or supplements thereto will contain, as of the time of this Agreement and as of the date the Prospectus, such amendment or supplement is filed with the Commission, all statements which are required to be stated therein by, and in all material respects conform to or will conform to, as the case may be, the requirements of the Securities Act and the Rules and Regulations of the Commission thereunder. The documents incorporated by reference in the Prospectus, at the time they were or will be filed with the Commission, as the case may be, conformed or will conform at the time of filing, in all material respects to the requirements of the Exchange Act or the Securities Act, as applicable, and the Rules and Regulations of the Commission thereunder. The Registration Statement did not, as of the date it became effective, contain, and does not as of the time of this Agreement contain, and any amendment thereto, including any documents incorporated by reference therein, will not contain, any untrue statement of a material fact and did not omit and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and any amendments or supplements thereto, as of the time of this Agreement and as of the date of the Prospectus, the date such amendment or supplement is filed with the Commission and the Closing Date and the Option Closing Date, including any documents incorporated by reference therein, do not contain and will not contain, as the case may be, any untrue statement of a material fact and do not omit and will not omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, or any documents incorporated by reference therein, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of the Underwriter, specifically for use in the preparation thereof.
(vi) The financial statements of the Company, together with related notes and schedules as set forth or incorporated by reference in the Registration Statement, present fairly the financial position and the results of operations of the Company 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. The summary financial and statistical data included or incorporated by reference in the Registration Statement present fairly 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 or 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 with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
(vii) 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, might reasonably be expected to result in any Material Adverse Effect, except as set forth in the Registration Statement.
3
(viii) 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 as owned by it), subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those reflected in such financial statements (or as described in the Registration Statement) or which are not material in amount or which do not interfere with the use made or proposed to be made of the property. The leases, agreements to purchase and mortgages to which the Company 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 might reasonably be expected to result in any Material Adverse Effect, and (b) conform to the descriptions thereof set forth in the Registration Statement. Each mortgage which the Company or any of its Subsidiaries holds on the properties described in the Registration Statement constitutes a valid mortgage lien for the benefit of the Company or its Subsidiary, as the case may be, on such property.
(ix) The Company has filed all Federal, state and foreign income tax returns which have been required to be filed and has paid all taxes indicated by said returns and all assessments received by it to the extent that such taxes have become due and are not being contested in good faith. All tax liabilities have been adequately provided for in the financial statements of the Company.
(x) Since the respective dates as of which information is given in the Registration Statement, as it may be amended or supplemented, there has not been any material adverse change or any development involving a prospective material adverse change in or affecting the condition, financial or otherwise, of the Company or the earnings, capital stock (except that Common Stock has increased due to option exercises, the Company’s dividend reinvestment program and conversions of preferred stock), business affairs, management, or business prospects of the Company, whether or not occurring in the ordinary course of business, and the Company has not incurred any material liabilities or obligations and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business and changes and transactions contemplated by the Registration Statement, as it may be amended or supplemented. The Company has no material contingent obligations which are not disclosed in the Registration Statement, as it may be amended or supplemented.
(xi) The Company is not 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 fulfillment of the terms hereof will not conflict with or constitute a violation of any statute or conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company, 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
4
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.
(xii) Each approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body necessary in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions herein contemplated (except for the filing of a prospectus supplement relating to the Shares or such additional steps as may be required by the National Association of Securities Dealers, Inc. (the “NASD”) or may be necessary to qualify the Shares for public offering by the Underwriter under state securities or Blue Sky laws) has been obtained or made by the Company, and is in full force and effect.
(xiii) The Company 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.
(xiv) The Company qualifies as a real estate investment trust pursuant to Sections 856 through 860 of the Internal Revenue Code of 1986, as amended, has so qualified for the taxable years ended December 31, 1984 through December 31, 2004 and no transaction or other event has occurred or is contemplated which would prevent the Company from so qualifying for its current taxable year.
(xv) To the best of the Company’s knowledge, Ernst & Young LLP, who have certified certain of the financial statements and related schedules filed with the Commission as part of, or incorporated by reference in, the Registration Statement, is an independent registered public accounting firm with respect to the Company as required by the Securities Act and the Rules and Regulations and the Public Company Accounting Oversight Board (the “PCAOB”).
(xvi) 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.
(xvii) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rules 13a-14 and 15d-14 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
5
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.
(xviii) 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.
(xix) To the knowledge of the Company, after inquiry of its officers and directors, there are no affiliations with any NASD member firm among the Company’s officers, directors, or principal stockholders, except as set forth in the Registration Statement or as otherwise disclosed in writing to the Underwriter.
(xx) This Agreement has been duly authorized, executed and delivered by the Company.
(xxi) Neither the Company nor any of its officers or directors has taken nor will any of them take, directly or indirectly, any action resulting in a violation of Regulation M promulgated under the Exchange Act, or designed to cause or result in, or which has constituted or which reasonably might be expected to constitute, the stabilization or manipulation of the price of the Company’s Common Stock. The Company acknowledges that the Underwriter may engage in transactions that stabilize, maintain or otherwise affect the price of the Common Stock, including stabilizing bids, syndicate covering transactions and the imposition of penalty bids.
(xxii) The Shares have been approved for listing upon official notice of issuance on the New York Stock Exchange.
(xxiii) The Company is not, and immediately after the sale of the Shares pursuant to the terms and conditions of this Agreement will not be, an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940.
2. Purchase, Sale and Delivery of the Shares.On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forth, the Company agrees to sell to the Underwriter, and the Underwriter agrees to purchase from the Company, at a price of $33.75 per Share, 3,000,000 Firm Shares.
Payment for the Firm Shares to be sold hereunder is to be made by Federal Funds wire transfer to an account designated by the Company for the Firm Shares to be sold by the Company against delivery of the Firm Shares therefor to the Underwriter. Such payment and delivery are to be made at the offices of UBS Securities LLC, 299 Park Avenue, New York, New York 10171, at 10:00 a.m., New York time, on November 22, 2005 or at such other time and date thereafter as you and the Company shall agree upon, such time and date being herein referred to as the “Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and not permitted by law or executive order to be closed). The Firm Shares will be delivered by Mellon Investor Services L.L.C. (the “Transfer Agent”) in such
6
denominations and in such registrations as the Underwriter requests 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 Underwriter at least one business day prior to the Closing Date at such place as the Underwriter, 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 Underwriter to purchase the Option Shares at the price per share as set forth in the first paragraph of this Section 2. The option granted hereby may be exercised in whole or in part by giving notice (i) at any time before the Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by the Underwriter to the Company setting forth the number of Option Shares as to which the Underwriter is exercising the option and the time and date at which such certificates are to be delivered. The time and date at which the Option Shares are to be delivered shall be determined by the Underwriter but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the “Option Closing Date”). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date. The option with respect to the Option Shares granted hereunder may be exercised only to cover over-allotments in the sale of the Firm Shares by the Underwriter. You, as the Underwriter, 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 UBS Securities LLC, 299 Park Avenue, New York, New York 10171, 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 Underwriter requests 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 Underwriter at least one business day prior to the Closing Date at such place as the Underwriter, DTC and the Company shall agree.
3. Offering by the Underwriter.It is understood that the Underwriter is to make a public offering of the Shares as soon as the Underwriter deems 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 Underwriter 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 Underwriter that:
(i) The Company will (a) prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if the final form of the prospectus is not included in the Registration Statement at the time the Registration Statement is declared effective, a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A, if applicable, of the Rules and Regulations, (b) use its best efforts to cause the Registration Statement to remain in effect as to the Shares for so long as the Underwriter may deem necessary in order to complete the distribution of the Shares, (c) not file any amendment to the Registration Statement or supplement to the Prospectus, or document incorporated by reference therein, of which the Underwriter shall not previously have been advised and furnished with a copy or to which the Underwriter shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations for so long as the
7
Underwriter may deem necessary in order to complete the distribution of the Shares and (d) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriter; provided, however, that for each such report or definitive proxy or information statement, the Company will not file any such report or definitive proxy or information statement, or amendment thereto, of which the Underwriter shall not previously have been advised and furnished with a copy or to which the Underwriter shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Underwriter promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose for so long as the Underwriter may deem necessary in order to complete the distribution of the Shares, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, and the Company will use its best efforts to prevent (a) the issuance of any such stop order preventing or suspending the use of the Prospectus, or (b) any such suspension of the qualification of the Shares for offering or sale in any jurisdiction, and to obtain as soon as possible the lifting of any such stop order, if issued, or such suspension of qualification.
(iii) The Company will deliver to, or upon the order of, the Underwriter, from time to time, as many copies of any Preliminary Prospectus as the Underwriter may reasonably request. The Company will deliver to, or upon the order of, the Underwriter during the period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriter may reasonably request. The Company will deliver to the Underwriter at or before the Closing Date, one signed copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriter such number of copies of the Registration Statement, including documents incorporated by reference therein, but without exhibits, and of all amendments thereto, as the Underwriter may reasonably request.
(iv) Subject to the provisions of Section 4(i) above, if during the period in which a prospectus is required by law to be delivered by the 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 Underwriter, 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.
(v) The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to security holders as soon as practicable an earnings statement in conformity with Rule 158 under the Securities Act for the purpose of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
8
(vi) The Company will, for a period of five years from the Closing Date, deliver to the Underwriter copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Securities Act or the Exchange Act. The Company will deliver to the Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company’s financial statements.
(vii) 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.
(viii) No offering, sale or other disposition of any Common Stock of the Company will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of the Underwriter except that the Company may, without such consent, (i) issue securities under the Company’s equity compensation plans for officers, employees, and non-employee directors described in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2004; (ii) issue shares upon the exercise of options or other stock rights issued pursuant to the Company’s equity compensation plans for officers, employees, and non-employee directors described in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2004; (iii) sell shares of Common Stock pursuant to the Amended and Restated Dividend Reinvestment and Stock Purchase Plan filed with the Commission on May 21, 2003; or (iv) issue shares of Common Stock upon conversion of any shares of 6% Series E Cumulative Convertible and Redeemable Preferred Stock outstanding as of the date hereof.
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; the fees and disbursements of counsel for the Company; the cost of printing and delivering to, or as requested by, the Underwriter, copies of the Registration Statement, Preliminary Prospectuses, the Prospectus, this Agreement, the applicable listing agreement for the New York Stock Exchange; the filing fees of the Commission; the filing fees and expenses (including legal fees and disbursements) incident to securing any required review by the NASD of the terms of the sale of the Shares; the fees incident to the listing agreement for the New York Stock Exchange. Any transfer taxes imposed on the sale of the Shares to the Underwriter will be paid by the Company. The Company shall not, however, be required to pay for any of the Underwriter’s 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 Underwriter pursuant to Section 6 hereof, or this Agreement is terminated pursuant to Section 10(i)(a) hereof, or by reason of any failure, refusal or inability on the part of the Company to perform any undertaking or satisfy any condition of this Agreement or to comply with any of the terms hereof on its part to be performed, unless such failure to satisfy said condition or to comply with said terms be due to the default or omission of the Underwriter, then the Company shall reimburse the Underwriter for reasonable out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred in connection with investigating, marketing and proposing to market the Shares or in contemplation of performing its obligations hereunder, but the Company shall not in any event be liable to the Underwriter for damages on account of loss of anticipated profits from the sale of the Shares.
6. Conditions of Obligations of the Underwriter.The obligation of the Underwriter to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date is subject to the accuracy, as of the Closing Date or the Option Closing Date, as the case may be, of the
9
representations and warranties of the Company contained herein, and to the performance by the Company of its covenants and obligations hereunder and to the following additional conditions:
(i) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated or threatened by the Commission.
(ii) The Underwriter shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Shumaker, Loop & Kendrick, LLP, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Underwriter, to the effect that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus.
(b) The Company is duly qualified to transact business in all jurisdictions in which the conduct of its business requires such qualification, and in which the failure to qualify would have a Material Adverse Effect.
(c) The capital stock of the Company contained in the section of the Prospectus entitled “Capitalization” sets forth the authorized, issued and outstanding capital stock of the Company at the indicated date; the authorized shares of its Common Stock have been duly authorized; the outstanding shares of its Common Stock have been duly authorized and validly issued and are fully paid and nonassessable; the certificates for the Shares are in due and proper form; the shares of Common Stock, including Option Shares, if any, to be sold by the Company pursuant to this Agreement have been duly authorized and will be validly issued, fully paid and non-assessable when issued and paid for as contemplated by this Agreement; and no preemptive or similar rights of stockholders exist with respect to any of the Shares or the issue and sale thereof.
(d) The Registration Statement has become effective under the 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, the Prospectus and each amendment or supplement thereto and documents incorporated by reference therein comply as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements, schedules and other financial or statistical information included or incorporated by reference therein).
(f) The statements under the caption “Description of Our Common Stock” in the Prospectus, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and correctly present in all material respects the information called for with respect to such documents and matters.
(g) The statements under the caption “Certain Government Regulations” in the Company’s Annual Report on Form 10-K, and any amendments thereto, for the fiscal
10
year ended December 31, 2004 as to matters of law stated therein, have been reviewed by such counsel and constitute fair summaries of the matters described therein which are material to the business or condition (financial or otherwise) of the Company.
(h) Such counsel does not know of any contracts or documents required to be filed as exhibits to or incorporated by reference in the Registration Statement or described in the Registration Statement or the Prospectus or any amendment or supplement thereto which are not so filed, incorporated by reference or described as required, and such contracts and documents as are summarized in the Registration Statement or the Prospectus or any amendment or supplement thereto are fairly summarized in all material respects.
(i) Such counsel knows of no material legal proceedings pending or threatened against the Company, except as set forth in the Prospectus or any amendment or supplement thereto.
(j) The execution and delivery of this Agreement and the consummation of the transactions herein contemplated, including the issuance and sale of the Shares and the performance by the Company of its obligations under this Agreement, do not and will not conflict with or constitute a violation of any statute or conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the charter or by-laws of the Company, any material agreement or instrument known to such counsel to which the Company is a party or by which the Company or the Company’s properties may be bound or any order known to such counsel or rule or regulation applicable to the Company or the Company’s properties of any court or governmental agency or body.
(k) This Agreement has been duly authorized, executed and delivered by the Company.
(l) The Shares conform in all material respects to the descriptions thereof contained in the Registration Statement 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 of this Agreement and the consummation of the transactions herein contemplated (other than (i) the filing of a prospectus supplement with the Commission and (ii) as may be required by the NASD or as required by state securities and Blue Sky laws as to which such counsel need express no opinion) except such as have been obtained or made by the Company, specifying the same.
(n) The Company is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940.
In addition, either such counsel or Arnold & Porter 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
11
account operations for its taxable and fiscal years ended December 31, 2000 through December 31, 2004, 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, 2005. Furthermore, such counsel shall opine that the statements contained under the heading “U.S. Federal Income Tax Considerations” in the Registration Statement or Prospectus and under the heading “Taxation” in the Company’s Annual Report on Form 10-K, and any amendments, for the fiscal year ended December 31, 2004 are correct and accurate in all material respects and present fairly and accurately the material aspects of the federal income tax treatment of the Company and of its stockholders.
In rendering such opinion, such counsel may rely as to matters governed by the laws of states other than the laws of State of Ohio, the corporate laws of the State of Delaware or Federal laws on local counsel in such jurisdictions, provided that in such case such counsel shall state that they believe that they and the Underwriter are justified in relying on such other counsel and such other counsel shall indicate that the Underwriter 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 Underwriter or they are not justified in relying on such certificates. In addition to the matters set forth above, the opinion of Shumaker, Loop & Kendrick, LLP shall also include a statement to the effect that nothing has come to the attention of such counsel which leads them to believe that (a) the Registration Statement or any amendment thereto, as of the time it became effective under the Securities Act, or any of the documents incorporated by reference therein, as of the date of effectiveness of the Registration Statement or, in the case of documents incorporated by reference into the Prospectus after the date of effectiveness of the Registration Statement, as of the date when such document was filed with the Commission, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (b) the Prospectus or any amendment or supplement thereto, on the date it was filed pursuant to Rule 424(b), contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (y) the Registration Statement or any amendment thereto, or any of the documents incorporated by reference therein, as of the date of effectiveness of the Registration Statement or, in the case of documents incorporated by reference into the Prospectus after the date of effectiveness of the Registration Statement, as of the date when such document was filed with the Commission, or as of the Closing Date or the Option Closing Date, as the case may be, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that such counsel need express no view as to financial statements, schedules and other financial information included therein), and (z) the Prospectus or any amendment or supplement thereto, as of the date it was filed pursuant to Rule 424(b), or as of the Closing Date or the Option Closing Date, as the case may be, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that such counsel need express no view as to financial statements, schedules and other financial information included therein). With respect to such statement, Shumaker, Loop & Kendrick, LLP, may state that this statement is based upon the procedures set forth or incorporated by reference therein, but is without independent check and verification.
(iii) The Underwriter shall have received from Calfee, Halter & Griswold LLP, counsel for the Underwriter, an opinion dated the Closing Date or the Option Closing Date, as the
12
case may be, with respect to the organization of the Company, the validity of the Shares, the Registration Statement, the Prospectus and other related matters as the Underwriter reasonably may request and such counsel shall have received such papers and information as they reasonably request to enable them to pass upon such matters.
(iv) At the time of execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a signed letter, in form and substance satisfactory to the Underwriter, dated the date hereof (a) confirming that they are an independent registered public accounting firm with respect to the Company 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, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(v) With respect to the letter of Ernst & Young LLP referred to in the preceding paragraph and delivered to the Underwriter concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Underwriter a letter, in form and substance satisfactory to the Underwriter (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 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, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letters and (c) confirming in all material respects the conclusions and findings set forth in the initial letters.
(vi) The Underwriter shall have received on the Closing Date or the Option Closing Date, as the case may be, a certificate or certificates of the Chairman of the Board and Chief Executive Officer and the President and Chief Financial Officer of the Company to the effect that as of the Closing Date or the Option Closing Date, as the case may be, each of them severally represents as follows:
(a) The Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been taken or are, to his knowledge, contemplated by the Commission.
(b) He does not know of any litigation instituted or threatened against the Company of a character required to be disclosed in the Registration Statement which is not so disclosed 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.
13
(c) He has carefully examined the Registration Statement and the Prospectus and in his opinion, as of the effective date of the Registration Statement, the statements contained in the Registration Statement, including any document incorporated by reference therein, were true and correct, and such Registration Statement and Prospectus, or any document incorporated by reference therein, did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and, in his opinion, since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement to or an amendment of the Prospectus which has not been so set forth in such supplement or amendment.
(d) The representations and warranties of the Company as set forth in this Agreement are true and correct as of the Closing Date 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. The representations and warranties made in this clause (d) shall be deemed made by the Company.
(vii) The Underwriter shall have received at or prior to the Closing Date, an agreement, in form and substance satisfactory to the Underwriter, signed by the directors and executive officers of the Company to the effect that they will not, prior to the expiration of 90 days from the date of this Agreement, offer, sell or otherwise dispose of any shares of Common Stock of the Company or any securities that the directors and executive officers has, or will have the right to acquire through the exercise of options, warrants, subscription or other rights without the prior written consent of the Underwriter, except (i) pursuant to bona fide gifts, provided that the Company shall have delivered to the Underwriter written consent to such gift, but in no event shall the gifts under this subsection (i) of the executive officers and directors exceed 75,000 shares of Common Stock in the aggregate, (ii) pursuant to routine dispositions under Rule 10b5-1 Sales Plans entered into by certain directors and officers of the Company as of or prior to the date hereof, and (iii) 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 the Underwriter written consent to such sale, but in no event shall the sales under this subsection (iii) of the executive officers and directors exceed 300,000 shares of Common Stock in the aggregate.
(viii) The Shares to be sold by the Company as of the Closing Date or the Option Closing Date, as the case may be, shall have been duly listed, subject to notice of issuance, on the New York Stock Exchange.
The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory to the Underwriter and to Calfee, Halter & Griswold LLP, counsel for the Underwriter.
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 Underwriter hereunder may be terminated by the Underwriter by notifying the Company of such termination in writing or by telecopy at or prior to the Closing Date or the Option Closing Date, as the case may be. In such event, the Company and the Underwriter 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
14
order suspending the effectiveness of the Registration Statement shall have been issued and in effect or proceedings therefor initiated or threatened.
8. Indemnification.
(i) The Company agrees to indemnify and hold harmless the Underwriter, its officers and directors, and each person, if any, who controls the Underwriter within the meaning of the Securities Act against any losses, claims, damages or liabilities to which the Underwriter or such 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, the Prospectus or any amendment or supplement thereto, (b) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in the case of the Registration Statement or any amendment thereto, or in the case of any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in light of the circumstances under which they were made, or (c) any act or failure to act, or any alleged act or failure to act by the Underwriter in connection with, or relating in any manner to, the Shares or the offering contemplated hereby, and will reimburse the Underwriter and each such controlling person for any legal or other expenses reasonably incurred by the Underwriter or such controlling person in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement, or omission or alleged omission made or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus, or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or through the Underwriter specifically for use in the preparation thereof; and provided further that as to any Preliminary Prospectus this indemnity agreement shall not inure to the benefit of the Underwriter, its officers and directors, or any person controlling the Underwriter on account of any loss, claim, damage, liability or action arising from the sale of any Shares to any person by the Underwriter if the Underwriter failed to send or give a copy of the Prospectus, as the same may be amended or supplemented, to that person within the time required by the Securities Act, and the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such Preliminary Prospectus was corrected in the Prospectus, unless such failure resulted from non-compliance by the Company with Sections 4(iii) or 4(iv). This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(ii) The Underwriter will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Securities Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject under the 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, 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, the Prospectus or any amendment or supplement thereto in the light of the circumstances under which they were made; and will
15
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 the Underwriter will be liable in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission has been made or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or through the Underwriter specifically for use in the preparation thereof. This indemnity agreement will be in addition to any liability which the 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 you in the case of parties indemnified pursuant to Section 8(i) and by the Company in the case of parties indemnified pursuant to Section 8(ii). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the fifth sentence of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent to which the indemnification obligations of the Company hereunder are applicable if (a) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request and (b) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.
16
(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 Underwriter 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 Underwriter 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 Underwriter 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 Underwriter bear to the total proceeds of the offering (the proceeds received by the Underwriter being equal to the total underwriting discounts and commissions received by the Underwriter), in each case as set forth in the table on the cover page of the Prospectus. The relative fault 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 Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and equitable if contributions pursuant to this Section 8(iv) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(iv). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to above in this Section 8(iv) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(iv), (a) the Underwriter shall not be required to contribute any amount in excess of the underwriting discounts and commissions applicable to the Shares purchased by the 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.
(v) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, the Prospectus or any supplement or amendment thereto, each party against whom contribution may be sought under this Section 8 hereby consents to the jurisdiction over any other contributing party, agrees that process issuing from such court may be served upon him or it by any other contributing party and consents to the service of such process and agrees that any other contributing party may join him or it as an additional defendant in any such proceeding in which such other contributing party is a party.
9. Notices.All communications hereunder shall be in writing and, except as otherwise provided herein, will be mailed, delivered or telecopied and confirmed as follows: if to the Underwriter, to UBS Securities LLC, 299 Park Avenue, New York, New York, 10171, Attention: Equity Capital Markets; if to the Company, to Health Care REIT, Inc., One SeaGate, Suite 1500, Toledo, Ohio 43603-
17
1475, or via fax at (419) 247-2826, Attention: George L. Chapman, Chairman of the Board and Chief Executive Officer.
10. Termination.This Agreement may be terminated by you by notice to the Company as follows:
(i) at any time prior to the Closing Date or any Option Closing Date (if different from the Closing Date and then only as to the Option Shares) if any of the following has occurred: (a) since the date 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 New York Stock Exchange, the American Stock Exchange or the NASDAQ, or in the Company’s securities on the New York Stock Exchange, shall have been suspended or materially limited (other than limitations on hours or numbers of days of trading) or minimum prices shall have been established for securities on any such exchange, (d) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your reasonable opinion materially and adversely affects or will materially or adversely affect the business or operations of the Company, (e) declaration of a banking moratorium by either federal or New York State authorities or material disruption in securities settlement or clearance services in the United States, (f) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect on the securities markets in the United States, or (g) any litigation or proceeding is pending or threatened against the Underwriter which seeks to enjoin or otherwise restrain, or seeks damages in connection with, or questions the legality or validity of this Agreement or the transactions contemplated hereby; or
(ii) as provided in Section 6 of this Agreement.
11. Successors.This Agreement has been and is made solely for the benefit of the Underwriter 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.
12. Information Provided by Underwriter.The Company and the Underwriter acknowledge and agree that the only information furnished or to be furnished by the Underwriter to the Company for inclusion in any Prospectus or Registration Statement consists of the information set forth in the seventh, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth and eighteenth paragraphs (provided that, with respect to such eighteenth paragraph, if the Underwriter maintains a website through which information relating to the sale of the Shares is provided, the Underwriter shall be deemed to have provided information through such website for purposes of this Section 12 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.
18
13. 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 the 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 the Underwriter is acting solely as an underwriter in connection with the purchase and sale of the Company’s securities. The Company further acknowledges that the Underwriter is acting pursuant to a contractual relationship created solely by this Underwriting Agreement entered into on an arm’s length basis and in no event do the parties intend that the 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 the 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 Underwriter hereby expressly disclaims any fiduciary or similar obligations to the Company, either in connection with the transactions contemplated by this Underwriting 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 Underwriter 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 Underwriter 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 Underwriter 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 Underwriting 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 Underwriter 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 Underwriter 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.]
19
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 between the Company and the Underwriter in accordance with its terms.
| | | | | |
| | Very truly yours,
HEALTH CARE REIT, INC.
| |
| | By: | /s/ George L. Chapman | |
| | Name: | George L. Chapman | |
| | Title: | Chairman and Chief Executive Officer | |
| |
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
| | | | | |
| UBS SECURITIES LLC | | |
| | | | | |
| By: | | /s/ David Gately | | |
| Name: | | David Gately | | |
| | | | | |
| | | | | |
| By: | | /s/ Keith A. Lockwood | | |
| | | | | |
| Name: | | Keith A. Lockwood | | |
20
SCHEDULE I
Schedule of Subsidiaries
| | | | | |
| | | State of Organization | | Date of |
| Name of Subsidiary | | and Type of Entity | | Organization |
| | | | | |
| HCRI Pennsylvania Properties, Inc. | | Pennsylvania corporation | | November 1, 1993 |
| HCRI Overlook Green, Inc. | | Pennsylvania corporation | | July 9, 1996 |
| HCRI Texas Properties, Inc. | | Delaware corporation | | December 27, 1996 |
| HCRI Texas Properties, Ltd. | | Texas limited partnership | | December 30, 1996 |
| Health Care REIT International, Inc. | | Delaware corporation | | February 11, 1998 |
| HCN Atlantic GP, Inc. | | Delaware corporation | | February 20, 1998 |
| HCN Atlantic LP, Inc. | | Delaware corporation | | February 20, 1998 |
| HCRI Nevada Properties, Inc. | | Nevada corporation | | March 27, 1998 |
| HCRI Southern Investments I, Inc. | | Delaware corporation | | June 11, 1998 |
| HCRI Louisiana Properties, L.P. | | Delaware limited partnership | | June 11, 1998 |
| HCN BCC Holdings, Inc. | | Delaware corporation | | September 25, 1998 |
| HCRI Tennessee Properties, Inc. | | Delaware corporation | | September 25, 1998 |
| HCRI Limited Holdings, Inc. | | Delaware corporation | | September 25, 1998 |
| Pennsylvania BCC Properties, Inc. | | Pennsylvania corporation | | September 25, 1998 |
| HCRI North Carolina Properties, LLC | | Delaware limited liability company | | December 10, 1999 |
| HCRI Massachusetts Properties, Inc. | | Delaware corporation | | March 17, 2000 |
| HCRI Massachusetts Properties Trust | | Massachusetts trust | | March 30, 2000 |
| HCRI Indiana Properties, Inc. | | Delaware corporation | | June 15, 2000 |
| HCRI Indiana Properties, LLC | | Indiana limited liability company | | June 16, 2000 |
| HCRI Holdings Trust | | Massachusetts trust | | September 11, 2000 |
| HCRI Maryland Properties, LLC | | Maryland limited liability company | | July 19, 2001 |
| HCRI Massachusetts Properties Trust II | | Massachusetts trust | | September 26, 2001 |
| HCRI Beachwood, Inc. | | Ohio corporation | | October 11, 2001 |
| HCRI Broadview, Inc. | | Ohio corporation | | October 11, 2001 |
| HCRI Westlake, Inc. | | Ohio corporation | | October 11, 2001 |
| HCRI Westmoreland, Inc. | | Delaware corporation | | October 16, 2001 |
| HCRI Wisconsin Properties, LLC | | Wisconsin limited liability company | | December 11, 2001 |
| HCRI North Carolina Properties I, Inc. | | North Carolina corporation | | January 1, 2002 |
| HCRI North Carolina Properties II, Inc. | | North Carolina corporation | | January 1, 2002 |
HCRI North Carolina Properties III,
Limited Partnership | | North Carolina limited partnership | | January 1, 2002 |
| HCRI Kentucky Properties, LLC | | Kentucky limited liability company | | January 7, 2002 |
| HCRI Mississippi Properties, Inc. | | Mississippi corporation | | March 28, 2002 |
| HCRI Illinois Properties, LLC | | Delaware limited liability company | | August 21, 2002 |
| HCRI Missouri Properties, LLC | | Delaware limited liability company | | August 21, 2002 |
| HCRI Surgical Properties, LLC | | Ohio limited liability company | | September 30, 2002 |
| HCRI Tucson Properties, Inc. | | Delaware corporation | | November 14, 2002 |
| HCRI Stonecreek Properties, LLC | | Delaware limited liability company | | June 25, 2003 |
| HCRI Cold Spring Properties, LLC | | Delaware limited liability company | | June 25, 2003 |
| HCRI Eddy Pond Properties Trust | | Massachusetts trust | | June 26, 2003 |
| HCRI Investments, Inc. | | Delaware corporation | | July 30, 2003 |
| HCRI Forest City Holdings, Inc. | | North Carolina corporation | | August 19, 2003 |
| HCRI Asheboro Holdings, Inc. | | North Carolina corporation | | August 19, 2003 |
| HCRI Smithfield Holdings, Inc. | | North Carolina corporation | | August 19, 2003 |
| | | | | |
| | | State of Organization | | Date of |
| Name of Subsidiary | | and Type of Entity | | Organization |
| HCRI Greenville Holdings, Inc. | | North Carolina corporation | | August 19, 2003 |
| HCRI Forest City Properties, LP | | North Carolina limited partnership | | August 19, 2003 |
| HCRI Asheboro Properties, LP | | North Carolina limited partnership | | August 19, 2003 |
| HCRI Smithfield Properties, LP | | North Carolina limited partnership | | August 19, 2003 |
| HCRI Greenville Properties, LP | | North Carolina limited partnership | | August 19, 2003 |
| HCRI Kirkland Properties, LLC | | Delaware limited liability company | | August 22, 2003 |
| HCRI Ridgeland Pointe Properties, LLC | | Delaware limited liability company | | August 22, 2003 |
| HCRI Drum Hill Properties, LLC | | Delaware limited liability company | | August 22, 2003 |
| HCRI Fairmont Properties, LLC | | Delaware limited liability company | | August 22, 2003 |
| HCRI Abingdon Holdings, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Gaston Place Holdings, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Gaston Manor Holdings, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Eden Holdings, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Weddington Park Holdings, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Union Park Holdings, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Concord Place Holdings, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Salisbury Holdings, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Burlington Manor Holdings, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Skeet Club Manor Holdings, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI High Point Manor Holdings, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Hickory Manor Holdings, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Statesville Place Holdings I, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Statesville Place Holdings II, Inc. | | North Carolina corporation | | September 10, 2003 |
| HCRI Abingdon Properties, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Gaston Place Properties, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Gaston Manor Properties, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Eden Properties, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Weddington Park Properties, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Union Park Properties, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Concord Place Properties, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Salisbury Properties, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Burlington Manor Properties, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Skeet Club Manor Properties, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI High Point Manor Properties, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Hickory Manor Properties, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Statesville Place Properties I, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Statesville Place Properties II, LP | | North Carolina limited partnership | | September 10, 2003 |
| HCRI Chicago Properties, Inc. | | Delaware corporation | | November 18, 2003 |
| HCRI General Properties, Inc. | | Delaware corporation | | August 5, 2004 |
| HCRI Kansas Properties, LLC | | Delaware limited liability company | | September 3, 2004 |
| HCRI Hunters Glen Properties, LLC | | Delaware limited liability company | | September 21, 2004 |
| HCRI Wilburn Gardens Properties, LLC | | Delaware limited liability company | | September 21, 2004 |
| HCRI Draper Place Properties Trust | | Massachusetts trust | | September 24, 2004 |
| HCRI Marina Place Properties Trust | | Massachusetts trust | | September 24, 2004 |
| HCRI Tennessee Properties, LLC | | Delaware limited liability company | | November 12, 2004 |
| HH Florida, LLC | | Delaware limited liability company | | November 23, 2004 |
| HCRI New Hampshire Properties, LLC | | Delaware limited liability company | | May 24, 2005 |
| HCRI Dayton Place — Denver Properties, LLC | | Delaware limited liability company | | May 24, 2005 |
| HCRI Crowne Pointe Properties, LLC | | Delaware limited liability company | | November 10, 2005 |
| HCRI Villa Angela Properties, LLC | | Delaware limited liability company | | November 10, 2005 |
| HCRI Oakpointe Properties, LLC | | Delaware limited liability company | | November 10, 2005 |
| HCRI Canterbury Villa Properties, LLC | | Delaware limited liability company | | November 10, 2005 |
