BY-LAWS
OF
HEALTH CARE REIT, INC.
(hereinafter called the "Corporation")
as of May 18, 1994
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of
the Corporation shall be in the City of Wilmington, County of New
Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have
offices in Toledo, Ohio, and at such other places both within and
without the State of Delaware as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the
stockholders for the election of directors or for any other purpose
shall be held in the City of Toledo, Ohio, or at such place, either
within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the
notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual Meetings. Annual Meetings of
Stockholders shall be held on such date and at such time as shall
be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the
stockholders shall elect a Board of Directors and transact such
other business as may properly be brought before the meeting.
Written notice of the Annual Meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to
vote at such meeting not less than twenty nor more than sixty days
before the date of the meeting. At each Annual Meeting, the Chief
Executive Officer or any other person appointed by the Board of
Directors in his absence shall report on the business and
operations of the Corporation and present a statement of the
financial condition of the Corporation as of the close of the
fiscal year next preceding such Annual Meeting. Any appropriate
business may be conducted at an Annual Meeting.
Section 3. Quorum. Except as otherwise provided by law
or by the Certificate of Incorporation, the holders of a majority
of the capital stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such a quorum shall not be
present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or
represented, any business may be transacted that might have been
transacted at the meeting as originally noticed. If the
adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 4. Voting. Unless otherwise required by law,
the Certificate of Incorporation or these By-Laws, any question
brought before any meeting of stockholders shall be decided by the
vote of the holders of a majority of the stock represented and
entitled to vote thereat. Each stockholder represented at a
meeting of stockholders shall be entitled to cast one vote for each
share of the capital stock entitled to vote thereat held by such
stockholder. Such votes may be cast in person or by proxy but no
proxy shall be voted on or after three years from its date, unless
such proxy provides for a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at
a meeting of stockholders, in his discretion, may require that any
votes cast at such meeting shall be cast by written ballot.
Section 5. List of Stockholders Entitled to Vote. The
officer of the Corporation who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder for any purpose
germane to the meeting during ordinary business hours for a period
of at least ten days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at
the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder of the
Corporation who is present.
Section 6. Stock Ledger. The stock ledger of the
Corporation shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list
required by Section 5 of this Article II, or the books of the
Corporation, or entitled to vote in person or by proxy at any
meeting of stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board
of Directors shall consist of not less than three (3) nor more than
fifteen (15) members, the exact number of which shall be fixed from
time to time by affirmative vote of a majority of the entire Board
of Directors, and such exact number shall be nine (9) until
otherwise determined by resolution adopted by affirmative vote of
a majority of the entire Board of Directors.
Section 2. Independent Directors. At least two of the
directors shall be Independent Directors as hereinafter defined.
Among other duties specified herein or by resolution of the Board
of Directors, the Independent Directors shall review policies of
the Board of Directors on investments and borrowing and shall
monitor the administrative procedures, investment operations and
performance of the Corporation and the Manager (as hereinafter
defined) to assure that such policies are carried out. The
Independent Directors shall fulfill their review and monitoring
function by reviewing, monitoring and making recommendations to the
Board of Directors with respect to the matters specified as
responsibilities or duties of the Board of Directors in Articles
VII and VIII hereof.
Section 3. Classification of the Board. The Board of
Directors shall be divided into three classes, to be known as Class
I, Class II and Class III, respectively, of at least one (1)
director each, with each class to be as nearly equal in number as
the then total number of directors constituting the entire Board of
Directors permits, with the term of office of one class expiring in
each year. At each Annual Meeting of Stockholders, the successors
to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding
Annual Meeting, or until their successors are elected and
qualified.
Section 4. Election of Directors. Directors shall be
elected at the Annual Meeting of Stockholders, but when the Annual
Meeting is not held or directors are not elected thereat, they may
be elected at a Special Meeting called and held for that purpose.
Such election shall be by ballot whenever requested by any
stockholder entitled to vote at such election; but, unless a
request is made, the election may be conducted in any manner
approved at such meeting. At each meeting of stockholders for the
election of directors the persons receiving the greatest number of
votes shall be directors. In order to serve as a director of the
Corporation, persons need to be the beneficial owner of at least
100 shares of the Corporation's Common Stock.
Section 5. Nomination of Directors. Nominations for the
election of directors may be made by the Board of Directors or by
any stockholder entitled to vote for the election of directors.
Any nominations by stockholders shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than fourteen
(14) days nor more than ninety (90) days prior to any meeting of
the stockholders called for the election of directors. Such notice
of nomination shall set forth (i) the name, age, business address
and, if known, residence address of each nominee proposed in such
notice, (ii) the principal occupation or employment of each such
nominee, and (iii) the number of shares of stock of the Corporation
that are beneficially owned by each such nominee. The Chairman of
a meeting for election of directors may, if the facts warrant,
determine and declare to the meeting that a nomination was not made
in accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 6. Vacancies. Any vacancies in the Board of
Directors for any reason, and any newly created directorships
resulting from any increase in the number of directors, may be
filled by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, or by a sole
remaining director, provided, however, that an Independent Director
vacancy shall be filled by a majority of the Independent Directors
then in office or by a sole remaining Independent Director. Any
directors so chosen shall hold office until the next election of
the class for which such directors shall have been chosen and until
their successors shall be elected and qualified. If there are no
directors in office, then an election of directors may be held in
the manner provided by statute. No decrease in the number of
directors shall shorten the term of any incumbent director. A
director may be removed from office only for good cause upon the
affirmative vote of the Board of Directors or holders of at least
a majority of the shares of capital stock of the Corporation,
issued, outstanding and entitled to vote. As used in this section,
good cause shall mean conviction of a felony by a court of
competent jurisdiction, or negligence or misconduct in the
performance of a duty to the Corporation in a matter of substantial
importance to the Corporation.
Section 7. Duties and Powers. The business of the
Corporation shall be managed by or under the direction of the Board
of Directors, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these By-Laws directed or
required to be exercised or done by the stockholders.
Section 8. Meetings. The Board of Directors of the
Corporation may hold meetings, both regular and special, either
within or without the State of Delaware. Regular meetings of the
Board of Directors may be held without notice at such time and at
such place as may from time to time be determined by the Board of
Directors. There shall be at least four (4) regular meetings each
year. Special meetings of the Board of Directors may be called by
the Chairman, if there be one, the President, the Secretary, or any
three of the directors. Notice thereof stating the place, date and
hour of the meeting shall be given to each director not less than
three (3) days before the meeting.
Section 9. Quorum. Except as may be otherwise
specifically provided by law, the Certificate of Incorporation or
these By-Laws, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business at all meetings
of the Board of Directors, and the act of a majority of the
directors present at any meeting at which there is a quorum shall
be the act of the Board of Directors. If a quorum shall not be
present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall
be present.
Section 10. Actions of the Board. Unless otherwise
provided by the Certificate of Incorporation or these By-Laws, any
action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without
a meeting if all the members of the Board of Directors or
committee, as the case may be, consent thereto in writing. Any
such writing or writings shall be filed with the minutes of
proceedings of the Board of Directors or committee.
Section 11. Meetings by Means of Conference Telephone.
Unless otherwise provided by the Certificate of Incorporation or
these By-Laws, members of the Board of Directors of the
Corporation, or any committee designated by the Board of Directors,
may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and participation
in a meeting pursuant to this Section 11 shall constitute presence
in person at such meeting.
Section 12. Committees. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors,
designate one or more committees, each committee to consist of two
or more of the directors of the Corporation. All of the members of
the Audit Committee of the Board of Directors shall be Independent
Directors, as hereinafter defined. Subject to the foregoing, the
Board of Directors may designate one or more directors as alternate
members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the
absence of a designation by the Board of Directors of any alternate
member to replace the absent or disqualified member, the member or
members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member.
Any committee, to the extent allowed by law, shall have and may
exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation as
specified in the resolution establishing such committee. Each
committee shall keep regular minutes or make reports to the Board
of Directors when required.
Section 13. Compensation. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors and a stated annual sum for
service as director. Members of special or standing committees may
be allowed like compensation for such additional service. No such
payment shall preclude any director from serving the Corporation in
any other capacity and receiving compensation therefor. Such
services may include, but are not limited to, service as an officer
of the Corporation, legal or other professional services, mortgage
servicing, or services as an insurance broker, transfer agent, or
underwriter.
Section 14. Interested Directors. No contract or
transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in
which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of
Directors or committee thereof that authorizes the contract or
transaction, or solely because his or their votes are counted for
such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee,
and the Board of Directors or committee in good faith determines
that the contract or transaction is fair and reasonable to
stockholders of the Corporation and authorizes or ratifies the
contract or transaction by the affirmative votes of a majority of
the members of the entire Board of Directors or committee who do
not have any interest in such transaction, even though the
disinterested directors or committee members be less than a quorum;
or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, the contract or
transaction is specifically approved or ratified in good faith by
vote of the stockholders, and the contract or transaction is fair
and reasonable as to the Corporation and the stockholders as of the
time it is approved or ratified by the stockholders. Interested
directors may be counted in determining the presence of a quorum at
a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation
shall be chosen by the Board of Directors and shall be a Chairman
of the Board of Directors, a President, a Secretary and a
Treasurer. The Board of Directors, in its discretion, may also
choose one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may
be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these By-Laws. The officers of the
Corporation need not be stockholders of the Corporation nor, except
in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election. The Board of Directors at its
first meeting held after each Annual Meeting of Stockholders shall
elect the officers of the Corporation who shall hold their offices
for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of
Directors; and all officers of the Corporation shall hold office
until their successors are chosen and qualified, or until their
earlier resignation or removal. Any officer elected by the Board
of Directors may be removed at any time by the affirmative vote of
a majority of the Board of Directors. Any vacancy occurring in any
office of the Corporation shall be filled by the Board of
Directors. The salaries of all officers of the Corporation shall
be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation.
Powers of attorney, proxies, waivers of notice of meeting, consents
and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the
Corporation by the Chairman of the Board, the President, or any
Vice President. Any such officer may, in the name of and on behalf
of the Corporation, take all such action as any such officer may
deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation, partnership, trust or other
entity in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the
owner thereof, the Corporation might have exercised and possessed
if present. The Board of Directors may, by resolution, from time
to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The
Chairman of the Board of Directors shall preside at all meetings of
the stockholders and of the Board of Directors. He shall be the
Chief Executive Officer of the Corporation and have general
supervision of the business of the Corporation. He shall see that
all orders and resolutions of the Board of Directors are carried
into effect and shall possess the power to sign all contracts,
certificates and other instruments of the Corporation which may be
authorized by the Board of Directors. The Chairman of the Board of
Directors shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by
these By-Laws or by the Board of Directors.
Section 5. President. The President shall, subject to
the control of the Board of Directors and the Chairman of the Board
of Directors, have general supervision of the operations of the
Corporation and shall see that all orders and resolutions of the
Board of Directors and the Chairman of the Board are carried into
effect. In the absence or disability of the Chairman of the Board
of Directors, or if there be none, the President shall preside at
all meetings of the stockholders and the Board of Directors. If
there be no Chairman of the Board of Directors, the President shall
be the Chief Executive Officer of the Corporation. The President
shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these By-Laws
or by the Board of Directors.
Section 6. Vice-Presidents. In the absence or
disability of the President and at the request of the Chairman of
the Board of Directors, the Vice-President or the Vice-Presidents
if there is more than one (in the order designated by the Board of
Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the
restrictions upon the President. Each Vice-President shall perform
such other duties and have such other powers as the Board of
Directors or the Chairman of the Board of Directors from time to
time may prescribe. If there be no Vice-President, the Board of
Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or
refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of stockholders
and record all the proceedings thereat in a book or books to be
kept for that purpose. The Secretary shall also perform like
duties for the standing committees when requested. The Secretary
shall give, or cause to be given, notice of all meetings of the
stockholders and meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of
Directors or Chairman of the Board of Directors, under whose
supervision he shall be. If the Secretary shall be unable or shall
refuse to cause to be given notice of all meetings of the
stockholders and meetings of the Board of Directors, and if there
be no Assistant Secretary, then either the Board of Directors or
the Chairman of the Board of Directors may choose another officer
to cause such notice to be given. The Secretary shall have custody
of the seal of the Corporation, if any, and the Secretary or any
Assistant Secretary, if there be one, shall have authority to affix
the same to any instrument requiring it and when so affixed, it may
be attested by the signature of the Secretary or by the signature
of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the
Corporation, if any, and to attest the affixing by his signature.
The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the
custody of the corporate funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other
valuable effects in the name and to the credit of the Corporation
in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the
Chairman of the Board of Directors and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires,
an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board
of Directors, the Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office,
of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to
the Corporation.
Section 9. Assistant Secretaries. Except as may be
otherwise provided in these By-Laws, Assistant Secretaries, if
there be any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of
Directors, the Chairman of the Board of Directors, the President,
any Vice-President, if there be one, or the Secretary, and in the
absence of the Secretary or in the event of his disability or
refusal to act, shall perform the duties of the Secretary, and when
so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers,
if there be any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of
Directors, the Chairman of the Board of Directors, the President
and Vice-President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of his disability or
refusal to act, shall perform the duties of the Treasurer, and when
so acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer. If required by the Board of
Directors, an Assistant Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his
control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the
Board of Directors may choose shall perform such duties and have
such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any
other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock
in the Corporation shall be entitled to have a certificate signed,
in the name of the Corporation (i) by the Chairman of the Board of
Directors, the President or a Vice-President and (ii) by the
Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of
shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is
countersigned by (i) a transfer agent other than the Corporation or
its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by
the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors
may direct a new certificate to be issued in place of any
certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of
such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board
of Directors shall require and/or to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these By-Laws.
Transfers of stock shall be made on the books of the Corporation
only by the person named in the certificate or by his attorney
lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be cancelled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation
may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or entitled
to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be
more than sixty days nor less than twenty days before the date of
such meeting of stockholders, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board
of Directors may fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be
entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends and to vote
as such owner, and shall be entitled to hold liable for calls and
assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any
other person, whether or not the Corporation shall have express or
other notice thereof, except as otherwise provided by law.
ARTICLE VI
RESTRICTIONS ON ISSUANCE AND TRANSFER OF STOCK
Section 1. Limit on Stock Ownership. No person may own
more than 9.8% of the outstanding shares of the Corporation's
Common Stock (the "Limit"), and no Securities, as defined herein,
may be issued or transferred to any person if, following such
issuance or transfer, such person's ownership of Common Stock would
exceed the Limit. For purposes of computing the Limit, Convertible
Securities, as defined herein, owned by such person shall be
treated as if the Convertible Securities had been converted into
shares of Common Stock.
Section 2. Transfers in Excess of the Limit. If any
Securities in excess of the Limit are issued or transferred to any
person in violation of Section 1 hereof (the "Excess Securities"),
such issuance or transfer shall be valid only with respect to such
amount of Securities as does not result in a violation of Section
1 hereof, and such issuance or transfer shall be null and void with
respect to such Excess Securities. If the last clause of the
foregoing sentence is determined to be invalid by virtue of any
legal decision, statute, rule or regulation, such person shall be
conclusively deemed to have acted as an agent on behalf of the
Corporation in acquiring the Excess Securities to hold such Excess
Securities on behalf of the Corporation. As the equivalent of
treasury securities for such purposes, the Excess Securities shall
not be entitled to any voting rights, shall not be considered to be
outstanding for quorum or voting purposes, and shall not be
entitled to receive dividends, interest or any other distribution
with respect to such securities. Any person who receives
dividends, interest or any other distribution in respect of Excess
Securities shall hold the same as agent for the Corporation and for
the transferee of the Excess Securities following a permitted
transfer.
Section 3. Transfers of Excess Securities.
Notwithstanding anything herein to the contrary, any holder of
Excess Securities may transfer the same (together with any
distributions thereon) to any person who, following such transfer,
would not own shares of Common Stock in excess of the Limit. Upon
such a permitted transfer, the Corporation shall pay or distribute
to the transferee any distributions on the Excess Securities not
previously paid or distributed.
Section 4. Definitions. For purposes of this Article:
(a) "Person" includes an individual, corporation, partner-
ship, association, joint stock company, trust, unincorporated
association or other entity.
(b) "Convertible Securities" means any securities of the
Corporation that are convertible into, or afford rights to
purchase, shares of Common Stock.
(c) "Securities" means shares of Common Stock and Convertible
Securities.
(d) "Ownership" means beneficial ownership determined on the
basis of the beneficial ownership rules applicable under the
Securities Exchange Act of 1934, as amended, or such other basis as
the Board of Directors reasonably determines to be appropriate to
effectuate the purposes hereof.
Section 5. Additional Restrictions. Notwithstanding
anything herein to the contrary, the Corporation and its transfer
agent may refuse to transfer any shares, passing either by
voluntary transfer, by operation of law, or under the last will and
testament of any stockholder, if such transfer would or might, in
the opinion of the Board of Directors or counsel to the
Corporation, disqualify the Corporation as a Real Estate Investment
Trust under the Internal Revenue Code. Nothing herein contained
shall limit the ability of the Corporation to impose or to seek
judicial or other imposition of additional restrictions if deemed
necessary or advisable to preserve the Corporation's tax status as
a qualified Real Estate Investment Trust.
Section 6. Certificate Legend. All certificates
representing Securities of the Corporation within the meaning of
this Section shall, if deemed necessary by the Board of Directors,
be marked with a legend sufficient under the laws of the State of
Delaware to provide a purchaser of such Securities with notice of
the restrictions on transfer under this Article VI.
Section 7. Invalidity of Provisions. If any provision
of this Article or any application of any such provision is
determined to be invalid by any federal or state court having
jurisdiction over the issue, the validity of the remaining
provisions shall not be affected and other applications of such
provision shall be affected only to the extent necessary to comply
with the determination of such court.
ARTICLE VII
INVESTMENT POLICY AND RESTRICTIONS
Section 1. Investment of Funds. It shall be the policy
of the Board of Directors to invest the major portion of the funds
of the Corporation (excluding funds used for compensating deposit
balances with lending banks and for working capital purposes) in
entire or participating interests in real property, mortgage loans,
and other Real Estate Assets, as hereinafter defined, and loans
arising out of the development or ownership of real estate and Real
Estate Assets.
Section 2. Investment Policy. The prospectus relating
to each offering of securities of the Corporation shall contain a
statement in reasonable detail of the investment policies and
objectives of the Corporation and an explanation of the borrowing
policies of the Corporation. The Board of Directors shall review
the investment policies of the Corporation with sufficient
frequency and at least annually to determine that the policies
being followed by the Corporation at any time are in the best
interests of its stockholders. Each such determination and the
basis therefor shall be set forth in the minutes of the Board of
Directors.
Section 3. Limitations on Transactions. The Corporation
shall not:
(a) Invest more than 10% of its total assets in Unimproved
Real Property, as hereinafter defined, or mortgage loans on
Unimproved Real Property.
(b) Invest in commodities or commodity future contracts.
Such limitation is not intended to apply to interest rate,
financial instrument, or market index futures or options, when used
solely for hedging purposes.
(c) Invest in junior mortgage loans unless, by appraisal or
other method that the Board of Directors select, (i) the capital
invested in any such mortgage loan is adequately secured on the
basis of the equity of the borrower in the property underlying such
investment and the ability of the borrower to repay the mortgage
loan, or (ii) such mortgage loan of the Corporation is a financing
device entered into by the Corporation to establish the priority of
its capital investment over the capital of others who are investing
with the Corporation in a real estate project. The Board of
Directors shall determine that any such junior mortgage loan is not
and may not be made subordinate to a mortgage held by the Manager,
an affiliate of the Manager, as hereinafter defined, or a director
of the Corporation.
(d) Issue debt securities unless the historical debt service
coverage (in the most recently completed fiscal year) as adjusted
for known changes is sufficient to properly service the higher
level of debt.
(e) Have aggregate borrowings, secured and unsecured, that
are unreasonable in relation to the Net Assets of the Corporation,
as hereinafter defined. Borrowings of the Corporation shall be
reviewed by the Board of Directors at least quarterly. The maximum
amount of such borrowings in relation to the Net Assets shall, in
the absence of a satisfactory showing that a higher level of
borrowing is appropriate, not exceed 400%. Any excess in borrowing
over such 400% level shall be approved by the Board of Directors
and disclosed to stockholders in the next quarterly report of the
Corporation along with justification for such excess.
(f) Pay more than the fair market value, as determined by the
Board of Directors, for any real property acquired by the
Corporation unless specifically approved by the Board of Directors.
In cases in which the Board of Directors so specify, such fair
market value shall be determined by a qualified independent real
estate appraiser selected by the Board of Directors.
Section 4. Permissible Remedies. Notwithstanding any
provision in these By-Laws to the contrary, when an obligor to the
Corporation is in default under the terms of any obligation to the
Corporation, the Board of Directors shall have the power to pursue
any remedies permitted by law that, in its sole discretion, are in
the interests of the Corporation, and the Board of Directors shall
have the power to enter into any necessary investment, commitment,
or obligation of the Corporation resulting from the pursuit of such
remedies or necessary or desirable to dispose of property acquired
in the pursuit of such remedies.
Section 5. Income Tax Status. It shall be the policy of
the Board of Directors that the Corporation shall qualify as a Real
Estate Investment Trust under the Internal Revenue Code. Anything
herein to the contrary notwithstanding, however, the Board of
Directors makes no commitment or representation that the
Corporation will qualify in any given year for the dividends paid
deduction permitted by the Internal Revenue Code and the rules and
regulations thereunder pertaining to the Real Estate Investment
Trusts. The failure of the Corporation to qualify as a Real Estate
Investment Trust under the Internal Revenue Code shall not render
the directors or officers of the Corporation liable to the
stockholders or to any other person.
ARTICLE VIII
THE MANAGER
Section 1. The Manager. In the exercise of its absolute
control and management of all assets of the Corporation, the Board
of Directors may contract for the services of a manager (the
"Manager") to advise it with respect to investing or reinvesting
the funds of the Corporation in Real Estate Assets, real property
interests or other securities and investments, or to direct or
perform the day-to-day business affairs of the Corporation, whether
directly or through a subcontractor. It shall be the duty of the
Board of Directors to evaluate the performance of the Manager
before entering into or renewing a contract therewith. The
criteria used in such evaluation shall be reflected in the minutes
of the Corporation. Each contract for the services of a Manager
entered into by the Board of Directors shall have a term of no more
than one year. Each management contract shall be terminable by the
Board of Directors or the Manager on Sixty (60) days written notice
without cause. In the event of the termination of such contract,
the Manager will cooperate with the Corporation and take all
reasonable steps requested to assist the Board of Directors in
making an orderly transition of the management function. The Board
of Directors shall determine that any Manager possesses sufficient
qualifications (i) to perform the management function for the
Corporation and (ii) to justify the compensation specified under
its contract with the Corporation.
Section 2. Supervision and Compensation of Manager. The
Board of Directors shall determine from time to time and at least
annually that the compensation under the Corporation's contract
with the Manager is reasonable in relation to the nature and
quality of services performed. The Board of Directors shall also
supervise the performance of the Manager to determine that the
provisions of such contract are being carried out. Each
determination of the reasonableness of the Manager's compensation
shall be based on the factors set forth below and such other
factors that the Board of Directors may deem relevant, and the
findings of the Board of Directors on each of such factors shall be
recorded in the minutes of the Board of Directors:
(a) The size of the management fee in relation to the size,
composition and profitability of the portfolio of the Corporation;
(b) The success of the Manager in generating opportunities
that meet the investment objectives of the Corporation;
(c) The rates charged to other Real Estate Investment Trusts
and to other investors by advisors performing similar services;
(d) Additional revenues realized by the Manager and its
affiliates through their relationship with the Corporation,
including loan administration, underwriting or broker commissions,
servicing, engineering, inspection and other fees, whether paid by
the Corporation or by others with whom the Corporation does
business;
(e) The quality and extent of service and advice furnished by
the Manager; and
(f) The performance of the investment portfolio of the
Corporation, including income, conservation or appreciation of
capital, frequency of problem investments and competence in dealing
with distress situations.
Section 3. Limitation on Aggregate Expenses of the
Corporation.
(a) The Board of Directors shall determine from time to time,
but at least annually, whether the total fees and expenses of the
Corporation are reasonable in light of the investment experience of
the Corporation, its Net Assets, its Net Income, as hereinafter
defined, and the fees and expenses of comparable real estate
managers. Such determinations shall be reflected in the minutes of
the Board of Directors.
(b) The Total Operating Expenses of the Corporation shall (in
the absence of a satisfactory showing to the contrary) be deemed to
be excessive if they exceed in any fiscal year the greater of 2% of
its Average Invested Assets or 25% of its Net Income for such year.
The Board of Directors shall have the responsibility of limiting
such expenses to amounts that do not exceed such limitation unless
the Board of Directors finds that, based on unusual or non-
recurring factors that they deem sufficient, a higher level of
expenses is justified. Any such finding and the reasons in support
thereof shall be reflected in the minutes of the Board of
Directors.
(c) Within 60 days after the end of any fiscal quarter of the
Corporation for which Total Operating Expenses (for the twelve (12)
months then ended) exceeded 2% of Average Invested Assets or 25% of
the Net Income, whichever is greater, there shall be sent to the
stockholders of the Corporation a written disclosure of such fact,
together with an explanation of the factors the Board of Directors
considered in arriving at the conclusion that such higher operating
expenses were justified.
(d) In the event the Board of Directors determines that such
excess expenses are not justified, the Manager shall reimburse the
Corporation at the end of the twelve month period the amount by
which the aggregate annual expenses paid or incurred by the
Corporation exceed the limitations herein provided.
(e) The Corporation shall also disclose to its stockholders
quarterly (i) the ratio of the costs of raising equity capital
during the quarter to the amount of equity capital raised, and (ii)
the aggregate amount of management and other fees paid to the
Manager and all affiliated persons of the Manager by the
Corporation and by third parties doing business with the
Corporation.
ARTICLE IX
BUSINESS COMBINATIONS
Section 1. Vote Requirement. In addition to any vote
otherwise required by law, the Certificate of Incorporation, or
these By-Laws, a Business Combination, as defined herein, shall
require the affirmative vote of the holders of at least seventy-
five percent (75%) of the voting power of the then outstanding
shares of capital stock of the Corporation entitled to vote
generally in the election of directors (the "Voting Stock"), voting
together as a single class.
Section 2. Exceptions. The provisions of Section 1 of
this Article IX shall not apply to any Business Combination if:
(a) The Corporation is at the time of the consummation of the
Business Combination, and at all times throughout the preceding
twelve months has been, directly or indirectly, the beneficial
owner of a majority of each class of the outstanding Equity
Securities, as defined herein, of the Interested Stockholder, as
defined herein, that is a party to such transaction; or
(b) Such Business Combination has been approved by a majority
of the Board of Directors who, at the time such approval is given,
were not Affiliates, as defined herein, or nominees of the
Interested Stockholder and were either members of the Board of
Directors prior to the time that the Interested Stockholder became
an Interested Stockholder (the "Continuing Directors") or were
successors of Continuing Directors on the recommendation of a
majority of Continuing Directors then on the Board of Directors; or
(c) Both of the following conditions have been met:
(i) The aggregate amount of the cash and the Fair Market
Value, as defined herein, of consideration other than cash to be
received per share by holders of Voting Stock in such Business
Combination shall be at least equal to the highest per share price
(including any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Stockholder for any shares of
Voting Stock acquired by it (1) within the two-year period
immediately prior to the first public announcement of the proposal
of the Business Combination or (2) in the transaction in which it
became an Interested Stockholder, whichever is higher; and
(ii) The consideration to be received by holders of a
particular class of outstanding Voting Stock shall be in cash or in
the same form as the Interested Stockholder previously paid for
shares of such Voting Stock. If the Interested Stockholder paid
for shares of any class of Voting Stock with varying forms of
consideration, the form of consideration to be paid by the
Interested Stockholder for such class of Voting Stock shall be
either cash or the form used to acquire the largest number of
shares of such class of Voting Stock previously acquired by the
Interested Stockholder.
Section 3. Definitions. For purposes of this
Article IX:
(a) A "Business Combination" shall mean:
(i) Any merger or consolidation of the Corporation with
or into (1) any Interested Stockholder (as hereinafter defined) or
(2) any other corporation or entity (whether or not itself an
Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an
Interested Stockholder; or
(ii) Any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
transactions) to or with any Interested Stockholder or an Affiliate
of any Interested Stockholder of substantially all assets of the
Corporation; or
(iii) Any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation or any
other transaction (whether or not with or into or otherwise
involving an Interested Stockholder) that has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of Equity Securities of the
Corporation that is directly or indirectly owned by any Interested
Stockholder or any Affiliate of any Interested Stockholder; or
(iv) The adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on
behalf of an Interested Stockholder or any Affiliate of any
Interested Stockholder.
(b) "Interested Stockholder" shall meanany individual, firm,
corporation (other than the Corporation) or other entity which, as
of the record date for the determination of stockholders entitled
to notice of and to vote on any of the transactions described in
clauses (i) through (iv) of subsection (a) of this Section 3, or
immediately prior to the consummation of any such transaction, is
the beneficial owner of five percent (5%) or more of the
outstanding Voting Stock.
(c) "Beneficial Owner" or "beneficially owned" shall have the
meaning set forth in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). The Board of Directors
of the Corporation shall have the power and duty to determine for
purposes of this Article, on the basis of information then known to
it, whether any person is a beneficial owner of 5% or more of the
outstanding Voting Stock.
(d) "Affiliate" or "Associate" shall have the meanings set
forth in Rule 405 under the Securities Act of 1933, as amended.
(e) "Fair Market Value" shall mean the fair market value of
such property on the date in question as determined by the Board of
Directors in good faith.
(f) "Equity Securities" shall have the meaning specified in
Rule 13a11 1 under the Exchange Act.
ARTICLE X
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock
of the Corporation, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors at
any regular or special meeting, and may be paid in cash, in
property, or in shares of the capital stock. Before payment of any
dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board
of Directors from time to time, in its absolute discretion, deems
proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property
of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for
money and notes of the Corporation shall be signed by such officer
or officers or such other person or persons as the Board of
Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the
Corporation shall be a calendar year unless otherwise fixed by
resolution of the Board of Directors.
Section 4. Corporate Name. The name "Health Care REIT"
is the property of First Toledo Corporation (hereinafter referred
to as "FTC") and is licensed to the Corporation in consideration of
FTC acting as manager for the Corporation. Should FTC or its
successor by reorganization or merger, or a wholly owned subsidiary
of FTC, cease to act as Manager for the Corporation, then the Board
of Directors shall, upon the request of FTC, immediately eliminate
from the Corporate name the words "Health Care REIT" or any
approximation thereof.
Section 5. Books and Records. The books and records of
the Corporation may be kept in Toledo, Ohio (subject to any
provision of law or the Certificate of Incorporation), or within or
without the State of Delaware, at such place or places as may be
designated from time to time by the Board of Directors of the
Corporation.
Section 6. Notices. Whenever written notice is required
by law, the Certificate of Incorporation or these By-Laws, to be
given to any director, member of a committee or stockholder, such
notice may be given by mail, addressed to such director, member of
a committee or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such
notice shall be deemed to be given at the time when the same shall
be deposited in the United States mail. Written notice may also be
given personally or by telegram, telex or cable. Whenever any
notice is required by law, the Certificate of Incorporation or
these By-Laws, to be given to any director, member of a committee
or stockholder, a waiver thereof in writing, signed by the person
or persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent thereto.
ARTICLE XI
INDEMNIFICATION
To the extent permitted by The General Corporation Law of
Delaware as the same exists or may hereafter be enacted or amended,
the Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is
or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee, trustee, partner or agent of another corporation,
partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement, actually and reasonably incurred by him in
connection with such action, suit or proceeding.
ARTICLE XII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or
repealed, in whole or in part, or new By-Laws may be adopted by the
stockholders or by the Board of Directors, provided, however, that
notice of such alteration, amendment, repeal or adoption of new By-
Laws be contained in the notice of such meeting of stockholders or
Board of Directors as the case may be. Any amendment by the Board
of Directors must be approved by a majority of the entire Board of
Directors then in office, provided that the approval of a majority
of the entire number of Independent Directors then in office shall
be required as well if the proposed amendment affects any of the
duties or responsibilities of Independent Directors specified in
these By-Laws. All such amendments by the stockholders must be
approved by holders of capital stock having a majority of the
voting power of all outstanding capital stock of the Corporation
voting together as a single class, provided that any amendment by
the stockholders to Article III, Sections 1, 3 and 6, of these By-
Laws (concerning the number of directors, classification of the
Board of Directors and vacancies in the Board of Directors,
including removal of directors), Article VI of these By-Laws
(concerning restrictions on issuance and transfer of stock) or
Article IX of these By-Laws (concerning business combinations) must
be approved by holders of capital stock having 75% of the voting
power of all outstanding capital stock of the Corporation, voting
together as a single class.
ARTICLE XIII
DEFINITIONS
Section 1. Definitions. As used herein, the following
terms shall have the following meanings where the context admits:
(a) "Average Invested Assets" for any period shall mean the
average of the aggregate book value of the assets of the
Corporation invested, directly or indirectly, in (i) Real Estate
Assets and (ii) equity interests in and loans secured by real
estate, before allowances for doubtful amounts or allowances to
reduce certain leases to option prices or other similar non-cash
allowances; as determined by generally accepted accounting
principles computed by taking the average of such values at the end
of each month during such period.
(b) "Entire Board of Directors" shall mean the total number
of directors that the Corporation would have if there were no
vacancies.
(c) "Independent Director" means a director of the
Corporation who is not (i) a person directly or indirectly owning,
controlling, or holding with power to vote five percent or more of
the outstanding voting securities of the Corporation or the
Manager; (ii) an officer or employee of the Corporation; (iii) an
officer, director, employee of, or partner in, the Manager; (iv) a
person who either individually or as a member of an organization
acts as an advisor, consultant, legal counsel to the Corporation or
provides similar types of services to the Corporation and receives
compensation on a continuing basis from the Corporation in addition
to Director's fees; (v) an affiliate of any person described in
(i), (ii), (iii) or (iv); and (vi) related to the Corporation in
any other way that, in the view of the Board of Directors, would
interfere with the exercise of independent judgment.
(d) "Net Assets" means the total assets (other than
intangibles) at book value as determined by generally accepted
accounting principles before deducting allowances for doubtful
amounts or other non-cash allowances less total liabilities,
calculated at least quarterly on a basis consistently applied.
Prepaid and deferred expenses are not considered intangibles for
the purpose of this definition.
(e) "Net Income" for any period shall mean total revenues
applicable to such period, less the expenses applicable to such
period other than additions to allowances for doubtful amounts or
allowances to reduce certain leases to option prices or other
similar non-cash allowances; as determined by generally accepted
accounting principles.
(f) "Real Estate Assets" shall mean (i) real property
(including interests in real property and interests in mortgages on
real property), (ii) shares (or transferable certificates of
beneficial interest) in other real estate investment trusts, and
(iii) any other property or interest, which meet the requirements
as expressed from time to time in Section 856(c)(6)(B) of the
Internal Revenue Code, or any successor provision, or in the rules
and regulations or in court and administrative decisions which
interpret such section or sections.
(g) "Real Estate Investment Trust" is a corporation, trust or
association (other than a real estate syndication) that is engaged
primarily in investing in equity interests in real estate
(including fee ownership and leasehold interests) or in loans
secured by real estate or both.
(h) "Total Operating Expenses" for any period shall mean all
cash operating expenses, including additional expenses paid
directly or indirectly by the Corporation to the Manager, its
affiliates, or third parties based upon their relationship with the
Corporation, including loan administration, servicing, engineering,
inspection and all other expenses paid by the Corporation, except
the expenses related to raising capital, for interest, taxes, and
direct property acquisition, operation, maintenance and management
costs.
(i) "Unimproved Real Property" means the property of the
Corporation which has the following three characteristics: (1) an
equity interest in property which was not acquired for the purpose
of producing rental or other operating income, (2) has no
development or construction in process on such land, and (3) no
development or construction on such land is planned in good faith
to commence on such land within one year.