EXHIBIT 1.1
3,000,000 SHARES
HEALTH CARE REIT, INC.
Common Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
May 8, 2002
Deutsche Bank Securities Inc.
UBS Warburg LLC
As Representatives of the Several Underwriters
c/o Deutsche Bank Securities Inc.
31 West 52nd Street, 25th Floor
New York, NY 10019
Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the "Company"), proposes to
sell to the several underwriters (the "Underwriters") named in Schedule I hereto
for whom you are acting as representatives (the "Representatives"), 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
Underwriters' 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 Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement and (b) that the Underwriters are
willing to purchase the Firm Shares, plus such Option Shares if the Underwriters
elect to exercise the over-allotment option in whole or in part for the account
of the Underwriters. The Firm Shares and the Option Shares (to the extent the
aforementioned 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. 333-73936) 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 "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 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 Act and no
post-effective amendment to the Registration Statement has been filed as of
the date of this Agreement. 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
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 Underwriters. 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 and 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 annual 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.
(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, 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"); except for HCRI
Pennsylvania Properties, Inc., HCRI Texas Properties, Inc., HCRI Overlook
Green, Inc., HCRI Nevada Properties, Inc., Health Care REIT International,
Inc., HCRI Southern Investments I, Inc., HCN BCC Holdings, Inc., HCRI
Tennessee Properties, Inc., HCRI Limited Holdings, Inc., HCRI Texas
Properties, Ltd., Pennsylvania BCC Properties, Inc., HCN Atlantic GP, Inc.,
HCN Atlantic LP, Inc., HCRI Louisiana Properties, L.P., HCRI North Carolina
Properties, LLC, HCRI Massachusetts Properties, Inc., HCRI Massachusetts
Properties Trust, HCRI Indiana Properties, Inc., HCRI Indiana Properties,
LLC, HCRI Holdings Trust, HCRI Maryland Properties LLC, HCRI Satyr Hill,
LLC, HCRI Friendship, LLC, HCRI St. Charles, LLC, HCRI Massachusetts
Properties Trust II, HCRI Beachwood, Inc., HCRI Broadview, Inc., HCRI
Westlake, Inc., HCRI Westmoreland, Inc., HCRI Wisconsin Properties, LLC,
HCRI North Carolina Properties I, Inc., North Carolina Properties II, Inc.,
North Carolina Properties III, Limited Partnership, HCRI Kentucky
Properties,
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LLC, HCRI Laurel, LLC and HCRI Mississippi Properties, Inc., the Company
has no Subsidiaries.
(iii) The outstanding shares of Common Stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable
and 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.
(iv) The shares of authorized capital stock of the Company,
including the Shares, conform with the statements concerning them in the
Registration Statement.
(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. The Registration
Statement contains, and the Prospectus, and any amendments or supplements
thereto, contain or will contain, 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 Act and the Rules and
Regulations. The documents incorporated by reference in the Prospectus, at
the time they were or will be filed with the Commission, conformed or will
conform at the time of filing, in all material respects to the requirements
of the Exchange Act or the Act, as applicable, and the Rules and
Regulations of the Commission thereunder. Neither the Registration
Statement nor any amendment thereto, and neither the Prospectus nor any
supplement thereto, including any documents incorporated by reference
therein, contains or will contain, as the case may be, any untrue statement
of a material fact or omits or will omit to state any material fact
required to be stated therein or 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 Underwriters, 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 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.
(vii) There is no action or proceeding pending or, to the knowledge
of the Company, threatened against the Company or involving any property of
the Company before any court or administrative agency which might
reasonably be expected to result in any Material Adverse Effect, except as
set forth in the Registration Statement.
(viii) The Company 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
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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 is a party, and the guaranties of third parties (a) are
the legal, valid and binding obligations of the Company 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 holds on the
properties described in the Registration Statement constitutes a valid
mortgage lien for the benefit of the Company 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, 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 (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 or the Company's
certificate of incorporation or by-laws, (b) in violation of any statute,
or (c) in violation of any order, rule or regulation applicable to the
Company 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 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 is a party or by which the Company or the Company's
properties may be bound, or of the certificate of incorporation or by-laws
of the Company or any order, rule or regulation applicable to the Company
or the Company's properties or 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 final prospectus 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 Underwriters
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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 holds all material licenses, certificates and
permits from governmental authorities which are necessary to the conduct of
its businesses and the Company has not 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.
(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, 2001 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, are independent public accountants as required by
the Act and the Rules and Regulations.
(xvi) To the knowledge of the Company, after inquiry of its officers
and directors, there are no affiliations with the NASD 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
Underwriters.
(xvii) This Agreement has been duly authorized, executed and delivered
by the Company.
(xviii) 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 Underwriters 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.
(xix) The Shares have been approved for listing upon official notice
of issuance on the New York Stock Exchange.
(xx) 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 FIRM 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 Underwriters, and
the Underwriters agree to purchase, at a price of $26.60 per share, the Firm
Shares.
Payment for the Firm Shares to be sold hereunder is to be made in New
York Clearing House funds by certified or bank cashier's checks drawn to the
order of the Company for the Shares to be
5
sold by it against delivery of certificates therefor to the Representatives.
Such payment and delivery are to be made at the offices of Deutsche Bank
Securities Inc., 31 West 52nd Street, 25th Floor, New York, New York, at 10:00
A.M. New York time, on the third business day after the date of this Agreement
or at such other time and date not later than three business days 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 certificates for the Firm Shares will be delivered by Mellon Investor
Services L.L.C. (the "Transfer Agent") in such denominations and in such
registrations as the Representatives request in writing not later than the
second full business day prior to the Closing Date, and will be made available
for inspection by the Representatives at least one business day prior to the
Closing Date at such place as the Representatives and the Company shall agree.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters to purchase 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 Representatives to the Company setting
forth the number of Option Shares as to which the several Underwriters are
exercising the option, the names and denominations in which the Option Shares
are to be registered and the time and date at which such certificates are to be
delivered. The time and date at which certificates for Option Shares are to be
delivered shall be determined by the Representatives but shall not be earlier
than three nor later than 10 full business days after the exercise of such
option, nor in any event prior to the Closing Date (such time and date being
herein referred to as the "Option Closing Date"). 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 Underwriters. You, as
Representatives of the several Underwriters, 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 on the Option Closing Date in New York Clearing
House funds by certified or bank cashier's check drawn to the order of the
Company against delivery of certificates therefor (in such denominations and in
such registrations as the Representatives request in writing not later than the
second full business day prior the Option Closing Date) at the offices of
Deutsche Bank Securities Inc., 31 West 52nd Street, 25th Floor, New York, New
York. The Transfer Agent shall make the certificates for the Option Shares
available for inspection by the Representatives at least one business day prior
to the Option Closing Date.
3. OFFERING BY THE UNDERWRITERS. It is understood that the several
Underwriters are to make a public offering of the Firm Shares as soon as the
Representatives deem it advisable to do so. The Firm Shares are to be initially
offered to the public at the public offering price set forth in the Prospectus.
The Representatives may from time to time thereafter change the public offering
price and other selling terms. To the extent, if at all, that any Option Shares
are purchased pursuant to Section 2 hereof, the Underwriters will offer them to
the public on the foregoing terms.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriters that:
(i) The Company will (a) prepare and timely file with the
Commission under Rule 424(b) 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
6
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
Representatives 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 Representatives shall not previously have been
advised and furnished with a copy or to which the Representatives shall
have reasonably objected in writing or which is not in compliance with the
Rules and Regulations for so long as the Representatives may deem necessary
in order to complete the distribution of the Shares and (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 Underwriters; 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 Representatives shall not previously have been
advised and furnished with a copy or to which the Representatives shall
have reasonably objected in writing or which is not in compliance with the
Rules and Regulations.
(ii) The Company will advise the Representatives 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
Representatives may deem necessary in order to complete the distribution of
the Shares, or of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, and the Company will use its best
efforts to prevent (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
Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company will
deliver to, or upon the order of, the Representatives during the period
when delivery of a Prospectus is required under the Act, as many copies of
the Prospectus in final form, or as thereafter amended or supplemented, as
the Representatives may reasonably request. The Company will deliver to the
Representatives at or before the Closing Date, six signed copies of the
Registration Statement and all amendments thereto including all exhibits
filed therewith, and will deliver to the Representatives such number of
copies of the Registration Statement, including documents incorporated by
reference therein, but without exhibits, and of all amendments thereto, as
the Representatives 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 an
Underwriter or a dealer any event shall occur as a result of which, in the
judgment of the Company or in the opinion of counsel for the Underwriters,
it becomes necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances existing at the
time the Prospectus is delivered to a purchaser, not misleading, or, if it
is necessary at any time to amend or supplement the Prospectus to comply
with any law, the Company promptly will either (a) prepare and file with
the Commission an appropriate amendment to the Registration Statement or
supplement to the Prospectus or (b) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated by
reference in the Prospectus so that the Prospectus
7
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 1934
Act as are necessary in order to make generally available to
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the Act.
(vi) The Company will, for a period of five years from the Closing
Date, deliver to the Representatives 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 Act or
the Exchange Act. The Company will deliver to the Representatives 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) 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 Representatives except that the
Company may, without such consent, (i) issue options under the Stock Option
Plans described in the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 2001; (ii) issue shares upon the exercise of
options issued pursuant to the Stock Option Plans described in the
Company's Annual Report on Form 10-K for the fiscal year ended December 31,
2001; or (iii) sell shares of Common Stock pursuant to the Dividend
Reinvestment Plan described in the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 2001.
(viii) The Company will use its best efforts to list the Shares on the
New York Stock Exchange.
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: 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 several Underwriters will be paid by the Company. The Company
shall not, however, be required to pay for any of the Underwriters' expenses
except that, if this Agreement shall not be consummated because the conditions
in Section 7 hereof are not satisfied, or because this Agreement is terminated
by the Representatives pursuant to Section 6 hereof (other than a termination as
a result of a failure to satisfy the condition set forth in subparagraph (iii)
of Section 6 hereof), or by reason of any failure, refusal or inability on the
part of the Company to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on its part to be performed,
unless such failure to satisfy said condition or to comply with said terms be
due to the default or omission of any Underwriter, then the Company shall
reimburse the several Underwriters for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Shares or in
contemplation of performing its obligations hereunder, but the Company shall not
in any event be liable
8
to any of the several Underwriters for damages on account of loss of anticipated
profits from the sale by it of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several obligations
of the Underwriters to purchase the Firm Shares on the Closing Date and the
Option Shares, if any, on the Option Closing Date is subject to the accuracy, as
of the Closing Date or the Option Closing Date, as the case may be, of the
representations and warranties of the Company contained herein, and to the
performance by the Company of its covenants and obligations hereunder and to the
following additional conditions:
(i) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been taken or, to the knowledge of
the Company, shall be contemplated by the Commission.
(ii) The Representatives 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
Representatives, as representatives of the several Underwriters, to the
effect that:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the 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 Company has authorized and outstanding capital stock as
set forth under the caption "Capitalization" in the Prospectus or a
referenced amendment or supplement thereto; 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; all of the Shares conform in all
material respects to the description thereof contained in the
Prospectus; the certificates for the Shares are in due and proper
form; the shares of Common Stock, including the 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 Act
and, to such counsel's knowledge no stop order proceedings with
respect thereto have been instituted or are pending or threatened
under the 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 Act or the Exchange Act, as applicable, and Rules and Regulations
(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).
9
(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 year ended December 31, 2001 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 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 certificate of incorporation 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) 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 an
amendment to the Prospectus 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.
(m) 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 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
10
1986, as amended, (the "Code") and, based on such counsel's review of the
Company's federal income tax returns and discussions with management and
independent public accountants for the Company, that the Company, taking into
account operations for its taxable and fiscal years ended December 31, 1998
through December 31, 2001, 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, 2002. Furthermore, such
counsel shall opine that the statements contained under the heading "Taxation"
in the Registration Statement and in the Company's Annual Report on Form 10-K,
and any amendments, for the fiscal year ended December 31, 2001 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, Shumaker, Loop & Kendrick, LLP 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 Shumaker, Loop & Kendrick, LLP shall
state that they believe that they and the Underwriters are justified in relying
on such other counsel and such other counsel shall indicate that the
Underwriters may rely on such opinion. As to matters of fact, to the extent they
deem proper, such counsel may rely on certificates of officers of the Company
and public officials so long as such counsel states that they have no reason to
believe that either the Representatives or they are not justified in relying on
such certificates. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that nothing has come to the
attention of such counsel which leads them to believe that the Registration
Statement, as of the time it became effective under the Act, the Prospectus or
any amendment or supplement thereto, on the date it was filed pursuant to Rule
424(b), 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 respective date when such documents were
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 the Registration Statement and
the Prospectus, or any amendment or supplement 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 respective date when such documents were 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 or statistical 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 Representatives shall have received from Calfee, Halter &
Griswold LLP, counsel for the Underwriters, an opinion dated the Closing Date or
the Option Closing Date, as the case may be, with respect to the organization of
the Company, the validity of the Shares, the Registration Statement, the
Prospectus and other related matters as the Representatives reasonably may
request and such counsel shall have received such papers and information as they
reasonably request to enable them to pass upon such matters.
11
(iv) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, a signed letter from Ernst & Young LLP,
dated the Closing Date or the Option Closing Date, as the case may be, which
shall confirm, on the basis of a review in accordance with the procedures set
forth in the letter, dated May 8, 2002 signed by such firm and delivered to the
Representatives by Ernst & Young LLP, that nothing has come to their attention
during the period from the date five days prior to the date hereof, to a date
not more than five days prior to the Closing Date or the Option Closing Date, as
the case may be, which would require any change in its letter dated May 8, 2002
if it were required to be dated and delivered on the Closing Date or the Option
Closing Date, as the case may be. All such letters shall be in form and
substance satisfactory to the Representatives.
(v) The Representatives 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, Chief Executive Officer and President and the 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 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; he does not know of any
material contract required to be filed as an exhibit to the Registration
Statement which is not so filed; and the representations and warranties of
the Company contained in Section 1 hereof are true and correct as of the
Closing Date or the Option Closing Date, as the case may be.
(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.
(vi) The Representatives shall have received at or prior to the Closing
Date, an agreement, in form and substance satisfactory to the Representatives,
signed by the Company and the directors and officers of the Company to the
effect that they will not, prior to the expiration of 90 days from the date of
this Agreement, sell or otherwise dispose of any shares of Common Stock of the
Company without the prior written consent of the Representatives, except
pursuant to bona fide gifts to transferees who agree in writing to be bound by
the restrictions on transfer set forth in this paragraph (vi).
(vii) 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.
12
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Representatives and to Calfee,
Halter & Griswold LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representatives by notifying the Company of such termination in writing or
by telegram at or prior to the Closing Date or the Option Closing Date, as the
case may be.
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of the
Company to sell and deliver the portion of the Shares required to be delivered
as and when specified in this Agreement are subject to the conditions that at
the Closing Date or the Option Closing Date, as the case may be, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and in effect or proceedings therefor initiated or threatened.
8. INDEMNIFICATION.
(i) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act against any losses, claims, damages or liabilities
to which such Underwriter or such controlling person may become subject
under the 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 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 any Underwriter in connection with, or relating in any
manner to, the Shares or the offering contemplated hereby, and will
reimburse each such Underwriter and each such controlling person for any
legal or other expenses reasonably incurred by such 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 Representatives 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 any Underwriter 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 that Underwriter if that 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 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 Section 4(iv) or Section 4(v). This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(ii) Each 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 Act, against any losses, claims, damages or
13
liabilities to which the Company or any such director, officer or
controlling person may become subject under the 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 light of the circumstances under which they
were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person
in connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that each Underwriter
will be liable in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission has been made or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, the Prospectus or such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives specifically for
use in the preparation thereof. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(iii) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Sections 8(i) or (ii) shall be available to
any party who shall fail to give notice as provided in this Section 8(iii)
if the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have
to the indemnified party for contribution or otherwise than on account of
the provisions of Sections 8(i) or (ii). 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. 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
14
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 30 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.
(iv) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless to the extent required
therein an indemnified party under Sections 8(i) or (ii) above in respect
of any losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Underwriters
from the offering of the Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under Section
8(iii) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Underwriters shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Underwriters bear to the total
proceeds of the offering (the proceeds received by the Underwriters being
equal to the total underwriting discounts and commissions received by the
Underwriters), in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(iv) were determined
by pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
Section 8(iv). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 8(iv)
shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8(iv),
(a) no Underwriter shall be required to contribute any amount in excess of
the underwriting discounts and commissions applicable to the Shares
purchased by such Underwriter and (b) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this Section
8(iv) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(v) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, 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
15
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. DEFAULT BY UNDERWRITERS. If on the Closing Date or the Option Closing
Date, as the case may be, any Underwriter shall fail to purchase and pay for the
portion of the Shares which such Underwriter has agreed to purchase and pay for
on such date (otherwise than by reason of any default on the part of the
Company), you, as Representatives of the Underwriters, shall use your best
efforts to procure within 24 hours thereafter one or more of the other
Underwriters, or any others, to purchase from the Company such amounts as may be
agreed upon and upon the terms set forth herein, the Firm Shares or Option
Shares, as the case may be, which the defaulting Underwriter or Underwriters
failed to purchase. If during such 24 hours you, as the Representatives, shall
not have procured such other Underwriters, or any others, to purchase the Firm
Shares or Option Shares, as the case may be, agreed to be purchased by the
defaulting Underwriter or Underwriters, then (a) if the aggregated number of
shares with respect to which such default shall occur does not exceed 10% of the
Firm Shares or Option Shares, as the case may be, covered thereby, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Firm Shares or Option Shares, as the case may be, which they are
obligated to purchase hereunder, to purchase the Firm Shares or Option Shares,
as the case may be, which such defaulting Underwriter or Underwriters failed to
purchase, or (b) if the aggregate number of Firm Shares or Option Shares, as the
case may be, with respect to which such default shall occur exceeds 10% of the
Firm Shares or Option Shares, as the case may be, covered hereby, the Company or
you, as the Representatives of the Underwriters, will have the right, by written
notice given within the next 24-hour period to the parties to this Agreement, to
terminate this Agreement without liability on the part of the non-defaulting
Underwriters or of the Company except to the extent provided in Section 8
hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section 9, the Closing Date or Option Closing Date, as the case
may be, may be postponed for such period, not exceeding seven days, as you, as
Representatives, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section 9
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. NOTICES. All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered or telegraphed and
confirmed as follows: if to the Underwriters, to Deutsche Bank Securities Inc.,
31 West 52nd Street, 25th Floor, New York, New York, 10019, Attention: John W.
Patterson; if to the Company, to Health Care REIT, Inc., One SeaGate, Suite
1500, Toledo, Ohio 43603-1475, Attention: George L. Chapman, Chairman of the
Board and Chief Executive Officer.
11. TERMINATION. This Agreement may be terminated by you by notice to the
Company as follows:
(i) at any time prior to the Closing Date if any of the following has
occurred: (a) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, 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, business affairs, management or business prospects of the
Company, whether or not arising in the ordinary course of business, (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,
16
escalation, declaration, emergency, calamity, crisis or change on the
financial markets of the United States would, in your reasonable judgment,
make the offering or delivery of the Shares impracticable or inadvisable,
(c) trading in securities on the New York Stock Exchange or the American
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 either 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, (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.
This Agreement also may be terminated by you, by notice to the
Company, as to any obligation of the Underwriters to purchase the Option Shares,
upon the occurrence at any time prior to the Option Closing Date of any of the
events described in subparagraph (i) above or as provided in Section 6 of this
Agreement.
12. SUCCESSORS. This Agreement has been and is made solely for the benefit
of the Underwriters and the Company and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. The term "successors" shall not include any purchaser of
the Shares merely because of such purchase.
13. MISCELLANEOUS. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers and (iii) delivery of and payment for
the Shares under this Agreement.
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 Maryland.
17
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the
Underwriters in accordance with its terms.
Very truly yours,
HEALTH CARE REIT, INC.
By: /s/ George L. Chapman
------------------------------------
George L. Chapman,
Chairman of the Board and
Chief Executive Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
UBS WARBURG LLC
As Representatives of the Underwriters listed on Schedule I
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ John W. Patterson
------------------------------------
18
DEUTSCHE BANK SECURITIES INC.
UBS WARBURG LLC
As Representatives of the Underwriters listed on Schedule I
By: UBS WARBURG LLC
By: /s/ David Gately
------------------------------------
19
SCHEDULE I
SCHEDULE OF UNDERWRITERS
<Table>
<Caption>
NUMBER OF FIRM SHARES TO
UNDERWRITER BE PURCHASED
- ----------- ------------------------
Deutsche Bank Securities Inc. ........................ 1,243,125
UBS Warburg LLC ...................................... 1,096,875
Legg Mason Wood Walker, Incorporated.................. 292,500
Raymond James & Associates, Inc....................... 292,500
McDonald Investments Inc.............................. 75,000
---------
Total............................................ 3,000,000
=========
</Table>
20