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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HEALTH CARE PROPERTY INVESTORS, INC.
(Exact name of registrant as specified in its charter)
Maryland 33-0091377
(State of incorporation or organization) (I.R.S. Employer Identification No.)
10990 Wilshire Boulevard, Suite 1200 90024
Los Angeles, California (Zip Code)
(Address of principal executive offices)
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12(b) OF THE ACT:
7 7/8% Series A Cumulative Redeemable Preferred Stock
(Title of each class to be registered)
New York Stock Exchange
(Name of each exchange on which each class is to be registered)
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If this Form relates to the registration of a class of If this Form relates to the registration of a class of
debt securities and is effective upon filing pursuant debt securities and is to become effective
to General Instruction A(c)(1) please check the simultaneously with the effectiveness of a concurrent
following box. [_] registration statement under the Securities Act of
1933 pursuant to General Instruction A(c)(2) please
check the following box. [_]
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SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12(g) OF THE ACT:
None
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ITEM 1. Description of Registrant's Securities to be Registered.
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A description of the 7 7/8% Series A Cumulative Redeemable Preferred
Stock (the "Series A Preferred Stock") to be registered hereunder is contained
in the section entitled "Description of Preferred Stock" on pages 10 through 13
of the Prospectus included in the Registrant's Form S-3 Registration Statement,
No. 333-29485, as filed on June 18, 1997, and amended by Amendment No. 1 thereto
filed on June 26, 1997, and as declared effective on June 27, 1997 by the
Securities and Exchange Commission (the "Commission"), and as supplemented by
the information in the section entitled "Description of Series A Preferred
Stock" on pages S-22 through S-28 of the Prospectus Supplement dated September
23, 1997 and filed with the Commission pursuant to Rule 424(b) of the Securities
Act of 1933, as amended. Such description is incorporated herein by reference.
ITEM 2. Exhibits.
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Exhibit
Number Description
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2.1 Articles of Restatement of the Registrant (Incorporated
herein by reference to Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the the year ended December 31,
1994).
2.2 Amended and Restated Bylaws of Registrant (Incorporated
herein by reference to Exhibit 3(ii) to the Company's
Quarterly Report on Form 10-Q for the period ended June 30,
1995).
2.3 Articles Supplementary Classifying the Series A Cumulative
Redeemable Preferred Stock.
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SIGNATURE
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Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the Registrant has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereto duly authorized.
September 25, 1997 HEALTH CARE PROPERTY INVESTORS, INC.
("Registrant")
By: /s/ Edward J. Henning
_________________________________________
Edward J. Henning
Vice President, General Counsel
and Corporate Secretary
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HEALTH CARE PROPERTY INVESTORS, INC.
ARTICLES SUPPLEMENTARY CLASSIFYING
2,760,000 SHARES OF
7-7/8% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
Health Care Property Investors, Inc., a Maryland corporation (the "Company"),
certifies to the Maryland State Department of Assessments and Taxation (the
"Department") that:
FIRST: Pursuant to the authority expressly vested in the Board of Directors
of the Company by Article IV of the Articles of Restatement of the Company filed
with the Department on April 27, 1992 (the "Charter") and Section 2-105 of the
Maryland General Corporation Law ("MGCL"), the Board of Directors has, by
unanimous written consent in lieu of a meeting, adopted resolutions classifying
up to 3,000,000 shares of the authorized but unissued preferred stock of the
Company, $1.00 par value per share ("Preferred Stock") as a separate series of
Preferred Stock, providing for the issuance of a maximum of 3,000,000 shares of
such series of Preferred Stock and, pursuant to the powers contained in the
bylaws of the Corporation and the MGCL, appointing a Committee (the "Committee")
of the Board of Directors comprised of Kenneth B. Roath and Orville E. Melby,
and delegating to the Committee, to the fullest extent permitted by Maryland law
and the Charter and Bylaws of the Company, all powers of the Board of Directors
with respect to designating and setting the preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of such
series of Preferred Stock and determining the number or shares of such series of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued and
the price and other terms and conditions upon which shares of such series of
Preferred Stock are to be offered, sold and issued.
SECOND: Pursuant to the authority conferred upon the Committee as aforesaid,
the Committee has unanimously adopted resolutions designating the aforesaid
series of Preferred Stock as the "7-7/8% Series A Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions and limitations as to dividends, qualifications and terms
and conditions of redemption of such 7-7/8% Series A Cumulative Redeemable
Preferred Stock (to the extent not set by the Board of Directors in the
resolutions referred to in Article FIRST of these Articles Supplementary) and
authorizing the issuance of up to 2,760,000 shares of 7-7/8% Series A Cumulative
Redeemable Preferred Stock.
THIRD: The series of Preferred Stock of the Company created by the
resolutions duly adopted by the Board of Directors of the Company and by the
Committee and referred to in Articles FIRST and SECOND of these Articles
Supplementary shall have the following
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designation, number of shares, preferences, conversion and other rights, voting
powers, restrictions and limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions.
A. Designation and Number. A series of Preferred Stock, designated
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the "7-7/8% Series A Cumulative Redeemable Preferred Stock" (the "Series A
Preferred Stock"), is hereby established. The number of shares of the Series A
Preferred Stock shall be 2,760,000.
B. Maturity. The Series A Preferred Stock has no stated maturity
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and will not be subject to any sinking fund or mandatory redemption.
C. Rank. The Series A Preferred Stock will, with respect to
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dividend rights and rights upon liquidation, dissolution or winding up of the
Company, rank (i) senior to all classes or series of Common Stock of the
Company, and to all equity securities ranking junior to the Series A Preferred
Stock with respect to dividend rights or rights upon liquidation, dissolution or
winding up of the Company; (ii) on a parity with all equity securities issued by
the Company the terms of which specifically provide that such equity securities
rank on a parity with the Series A Preferred Stock with respect to dividend
rights or rights upon liquidation, dissolution or winding up of the Company; and
(iii) junior to all equity securities issued by the Company the terms of which
specifically provide that such equity securities rank senior to the Series A
Preferred Stock with respect to dividend rights or rights upon liquidation,
dissolution or winding up of the Company. The term "equity securities" does not
include convertible debt securities, which will rank senior to the Series A
Preferred Stock prior to conversion.
D. Dividends
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(1) Holders of shares of the Series A Preferred Stock are entitled
to receive, when, as, and if declared by the Board of Directors (or a duly
authorized committee thereof), out of funds of the Company legally available for
the payment of dividends, cumulative preferential cash dividends at the rate of
7-7/8% of the Liquidation Preference (as defined below) per annum per share
(equivalent to $1.96875 per share). Dividends on the Series A Preferred Stock
shall be cumulative from the date of original issue and shall be payable
quarterly in arrears on or about the last day of each March, June, September and
December, or, if not a business day, the next succeeding business day (each, a
"Dividend Payment Date"). The first dividend on the Series A Preferred Stock is
scheduled to be paid on December 31, 1997. Any dividend payable on the Series A
Preferred Stock for any partial dividend period will be computed on the basis of
a 360-day year consisting of twelve 30-day months. Dividends will be payable to
holders of record as they appear in the stock records of the Company at the
close of business on the applicable record date, which shall be the 15th day of
the calendar month in which the applicable Dividend Payment Date falls or on
such other date designated by the Board of Directors of the Company for the
payment of dividends that is not more than 30 nor less than 10 days prior to
such Dividend Payment Date (each, a "Dividend Record Date").
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(2) No dividends on shares of Series A Preferred Stock shall be
declared by the Board of Directors or paid or set apart for payment by the
Company at such time as the terms and provisions of any agreement of the
Company, including any agreement relating to its indebtedness, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
(3) Notwithstanding the foregoing, dividends on the Series A
Preferred Stock will accrue whether or not the Company has earnings, whether or
not there are funds legally available for the payment of such dividends and
whether or not such dividends are declared. Accrued but unpaid dividends on the
Series A Preferred Stock will not bear interest and holders of the Series A
Preferred Stock will not be entitled to any dividends in excess of full
cumulative dividends described above. Any dividend payment made on the Series A
Preferred Stock shall first be credited against the earliest accumulated but
unpaid dividend due with respect to such shares that remains payable.
(4) If, for any taxable year, the Company elects to designate as
"capital gain dividends" (as defined in Section 857 of the Internal Revenue Code
of 1986, as amended (the "Code")) any portion (the "Capital Gains Amount") of
the dividends (as determined for federal income tax purposes) paid or made
available for the year to holders of all classes of stock (the "Total
Dividends"), then the portion of the Capital Gains Amount that shall be
allocable to the holders of Series A Preferred Stock shall be the amount that
the total dividends (as determined for federal income tax purposes) paid or made
available to the holders of the Series A Preferred Stock for the year bears to
the Total Dividends. Beginning January 1, 1998, the Company will make a similar
allocation with respect to any undistributed long-term capital gains of the
Company which are to be included in its stockholders' long-term capital gains,
based on the allocation of the Capital Gains Amount which would have resulted if
such undistributed long-term capital gains had been distributed as "capital
gains dividends" by the Company to its stockholders.
(5) No full dividends will be declared or paid or set apart for
payment on any series of preferred stock ranking, as to dividends, on a parity
with or junior to the Series A Preferred Stock (other than a dividend in shares
of any class of stock ranking junior to the Series A Preferred Stock as to
dividends and upon liquidation) for any period unless full cumulative dividends
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment on the Series A
Preferred Stock for all past dividend periods and the then current dividend
period. When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Series A Preferred Stock and the shares of
any other series of preferred stock ranking on a parity as to dividends with the
Series A Preferred Stock, all dividends declared upon the Series A Preferred
Stock and any other series of preferred stock ranking on a parity as to
dividends with the Series A
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Preferred Stock shall be declared pro rata so that the amount of dividends
declared per share of Series A Preferred Stock and such other series of
preferred stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the Series A Preferred Stock and such other
series of preferred stock (which shall not include any accrual in respect of
unpaid dividends for prior dividend periods if such preferred stock does not
have a cumulative dividend) bear to each other.
(6) Except as provided in the immediately preceding paragraph, unless
full cumulative dividends on the Series A Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment for all past dividend periods and the
then current dividend period, no dividends (other than in shares of Common Stock
or other shares of capital stock ranking junior to the Series A Preferred Stock
as to dividends and upon liquidation) shall be declared or paid or set aside for
payment nor shall any other distribution be declared or made upon the Common
Stock, or any other capital stock of the Company ranking junior to or on a
parity with the Series A Preferred Stock as to dividends or upon liquidation,
nor shall any shares of Common Stock, or any other shares of capital stock of
the Company ranking junior to or on a parity with the Series A Preferred Stock
as to dividends or upon liquidation be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any such shares of any such stock) by the Company
(except by conversion into or exchange for other capital stock of the Company
ranking junior to the Series A Preferred Stock as to dividends and upon
liquidation or for the purpose of preserving the Company's qualification as a
REIT). Any dividend payment made on shares of the Series A Preferred Stock shall
first be credited against the earliest accrued but unpaid dividend due with
respect to such shares which remains payable.
F. Liquidation Preference. Upon any liquidation, dissolution or
----------------------
winding up of the affairs of the Company, the holders of shares of Series A
Preferred Stock are entitled to be paid out of the assets of the Company legally
available for distribution to its shareholders a liquidation preference of $25
per share (the "Liquidation Preference"), plus an amount equal to any accrued
and unpaid dividends to the date of payment, before any distribution of assets
is made to holders of Common Stock or any other class or series of capital stock
of the Company that ranks junior to the Series A Preferred Stock as to
liquidation rights. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the amounts payable with respect to
the Series A Preferred Stock and any other shares of preferred stock of the
Company ranking as to any such distribution on a parity with the Series A
Preferred Stock are not paid in full, the holders of the Series A Preferred
Stock and of such other shares of preferred stock of the Company will share
ratably in any such distribution of assets of the Company in proportion to the
full respective preferential amounts to which they are entitled. After payment
to the holders of the Series A Preferred Stock of the full preferential amounts
of the liquidating distribution to which they are entitled, the holders of the
Series A Preferred Stock will be entitled to no further participation in any
distribution of assets by the Company.
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If such payment shall have been made in full to all holders of shares of
Series A Preferred Stock, the remaining assets of the Company shall be
distributed among the holders of any other classes of stock ranking junior to
the Preferred Stock upon liquidation, dissolution or winding up, according to
their respective rights and preferences and in each case according to their
respective number of shares. For such purposes, the consolidation or merger of
the Company with or into any other corporation, or the sale, lease or conveyance
of all or substantially all of the property or business of the Company, shall
not be deemed to constitute a liquidation, dissolution or winding up of the
Company.
In determining whether a distribution (other than upon voluntary or
involuntary liquidation) by dividend, redemption or other acquisition of shares
of stock of the Company or otherwise is permitted under the MGCL, no effect
shall be given to amounts that would be needed if the Company would be dissolved
at the time of the distribution, to satisfy the preferential rights upon
distribution of holders of shares of stock of the Corporation whose preferential
rights upon distribution are superior to those receiving the distribution.
G. Redemption.
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(1) The Series A Preferred Stock is not redeemable prior to
September 30, 2002. On and after September 30, 2002, the Company, at its option,
upon not less than 30 nor more than 60 days' written notice, may redeem shares
of the Series A Preferred Stock, in whole or in part, at any time or from time
to time, for cash at a redemption price of $25 per share, plus all accrued and
unpaid dividends thereon to the date fixed for redemption, without interest, to
the extent the Company has funds legally available therefor. The redemption
price (other than the portion thereof consisting of accrued and unpaid
dividends) is payable solely out of the sale proceeds of other capital stock of
the Company, which may include shares of other series of preferred stock. For
purposes of the preceding sentence, "capital stock" means any common stock,
preferred stock, depositary shares, interests, participation or other ownership
interests (however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities) or options to purchase
any of the foregoing. Holders of Series A Preferred Stock to be redeemed shall
surrender such Series A Preferred Stock at the place designated in such notice
and shall be entitled to the redemption price and any accrued and unpaid
dividends payable upon such redemption following such surrender. If notice of
redemption of any shares of Series A Preferred Stock has been given and if the
funds necessary for such redemption have been set aside by the Company in trust
for the benefit of the holders of any shares of Series A Preferred Stock so
called for redemption, then from and after the redemption date dividends will
cease to accrue on such shares of Series A Preferred Stock, such shares of
Series A Preferred Stock shall no longer be deemed outstanding and all rights of
the holders of such shares will terminate, except the right to receive the
redemption price. If less than all of the outstanding Series A Preferred Stock
is to be redeemed, the Series A Preferred Stock to be redeemed shall be
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selected pro rata (as nearly as may be practicable without creating fractional
shares) or by any other equitable method determined by the Company.
(2) Unless full cumulative dividends on all shares of Series A
Preferred Stock shall have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for payment for
all past dividend periods and the then current dividend period, no shares of
Series A Preferred Stock shall be redeemed unless all outstanding shares of
Series A Preferred Stock are simultaneously redeemed and the Company shall not
purchase or otherwise acquire directly or indirectly any shares of Series A
Preferred Stock (except by exchange for capital stock of the Company ranking
junior to the Series A Preferred Stock as to dividends and upon liquidation);
provided, however, that the foregoing shall not prevent the purchase by the
Company of shares of Series A Preferred Stock in order to ensure that the
Company continues to meet the requirements for qualification as a REIT (as
defined herein), or the purchase or acquisition of shares of Series A Preferred
Stock pursuant to a purchase or exchange offer made on the same terms to holders
of all outstanding shares of Series A Preferred Stock. So long as no dividends
are in arrears, the Company shall be entitled at any time and from time to time
to repurchase shares of Series A Preferred Stock in open-market transactions
duly authorized by the Board of Directors and effected in compliance with
applicable laws.
(3) Notice of redemption will be given by publication in a
newspaper of general circulation in the City of New York, such publication to be
made once a week for two successive weeks commencing not less than 30 nor more
than 60 days prior to the redemption date. A similar notice furnished by the
Company will be mailed, postage prepaid, not less than 30 nor more than 60 days
prior to the redemption date, addressed to the respective holders of record of
the Series A Preferred Stock to be redeemed at their respective addresses as
they appear on the stock transfer records of the transfer agent. No failure to
give such notice or any defect therein or in the mailing thereof shall affect
the validity of the proceedings for the redemption of any shares of Series A
Preferred Stock except as to the holder to whom notice was defective or not
given. Each notice shall state: (i) the redemption date; (ii) the redemption
price; (iii) the number of shares of Series A Preferred Stock to be redeemed;
(iv) the place or places where the Series A Preferred Stock is to be surrendered
for payment of the redemption price; and (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date. If less than all of the
Series A Preferred Stock held by any holder is to be redeemed, the notice mailed
to such holder shall also specify the number of shares of Series A Preferred
Stock held by such holder to be redeemed.
(4) Immediately prior to any redemption of Series A Preferred
Stock, the Company shall pay, in cash, any accumulated and unpaid dividends
through the redemption date, unless a redemption date falls after a Dividend
Record Date and prior to the corresponding Dividend Payment Date, in which case
each holder of Series A Preferred Stock at the close of business on such
Dividend Record Date shall be entitled to the dividend payable on such shares on
the
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corresponding Dividend Payment Date notwithstanding the redemption of such
shares before such Dividend Payment Date.
(5) From and after the redemption date (unless default shall be made
by the Company in providing for the payment of the redemption price plus
accumulated and unpaid dividends, if any), dividends shall cease to accumulate
on the shares of Series A Preferred Stock called for redemption and all rights
of the holders thereof (except the right to receive the redemption price plus
accumulated and unpaid dividends, if any) shall cease.
H. Voting Rights.
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(1) Holders of the Series A Preferred Stock will not have any
voting rights, except as set forth below or as otherwise required by law.
(2) Whenever dividends on any shares of Series A Preferred Stock
shall be in arrears for six or more quarterly periods, whether or not
consecutive, the holders of such shares of Series A Preferred Stock (voting
separately as a class with all other series of preferred stock upon which like
voting rights have been conferred and are exercisable) will be entitled to vote
for the election of a total of two additional directors of the Company at a
special meeting called by the holders of record of at least 25% of the Series A
Preferred Stock or the holders of any other series of preferred stock so in
arrears (unless such request is received less than 90 days before the date fixed
for the next annual or special meeting of shareholders) or at the next annual
meeting of shareholders, and at each subsequent annual meeting until all
dividends accumulated on such shares of Series A Preferred Stock for the past
dividend periods and the then current dividend period shall have been fully paid
or declared and a sum sufficient for the payment thereof set aside for payment.
In such case, the entire Board of Directors of the Company will be increased by
two directors.
(3) So long as any shares of Series A Preferred Stock remain
outstanding, the Company shall not, without the consent or the affirmative vote
of the holders of at least two-thirds of the shares of the Series A Preferred
Stock outstanding at the time, given in person or by proxy, either in writing or
at a meeting (such Series A Preferred Stock voting separately as a class), (i)
authorize, create or issue, or increase the authorized or issued amount of, any
series of stock ranking prior to such Series A Preferred Stock with respect to
the payment of dividends, or the distribution of assets on liquidation,
dissolution or winding up, or reclassify any authorized stock of the Company
into any such shares, or create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase any such shares or (ii)
repeal, amend, or otherwise change any of the provisions applicable to the
Series A Preferred Stock in any manner which materially and adversely affects
the powers, preferences, voting power or other rights or privileges of the
Series A Preferred Stock or the holders thereof; provided, however, that any
increase in the amount of the authorized preferred stock or the creation or
issuance of other series of preferred stock, or any increase in the amount of
authorized shares of
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such series or of any other series of Preferred Stock, in each case ranking on a
parity with or junior to the Series A Preferred Stock, shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers.
(4) The foregoing voting provisions will not apply if, at or prior
to the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Series A Preferred Stock
shall have been redeemed or called for redemption upon proper notice and
sufficient funds shall have been deposited in trust to effect such redemption.
(5) Except as expressly stated in these Articles Supplementary, the
Series A Preferred Stock will not have any relative, participating, optional or
other special voting rights and powers, and the consent of the holders thereof
shall not be required for the taking of any corporate action, including but not
limited to, any merger or consolidation involving the Company or a sale of all
or substantially all of the assets of the Company, irrespective of the effect
that such merger, consolidation or sale may have upon the rights, preferences or
voting power of the holders of the Series A Preferred Stock.
I. Restrictions on Ownership and Transfer to Preserve Tax Benefit.
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(1) Definitions. for the purposes of Paragraph I of these Articles
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Supplementary, the following terms shall have the following meanings:
"Beneficial Ownership" shall mean ownership of Series A
Preferred Stock by a Person who is or would be treated as an owner of
such Series A Preferred Stock either actually or constructively
through the application of Section 544 of the Code, as modified by
Section 856(h)(1)(B) of the Code. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have the
correlative meanings.
"Charitable Beneficiary" shall mean one or more beneficiaries of
a Trust, as determined pursuant to Subparagraph I(3)(f) of these
Articles Supplementary, each of which shall be an organization
described in Sections 170(b)(1)(A), 170(c)(2) and 501(c)(3) of the
Code.
"Constructive Ownership" shall mean ownership of Series A
Preferred Stock by a Person who is or would be treated as an owner of
such Series A Preferred Stock either actually or constructively
through the application of Section 318 of the Code, as modified by
Section 856(d)(5) of the Code. The terms "Constructive Owner,"
"Constructively Owns" and "Constructively Owned" shall have the
correlative meanings.
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"Public Offering" shall mean the sale of Series A Preferred
Stock pursuant to the Prospectus Supplement of the Company dated
September 23, 1997.
"IRS" means the United States Internal Revenue Service.
"Market Price" shall mean the last reported sales price reported
on the New York Stock Exchange of the Series A Preferred Stock on the
trading day immediately preceding the relevant date, or if the Series
A Preferred Stock is not then traded on the New York Stock Exchange,
the last reported sales price of the Series A Preferred Stock on the
trading day immediately preceding the relevant date as reported on any
exchange or quotation system over which the Series A Preferred Stock
may be traded, or if the Series A Preferred Stock is not then traded
over any exchange or quotation system, then the market price of the
Series A Preferred Stock on the relevant date as determined in good
faith by the Board of Directors of the Company.
"Ownership Limit" shall mean 9.9% (by value or by number of
shares, whichever is more restrictive) of the outstanding shares of
Series A Preferred Stock of the Company.
"Person" shall mean an individual, corporation, partnership,
limited liability company, estate, trust (including a trust qualified
under Section 401(a) or 501(c)(17) of the Code), a portion of a trust
permanently set aside for or to be used exclusively for the purposes
described in Section 642(c) of the Code, association, private
foundation within the meaning of Section 509(a) of the Code, joint
stock company or other entity; but does not include an underwriter
acting in a capacity as such in a public offering of the Series A
Preferred Stock provided that the ownership of Series A Preferred
Stock by such underwriter would not result in the Company being
"closely held" within the meaning of Section 856(h) of the Code, or
otherwise result in the Company failing to qualify as a REIT.
"Purported Beneficial Transferee" shall mean, with respect to
any purported Transfer which results in a transfer to a Trust, as
provided in Subparagraph I(2)(b) of this these Articles Supplementary,
the purported beneficial transferee or owner for whom the Purported
Record Transferee would have acquired or owned shares of Series A
Preferred Stock, if such Transfer had been valid under Subparagraph
I(2)(a) of these Articles Supplementary.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer which results in a transfer to a Trust, as provided
in Subparagraph I(2)(b) of these Articles Supplementary, the record
holder of the Series A
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Preferred Stock if such Transfer had been valid
under Subparagraph I(2)(a) of these Articles Supplementary.
"REIT" shall mean a real estate investment trust under Section
856 of the Code.
"Restriction Termination Date" shall mean the first day after
the date of the Public Offering on which the Board of Directors of the
Company determines that it is no longer in the best interests of the
Company to attempt to, or continue to, qualify as a REIT.
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Series A Preferred Stock, (including
(i) the granting of any option or entering into any agreement for the
sale, transfer or other disposition of Series A Preferred Stock or
(ii) the sale, transfer, assignment or other disposition of any
securities (or rights convertible into or exchangeable for Series A
Preferred Stock), whether voluntary or involuntary, whether of record
or beneficially or Beneficially or Constructively (including but not
limited to transfers of interests in other entities which results in
changes in Beneficial or Constructive Ownership of Series A Preferred
Stock), and whether by operation of law or otherwise.
"Trust" shall mean each of the trusts provided for in
Subparagraph I(3) of these Articles Supplementary.
"Trustee" shall mean any Person unaffiliated with the Company,
or a Purported Beneficial Transferee, or a Purported Record
Transferee, that is appointed by the Company to serve as trustee of a
Trust.
(2) Restriction on Ownership and Transfers.
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(a) From the date of the Public Offering and prior to the Restriction
Termination Date:
(i) except as provided in Subparagraph I(9) of these Articles
Supplementary, no Person shall Beneficially Own Series A Preferred Stock in
excess of the Ownership Limit;
(ii) except as provided in Subparagraph I(9) of these Articles
Supplementary, no Person shall Constructively Own in excess of the Ownership
Limit;
(iii) no Person shall Beneficially or Constructively Own Series A
Preferred Stock to the extent that such Beneficial or Constructive Ownership
would result in the
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Company being "closely held" within the meaning of Section 856(h) of the Code,
or otherwise failing to qualify as a REIT (including but not limited to
Beneficial or Constructive Ownership that would result in the Company owning
(actually or Constructively) an interest in a tenant that is described in
Section 856(d)(2)(B) of the Code if the income derived by the Company (either
directly or indirectly through one or more partnerships) from such tenant would
cause the Company to fail to satisfy any of the gross income requirements of
Section 856(c) of the Code).
(b) If, during the period commencing on the date of the Public Offering
and prior to the Restriction Termination Date, any Transfer (whether or not such
transfer is the result of a transaction entered into through the facilities of
the New York Stock Exchange ("NYSE")) or other event occurs that, if effective,
would result in any Person Beneficially or Constructively Owning Series A
Preferred Stock in violation of Subparagraph I(2)(a) of these Articles
Supplementary, (1) then that number of shares of Series A Preferred Stock that
otherwise would cause such Person to violate Subparagraph I(2)(a) of these
Articles Supplementary (rounded up to the nearest whole share) shall be
automatically transferred to a Trust for the benefit of a Charitable
Beneficiary, as described in Subparagraph I(3), effective as of the close of
business on the business day prior to the date of such Transfer or other event,
and such Purported Beneficial Transferee shall thereafter have no rights in such
shares or (2) if, for any reason, the transfer to the Trust described in clause
(1) of this sentence is not automatically effective as provided therein to
prevent any Person from Beneficially or Constructively Owning Series A Preferred
Stock in violation of Subparagraph I(2)(a) of these Articles Supplementary, then
the Transfer of that number of shares of Series A Preferred Stock that otherwise
would cause any Person to violate Subparagraph I(2)(a) shall be void ab initio,
and the Purported Beneficial Transferee shall have no rights in such shares.
(c) Notwithstanding any other provisions contained herein, during the
period commencing on the date of the Public Offering and prior to the
Restriction Termination Date, any Transfer of Series A Preferred Stock (whether
or not such Transfer is the result of a transaction entered into through the
facilities of the NYSE) that, if effective, would result in the capital stock of
the Company being beneficially owned by less than 100 Persons (determined
without reference to any rules of attribution) shall be void ab initio, and the
intended transferee shall acquire no rights in such Series A Preferred Stock.
(3) Transfers of Series A Preferred Stock in Trust.
----------------------------------------------
(a) Upon any purported Transfer or other event described in
Subparagraph I(2)(b) of these Articles Supplementary, such Series A Preferred
Stock shall be deemed to have been transferred to the Trustee in his capacity as
trustee of a Trust for the exclusive benefit of one or more Charitable
Beneficiaries. Such transfer to the Trustee shall be deemed to be effective as
of the close of business on the business day prior to the purported Transfer or
other event that results in a transfer to the Trust pursuant to Subparagraph
I(2)(b). The Trustee shall be appointed by the Company and shall be a Person
unaffiliated with the Company, any
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Purported Beneficial Transferee, or any Purported Record Transferee. Each
Charitable Beneficiary shall be designated by the Company as provided in
Subparagraph I(3)(f) of these Articles Supplementary.
(b) Series A Preferred Stock held by the Trustee shall be
issued and outstanding Series A Preferred Stock of the Company. The Purported
Beneficial Transferee or Purported Record Transferee shall have no rights in the
shares held by the Trustee. The Purported Beneficial Transferee or Purported
Record Transferee shall not benefit economically from ownership of any shares
held in trust by the Trustee, shall have no rights to dividends and shall not
possess any rights to vote or other rights attributable to the shares held in
the Trust.
(c) The Trustee shall have all voting rights and rights to
dividends with respect to Series A Preferred Stock held in the Trust, which
rights shall be exercised for the exclusive benefit of the Charitable
Beneficiary. Any dividend or distribution paid prior to the discovery by the
Company that shares of Series A Preferred Stock have been transferred to the
Trustee shall be paid to the Trustee upon demand, and any dividend or
distribution declared but unpaid shall be paid when due to the Trustee with
respect to such Series A Preferred Stock. Any dividends or distributions so paid
over to the Trustee shall be held in trust for the Charitable Beneficiary.
(d) Within 20 days of receiving notice from the Company that
shares of Series A Preferred Stock have been transferred to the Trust, the
Trustee of the Trust shall sell the shares held in the Trust to a Person,
designated by the Trustee, whose ownership of the shares will not violate the
ownership limitations set forth in Subparagraph I(2)(a). Upon such sale, the
interest of the Charitable Beneficiary in the shares sold shall terminate and
the Trustee shall distribute the net proceeds of the sale to the Purported
Record Transferee and to the Charitable Beneficiary as provided in this
Subparagraph I(3)(d). The Purported Record Transferee shall receive the lesser
of (1) the price paid by the Purported Record Transferee for the shares in the
transaction that resulted in such transfer to the Trust (or, if the event which
resulted in the transfer to the Trust did not involve a purchase of such shares
at Market Price, the Market Price of such shares on the day of the event which
resulted in the transfer of the shares to the Trust) and (2) the price per share
received by the Trustee (net of any commissions and other expenses of sale) from
the sale or other disposition of the shares held in the Trust. Any net sales
proceeds in excess of the amount payable to the Purported Record Transferee
shall be immediately paid to the Charitable Beneficiary together with any
dividends or other distributions thereon. If, prior to the discovery by the
Company that shares of such Series A Preferred Stock have been transferred to
the Trustee, such shares are sold by a Purported Record Transferee then (i) such
shares shall be deemed to have been sold on behalf of the Trust and (ii) to the
extent that the Purported Record Transferee received an amount for such shares
that exceeds the amount that such Purported Record Transferee was entitled to
receive pursuant to this Subparagraph I(3)(d), such excess shall be paid to the
Trustee upon demand.
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<PAGE>
(e) Series A Preferred Stock transferred to the Trustee shall be
deemed to have been offered for sale to the Company, or its designee, at a price
per share equal to the lesser of (i) the price paid by the Purported Record
Transferee for the shares in the transaction that resulted in such transfer to
the Trust (or, if the event which resulted in the transfer to the Trust did not
involve a purchase of such shares at Market Price, the Market Price of such
shares on the day of the event which resulted in the transfer of the shares to
the Trust) and (ii) the Market Price on the date the Company, or its designee,
accepts such offer. The Company shall have the right to accept such offer until
the Trustee has sold the shares held in the Trust pursuant to Subparagraph
I(3)(d). Upon such a sale to the Company, the interest of the Charitable
Beneficiary in the shares sold shall terminate and the Trustee shall distribute
the net proceeds of the sale to the Purported Record Transferee and any
dividends or other distributions held by the Trustee with respect to such Series
A Preferred Stock shall thereupon be paid to the Charitable Beneficiary.
(f) By written notice to the Trustee, the Company shall
designate one or more nonprofit organizations to be the Charitable Beneficiary
of the interest in the Trust such that (i) the Series A Preferred Stock held in
the Trust would not violate the restrictions set forth in Subparagraph I(2)(a)
in the hands of such Charitable Beneficiary and (ii) each Charitable Beneficiary
is an organization described in Sections 170(b)(1)(A), 170(c)(2) and 501(c)(3)
of the Code.
(4) Remedies For Breach. If the Board of Directors or its
-------------------
designees shall at any time determine in good faith that a Transfer or other
event has taken place in violation of Subparagraph I(2) of these Articles
Supplementary or that a Person intends to acquire, has attempted to acquire or
may acquire beneficial ownership (determined without reference to any rules of
attribution), Beneficial Ownership or Constructive Ownership of any shares of
the Company in violation of Subparagraph I(2) of these Articles Supplementary,
the Board of Directors or its designees shall take such action as it deems
advisable to refuse to give effect to or to prevent such Transfer, including,
but not limited to, causing the Company to redeem shares, refusing to give
effect to such Transfer on the books of the Company or instituting proceedings
to enjoin such Transfer; provided, however, that any Transfers (or, in the case
of events other than a Transfer, ownership or Constructive Ownership or
Beneficial Ownership) in violation of Subparagraph I(2)(a) of these Articles
Supplementary, shall automatically result in the transfer to a Trust as
described in Subparagraph I(2)(b) and any Transfer in violation of Subparagraph
I(2)(c) shall automatically be void ab initio irrespective of any action (or
non-action) by the Board of Directors.
(5) Notice of Restricted Transfer. Any Person who acquires or
-----------------------------
attempts to acquire shares in violation of Subparagraph I(2) of these Articles
Supplementary, or any Person who is a Purported Transferee such that an
automatic transfer to a Trust results under Subparagraph I(2)(b) of these
Articles Supplementary, shall immediately give written notice to the Company of
such event and shall provide to the Company such other information as the
Company may
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<PAGE>
request in order to determine the effect, if any, of such Transfer or attempted
Transfer on the Company's status as a REIT.
(6) Owners Required To Provide Information. From the date of the
--------------------------------------
Public Offering and prior to the Restriction Termination Date each Person who is
a beneficial owner or Beneficial Owner or Constructive Owner of Series A
Preferred Stock and each Person (including the shareholder of record) who is
holding Series A Preferred Stock for a beneficial owner or Beneficial Owner or
Constructive Owner shall provide to the Company such information that the
Company may request, in good faith, in order to determine the Company's status
as a REIT.
(7) Remedies Not Limited. Nothing contained in these Articles
--------------------
Supplementary (but subject to Subparagraph I(13) of these Articles
Supplementary) shall limit the authority of the Board of Directors to take such
other action as it deems necessary or advisable to protect the Company and the
interests of its shareholders by preservation of the Company's status as a REIT.
(8) Ambiguity. In the case of an ambiguity in the application of
---------
any of the provisions of this Paragraph I of these Articles Supplementary,
including any definition contained in Subparagraph I(1), the Board of Directors
shall have the power to determine the application of the provisions of this
Paragraph I with respect to any situation based on the facts known to it
(subject, however, to the provisions of Subparagraph I(13) of these Articles
Supplementary). In the event Paragraph I requires an action by the Board of
Directors and this charter fails to provide specific guidance with respect to
such action, the Board of Directors shall have the power to determine the action
to be taken so long as such action is not contrary to the provisions of
Paragraph I. Absent a decision to the contrary by the Board of Directors (which
the Board may make in its sole and absolute discretion), if a Person would have
(but for the remedies set forth in Subparagraph I(2)) acquired Beneficial or
Constructive Ownership of Series A Preferred Stock in violation of Subparagraph
I(2)(a), such remedies (as applicable) shall apply first to the shares which,
but for such remedies, would have been actually owned by such Person, and second
to shares which, but for such remedies, would have been Beneficially Owned or
Constructively Owned (but not actually owned) by such Person, pro rata among the
Persons who actually own such shares based upon the relative number of the
shares held by each such Person.
(9) Exceptions.
----------
(a) Subject to Subparagraph I(2)(a)(iii), the Board of Directors, in
its sole discretion, may exempt a Person from the limitation on a Person
Beneficially Owning Series A Preferred Stock in excess of the Ownership Limit if
the Board of Directors obtains such representations and undertakings from such
Person as are reasonably necessary to ascertain that no individual's Beneficial
Ownership of such Series A Preferred Stock will violate the Ownership Limit or
that any such violation will not cause the Company to fail to qualify as a REIT
under the Code, and agrees that any violation of such representations or
undertaking (or
14
<PAGE>
other action which is contrary to the restrictions contained in
Subparagraph I(2) of these Articles Supplementary) or attempted violation will
result in such Series A Preferred Stock being transferred to a Trust in
accordance with Subparagraph I(2)(b) of these Articles Supplementary.
(b) Subject to Subparagraph I(2)(a)(iii), the Board of Directors, in
its sole discretion, may exempt a Person from the limitation on a Person
Constructively Owning Series A Preferred Stock in excess of 9.9% (by value or by
number of shares, whichever is more restrictive) of the outstanding Series A
Preferred Stock of the Company, if such Person does not and represents that it
will not own, actually or Constructively, an interest in a tenant of the Company
(or a tenant of any entity owned in whole or in part by the Company) that would
cause the Company to own, actually or Constructively more than a 9.9% interest
(as set forth in Section 856(d)(2)(B) of the Code) in such tenant and the
Company obtains such representations and undertakings from such Person as are
reasonably necessary to ascertain this fact and agrees that any violation or
attempted violation will result in such Series A Preferred Stock being
transferred to a Trust in accordance with Subparagraph I(2)(b) of these Articles
Supplementary. Notwithstanding the foregoing, the inability of a Person to make
the certification described in this Subparagraph I(9)(b) shall not prevent the
Board of Directors, in its sole discretion, from exempting such Person from the
limitation on a Person Constructively Owning Series A Preferred Stock in excess
of 9.9% of the outstanding Series A Preferred Stock if the Board of Directors
determines that the resulting application of Section 856(d)(2)(B) of the Code
would affect the characterization of less than 0.5% of the gross income (as such
term is used in Section 856(c)(2) of the Code) of the Company in any taxable
year, after taking into account the effect of this sentence with respect to all
other Series A Preferred Stock to which this sentence applies.
(c) Prior to granting any exception pursuant to Subparagraph I(9)(a) or
(b) of these Articles Supplementary, the Board of Directors may require a ruling
from the Internal Revenue Service, or an opinion of counsel, in either case in
form and substance satisfactory to the Board of Directors in it sole discretion,
as it may deem necessary or advisable in order to determine or ensure the
Company's status as a REIT.
(10) Preemptive Rights. No holder of shares of Series A Preferred
-----------------
Stock shall have any preemptive or preferential right to subscribe for or to
purchase any additional shares of any class, or any bonds or convertible
securities of any nature.
(11) Legend. Each certificate for Series A Preferred Stock shall
------
bear the following legends:
"THE COMPANY IS AUTHORIZED TO ISSUE TWO CLASSES OF CAPITAL STOCK WHICH ARE
DESIGNATED AS COMMON STOCK AND PREFERRED STOCK. THE PREFERRED STOCK MAY BE
ISSUED IN ONE OR MORE SERIES. THE BOARD OF DIRECTORS IS AUTHORIZED TO
DETERMINE THE PREFERENCES, LIMITATIONS AND RELATIVE
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<PAGE>
RIGHTS OF EACH SERIES OF PREFERRED STOCK BEFORE THE ISSUANCE OF ANY SUCH
SERIES OF PREFERRED STOCK. THE COMPANY WILL FURNISH, WITHOUT CHARGE, TO ANY
SHAREHOLDER MAKING A REQUEST THEREFOR, A COPY OF THE COMPANY'S CHARTER AND
A FULL STATEMENT WITH RESPECT TO DESIGNATIONS AND ANY PREFERENCES,
CONVERSION OR OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO
DIVIDENDS AND OTHER DISTRIBUTIONS, QUALIFICATIONS AND TERMS AND CONDITIONS
OF REDEMPTION OF THE STOCK OF EACH CLASS WHICH THE COMPANY HAS THE
AUTHORITY TO ISSUE AND, SINCE THE COMPANY IS AUTHORIZED TO ISSUE PREFERRED
STOCK IN SERIES, (i) THE DIFFERENCES IN THE RELATIVE RIGHTS AND
PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT SET, AND (ii)
THE AUTHORITY OF THE BOARD OF DIRECTORS TO SET SUCH RIGHTS AND PREFERENCES
OF SUBSEQUENT SERIES. REQUEST FOR SUCH WRITTEN STATEMENT MAY BE DIRECTED TO
THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL OFFICE."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE
COMPANY'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). SUBJECT TO
CERTAIN FURTHER RESTRICTIONS AND EXCEPT AS EXPRESSLY PROVIDED IN THE
ARTICLES SUPPLEMENTARY FOR THE SERIES A PREFERRED STOCK, (i) NO PERSON MAY
BENEFICIALLY OWN SHARES OF THE COMPANY'S SERIES A PREFERRED STOCK IN EXCESS
OF 9.9% (BY VALUE OR BY NUMBER OF SHARES, WHICHEVER IS MORE RESTRICTIVE) OF
THE OUTSTANDING SERIES A PREFERRED STOCK OF THE COMPANY; (ii) NO PERSON MAY
CONSTRUCTIVELY OWN SHARES OF THE COMPANY'S SERIES A PREFERRED STOCK IN
EXCESS OF 9.9% (BY VALUE OR BY NUMBER OF SHARES, WHICHEVER IS MORE
RESTRICTIVE) OF THE OUTSTANDING SERIES A PREFERRED STOCK OF THE COMPANY;
(iii) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SERIES A PREFERRED
STOCK THAT WOULD RESULT IN THE COMPANY BEING "CLOSELY HELD" UNDER SECTION
856(h) OF THE CODE OR OTHERWISE CAUSE THE COMPANY TO FAIL TO QUALIFY AS A
REIT; AND (iv) NO PERSON MAY TRANSFER SERIES A PREFERRED STOCK IF SUCH
TRANSFER WOULD RESULT IN THE CAPITAL STOCK OF THE COMPANY BEING OWNED BY
FEWER THAN 100 PERSONS. ANY PERSON WHO BENEFICIALLY OR
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<PAGE>
CONSTRUCTIVELY OWNS OR ATTEMPTS TO BENEFICIALLY OR CONSTRUCTIVELY OWN
SERIES A PREFERRED STOCK WHICH CAUSES OR WILL CAUSE A PERSON TO
BENEFICIALLY OR CONSTRUCTIVELY OWN SERIES A PREFERRED STOCK IN EXCESS OF
THE ABOVE LIMITATIONS MUST IMMEDIATELY NOTIFY THE COMPANY. IF ANY OF THE
RESTRICTIONS ON TRANSFER OR OWNERSHIP ARE VIOLATED, THE SERIES A PREFERRED
STOCK REPRESENTED HEREBY WILL BE AUTOMATICALLY TRANSFERRED TO THE TRUSTEE
OF A TRUST FOR THE BENEFIT OF ONE OR MORE CHARITABLE BENEFICIARIES. IN
ADDITION, THE COMPANY MAY REDEEM SHARES UPON THE TERMS AND CONDITIONS
SPECIFIED BY THE BOARD OF DIRECTORS IN ITS SOLE DISCRETION IF THE BOARD OF
DIRECTORS DETERMINES THAT OWNERSHIP OR A TRANSFER OR OTHER EVENT MAY
VIOLATE THE RESTRICTIONS DESCRIBED ABOVE. FURTHERMORE, UPON THE OCCURRENCE
OF CERTAIN EVENTS, ATTEMPTED TRANSFERS IN VIOLATION OF THE RESTRICTIONS
DESCRIBED ABOVE MAY BE VOID AB INITIO. ALL CAPITALIZED TERMS IN THIS LEGEND
HAVE THE MEANINGS DEFINED IN THE ARTICLES SUPPLEMENTARY FOR THE SERIES A
PREFERRED STOCK, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF
WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER AND OWNERSHIP, WILL BE
FURNISHED TO EACH HOLDER OF SERIES A PREFERRED STOCK ON REQUEST AND WITHOUT
CHARGE. REQUESTS FOR SUCH A COPY MAY BE DIRECTED TO THE SECRETARY OF THE
COMPANY AT ITS CORPORATE OFFICE."
(12) Severability. If any provision of this Paragraph I or any
------------
application of any such provision is determined to be invalid by any Federal or
state court having jurisdiction over the issues, 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.
(13) NYSE. Nothing in this Paragraph I shall preclude the
----
settlement of any transaction entered into through the facilities of the NYSE.
The shares of Series A Preferred Stock that are the subject of such transaction
shall continue to be subject to the provisions of this Paragraph I after such
settlement
(14) Applicability of Paragraph I. The provisions set forth in
----------------------------
this Paragraph I shall apply to the Series A Preferred Stock notwithstanding any
contrary provisions of the Series A Preferred Stock provided for elsewhere in
these Articles Supplementary.
17
<PAGE>
J. Conversion. The Series A Preferred Stock is not convertible
----------
into or exchangeable for any other property or securities of the Company.
FOURTH: These Articles Supplementary have been approved by the
Board of Directors in the manner and by the vote required by law.
FIFTH: The undersigned Executive Vice President and Chief
Financial Officer of the Company acknowledges these Articles Supplementary to be
the corporate act of the Company and, as to all matters or facts required to be
verified under oath, the undersigned Executive Vice President and Chief
Financial Officer of the Company acknowledges that to the best of his knowledge,
information and belief, these matters and facts are true in all material
respects and that this statement is made under the penalties for perjury.
18
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IN WITNESS WHEREOF, HEALTH CARE PROPERTY INVESTORS, INC., has
caused these Articles Supplementary to be executed under seal in its name and on
its behalf by its Executive Vice President and Chief Financial Officer and
attested to by its Secretary on this 23rd day of September, 1997.
HEALTH CARE PROPERTY INVESTORS, INC.
By: /s/ James G. Reynolds
________________________________________________
Name: James G. Reynolds
Title: Executive Vice President and
Chief Financial Officer
Attest: /s/ Edward J. Henning
______________________________________________
Name: Edward J. Henning
Title: Senior Vice President, General
Counsel and Corporate Secretary
S-1
