<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): April 23, 1998
HEALTH CARE PROPERTY INVESTORS, INC.
------------------------------------
(Exact name of registrant as specified in its charter)
Maryland 1-8895 33-0091377
- -------- ------ ----------
(State or Other (Commission File Number) (I.R.S. Employer
Jurisdiction of Identification No.)
Incorporation)
4675 MacArthur Court, 9th Floor, Newport Beach, California 92660
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(Address of Principal Executive Offices) (Zip Code)
(949) 221-0600
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(Registrant's telephone number, including area code)
<PAGE>
Item 5. Other Events.
------------
COMMON STOCK OFFERING
On June 18, 1997, Health Care Property Investors, Inc. (the "Company")
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (File No. 333-29485) (the "Registration
Statement"), as amended by Amendment No. 1 to the Registration Statement filed
with the Commission on June 26, 1997, relating to the registration under the
Securities Act of 1933, as amended, of up to $385,000,000 aggregate offering
price of common stock, par value $1.00 per share, preferred stock, par value
$1.00 per share, and/or unsecured debt securities of the Company, which
Registration Statement was declared effective on June 27, 1997.
On April 23, 1998, the Company entered into a purchase agreement (the
"Purchase Agreement") with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, (the "Underwriter"), pursuant to which the Company agreed to
issue and sell up to 698,752 shares of the Company's Common Stock (the "Common
Shares"). Each of the Purchase Agreement, an opinion with respect to the
legality of the Common Shares and an opinion with respect to tax matters is
attached hereto as an Exhibit.
Item 7. Financial Statements and Exhibits.
---------------------------------
(c) Exhibits.
1.1 Purchase Agreement, dated April 23, 1998, between the Company and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated.
5.1 Opinion re legality of Common Stock.
8.1 Opinion re tax matters.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereto duly authorized.
Dated: April 24, 1998
HEALTH CARE PROPERTY INVESTORS, INC.
By: /s/ Edward J. Henning
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Name: Edward J. Henning
Title: Senior Vice President,
General Counsel and
Corporate Secretary
<PAGE>
EXHIBIT INDEX
1.1 Purchase Agreement, dated April 23, 1998, between the Company and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated.
5.1 Opinion re legality of Common Stock.
8.1 Opinion re tax matters.
<PAGE>
EXHIBIT 1.1
================================================================================
698,752 Shares
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
Common Stock
(Par Value $1.00 Per Share)
PURCHASE AGREEMENT
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================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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Section 1. Representations and Warranties.................................... -3-
(i) Compliance with Registration Requirements..................... -3-
(ii) Incorporated Documents........................................ -3-
(iii) Independent Accountants....................................... -4-
(iv) Financial Statements.......................................... -4-
(v) No Material Adverse Change in Business........................ -4-
(vi) Good Standing of the Company.................................. -5-
(vii) Good Standing of Subsidiaries................................. -5-
(viii) REIT Status................................................... -5-
(ix) Capitalization................................................ -5-
(x) Absence of Defaults and Conflicts............................. -6-
(xi) Absence of Proceedings........................................ -6-
(xii) Absence of Further Requirements............................... -7-
(xiii) Authorization of Purchase Agreement........................... -7-
(xiv) Title to Property............................................. -7-
(xv) Investment Company Act........................................ -7-
Section 2. Sale and Delivery to the Underwriter; Closing..................... -8-
Section 3. Covenants of the Company.......................................... -8-
(a) Compliance with Securities Regulations and Commission Requests -8-
(b) Filing of Amendments.......................................... -9-
(c) Delivery of Registration Statements........................... -9-
(d) Delivery of Prospectuses...................................... -9-
(e) Continued Compliance with Securities Laws..................... -9-
(f) Blue Sky Qualifications....................................... -10-
(g) Earnings Statement............................................ -10-
(h) Use of Proceeds............................................... -10-
(i) Preparation of Prospectus Supplement.......................... -10-
(j) Reporting Requirements........................................ -10-
Section 4. Payment of Expenses............................................... -10-
Section 5. Conditions of the Underwriter's Obligations....................... -11-
(a) Effectiveness of Registration Statement....................... -11-
(b) Opinions...................................................... -11-
(c) Officers' Certificate......................................... -16-
(d) Accountant's Comfort Letter................................... -17-
(e) Bring-down Comfort Letter..................................... -17-
(f) Listing....................................................... -17-
(g) Additional Documents.......................................... -17-
</TABLE>
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<TABLE>
<S> <C>
Section 6. Indemnification.................................................. -17-
(a) Indemnification of the Underwriter............................ -17-
(b) Indemnification of Company, Directors and Officers............ -18-
(c) Actions Against Parties; Notification......................... -19-
(d) Settlement without Consent if Failure to Reimburse............ -19-
(e) EDGAR......................................................... -20-
Section 7. Contribution..................................................... -20-
Section 8. Representations, Warranties and Agreements to Survive Delivery... -21-
Section 9. Termination of Agreement......................................... -21-
Section 10. Notices.......................................................... -22-
Section 11. Parties.......................................................... -22-
Section 12. Governing Law and Time........................................... -22-
</TABLE>
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<PAGE>
698,752 Shares
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
Common Stock
(Par Value $1.00 Per Share)
PURCHASE AGREEMENT
------------------
April 23, 1998
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Dear Sirs:
Health Care Property Investors, Inc., a Maryland corporation (the
"Company"), confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Underwriter") with respect to the sale by the Company and the
purchase by the Underwriter of 698,752 shares (the "Securities") of Common
Stock, par value $1.00 per share, of the Company ("Common Stock"). The
Underwriter intends to deposit the Securities with the trustee of the Equity
Investor Fund Cohen & Steers Realty Majors Portfolio (A Unit Investment Trust)
(the "Trust"), a registered unit investment trust under the Investment Company
Act of 1940, as amended, for which Merrill Lynch, Pierce, Fenner & Smith
Incorporated acts as sponsor and depositor, in exchange for units in the Trust.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-29485) and a related
preliminary prospectus for the registration under the Securities Act of 1933, as
amended
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<PAGE>
(the "1933 Act") of Common Stock, including the Securities, preferred stock, par
value $1.00 per share, and debt securities (collectively, the "Registered
Securities"), which registration statement has been declared effective by the
Commission and copies of which have heretofore been delivered to you. Such
registration statement, in the form in which it was declared effective, as
amended through the date hereof, including all documents incorporated or deemed
to be incorporated by reference therein through the date hereof, is hereinafter
referred to as the "Original Registration Statement". Any registration
statement filed pursuant to Rule 462(b) of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") is herein referred to
as the "Rule 462(b) Registration Statement". The Original Registration
Statement, together with any Rule 462(b) Registration Statement, is hereinafter
referred to as the "Registration Statement". The Company proposes to file with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations the
Prospectus Supplement (as defined in Section 3(i) hereof) relating to the
Securities and the prospectus dated September 19, 1997 (the "Base Prospectus")
relating to the Registered Securities, and has previously advised you of all
further information (financial and other) with respect to the Company set forth
therein. The Base Prospectus together with the Prospectus Supplement, in their
respective forms on the date hereof (being the forms in which they are to be
filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations),
including all documents incorporated or deemed to be incorporated by reference
therein through the date hereof, are hereinafter referred to as, collectively,
the "Prospectus", except that if any revised prospectus or prospectus supplement
shall be provided to the Underwriter by the Company for use in connection with
the offering and sale of the Securities which differs from the Prospectus
(whether or not such revised prospectus or prospectus supplement is required to
be filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations),
the term "Prospectus" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first provided to
the Underwriter for such use. Unless the context otherwise requires, all
references in this Agreement to documents, financial statements and schedules
and other information which is "contained", "included", "stated", "described in"
or "referred to" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
documents, financial statements and schedules and other information which is or
is deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934 (the "1934 Act") after the date of this Agreement which is
or is deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be.
The Company understands that the Underwriter proposes to deposit the
Securities with the trustee of the Trust, a registered unit investment trust
under the Investment Company Act of 1940, as amended, for which Merrill Lynch,
Pierce, Fenner & Smith Incorporated acts as sponsor and depositor, in exchange
for units in the Trust as soon as the Underwriter deems advisable after this
Agreement has been executed and delivered.
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Section 1. Representations and Warranties. (a) The Company represents and
------------------------------
warrants to the Underwriter as of the date hereof (such date being hereinafter
referred to as the "Representation Date") and as of the Closing Time referred to
in Section 2 as follows:
(i) Compliance with Registration Requirements. The Company meets
-----------------------------------------
the requirements for use of Form S-3 under the 1933 Act and the 1933 Act
Regulations. Each of the Original Registration Statement and any Rule
462(b) Registration Statement and the Base Prospectus, at the respective
times the Original Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective and as
of the Representation Date, complied and comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations
(including Rule 415(a) of the 1933 Act Regulations), and did not and as of
the Representation Date do not 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. No stop order
suspending the effectiveness of the Original Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. The Prospectus, at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Underwriter by the Company for use in connection with the offering of the
Securities which differs from the Prospectus filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations, in which case at the
time it is first provided to the Underwriter for such use) and at the
Closing Time referred to in Section 2 hereof, does not and will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
--------
however, that the representations and warranties in this subsection (i)
-------
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the Underwriter
expressly for use in the Registration Statement or the Prospectus or the
information contained in any Statement of Eligibility and Qualification of
a trustee under the Trust Indenture Act of 1939, as amended (the "1939
Act") filed as an exhibit to the Registration Statement (a "Form T-1").
For purposes of this Section 1(a), all references to the Registration
Statement, any post-effective amendments thereto and the Prospectus shall
be deemed to include, without limitation, any electronically transmitted
copies thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis, and Retrieval system ("EDGAR").
(ii) Incorporated Documents. The documents incorporated or deemed
----------------------
to be incorporated by reference into the Prospectus pursuant to Item 12 of
Form S-3 under the 1933 Act, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission
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<PAGE>
thereunder (the "1934 Act Regulations"), and, when read together and with
the other information in the Prospectus, at the respective times the
Registration Statement and any amendments thereto became effective, at the
Representation Date and at Closing Time, did not, do not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(iii) Independent Accountants. The accountants who certified the
-----------------------
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) Financial Statements. The financial statements and any
--------------------
supporting schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as at the dates indicated and the
results of their operations for the periods specified; and, except as
otherwise stated in the Registration Statement and the Prospectus, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein; the selected financial data and the summary financial information
included in the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement and the Prospectus; the
pro forma financial statements and the related notes thereto incorporated
by reference in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein; and the Company's ratios of earnings
to fixed charges included in the Prospectus under the caption "Ratio of
Earnings to Fixed Charges" and in Exhibit 12 to the Registration Statement
have been calculated in compliance with Item 503(d) of Regulation S-K of
the Commission.
(v) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein or contemplated thereby,
(A) there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, (B) there have been no
transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with
respect
-4-
<PAGE>
to the Company and its subsidiaries considered as one enterprise, and (C)
except for regular quarterly dividends on the Common Stock, there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
----------------------------
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Maryland with corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify and be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and the Company is in
substantial compliance with all laws, ordinances and regulations of each
state in which it owns properties that are material to the properties and
business of the Company and its subsidiaries considered as one enterprise
in such state.
(vii) Good Standing of Subsidiaries. Each subsidiary of the
-----------------------------
Company which is a significant subsidiary (each, a "Significant
Subsidiary") as defined in Rule 405 of Regulation C of the 1933 Act
Regulations has been duly organized and is validly existing as a
corporation or partnership, as the case may be, in good standing under the
laws of the jurisdiction of its organization, has power and authority as a
corporation or partnership, as the case may be, to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation or partnership, as the case
may be, to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure
to so qualify would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise;
all of the issued and outstanding capital stock of each such corporate
subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, except for directors' qualifying shares, is owned by
the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
and all of the issued and outstanding partnership interests of each such
subsidiary which is a partnership have been duly authorized (if applicable)
and validly issued and are fully paid and non-assessable and (except for
other partnership interests described in the Prospectus) are owned by the
Company, directly or through corporate subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
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<PAGE>
(viii) REIT Status. The Company has at all times operated in such
-----------
manner as to qualify as a "real estate investment trust" under the Internal
Revenue Code of 1986, as amended (the "Code"), and intends to continue to
operate in such manner.
(ix) Capitalization. The authorized capital stock of the
--------------
Company is as set forth in the Company's Consolidated Balance Sheets as of
December 31, 1997 included in the Company's annual report on Form 10-K for
the year ended December 31, 1997 (the "Form 10-K") and incorporated by
reference in the Prospectus (except for subsequent issuances, if any,
pursuant to reservations, agreements or employee benefit plans referred to
in the Prospectus); the shares of issued Common Stock have been duly
authorized and validly issued and are fully paid and non-assessable; the
Company has the requisite corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and the
Securities have been duly authorized for issuance and sale to the
Underwriter pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement against payment of the consideration
set forth herein, will be validly issued and fully paid and non-assessable;
the Common Stock conforms to all statements relating thereto contained in
the Prospectus and such descriptions conform to the rights set forth in the
instruments defining the same; the issuance of the Securities is not
subject to preemptive rights or similar rights; and, after giving effect to
the sale of the Securities and the sale of any other of the Registered
Securities to be issued prior to the delivery of the Securities, the
aggregate amount of Securities which have been issued and sold by the
Company will not exceed the aggregate amount of theretofore unsold
Registered Securities.
(x) Absence of Defaults and Conflicts. Neither the Company nor any
---------------------------------
of its subsidiaries is in violation of its charter or bylaws or in material
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of its
subsidiaries is subject and in which the violation or default might result
in a material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated herein and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action and
will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the provisions of the
charter or bylaws of
-6-
<PAGE>
the Company or any law, administrative regulation or administrative or
court order or decree.
(xi) Absence of Proceedings. There is no action, suit or
----------------------
proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries, which is
required to be disclosed in the Registration Statement (other than as
disclosed therein), or which might result in any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the properties
or assets thereof or which might materially and adversely affect the
consummation of this Agreement or any transaction contemplated hereby; all
pending legal or governmental proceedings to which the Company or any of
its subsidiaries is a party or of which any of their respective property or
assets is the subject which are not described in or incorporated by
reference in the Registration Statement, including ordinary routine
litigation incidental to the business, are, considered in the aggregate,
not material; and there are no contracts or documents of the Company or any
of its subsidiaries which are required to be filed or incorporated by
reference as exhibits to, or incorporated by reference in, the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have not
been so filed.
(xii) Absence of Further Requirements. No authorization,
-------------------------------
approval, consent, order or decree of any court or governmental authority
or agency is required for the consummation by the Company of the
transactions contemplated by this Agreement or in connection with the
offering, issuance or sale of the Securities hereunder, except such as may
be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xiii) Authorization of Purchase Agreement. This Agreement has
-----------------------------------
been duly authorized, executed and delivered by the Company and, upon
execution and delivery by the Underwriter, will be a valid and legally
binding agreement of the Company.
(xiv) Title to Property. The Company and its subsidiaries have
-----------------
good title to all real property or interests in real property owned by it
or any of them, in each case free and clear of all liens, encumbrances and
defects except such as are stated or incorporated by reference in the
Prospectus or such as would not materially adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise;
the Company and its subsidiaries have obtained satisfactory confirmations
(consisting of policies of title insurance or commitments or binders
therefor or opinions of counsel based upon the examination of abstracts)
confirming, except as otherwise described in the Prospectus, (A) that the
Company and its subsidiaries have the foregoing title to such real property
and interests in real property, and (B) that the instruments securing the
Company's and its subsidiaries' real estate
-7-
<PAGE>
mortgage loans create valid liens upon the real properties described in
such instruments enjoying the priorities intended, subject only to
exceptions to title which have no material adverse effect on the value of
such real properties and interests in relation to the Company and its
subsidiaries considered as one enterprise; and no material real property
and buildings are held under lease by the Company (other than long-term
ground leases).
(xv) Investment Company Act. The Company is not required to be
----------------------
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(b) Any certificate signed by any officer of the Company and delivered to
the Underwriter or to counsel for the Underwriter shall be deemed a
representation and warranty by the Company to the Underwriter as to the matters
covered thereby.
Section 2. Sale and Delivery to the Underwriter; Closing.
---------------------------------------------
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell
to the Underwriter and the Underwriter agrees to purchase from the Company, at
$33.2217 per share, 698,752 shares of Common Stock.
(b) Payment of the purchase price for, and delivery of certificates for,
the Securities shall be made at the office of Latham & Watkins, 633 West Fifth
Street, Suite 4000, Los Angeles, California 90071-2007, or at such other place
as shall be agreed upon by the Underwriter and the Company, at 7:00 A.M., Los
Angeles time, on April 29, 1998 or such other time not later than ten business
days after such date as shall be agreed upon by the Underwriter and the Company
(such time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately available
funds to a bank account designated by the Company against delivery to the
Underwriter of certificates for the Securities to be purchased by the
Underwriter. Certificates for the Securities shall be in such denominations and
registered in such names as the Underwriter may request in writing at least one
business day before Closing Time. The certificates for the Securities will be
made available for examination and packaging by the Underwriter not later than
10:00 A.M. on the last business day prior to Closing Time in New York, New York.
Section 3. Covenants of the Company. The Company covenants with the
------------------------
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
--------------------------------------------------------------
The Company will notify the Underwriter immediately, and confirm the notice
in writing, (i) of the effectiveness of any post-effective amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of the Prospectus or any amendment to the
Registration Statement or amendment or supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act
-8-
<PAGE>
during any period when the Prospectus is required to be delivered under the
1933 Act, (iii) of the receipt of any comments or inquiries from the
Commission relating to the Registration Statement or Prospectus, (iv) of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceeding for that purpose, and (vi) of the issuance by
any state securities commission or other regulatory authority of any order
suspending the qualification or the exemption from qualification of the
Securities under state securities or Blue Sky laws or the initiation of any
proceedings for that purpose. The Company will make every reasonable
effort to prevent the issuance by the Commission of any stop order and, if
any such stop order is issued, to obtain the lifting thereof at the
earliest possible moment. The Company will provide the Underwriter with
copies of the form of Prospectus, in such number as the Underwriter may
reasonably request, and file or transmit for filing with the Commission
such Prospectus in accordance with Rule 424(b) of the 1933 Act Regulations
by the close of business in New York on the second business day immediately
succeeding the date hereof.
(b) Filing of Amendments. The Company will give the Underwriter
--------------------
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)) or any
amendment or supplement to the Prospectus (including any revised prospectus
which the Company proposes for use by the Underwriter in connection with
the offering of the Securities that differs from the prospectus filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, whether
or not such revised prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations or any abbreviated term sheet prepared
in reliance on Rule 434 of the 1933 Act Regulations), will furnish the
Underwriter with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file any such amendment or supplement or use any such
prospectus to which the Underwriter or counsel for the Underwriter shall
reasonably object.
(c) Delivery of Registration Statements. The Company will deliver to
-----------------------------------
the Underwriter as many signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith and documents incorporated or deemed to be incorporated by
reference therein) as the Underwriter may reasonably request and will also
deliver to the Underwriter as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including
documents incorporated or deemed to be incorporated by reference therein
but without exhibits filed therewith) as the Underwriter may reasonably
request.
(d) Delivery of Prospectuses. The Company will furnish to the Under
------------------------
writer, from time to time during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies
of the
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<PAGE>
Prospectus (as amended or supplemented) the Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act or
the respective applicable rules and regulations of the Commission
thereunder.
(e) Continued Compliance with Securities Laws. If any event shall
-----------------------------------------
occur as a result of which it is necessary, in the opinion of counsel for
the Underwriter or counsel for the Company, to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, the
Company will forthwith amend or supplement the Prospectus (in form and
substance satisfactory to counsel for the Underwriter) so that, as so
amended or supplemented, the Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading, and
the Company will furnish to the Underwriter a reasonable number of copies
of such amendment or supplement.
(f) Blue Sky Qualifications. The Company will endeavor, in
-----------------------
cooperation with the Underwriter, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriter may designate;
provided, however, that the Company shall not be obligated to file any
-------- -------
general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. In each
jurisdiction in which the Securities shall have been so qualified, the
Company will file such statements and reports as may be required by laws
of such jurisdiction to continue such qualification in effect for as long
as may be required for the distribution of the Securities.
(g) Earnings Statement. The Company will make generally available to
------------------
its security holders as soon as practicable, but not later than 60 days
after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering the twelve month period beginning not later than the first day of
the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
(h) Use of Proceeds. The Company will use the net proceeds received
---------------
by it from the sale of the Securities in the manner to be specified in the
Prospectus Supplement under "Use of Proceeds".
(i) Preparation of Prospectus Supplement. Immediately following the
------------------------------------
execution of this Agreement, the Company will prepare a prospectus
supplement, dated the date hereof (the "Prospectus Supplement"), containing
the terms of the Securities, the plan of distribution thereof and such
other information as may be required by the 1933 Act or the 1933 Act
Regulations or as the Underwriter and the Company deem appropriate, and
will file or transmit for filing with the Commission
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<PAGE>
in accordance with Rule 424(b) of the 1933 Act Regulations copies of the
Prospectus (including such Prospectus Supplement).
(j) Reporting Requirements. The Company, during the period when the
----------------------
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
Section 4. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the preparation, issuance and delivery of
the certificates for the Securities to the Underwriter, (iii) the fees and
disbursements of the Company's counsel and accountants, (iv) the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fee and
disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of a Supplemental Blue Sky Survey, (v) the
printing and delivery to the Underwriter in quantities as hereinabove stated of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus and preliminary prospectus supplement
and of the Prospectus and Prospectus Supplement and any amendments or
supplements thereto, including any abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (vi) the printing and
delivery to the Underwriter of copies of the Supplemental Blue Sky Survey and
(vii) the fees and expenses incurred in connection with the listing of the
Securities on the New York Stock Exchange.
If this Agreement is cancelled or terminated by the Underwriter in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriter for all of its out-of-pocket expenses,
including the reasonable fee and disbursements of counsel for the Underwriter.
Section 5. Conditions of the Underwriter's Obligations. The obligations
-------------------------------------------
of the Underwriter hereunder are subject to the accuracy of the representations
and warranties of the Company herein contained, to the performance by the
Company of its obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. At Closing Time no stop
---------------------------------------
order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission. The Prospectus (including the Prospectus
Supplement referred to in Section 3(i) hereof) shall have been filed or
transmitted for filing with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period, and prior to
Closing Time the Company shall have provided evidence satisfactory to the
Underwriter of such timely filing or transmittal.
(b) Opinions. At Closing Time the Underwriter shall have received:
--------
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<PAGE>
(1) The favorable opinion, dated as of Closing Time, of Latham &
Watkins, special counsel for the Company, in form and scope satisfactory
to counsel for the Underwriter, to the effect that:
(i) The Registration Statement (including any Rule
462(b) Registration Statement) has been declared effective under
the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings
therefor have been initiated or threatened by the Commission.
(ii) The Registration Statement (including any Rule
462(b) Registration Statement) at the time it became effective
and at the Closing Date, appeared on its face to comply as to
form in all material respects with the requirements for
registration statements on Form S-3 under the 1933 Act and the
1933 Act Regulations; it being understood that such counsel need
express no opinion with respect to documents incorporated by
reference therein except as set forth in paragraph (iii) below,
or the financial statements, schedules and other financial data
and related schedules included or incorporated by reference in
the Registration Statement. In passing upon the compliance as to
form of the Registration Statement, such counsel may assume that
the statements made and incorporated by reference therein are
true, correct and complete.
(iii) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (other than the
financial statements, schedules and other financial data and
related schedules included or incorporated by reference therein,
as to which no opinion need be rendered), at the time it was
filed with the Commission, appeared on its face to comply as to
form in all material respects with the requirements of the 1934
Act and the 1934 Act Regulations. In passing upon compliance as
to form of such documents, such counsel may assume that the
statements made therein are true, correct and complete.
(iv) To the best of such counsel's knowledge, there are
no legal or governmental proceedings pending or threatened which
are required to be disclosed in the Prospectus.
(v) No authorization, approval, consent, decree or order
of any Federal or California court or governmental authority or
agency is required for the consummation by the Company of the
transactions contemplated by this Agreement or in connection with
the sale of the Securities hereunder, except such as may have
been obtained or rendered, as the case may be, or as may be
required under the 1933
-12-
<PAGE>
Act or the 1933 Act Regulations or state securities laws
(including real estate syndication laws).
(vi) The issue and sale of the Securities and the
compliance by the Company with the provisions of this Agreement
and the consummation of the transactions contemplated herein will
not result in a breach or violation of any material term or
provision of, or constitute a default under the Material
Agreements (as defined in such opinion) at the date hereof; nor
will such action, to the best of such counsel's knowledge, result
in any material violation of any statute or any order, rule or
regulation applicable to the Company of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except that such counsel
need express no opinion under federal securities laws except as
expressly otherwise provided in this Section 5(b)(1), and no
opinion under state securities laws (including real estate
syndication laws) or any antifraud laws.
(vii) The Company is not required to be registered
under the 1940 Act.
(2) The favorable opinion, dated as of Closing Time, of Latham &
Watkins, special counsel for the Company, in form and scope
satisfactory to counsel for the Underwriter and subject to customary
assumptions, limitations and exceptions acceptable to counsel for the
Underwriter, to the effect that:
(i) the Company was organized in conformity with the
requirements for qualification as a real estate investment trust
under the Code commencing with its taxable year ending December
31, 1985, and 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; and
(ii) the information in the Prospectus under the
captions "Certain Federal Income Tax Considerations to the
Company" and "Certain Federal Income Tax Considerations to
Holders of Common Stock," insofar as such statements constitute
matters of law, summaries of legal matters, documents or
proceedings, or legal conclusions, has been reviewed by them and
is accurate in all material respects.
(3) The favorable opinion, dated as of Closing Time, of Ballard
Spahr Andrews & Ingersoll, Maryland counsel for the Company, in form
and scope satisfactory to counsel for the Underwriter, to the effect
that:
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<PAGE>
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Maryland.
(ii) The Company has the corporate power and authority
to own, lease and operate its properties and to conduct its
business as described in the Prospectus.
(iii) The authorized capital stock of the Company is as
set forth in the Company's Consolidated Balance Sheets as of
December 31, 1997 included in the Form 10-K and incorporated by
reference in the Prospectus.
(iv) The Securities have been duly authorized for
issuance and sale to the Underwriter pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein,
will be validly issued and fully paid and non-assessable. The
issuance of such Securities is not subject to preemptive rights
under the charter or bylaws of the Company or the Maryland
General Corporation Law.
(v) Texas HCP, Inc. has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation and has the corporate
power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus. All of
the issued and outstanding shares of capital stock of such
subsidiary have been duly authorized and validly issued, and are
fully paid and non-assessable and are owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(vi) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(vii) The Common Stock conforms to the description
thereof contained in the Prospectus and the form of certificate
used to evidence the Securities is in due and proper form.
(viii) The issuance and sale of the Securities by the
Company and the compliance by the Company with the provisions of
this Agreement and the consummation of the transactions
contemplated thereby, will not result in any violation of the
provisions of the charter or bylaws of the Company
-14-
<PAGE>
(ix) No authorization, approval, consent, decree or
order of any court or governmental authority or agency is
required under the Maryland General Corporation Law for the
consummation by the Company of the transactions contemplated by
this Agreement or in connection with the sale of the Securities
hereunder, except such as may have been obtained or rendered, as
the case may be, or as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws.
In rendering its opinion, Ballard Spahr Andrews & Ingersoll shall
state that Brown & Wood LLP, in rendering its opinion pursuant to
Section 5(b)(5), may rely upon such opinion as to matters arising
under the laws of the State of Maryland.
(4) The favorable opinion, dated as of Closing Time, of Edward J.
Henning, General Counsel of the Company, in form and scope
satisfactory to counsel for the Underwriter, to the effect that:
(i) To the best of such counsel's knowledge and
information, the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial
properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(ii) To the best of such counsel's knowledge and
information, each Significant Subsidiary of the Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which its ownership or
lease of substantial properties or the conduct of its business
requires such qualification, except where the failure to so
qualify and be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(iii) To the best of such counsel's knowledge and
information, no material default exists in the due performance or
observance by the Company or any of its subsidiaries of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument described or referred to in the Registration
Statement or filed as an exhibit thereto or incorporated by
reference therein which would have
-15-
<PAGE>
a material adverse effect on the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(iv) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or documents
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto and the descriptions thereof or
references thereto are correct.
(v) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Company's
Consolidated Balance Sheets as of December 31, 1997 included in
the Form 10-K and incorporated by reference in the Prospectus
(except for subsequent issuances, if any, pursuant to
reservations, agreements, dividend reinvestment plans or employee
or director stock plans referred to in the Prospectus), and the
shares of issued and outstanding Common Stock have been duly
authorized and validly issued and are fully paid and non-
assessable.
(5) The favorable opinion, dated as of Closing Time, of Brown &
Wood LLP, counsel for the Underwriter, with respect to the matters set
forth in (i) and (ii) of subsection (b)(1) and (i), (iv), (vi) and
(vii) of subsection (b)(3) of this Section. In rendering such
opinion, Brown & Wood LLP may rely upon the opinion of Ballard Spahr
Andrews & Ingersoll, rendered pursuant to Section 5(b)(3) as to
matters arising under the laws of the State of Maryland.
(6) In giving their opinions required by subsections (b)(1) and
(b)(5), respectively, of this Section, Latham & Watkins and Brown &
Wood LLP shall each additionally state that nothing has come to their
attention that would cause them to believe that the Registration
Statement, at the time it became effective, 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 or that the Prospectus, at the Representation
Date (unless the term "Prospectus" refers to a prospectus which has
been provided to the Underwriter by the Company for use in connection
with the offering of the Securities which differs from the Prospectus
on file at the Commission at the Representation Date, in which case at
the time it is first provided to the Underwriter for such use) or at
Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; it being understood that
such counsel shall express no opinion with respect to the
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<PAGE>
financial statements, schedules and other financial data in the
Registration Statement or the Prospectus. In giving their opinions,
Latham & Watkins and Brown & Wood LLP may rely, to the extent recited
therein, (A) as to all matters of fact, upon certificates and written
statements of officers of the Company, and (B) as to the qualification
and good standing of the Company and each Significant Subsidiary to do
business in any state or jurisdiction, upon certificates of
appropriate government officials.
(c) Officers' Certificate. At Closing Time there shall not have been,
---------------------
since the date hereof or since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriter shall have received a
certificate of the President or a Vice President of the Company and the
chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 hereof
are true and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) the Company has performed or complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or, to the best
knowledge and information of such officer, threatened by the Commission.
As used in this Section 5(c), the term "Prospectus" means the Prospectus in
the form first used to confirm sales of the Securities.
(d) Accountant's Comfort Letter. At the time of execution of this
---------------------------
Agreement, the Underwriter shall have received from Arthur Andersen LLP a
letter, dated such date, in form and substance satisfactory to the
Underwriter, containing statements and information of the type ordinarily
included in accountants "comfort letters" to underwriters with respect to
financial statements and financial information included and incorporated by
reference in the Registration Statement and the Prospectus (including,
without limitation, the pro forma financial statements, if any) and
substantially in the same form as the draft letter previously delivered to
and approved by the Underwriter.
(e) Bring-down Comfort Letter. At Closing Time the Underwriter shall
-------------------------
have received from Arthur Andersen LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section, except that the
specified date referred to therein shall be a date not more than three
business days prior to Closing Time.
(f) Listing. At Closing Time the Securities shall have been duly
-------
listed, subject to notice of issuance, on the New York Stock Exchange.
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<PAGE>
(g) Additional Documents. At Closing Time counsel for the Underwriter
--------------------
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any
of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Underwriter
and counsel for the Underwriter.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriter by notifying the Company at any time at or prior to Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof. Notwithstanding any such termination,
the provisions of Sections 1, 4, 6, 7 and 8 shall remain in effect.
Section 6. Indemnification.
---------------
(a) Indemnification of the Underwriter. The Company agrees to indemnify
----------------------------------
and hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or any omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, any preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by the Under writer), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue
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<PAGE>
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that (A) this indemnity agreement shall not apply to any
- -------- -------
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or any preliminary prospectus, preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto), and (B)
with respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus or preliminary prospectus
supplement, this indemnity agreement shall not inure to the benefit of the
Underwriter (or to the benefit of any person controlling the Underwriter within
the meaning of Section 15 of the 1933 Act) to the extent that any such loss,
liability, claim, damage or expense of the Underwriter or any person controlling
the Underwriter results from the fact that the Underwriter sold Securities to a
person to whom there was not sent or given by the Underwriter or on the
Underwriter's behalf at or prior to the written confirmation of the sale of such
Securities to such person, a copy of the Prospectus (as then amended or
supplemented), if required by law to have been so delivered, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, liability, claim, damage or expense.
(b) Indemnification of Company, Directors and Officers. The Underwriter
--------------------------------------------------
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus, preliminary prospectus supplement or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
information furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus, preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
-------------------------------------
give written notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a) above, counsel to the indemnified parties shall be selected by the
Underwriter, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
-------- -------
(except with the consent of the indemnified party) also be
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<PAGE>
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
--------------------------------------------------
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) EDGAR. For purposes of this Section 6, all references to the
-----
Registration Statement, any preliminary prospectus, preliminary prospectus
supplement or the Prospectus, or any amendment or supplement to any of the
foregoing, shall be deemed to include, without limitation, any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR.
Section 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriter, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and of the
Underwriter, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
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<PAGE>
The relative benefits received by the Company, on the one hand, and the
Underwriter, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriter, in
each case as set forth on the cover of the Prospectus (or, if Rule 434 is used,
the corresponding location on the Term Sheet) bear to the aggregate public
offering price of the Securities as set forth on such cover (or corresponding
location on the Term Sheet, as the case may be).
The relative fault of the Company, on the one hand, and the Underwriter, on
the other hand, shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 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 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Securities were offered exceeds the amount of any damages
which the Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
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<PAGE>
Section 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto
or thereto, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Underwriter or any controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriter.
Section 9. Termination of Agreement. (a) The Underwriter may terminate
------------------------
this Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) if there has occurred any outbreak of
hostilities or other calamity or crisis or change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which on the financial markets of the
United States is such as to make it, in the judgement of the Underwriter,
impracticable or inadvisable to (x) commence or continue the offering of the
units of the Trust to the public, or (y) enforce contracts for the sale of the
units of the Trust, or (iii) if trading in the securities of the Company has
been suspended by the Commission, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange or in the NASDAQ National Market
has been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
Exchanges or by order of the Commission, the NASD or any other governmental
authority, or if a banking moratorium has been declared by either federal, New
York or California authorities. As used in this Section 9(a), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of the
Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof. Notwithstanding any such termination, the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in effect.
Section 10. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of written telecommunication. Notices to the
Underwriter shall be directed to it at Merrill Lynch & Co., 10877 Wilshire
Boulevard, Suite 1900, Los Angeles, CA 90024, Attention: James F. Flaherty III,
Managing Director, and notices to the Company shall be directed to it at 4675
MacArthur Court, 9th Floor, Newport Beach, California 92660, Attention: Kenneth
B. Roath, President and Chief Executive Officer, with a copy to Pamela B. Kelly,
Esq. at Latham & Watkins, 633 West Fifth Street, Suite 4000, Los Angeles,
California 90071.
Section 11. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriter and the Company and their respective successors.
Nothing expressed
-22-
<PAGE>
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation other than the Underwriter and the Company and their
respective successors and the controlling persons and the officers and directors
referred to in Sections 6 and 7 hereof and their heirs and legal representatives
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit of
the Underwriter and the Company and their respective successors, and said
controlling persons and said officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from the Underwriter shall be deemed to be a
successor merely by reason of such purchase.
Section 12. Governing Law and Time. This Agreement shall be governed by
----------------------
and construed in accordance with the laws of the State of California applicable
to agreements made and to be performed in such State. Unless stated otherwise,
all specified times of day refer to New York City time.
-23-
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriter and the Company in accordance with its terms.
Very truly yours,
HEALTH CARE PROPERTY INVESTORS, INC.
By: \s\ Devasis Ghose
--------------------------------
Name: Devasis Ghose
Title: Senior Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ John C. Brady
------------------------------------
Authorized Signatory
-24-
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL]
April 23, 1998
Health Care Property Investors, Inc.
10990 Wilshire Boulevard
Suite 1200
Los Angeles, California 90024
Re: Health Care Property Investors, Inc., a Maryland corporation (the
"Company") - up to Six Hundred Ninety-Eight Thousand Seven
Hundred Fifty-Two (698,752) shares (the "Shares") of the Common
Stock of the Company, par value $1.00 per share (the "Common
Stock"), to be issued and sold pursuant to Registration Statement
on Form S-3, as amended (Registration No. 333-29485), including
the Prospectus dated September 19, 1997, comprising a part
thereof (the "Prospectus"), and the Prospectus Supplement, dated
April 23, 1998 (the "Prospectus Supplement")
-----------------------------------------------------------------
Ladies and Gentlemen:
In connection with the registration of the offering and sale of the
Shares under the Securities Act of 1933, as amended (the "Act"), by the Company
on Form S-3 filed with the Securities and Exchange Commission on or about June
18, 1997, as amended, (the "Registration Statement"), you have requested our
opinion with respect to the matters set forth below.
We have acted as special Maryland corporate counsel for the Company in
connection with the matters described herein. In our capacity as special
Maryland corporate counsel to the Company, we have reviewed and are familiar
with proceedings proposed to be taken by the Company in connection with the
authorization, issuance and sale of the Shares, and for purposes of this opinion
have assumed such proceedings will be timely completed in the manner presently
proposed. In addition, we have relied upon certificates and advice from the
officers of the Company upon which we believe we are justified in relying and on
various certificates from, and documents recorded with, the State Department of
Assessments and Taxation of Maryland (the "SDAT"),
<PAGE>
BALLARD SPAHR ANDREWS & INGERSOLL
Health Care Property Investors, Inc.
April 23, 1998
Page 2
including the charter of the Company (the "Charter"), consisting of Articles of
Restatement filed with the SDAT on April 27, 1992 and Articles Supplementary
filed with the SDAT on or about September 26, 1997. We have also examined the
Bylaws of the Company, as amended through the date hereof (the "Bylaws"), and
resolutions of the Board of Directors of the Company and committees thereof
adopted on or before the date hereof and in full force and effect on the date
hereof; and such laws, records, documents, certificates, opinions and
instruments as we deem necessary to render this opinion.
We have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals and the conformity to the originals
of all documents submitted to us as certified, photostatic or conformed copies.
In addition, we have assumed that each person executing any instrument, document
or certificate referred to herein on behalf of any party is duly authorized to
do so. We have also assumed that none of the Shares will be issued or
transferred in violation of the restrictions on ownership and transfer of stock
contained in the Charter of the Company and described in the Prospectus under
the caption "Transfer Restrictions, Redemption and Business Combination
Provisions".
Based on the foregoing, and subject to the assumptions and
qualifications set forth herein, it is our opinion that, as of the date of this
letter, the Shares have been duly authorized by all necessary corporate action
on the part of the Company, and the Shares will, upon issuance and delivery in
accordance with the terms and conditions described in the Registration Statement
against payment of the purchase price therefor as determined by the Board of
Directors of the Company or a committee thereof, be validly issued, fully paid
and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement, and further consent to the filing of this opinion as an
exhibit to the applications to securities commissioners for the various states
of the United States for registration of the Shares. We also consent to the
identification of our firm as Maryland counsel to the Company in the section of
the Prospectus (which is part of the Registration Statement) entitled "Legal
Matters."
<PAGE>
BALLARD SPAHR ANDREWS & INGERSOLL
Health Care Property Investors, Inc.
April 23, 1998
Page 3
The opinions expressed herein are limited to the laws of the State of
Maryland and we express no opinion concerning any laws other than the laws of
the State of Maryland. Furthermore, the opinions presented in this letter are
limited to the matters specifically set forth herein and no other opinion shall
be inferred beyond the matters expressly stated.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll
<PAGE>
EXHIBIT 8.1
[Letterhead of Latham & Watkins]
April 23, 1998
Health Care Property Investors, Inc.
4675 MacArthur Court, 9th Floor
Newport Beach, California 92660
Re: Health Care Property Investors, Inc.
698,752 Shares of Common Stock
------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Health Care Property Investors, Inc., a
Maryland corporation (the "Company"), in connection with the sale by the Company
to Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Underwriter") of
698,752 shares of the Company's common stock, $1.00 par value per share,
pursuant to (i) a registration statement on Form S-3 under the Securities Act of
1933 (the "1933 Act"), filed with the Securities and Exchange Commission (the
"Commission") on June 18, 1997 (File No. 333-29485), as amended by pre-effective
Amendment No. 1 thereto, filed with the Commission on June 26, 1997, and
declared effective by the Commission on June 27, 1997, (ii) a Prospectus dated
September 19, 1997 (the "Base Prospectus"), as supplemented by the Prospectus
Supplement dated April 23, 1998, filed with the Commission on April 24, 1998
pursuant to Rule 424(b) under the 1933 Act (the "Prospectus Supplement," and
together with the Base Prospectus, the "Prospectus") and (iii)
<PAGE>
Health Care Property Investors, Inc.
April 23, 1998
Page 2
a purchase agreement dated April 23, 1998 between the Underwriter and the
Company (the "Purchase Agreement").
This opinion is based on various assumptions and is conditioned upon certain
representations made by the Company as to factual matters through a certificate
of an officer of the Company (the "Officer's Certificate"). In addition, this
opinion is based upon the factual representations of the Company concerning its
business and properties as set forth in the Prospectus.
In our capacity as such counsel, we have made such legal and factual
examinations and inquiries, including an examination of originals or copies
certified or otherwise identified to our satisfaction of such documents,
corporate records and other instruments, as we have deemed necessary or
appropriate for purposes of this opinion.
In our examination, we have assumed the authenticity of all documents
submitted to us as originals, the genuineness of all signatures thereon, the
legal capacity of natural persons executing such documents and the conformity to
authentic original documents of all documents submitted to us as copies.
We are opining herein as to the effect on the subject transaction only of
the federal income tax laws of the United States and we express no opinion with
respect to the applicability thereto, or the effect thereon, of other federal
laws, the laws of any state or other jurisdiction or as to any matters of
municipal law or the laws of any other local agencies with any state.
Based upon the facts set forth in the Prospectus and Officer's Certificate,
it is our opinion that the information in the Prospectus Supplement set forth
under the caption "Certain Federal Income Tax Considerations to Holders of
Common Stock," to the extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions, has been reviewed
by us and is correct in all material respects.
No opinion is expressed as to any matter not discussed herein.
This opinion is based on various statutory provisions, regulations
promulgated thereunder and interpretations thereof by the Internal Revenue
Service and the courts having jurisdiction over such matters, all of which are
subject to change either prospectively or retroactively. Also, any variation or
difference in the facts from those set forth in the Prospectus or Officer's
Certificate may affect the conclusions stated herein.
This opinion is rendered only to you and is solely for your benefit in
connection with the Registration Statement. We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement. This opinion may not
be relied upon by you for any other purpose, or
<PAGE>
Health Care Property Investors, Inc.
April 23, 1998
Page 3
furnished to, quoted to or relied upon by any other person, firm or corporation
for any purpose, without our prior written consent.
Very truly yours,
/s/ Latham & Watkins
