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):
May 16, 1996
HEALTH CARE REIT, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-8923 34-1096634
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
One SeaGate, Suite 1500, P.O. Box 1475, Toledo, Ohio 43603-1475
(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code): 419-247-2800
This Instrument contains 4 pages.
The Exhibit Index is located on page 4.
<PAGE>
ITEM 5. OTHER EVENTS.
In connection with the Company's prospectus supplement that
was filed with the Securities and Exchange Commission on April 30,
1996, and the Company's Registration Statement on Form S-3 (File
33-64877) effective February 15, 1996, the Company intends to enter
into an Underwriting Agreement with Alex. Brown & Sons,
Incorporated, Smith Barney Inc. and EVEREN Securities, Inc. in the
form attached hereto, for an offering of 2,000,000 Shares of Common
Stock.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Business Acquired.
None.
(b) Pro Forma Financial Information.
None.
(c) Exhibits.
(1) Proposed form of Underwriting Agreement.
SIGNATURE
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 thereunto duly authorized.
HEALTH CARE REIT, INC.
By: /S/ BRUCE G. THOMPSON
-----------------------------
Bruce G. Thompson
Its: Chairman and Chief
Executive Officer
Dated: May 16, 1996
EXHIBIT INDEX
Designation
Number Under
Item 601 of
Exhibit No. Regulation S-K Description Page #
- ---------- -------------- ---------------------- ------
1 1 Proposed form of
Underwriting Agreement 5
DRAFT: 05-13-96
2,000,000 Shares
HEALTH CARE REIT, INC.
Common Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
----------------------
__________ ___, 1996
Alex. Brown & Sons Incorporated
Smith Barney Inc.
EVEREN Securities, Inc.
As Representatives of the
Several Underwriters
c/o Alex, Brown & Sons Incorporated
135 East Baltimore Street
Baltimore, Maryland 21202
Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the
"Company"), proposes to sell to the several underwriters (the
"Underwriters") named in Schedule I hereto for whom you are acting
as representatives (the "Representatives") an aggregate of
2,000,000 shares (the "Firm Shares") of the Company's Common Stock,
$1.00 par value per share ("Common Stock"). The respective amounts
of the Firm Shares to be so purchased by the several Underwriters
are set forth opposite their names in Schedule I hereto. The
Company also proposes to sell at the Underwriters' option an
aggregate of up to 300,000 additional shares of the Company's
Common Stock (the "Option Shares") as set forth below.
As the Representatives, you have advised the Company (a) that
you are authorized to enter into this Agreement on behalf of the
several Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the numbers
of Firm Shares set forth opposite their respective names in
Schedule I, plus their pro rata portion of the Option Shares if you
elect to exercise the over-allotment option in whole or in part for
the accounts of the several Underwriters. The Firm Shares and the
Option Shares (to the extent the aforementioned option is
exercised) are herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and
of the interests of the parties in the transactions contemplated
hereby, the parties hereto agree as follows:
1. Representations and Warranties of the Company. The Company
represents and warrants as follows:
(i) A registration statement on Form S-3 (File No.
33-64877) with respect to the Shares has been carefully prepared by
the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Act"), and the Rules and Regulations
(the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has been filed with
the Commission under the Act. The Company has complied with the
conditions for the use of Form S-3. Copies of such registration
statement, including any amendments thereto, the preliminary
prospectuses (meeting the requirements of Rule 430A of the Rules
and Regulations) contained therein, the exhibits, financial
statements and schedules, as finally amended and revised, and all
documents incorporated by reference have heretofore been delivered
by the Company to you. Such registration statement, herein
referred to as the "Registration Statement," which shall be deemed
to include all information omitted therefrom in reliance upon rule
430A and contained in the Prospectus referred to below and all
information incorporated by reference therein, has been declared
effective by the Commission under the Act and no post-effective
amendment to the Registration Statement has been filed as of the
date of this Agreement. The form of prospectus first filed by the
Company with the Commission pursuant to its Rule 424(b) and Rule
430A, or if no such filing is required, the form of final
prospectus included in the Registration Statement at the time the
Registration Statement is declared effective, is herein referred to
as the "Prospectus." Each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective is
herein referred to as a "Preliminary Prospectus." Any reference
herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein and any supplements or amendments thereto filed
with the Commission as of the date of such Preliminary Prospectus
or Prospectus, as the case may be, and in the case of any reference
herein to any Preliminary Prospectus or Prospectus, also shall be
deemed to include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of
such Preliminary Prospectus or Prospectus, and any supplements or
amendments thereto, filed with the Commission after the date of the
filing of the Prospectus under Rule 424(b) or 430A, and prior to
the termination of the offering of the Shares by the Underwriter.
Any reference to any amendment or supplement to any Preliminary
Prospectus or Prospectus, as the case may be, shall be deemed to
refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities and Exchange Act of 1934 (the "Exchange Act") and
incorporated by reference into such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any amendment
to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference into the
Registration Statement.
(ii) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Registration Statement; the Company is duly qualified to transact
business in all jurisdictions in which the conduct of its business
requires such qualification, and in which the failure to qualify
would have a materially adverse effect upon the business of the
Company; except for HCRI Pennsylvania Properties, Inc., the Company
has no subsidiaries.
(iii) The outstanding shares of Common Stock of the
Company have been duly authorized and validly issued and are fully
paid and non-assessable and are duly listed on the New York Stock
Exchange; the Shares to be issued and sold by the Company have been
duly authorized and when issued and paid for as contemplated herein
will be validly issued, fully-paid and non-assessable; and no
preemptive or similar rights of stockholders exist with respect to
any of the Shares or the issue and sale thereof.
(iv) The shares of authorized capital stock of the
Company including the Shares conform with the statements concerning
them in the Registration Statement.
(v) The Commission has not issued an order preventing or
suspending the use of any Preliminary Prospectus relating to the
proposed offering of the Shares nor instituted proceedings for that
purpose. The Registration Statement contains and the Prospectus
and any amendments or supplements thereto will contain all
statements which are required to be stated therein by, and in all
material respects conform or will in all material respects conform,
as the case may be, to the requirements of, the Act and the Rules
and Regulations. The documents incorporated by reference in the
Prospectus, at the time they were or will be filed with the
Commission, conformed or will conform at the time of filing, in all
material respects to the requirements of the Exchange Act or the
Act, as applicable, and the Rules and Regulations of the Commission
thereunder. Neither the Registration Statement nor any amendment
thereto, and neither the Prospectus nor any supplement thereto,
including any documents incorporated by reference therein, contains
or will contain, as the case may be, any untrue statement of a
material fact or omits or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to information contained in or
omitted from the Registration Statement or the Prospectus, or any
such amendment or supplement, or any documents incorporated by
reference therein, in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of any
Underwriter through the Representatives, specifically for use in
the preparation thereof.
(vi) The financial statements of the Company, together
with related notes and schedules as set forth or incorporated by
reference in the Registration Statement, present fairly the
financial position and the results of operations of the Company at
the indicated dates and for the indicated periods. Such financial
statements and the related notes and schedules have been prepared
in accordance with generally accepted accounting principles,
consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of results for such
periods have been made. The summary financial and statistical data
included or incorporated by reference in the Registration Statement
present fairly the information shown therein and, to the extent
based upon or derived from the financial statements, have been
compiled on a basis consistent with the financial statements
presented therein.
(vii) There is no action or proceeding pending or, to
the knowledge of the Company, threatened against the Company or
involving any property of the Company before any court or
administrative agency which might reasonably be expected to result
in any material adverse change in the business or condition
(financial or otherwise) of the Company, except as set forth in the
Registration Statement.
(viii) The Company has good and marketable title to all
of the properties and assets reflected in the financial statements
hereinabove described (or as described in the Registration
Statement as owned by it), subject to no lien, mortgage, pledge,
charge or encumbrance of any kind except those reflected in such
financial statements (or as described in the Registration
Statement) or which are not material in amount or which do not
interfere with the use made or proposed to be made of the property.
The leases, agreements to purchase and mortgages to which the
Company is a party, and the guaranties of third parties (a) are the
legal, valid and binding obligations of the Company and, to the
knowledge of the Company, of all other parties thereto and the
Company knows of no default or defenses currently existing with
respect thereto which might reasonably be expected to result in any
material adverse change in the business or condition (financial or
otherwise) of the Company, and (b) conform to the descriptions
thereof set forth in the Registration Statement. Each mortgage
which the Company holds on the properties described in the
Registration Statement constitutes a valid mortgage lien for the
benefit of the Company on such property.
(ix) The Company has filed all Federal, state and
foreign income tax returns which have been required to be filed and
has paid all taxes indicated by said returns and all assessments
received by it to the extent that such taxes have become due and
are not being contested in good faith. All tax liabilities have
been adequately provided for in the financial statements of the
Company.
(x) Since the respective dates as of which information
is given in the Registration Statement, as it may be amended or
supplemented, there has not been any material adverse change or any
development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, of the Company or
the earnings, business affairs, management, or business prospects
of the Company, whether or not occurring in the ordinary course of
business, and the Company has not incurred any material liabilities
or obligations and there has not been any material transaction
entered into by the Company, other than transactions in the
ordinary course of business and changes and transactions
contemplated by the Registration Statement, as it may bc amended or
supplemented. The Company has no material contingent obligations
which are not disclosed in the Registration Statement, as it may be
amended or supplemented.
(xi) The Company is not (a) in default under any
agreement, lease, contract, indenture or other instrument or
obligation to which it is a party or by which it or any of its
properties is bound or the Company's certificate of incorporation
or by-laws, (b) in violation of any statute, or (c) in violation of
any order, rule or regulation applicable to the Company or its
properties, of any court or of any regulatory body, administrative
agency or other governmental body, any of which defaults or
violations described in clauses (a) through (c) is, or after any
required notice and passage of any applicable grace period would
be, of material significance in respect of the business or
condition (financial or otherwise) of the Company. The
consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not conflict with or
constitute a violation of any statute or conflict with or result in
a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which
the Company or the Company's properties may be bound, or of the
certificate of incorporation or by-laws of the Company or any
order, rule or regulation applicable to the Company or the
Company's properties of any court or of any regulatory body,
administrative agency or other governmental body.
(xii) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in connection
with the execution and delivery by the Company of this Agreement
and the consummation of the transactions herein contemplated
(except such additional steps as may be required by the National
Association of Securities Dealers, Inc (the "NASD") or may be
necessary to qualify the Shares for public offering by the
Underwriters under state securities or Blue Sky laws) has been
obtained or made by the Company, and is in full force and effect.
(xiii) The Company holds all material licenses,
certificates and permits from governmental authorities which are
necessary to the conduct of its businesses and the Company has not
received any notice of infringement or of conflict with asserted
rights of others with respect to any patents, patent rights, trade
names, trademarks or copyrights, which infringement is material to
the business of the Company.
(xiv) The Company qualifies as a real estate investment
trust pursuant to Sections 856-860 of the Internal Revenue Code of
1986, as amended, has so qualified for the taxable years ended
December 31, 1984 through December 31, 1995 and no transaction or
other event has occurred or is contemplated which would prevent the
Company from so qualifying for its current taxable year.
(xv) To the best of the Company's knowledge, Ernst &
Young, who have certified certain of the financial statements and
related schedules filed with the Commission as part of, or
incorporated by reference in the Registration Statement, are
independent public accountants as required by the Act and the Rules
and Regulations.
(xvi) To the knowledge of the Company after inquiry of
its officers and directors, there are no affiliations with the NASD
among the Company's officers, directors, or principal shareholders,
except as set forth in the Registration Statement or as otherwise
disclosed in writing to the Representatives of the Underwriters.
(xvii) This Agreement has been duly authorized, executed
and delivered by the Company.
(xviii) Neither the Company nor any of its officers or
directors has taken nor will any of them take, directly or
indirectly, any action resulting in a violation of Rule 10b-6 under
the Exchange Act, or designed to cause or result in, or which has
constituted or which reasonably might be expected to constitute,
the stabilization or manipulation of the price of the Company's
Common Stock. The Company acknowledges that the Underwriters may
engage in passive market making transactions in the Company's
Common Stock.
(xix) Except as disclosed in the Registration Statement,
the Company is not a party to any written contract or agreement
relating to any purchase of real property or the lending of funds
secured by real property which is probable of being consummated.
(xx) The Shares have been approved for listing upon
official notice of issuance on the New York Stock Exchange.
(xxi) The Company is not, and immediately after the sale
of the Shares pursuant to the terms and conditions of this
Agreement will not be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940.
2. Purchase, Sale and Delivery of the Firm Shares. On the basis
of the representations, warranties and covenants herein contained,
and subject to the conditions herein set forth, the Company agrees
to sell to the Underwriters and each Underwriter agrees, severally
and not jointly, to purchase, at a price of $________ per share,
the number of Firm Shares set forth opposite the name of each
Underwriter in Schedule I hereof, subject to adjustments in
accordance with Section 9 hereof.
Payment for the Firm Shares to be sold hereunder is to be made
in New York Clearing House funds by certified or bank cashier's
checks drawn to the order of the Company for the shares to be sold
by it against delivery of certificates therefor to the
Representatives for the several accounts of the Underwriters. Such
payment and delivery are to be made at the offices of Alex. Brown
& Sons Incorporated, 135 East Baltimore Street, Baltimore,
Maryland, at 10:00 A.M. Baltimore time, on the third business day
after the date of this Agreement or at such other time and date not
later than three business days thereafter as you and the Company
shall agree upon, such time and date being herein referred to as
the "Closing Date." (As used herein, "business day" means a day on
which the New York Stock Exchange is open for trading and on which
banks in New York are open for business and not permitted by law or
executive order to be closed). The certificates for the Firm
Shares will be delivered by Chemical Bank (the "Transfer Agent") in
such denominations and in such registrations as the Representatives
request in writing not later than the second full business day
prior to the Closing Date, and will be made available for
inspection by the Representatives at least one business day prior
to the Closing Date.
In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company hereby grants an option to the
several Underwriters to purchase the Option Shares at the price per
share as set forth in the first paragraph of this Section 2. The
option granted hereby may be exercised in whole or in part by
giving notice (i) at any time before the Closing Date and (ii) only
once thereafter within 30 days after the date of this Agreement, by
you, as Representatives of the several Underwriters, to the Company
setting forth the number of Option Shares as to which the several
Underwriters are exercising the option, the names and denominations
in which the Option Shares are to be registered and the time and
date at which such certificates are to be delivered. The time and
date at which certificates for Option Shares are to be delivered
shall be determined by the Representatives but shall not be earlier
than three nor later than 10 full business days after the exercise
of such option, nor in any event prior to the Closing Date (such
time and date being herein referred to as the "Option Closing
Date"). If the date of exercise of the option is three or more
days before the Closing Date, the notice of exercise shall set the
Closing Date as the Option Closing Date. The number of Option
Shares to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being purchased as
the number of Firm Shares being purchased by such Underwriter bears
to the total number of Firm Shares, adjusted by you in such manner
as to avoid fractional shares. The option with respect to the
Option Shares granted hereunder may be exercised only to cover
over-allotments in the sale of the Firm Shares by the Underwriters.
You, as Representatives of the several Underwriters, may cancel
such option at any time prior to its expiration by giving written
notice of such cancellation to the Company. To the extent, if any,
that the option is exercised, payment for the Option Shares shall
be made on the Option Closing Date in New York Clearing House funds
by certified or bank cashier's check drawn to the order of the
Company against delivery of certificates therefor (in such
denominations and in such registrations as the Representatives
request in writing not later than the second full business day
prior the Option Closing Date) at the offices of Alex. Brown & Sons
Incorporated, 135 East Baltimore Street, Baltimore, Maryland. The
Transfer Agent shall make the certificates for the Option Shares
available for inspection by the Representatives at least one
business day prior to the Option Closing Date.
3. Offering by the Underwriters. It is understood that the
several Underwriters are to make a public offering of the Firm
Shares as soon as the Representatives deem it advisable to do so.
The Firm Shares are to be initially offered to the public at the
initial public offering price set forth in the Prospectus. The
Representatives may from time to time thereafter change the public
offering price and other selling terms. To the extent, if at all,
that any Option Shares are purchased pursuant to Section 2 hereof,
the Underwriters will offer them to the public on the foregoing
terms.
It is further understood that you will act as the
Representatives for the Underwriters in the offering and sale of
the Shares in accordance with a Master Agreement Among Underwriters
entered into by you and the several other Underwriters.
4. Covenants of the Company. The Company covenants and agrees
with the several Underwriters that
(i) The Company will (a) prepare and timely file with
the Commission under Rule 424(b) of the Rules and Regulations, if
the final form of the prospectus is not included in the
Registration Statement at the time the Registration Statement is
declared effective, a Prospectus containing information previously
omitted at the time of effectiveness of the Registration Statement
in reliance on Rule 430A, if applicable, of the Rules and
Regulations, (b) use its best efforts to cause the Registration
Statement to remain in effect as to the Shares for so long as the
Representatives may deem necessary in order to complete the
distribution of the Shares, (c) not file any amendment to the
Registration Statement or supplement to the Prospectus, or document
incorporated by reference therein, of which the Representatives
shall not previously have been advised and furnished with a copy or
to which the Representatives shall have reasonably objected in
writing or which is not in compliance with the Rules and
Regulations and (d) file on a timely basis all reports and any
definitive proxy or information statements required to be filed by
the Company with the Commission subsequent to the date of the
Prospectus and prior to the termination of the offering of the
Shares by the Underwriters; provided, however, that for each such
report or definitive proxy or information statement, the Company
will not file any such report or definitive proxy or information
statement, or amendment thereto, of which the Representatives shall
not previously have been advised and furnished with a copy or to
which the Representatives shall have reasonably objected in writing
or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives
promptly of any request of the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or for
any additional information, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus or of the institution of any
proceedings for that purpose, or of the suspension of the
qualification of the Shares for offering or sale in any
jurisdiction, and the Company will use its best efforts to prevent
(a) the issuance of any such stop order preventing or suspending
the use of the Prospectus, or (b) any such suspension of the
qualification of the Shares for offering or sale in any
jurisdiction, and to obtain as soon as possible the lifting of any
such stop order, if issued, or such suspension of qualification.
(iii) The Company will cooperate with the
Representatives in endeavoring to qualify the Shares for sale under
the securities laws of such jurisdictions as the Representatives
may reasonably have designated and will make such applications,
file such documents, and furnish such information as may be
reasonably required for that purpose, provided the Company shall
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction or to
subject itself to taxation as doing business in any jurisdiction
where it is not now so qualified or required to file such a consent
or so subject to taxation. The Company will, from time to time,
prepare and file such statements, reports, and other documents, as
are or may be required to continue such qualifications in effect
for so long a period as the Representatives may reasonably request
for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of,
the Representatives, from time to time, as many copies of any
Preliminary Prospectus as the Representatives may reasonably
request. The Company will deliver to, or upon the order of, the
Representatives during the period when delivery of a Prospectus is
required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the
Representatives may reasonably request. The Company will deliver
to the Representatives at or before the Closing Date, six signed
copies of the Registration Statement and all amendments thereto
including all exhibits filed therewith, and will deliver to the
Representatives such number of copies of the Registration
Statement, including documents incorporated by reference therein,
but without exhibits, and of all amendments thereto, as the
Representatives may reasonably request.
(v) Subject to the provisions of Section 4(i) above, if
during the period in which a prospectus is required by law to be
delivered by an Underwriter or dealer any event shall occur as a
result of which, in the judgment of the Company or in the opinion
of counsel for the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it
is necessary at any time to amend or supplement the Prospectus to
comply with any law, the Company promptly will either (a) prepare
and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus or (b)
prepare and file with the Commission an appropriate filing under
the Exchange Act which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented
will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply
with law.
(vi) The Company will make generally available to its
security holders, as soon as it is practicable to do so, but in any
event not later than 15 months after the effective date of the
Registration Statement, an earnings statement (which need not be
audited) in reasonable detail, covering a period of at least 12
consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 of the Rules
and Regulations and will advise you in writing when such statement
has been so made available.
(vii) The Company will, for a period of five years from
the Closing Date, deliver to the Representatives copies of annual
reports and copies of all other documents, reports and information
furnished by the Company to its stockholders or filed with any
securities exchange pursuant to the requirements of such exchange
or with the Commission pursuant to the Act or the Exchange Act.
The Company will deliver to the Representatives similar reports
with respect to significant subsidiaries, as that term is defined
in the Rules and Regulations, which are not consolidated in the
Company's financial statements.
(viii) No offering, sale or other disposition of any
Common Stock of the Company will be made for a period of 90 days
after the date of this Agreement, directly or indirectly, by the
Company otherwise than hereunder or with the prior written consent
of the Representatives except that the Company may, without such
consent, (i) issue options under the Stock Option Plans described
in the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995: (ii) issue shares upon the exercise of
options issued pursuant to the Stock Option Plans described in the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995; or (iii) sell shares of Common Stock pursuant to
the Dividend Reinvestment Plan described in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995.
(ix) The Company will use its best efforts to list the
Shares on the New York Stock Exchange.
5. Costs and Expenses. The Company will pay all costs, expenses
and fees incident to the performance of its obligations under this
Agreement, including, without limiting the generality of the
foregoing, the following: accounting fees of the Company; the fees
and disbursements of counsel for the Company; the cost of printing
and delivering to, or as requested by, the Underwriters copies of
the Registration Statement, Preliminary Prospectuses, the
Prospectus, this Agreement, the Underwriters' Questionnaire, the
Invitation Letter, the applicable listing agreement for the New
York Stock Exchange, the Blue Sky Survey and any supplements or
amendments thereto; the filing fees of the Commission; the filing
fees and expenses (including legal fees and disbursements) incident
to securing any required review by the NASD of the terms of the
sale of the Shares; the fees incident to the listing agreement for
the New York Stock Exchange; and the expenses, including the fees
and disbursements of counsel for the Underwriters, incurred in
connection with the qualification of the Shares under state
securities or Blue Sky laws. Any transfer taxes imposed on the
sale of the Shares to the several Underwriters will be paid by the
Company. The Company shall not, however, be required to pay for
any of the Underwriters' expenses (other than those related to
qualification under state securities or Blue Sky laws) except that,
if this Agreement shall not be consummated because the conditions
in Section 7 hereof are not satisfied, or because this Agreement is
terminated by the Representatives pursuant to Section 6 hereof
(other than a termination as a result of a failure to satisfy the
condition set forth in subparagraph (d) of Section 6 hereof), or by
reason of any failure, refusal or inability on the part of the
Company to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on its part to
be performed, unless such failure to satisfy said condition or to
comply with said terms be due to the default or omission of any
Underwriter, then the Company shall reimburse the several
Underwriters for reasonable out-of-pocket expenses, including fees
and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Shares or
in contemplation of performing their obligations hereunder, but the
Company shall not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits
from the sale by them of the Shares.
6. Conditions of Obligations of the Underwriters. The several
obligations of the Underwriters to purchase the Firm Shares on the
Closing Date and the Option Shares, if any, on the Option Closing
Date are subject to the accuracy, as of the Closing Date or the
Option Closing Date, as the case may be, of the representations and
warranties of the Company contained herein, and to the performance
by the Company of its covenants and obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
taken or, to the knowledge of the Company, shall be contemplated by
the Commission.
(b) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion of
Shumaker, Loop & Kendrick, counsel for the Company, dated the
Closing Date or the Option Closing Date, as the case may be,
addressed to the Underwriters to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus.
(ii) The Company is duly qualified to transact business
in all jurisdictions in which the conduct of its business requires
such qualification, and in which the failure to qualify would have
a materially adverse effect upon the business of the Company.
(iii) The Company has authorized and outstanding capital
stock as set forth under the caption "Capitalization" in the
Prospectus; the authorized shares of its Common Stock have been
duly authorized; the outstanding shares of its Common Stock have
been duly authorized and validly issued and are fully paid and non-
assessable; all of the Shares conform in all material respects to
the description thereof contained in the Prospectus; the
certificates for the Shares are in due and proper form; the shares
of Common Stock, including the Option Shares, if any, to be sold by
the Company pursuant to this Agreement have been duly authorized
and will be validly issued, fully paid and non-assessable when
issued and paid for as contemplated by this Agreement; and no
preemptive or similar rights of stockholders exist with respect to
any of the Shares or the issue and sale thereof.
(iv) The Registration Statement has become effective
under the Act and, to such counsel's knowledge no stop order
proceedings with respect thereto have been instituted or are
pending or threatened under the Act.
(v) The Registration Statement, all Preliminary
Prospectuses, the Prospectus and each amendment or supplement
thereto and documents incorporated by reference therein comply as
to form in all material respects with the requirements of the Act
or the Exchange Act, as applicable, and the applicable rules and
regulations thereunder (except that such counsel need express no
opinion as to the financial statements, schedules and other
financial or statistical information included or incorporated by
reference therein).
(vi) The statements under the caption ["Description of
Common Stock"] in the Registration Statement on Form 8-A, as
amended, which is incorporated by reference into the Prospectus,
insofar as such statements constitute a summary of documents
referred to therein or matters of law, are accurate summaries and
fairly and correctly present in all material respects the
information called for with respect to such documents and matters.
(vii) The statements under the caption "Certain
Government Regulations" in the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995 as to matters of law
stated therein, have been reviewed by such counsel and constitute
fair summaries of the matters described therein which are material
to the business or condition (financial or otherwise) of the
Company.
(viii) Such counsel does not know of any contracts or
documents required to be filed as exhibits to or incorporated by
reference in the Registration Statement or described in the
Registration Statement or the Prospectus which are not so filed,
incorporated by reference or described as required, and such
contracts and documents as are summarized in the Registration
Statement or the Prospectus are fairly summarized in all material
respects.
(ix) Such counsel knows of no material legal proceedings
pending or threatened against the Company except as set forth in
the Prospectus.
(x) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and
will not conflict with or constitute a violation of any statute or
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, the certificate of
incorporation or by-laws of the Company, any material agreement or
instrument known to such counsel to which the Company is a party or
by which the Company or the Company's properties may be bound or
any order known to such counsel or rule or regulation applicable to
the Company or the Company's properties of any court or
governmental agency or body.
(xi) This Agreement has been duly authorized, executed
and delivered by the Company.
(xii) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in
connection with the execution and delivery of this Agreement and
the consummation of the transactions herein contemplated (other
than as may be required by the NASD or as required by state
securities and Blue Sky laws as to which such counsel need express
no opinion) except such as have been obtained or made by the
Company, specifying the same.
(xiii) The Company is not an "investment company" or a
company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940.
In addition, such counsel will provide an opinion, based on
such counsel's own review of the Company's certificate of
incorporation, stating that the Company was organized and continues
to be organized in conformity with the requirements for
qualification as a real estate investment trust under subchapter M
of the Internal Revenue Code of l986, as amended, (the "Code") and,
based on such counsel's review of the Company's federal income tax
returns and discussions with management and independent public
accountants for the Company, that the Company, taking into account
operations for its taxable and fiscal years ended December 31, 1993
through December 31, 1995, satisfied the requirements for
qualification and taxation as a real estate investment trust under
the Code for such years and that its proposed method of operation
will enable it to meet the requirements for qualification and
taxation as a real estate investment trust under the Code for its
taxable and fiscal year ending December 31, 1996. Furthermore, such
counsel shall opine that the statements contained under the heading
"Taxation" in the Registration Statement and in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31,
1995 are correct and accurate in all material respects and present
fairly and accurately the material aspects of the federal income
tax treatment of the Company and of its stockholders.
In rendering such opinion Shumaker, Loop & Kendrick may rely
as to matters governed by the laws of states other than the laws of
State of Ohio, the corporate laws of the State of Delaware or
Federal laws on local counsel in such jurisdictions, provided that
in such case Shumaker, Loop & Kendrick shall state that they
believe that they and the Underwriters are justified in relying on
such other counsel and such other counsel shall indicate that the
Underwriters may rely on such opinion. As to matters of fact, to
the extent they deem proper, such counsel may rely on certificates
of officers of the Company and public officials so long as such
counsel states that they have no reason to believe that either the
Representatives or they are not justified in relying on such
certificates. In addition to the matters set forth above, such
opinion shall also include a statement to the effect that nothing
has come to the attention of such counsel which leads them to
believe that the Registration Statement, as of the time it became
effective under the Act, the Prospectus or any amendment or
supplement thereto, on the date it was filed pursuant to Rule
424(b), or any of the documents incorporated by reference therein,
as of the date of effectiveness of the Registration Statement or,
in the case of documents incorporated by reference into the
Prospectus after the date of effectiveness of the Registration
Statement, as of the respective date when such documents were filed
with the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and the Registration Statement and the Prospectus, or any amendment
or supplement thereto, or any of the documents incorporated by
reference therein, as of the date of effectiveness of the
Registration Statement or, in the case of documents incorporated by
reference into the Prospectus after the date of effectiveness of
the Registration Statement, as of the respective date when such
documents were filed with the Commission, as of the Closing Date or
the Option Closing Date, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading (except that such counsel need express no
view as to financial statements, schedules and other financial or
statistical information included therein). With respect to such
statement, Shumaker, Loop & Kendrick may state that their belief is
based upon the procedures set forth or incorporated by reference
therein, but is without independent check and verification.
(c) The Representatives shall have received from Calfee,
Halter & Griswold, counsel for the Underwriters, an opinion dated
the Closing Date or the Option Closing Date, as the case may be,
with respect to the organization of the Company, the validity of
the Shares, the Registration Statement, the Prospectus and other
related matters as the Representatives reasonably may request and
such counsel shall have received such papers and information as
they reasonably request to enable them to pass upon such matters.
(d) The Representatives shall have received at or prior to
the Closing Date from Calfee, Halter & Griswold, a memorandum or
summary, in form and substance satisfactory to the Representatives,
with respect to the qualification for offering and sale by the
Underwriters of the Shares under the state securities or Blue Sky
laws of such jurisdictions as the Representatives may reasonably
have designated to the Company.
(e) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a signed
letter from Ernst & Young, dated the Closing Date or the Option
Closing Date, as the case may be, which shall confirm, on the basis
of a review in accordance with the procedures set forth in the
letter, dated _______, 1996, signed by such firm and delivered to
the Representatives by Ernst & Young that nothing has come to their
respective attention during the period from the date five days
prior to the date hereof, to a date not more than five days prior
to the Closing Date or the Option Closing Date, as the case may be,
which would require any change in its letter dated ________, 1996
if it were required to be dated and delivered on the Closing Date
or the Option Closing Date, as the case may be. All such letters
shall be in form and substance satisfactory to the Representatives.
(f) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a certificate
or certificates of the Chief Executive Officer and the Chief
Financial Officer of the Company to the effect that as of the
Closing Date or the Option Closing Date, as the case may be, each
of them severally represents as follows:
(i) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been taken or are, to his or her knowledge,
contemplated by the Commission.
(ii) He or she does not know of any litigation
instituted or threatened against the Company of a character
required to be disclosed in the Registration Statement which is not
so disclosed; he or she does not know of any material contract
required to be filed as an exhibit to the Registration Statement
which is not so filed; and the representations and warranties of
the Company contained in Section 1 hereof are true and correct as
of the Closing Date or the Option Closing Date, as the ease may be.
(iii) He or she has carefully examined the Registration
Statement and the Prospectus and in his or her opinion, as of the
effective date of the Registration Statement, the statements
contained in the Registration Statement, including any document
incorporated by reference therein, were true and correct, and such
Registration Statement and Prospectus, or any document incorporated
by reference therein, did not omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading and, in his or her opinion, since
the effective date of the Registration Statement, no event has
occurred which should have been set forth in a supplement to or an
amendment of the Prospectus which has not been so set forth in such
supplement or amendment.
(g) The Representatives shall have received at or prior to
the Closing Date, an agreement, in form and substance satisfactory
to the Representatives, signed by the Company and the directors and
officers of the Company to the effect that they will not, prior to
the expiration of [90] days from the date of this Agreement, sell
or otherwise dispose of any shares of Common Stock of the Company
without the prior written consent of the Representatives, except
pursuant to bona fide gifts to transferees who agree in writing to
be bound by the restrictions on transfer set forth in this
paragraph (g).
(h) The Shares to be sold by the Company as of the Closing
Date or the Option Closing Date, as the case may be, shall have
been duly listed, subject to notice of issuance, on the New York
Stock Exchange.
The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only
if they are in all material respects reasonably satisfactory to the
Representatives and to Calfee, Halter & Griswold, counsel for the
Underwriters.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by
this Agreement to be fulfilled, the obligations of the Underwriters
hereunder may be terminated by the Representatives by notifying the
Company of such termination in writing or by telegram at or prior
to the Closing Date or the Option Closing Date, as the case may be.
In such event, the Company and the Underwriters shall not be
under any obligation to each other (except to the extent provided
in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company. The obligations
of the Company to sell and deliver the portion of the Shares
required to be delivered as and when specified in this Agreement
are subject to the conditions that at the Closing Date or the
Option Closing Date, as the case may be, no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and in effect or proceedings therefor initiated or
threatened.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act against any losses, claims, damages
or liabilities to which such Underwriter or such controlling person
may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact
contained or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or (ii) the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability,
action or proceeding; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or alleged
omission made or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or such
amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by or through the
Representatives specifically for use in the preparation thereof;
and provided further that as to any Preliminary Prospectus this
indemnity agreement shall not inure to the benefit of any
Underwriter or any person controlling that Underwriter on account
of any loss, claim, damage, liability or action arising from the
sale of any Shares to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Prospectus, as the
same may be amended or supplemented, to that person within the time
required by the Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus was corrected
in the Prospectus, unless such failure resulted from non-compliance
by the Company with Section 4(iv) or Section 4(v). This indemnity
agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors,
each of its officers who have signed the Registration Statement,
and each person, if any, who controls the Company within the
meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer or
controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material
fact contained or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon
the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made; and will reimburse any legal or other
expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that each Underwriter will be liable
in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission has been made or incorporated by reference in the
Registration Statement, any Preliminary Prospectus, the Prospectus
or such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by or through the
Representatives specifically for use in the preparation thereof.
This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect
of which indemnity may be sought pursuant to this Section 8, such
person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying
party") in writing. No indemnification provided for in Sections
8(a) or (b) shall be available to any party who shall fail to give
notice as provided in this Section 8(c) if the party to whom notice
was not given was unaware of the proceeding to which such notice
would have related and was prejudiced by the failure to give such
notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they
may have to the indemnified party for contribution or otherwise
than on account of the provisions of Sections 8(a) or (b). In case
any such proceeding shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party and
shall pay as incurred the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel at
its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred the fees and expenses of the counsel
retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them, in which case
the indemnifying party shall not be entitled to assume the defense
of such suit notwithstanding its obligation to bear the fees and
expenses of such counsel. It is understood that the indemnifying
party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by
you in the case of parties indemnified pursuant to Section 8(a) and
by the Company in the case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent
but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the fifth sentence of
this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent to which the indemnification obligations of the
Company hereunder are applicable if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless to the extent
required therein an indemnified party under Sections 8(a) or (b)
above in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Underwriters
from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the
notice required under Section 8(c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof), as well
as any other relevant equitable considerations. The relative
benefits received by the Company and the Underwriters shall be
deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company
and the Underwriters bear to the total proceeds of the offering
(the proceeds received by the Underwriters being equal to the total
underwriting discounts and commissions received by the
Underwriters), in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 8(d)
were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable
considerations referred to above in this Section 8(d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above in this Section 8(d) shall be
deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions
of this Section 8(d), (i) no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter
and (ii) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The underwriters' obligations in this Section
8(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or
amendment thereto, each party against whom contribution may be
sought under this Section 8 hereby consents to the jurisdiction
over any other contributing party, agrees that process issuing from
such court may be served upon him or it by any other contributing
party and consents to the service of such process and agrees that
any other contributing party may join him or it as an additional
defendant in any such proceeding in which such other contributing
party is a party.
9. Default by Underwriters. If on the Closing Date or the Option
Closing Date, as the case may be, any Underwriter shall fail to
purchase and pay for the portion of the Shares which such
Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the
Company), you, as Representatives of the Underwriters, shall use
your best efforts to procure within 24 hours thereafter one or more
of the other Underwriters, or any others, to purchase from the
Company such amounts as may be agreed upon and upon the terms set
forth herein, the Firm Shares or Option Shares, as the case may be,
which the defaulting Underwriter or Underwriters failed to
purchase. If during such 24 hours you, as such Representatives,
shall not have procured such other Underwriters, or any others, to
purchase the Firm Shares or Option Shares, as the case may be,
agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with
respect to which such default shall occur does not exceed 10% of
the Firm Shares or Option Shares, as the case may be, covered
hereby, the other Underwriters shall be obligated, severally, in
proportion to the respective numbers of Firm Shares or Option
Shares, as the case may be, which they are obligated to purchase
hereunder, to purchase the Firm Shares or Option Shares, as the
case may be, which such defaulting Underwriter or Underwriters
failed to purchase, or (b) if the aggregate number of shares of
Firm Shares or Option Shares, as the case may be, with respect to
which such default shall occur exceeds 10% of the Firm Shares or
Option Shares, as the case may be, covered hereby, the Company or
you as the Representatives of the Underwriters will have the right,
by written notice given within the next 24-hour period to the
parties to this Agreement, to terminate this Agreement without
liability on the part of the non-defaulting Underwriters or of the
Company except to the extent provided in Section 8 hereof. In the
event of a default by any Underwriter or Underwriters, as set forth
in this Section 9, the Closing Date or Option Closing Date, as the
case may be, may be postponed for such period, not exceeding seven
days, as you, as Representatives, may determine in order that the
required changes in the Registration Statement or in the Prospectus
or in any other documents or arrangements may be effected. The
term "Underwriter" includes any person substituted for a defaulting
Underwriter. Any action taken under this Section 9 shall not
relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. Notices. All communications hereunder shall be in writing
and, except as otherwise provided herein, will be mailed, delivered
or telegraphed and confirmed as follows: if to the Underwriters,
to Alex. Brown & Sons Incorporated, 135 East Baltimore Street,
Baltimore, Maryland 21202, Attention: Thomas J. DeRosa, with a
copy to Daniel E. McIntyre; if to the Company, to Health Care REIT,
Inc., One SeaGate, Suite 1500, Toledo, Ohio 43603-1475, Attention:
George L. Chapman, President.
11. Termination. This Agreement may be terminated by you by
notice to the Company as follows:
(a) at any time prior to the earlier of (i) the time the
Shares are released by you for sale by notice to the Underwriters,
or (ii) 11:30 A.M. on the first business day following the date of
this Agreement;
(b) at any time prior to the Closing Date if any of the
following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, any material adverse change or any development
involving a prospective material adverse change in or affecting the
condition, financial or otherwise, of the Company or the earnings,
business affairs, management or business prospects of the Company,
whether or not arising in the ordinary course of business, (ii) any
outbreak or escalation of hostilities or declaration of war or
national emergency after the date hereof or other national or
international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, escalation, declaration,
emergency, calamity, crisis or change on the financial markets of
the United States would, in your reasonable judgment, make the
offering or delivery of the Shares impracticable or inadvisable,
(iii) trading in securities on the New York Stock Exchange or the
American Stock Exchange shall have been suspended or materially
limited (other than limitations on hours or numbers of days of
trading) or minimum prices shall have been established for
securities on either such Exchange, (iv) the enactment,
publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other
governmental authority which in your reasonable opinion materially
and adversely affects or will materially or adversely affect the
business or operations of the Company, (v) declaration of a banking
moratorium by either federal or New York State authorities, (vi)
the taking of any action by any federal, state or local government
or agency in respect of its monetary or fiscal affairs which in
your reasonable opinion has a material adverse effect on the
securities markets in the United States, or (vii) any litigation or
proceeding is pending or threatened against the Underwriters which
seeks to enjoin or otherwise restrain, or seeks damages in
connection with, or questions the legality or validity of this
Agreement or the transactions contemplated hereby; or
(c) as provided in Sections 6 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the
Company, as to any obligation of the Underwriters to purchase the
Option Shares, upon the occurrence at any time prior to the Option
Closing Date of any of the events described in subparagraph (b)
above or as provided in Sections 6 and 9 of this Agreement.
12. Successors. This Agreement has been and is made solely for
the benefit of the Underwriters and the Company and their
respective successors, executors, administrators, heirs and
assigns, and the officers, directors and controlling persons
referred to herein, and no other person will have any right or
obligation hereunder. The term "successors" shall not include any
purchaser of the Shares merely because of such purchase.
13. Miscellaneous. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the
representations, warranties and covenants in this Agreement shall
remain in full force and effect regardless of (a) any termination
of this Agreement, (b) any investigation made by or on behalf of
any Underwriter or controlling person thereof, or by or on behalf
of the Company or its directors or officers and (c) delivery of and
payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Maryland.
If the foregoing letter is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicates hereof, whereupon it will become a binding
agreement among the Company and the several Underwriter in
accordance with its terms.
Very truly yours,
HEALTH CARE REIT, INC.
By:_________________________________
George L. Chapman, President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
ALEX. BROWN & SONS INCORPORATED
SMITH BARNEY INC.
EVEREN SECURITIES, INC.
As Representatives of the several
Underwriters listed on Schedule I
By____________________________________
