<PAGE> 1
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):
September 4, 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.
ITEM 5. OTHER EVENTS.
In connection with the Company's Registration Statement on Form S-3
(File 33-64877) effective February 15, 1996, the Company has entered
<PAGE> 2
into an Underwriting Agreement with Alex. Brown & Sons, Incorporated for an
offering of 1,587,800 Shares of Common Stock, $1.00 par value per share.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Business Acquired.
None.
(b) Pro Forma Financial Information.
None.
(c) Exhibits.
(1.1) 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: September 4, 1996
EXHIBIT INDEX
Designation
Number Under
<PAGE> 3
Item 601 of
Exhibit No. Regulation S-K Description Page #
- ----------- -------------- ----------- ------
1.1 1 Underwriting Agreement 5
<PAGE> 1
Exhibit 1.1
1,587,800 SHARES
HEALTH CARE REIT, INC.
Common Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
----------------------
September 4, 1996
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 Alex. Brown & Sons Incorporated (the "Underwriter") an
aggregate of 1,587,800 shares (the "Shares") of the Company's Common Stock,
$1.00 par value per share ("Common Stock"). As the Underwriter, you have advised
the Company that you are willing to purchase the Shares on the terms and subject
to the conditions set forth herein.
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
<PAGE> 2
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 to or will in all material respects conform to, 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
the Underwriter, 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
2
<PAGE> 3
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 be amended or supplemented. The Company has no
material contingent obligations which are not disclosed in the
Registration Statement, as it may be amended or supplemented.
(xi) The Company is not (a) in default under any agreement,
lease, contract, indenture or other instrument or obligation to which
it is a party or by which it or any of its properties is bound or the
Company's certificate of incorporation or by-laws, (b) in violation of
any statute, or (c) in violation of any order, rule or regulation
applicable to the Company or its properties, of any court or of any
regulatory body, administrative agency or other governmental body, any
of which defaults or violations described in clauses (a) through (c)
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
3
<PAGE> 4
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
L.L.P., 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 Underwriter.
(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.
(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 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 Underwriter and
the Underwriter agrees to purchase the Shares, at a price of $21.56 per
share.
Payment for the Shares to be sold hereunder is to be made in
New York Clearing House funds by
4
<PAGE> 5
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
Underwriter. 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 Shares will be delivered by
Chemical Bank (the "Transfer Agent") in such denominations and in such
registrations as the Underwriter requests in writing not later than the second
full business day prior to the Closing Date, and will be made available for
inspection by the Underwriter at least one business day prior to the Closing
Date.
3. OFFERING BY THE UNDERWRITER. It is understood that the Underwriter
is to make a public offering of the Shares as soon as the Underwriter deems it
advisable to do so. The Shares are to be initially offered to the public at the
public offering price set forth in the Prospectus. The Underwriter may from time
to time thereafter change the public offering price and other selling terms.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriter 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 Underwriter 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 Underwriter shall not
previously have been advised and furnished with a copy or to which the
Underwriter 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 Underwriter; 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 Underwriter shall not previously
have been advised and furnished with a copy or to which the Underwriter
shall have reasonably objected in writing or which is not in compliance
with the Rules and Regulations.
(ii) The Company will advise the Underwriter 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 Underwriter in
endeavoring to qualify the Shares for sale under the securities laws of
such jurisdictions as the Underwriter 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
5
<PAGE> 6
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 Underwriter may reasonably request for distribution of
the Shares.
(iv) The Company will deliver to, or upon the order of, the
Underwriter, from time to time, as many copies of any Preliminary
Prospectus as the Underwriter may reasonably request. The Company will
deliver to, or upon the order of, the Underwriter 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 Underwriter may reasonably request. The Company
will deliver to the Underwriter 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
Underwriter such number of copies of the Registration Statement,
including documents incorporated by reference therein, but without
exhibits, and of all amendments thereto, as the Underwriter 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 the Underwriter or a dealer any event shall occur as a
result of which, in the judgment of the Company or in the opinion of
counsel for the Underwriter, 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 Underwriter 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 Underwriter 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.
6
<PAGE> 7
(viii) The Company will use its best efforts to list the
Shares on the New York Stock Exchange.
5. COSTS AND EXPENSES. The Company will pay all costs, expenses and
fees incident to the performance of its obligations under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the
Underwriter copies of the Registration Statement, Preliminary Prospectuses, the
Prospectus, this Agreement, the 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 Underwriter, 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 Underwriter will be paid by the Company. The
Company shall not, however, be required to pay for any of the Underwriter's
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 Underwriter 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 the Underwriter, then the
Company shall reimburse the Underwriter 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 Underwriter for damages on account of
loss of anticipated profits from the sale by them of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITER. The several
obligations of the Underwriter to purchase the Shares on the Closing Date are
subject to the accuracy, as of the Closing Date 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 Underwriter shall have received on the Closing Date
the opinion of Shumaker, Loop & Kendrick, counsel for the Company,
dated the Closing Date addressed to the Underwriter 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
7
<PAGE> 8
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
8
<PAGE> 9
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 1986, as amended, (the "Code") and, based on such counsel's
review of the Company's federal income tax returns and discussions with
management and independent public accountants for the Company, that the
Company, taking into account operations for its taxable and fiscal
years ended December 31, 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 Underwriter are justified in relying on such other counsel and such
other counsel shall indicate that the Underwriter 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 Underwriter 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 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 Underwriter shall have received from Calfee, Halter &
Griswold, counsel for the Underwriter, an opinion dated the Closing
Date as the case may be, with
9
<PAGE> 10
respect to the organization of the Company, the validity of the Shares,
the Registration Statement, the Prospectus and other related matters as
the Underwriter 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 Underwriter 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 Underwriter, with respect to
the qualification for offering and sale by the Underwriter of the
Shares under the state securities or Blue Sky laws of such
jurisdictions as the Underwriter may reasonably have designated to the
Company.
(e) The Underwriter shall have received on the Closing Date a
signed letter from Ernst & Young L.L.P., dated the Closing Date which
shall confirm, on the basis of a review in accordance with the
procedures set forth in the letter, dated August 2, 1996, signed by
such firm and delivered to the Underwriter by Ernst & Young L.L.P. that
nothing has come to their attention during the period from the date
five days prior to the date hereof, to a date not more than five days
prior to the Closing Date which would require any change in its letter
dated August 2, 1996 if it were required to be dated and delivered on
the Closing Date. All such letters shall be in form and substance
satisfactory to the Underwriter.
(f) The Underwriter shall have received on the Closing Date a
certificate or certificates of the President and the Chief Financial
Officer of the Company to the effect that as of the Closing Date 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.
(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 Underwriter shall have received at or prior to the
Closing Date, an agreement, in form and substance satisfactory to the
Underwriter, 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 Underwriter, 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 shall have been duly listed, subject to notice of issuance, on the
New York Stock Exchange.
10
<PAGE> 11
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 Underwriter and to Calfee,
Halter & Griswold, counsel for the Underwriter.
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 Underwriter hereunder may be terminated by the
Underwriter by notifying the Company of such termination in writing or by
telegram at or prior to the Closing Date.
In such event, the Company and the Underwriter 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 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 the
Underwriter and each person, if any, who controls the Underwriter
within the meaning of the Act against any losses, claims, damages or
liabilities to which the 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 the Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by the 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 Underwriter 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 the Underwriter or any person controlling the Underwriter on
account of any loss, claim, damage, liability or action arising from
the sale of any Shares to any person by the Underwriter if the
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) The Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed
the Registration Statement, and each person, if any, who controls the
Company within the meaning of the Act, against any losses, claims,
damages or 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
11
<PAGE> 12
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 the 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 Underwriter
specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which the 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 Underwriter
12
<PAGE> 13
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 Underwriter 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
Underwriter 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 Underwriter bear to the total proceeds of the
offering (the proceeds received by the Underwriter being equal to the
total underwriting discounts and commissions received by the
Underwriter), 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
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 contributions pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Underwriter 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) the
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares
purchased by the 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.
(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 THE UNDERWRITER. If on the Closing Date the Underwriter
shall fail to purchase and pay for the Shares which the Underwriter has agreed
to purchase and pay for on such date (otherwise than by reason of any default on
the part of the Company), the Company 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 Company except to
the extent provided in Section 8 hereof.
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 Underwriter, or
(ii) 11:30 A.M. on the first business day following the date of this
Agreement;
13
<PAGE> 14
(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.
12. SUCCESSORS. This Agreement has been and is made solely for the
benefit of the Underwriter 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 the 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.
14
<PAGE> 15
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
Underwriter in accordance with its terms.
Very truly yours,
HEALTH CARE REIT, INC.
By /s/ George L. Chapman
------------------------------------
George L. Chapman, President
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the date
first above written.
ALEX. BROWN & SONS INCORPORATED
By /s/ Thomas J. DeRosa
-----------------------------------
