As filed with the Securities and Exchange Commission
on January 15, 1997
Registration No. 333-19801
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
__________________________
HEALTH CARE REIT, INC.
(Exact name of Registrant as specified in governing instrument)
DELAWARE 34-1096634
(State of incorporation) (IRS Employer Identification No.)
One SeaGate, Suite 1950
Toledo, Ohio 43604
Telephone: 419-247-2800
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
GEORGE L. CHAPMAN
Chairman of the Board, Chief Executive
Officer and President
Health Care REIT, Inc.
One SeaGate, Suite 1500
Toledo, Ohio 43604
Telephone: 419-247-2800
Copy to :
Mary Ellen Pisanelli, Esquire
Shumaker, Loop & Kendrick
North Courthouse Square
1000 Jackson
Toledo, Ohio 43624
(419) 241-9000
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement as determined by the Registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. _____
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. XX
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration number of the
earlier effective registration statement for the same offering. _____
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration number of the earlier registration statement for the same
offering. _____
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. _____
______________________
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Title of Shares Proposed Maximum Aggregate Amount of
to be Amount to be Offering Price Offering Price Registration
Registered (1) Registered Per Share (2) (3) (4) Fee (3)
- ------------- ------------ ---------------- ---------------- -----------
Debt Securities
(5)
Preferred Stock,
$1.00 par value,
Depositary Shares
Common Stock,
$1.00 par value
(6)
Warrants
Total $300,000,000 $300,000,000 $90,909.09
(1) Any securities registered hereunder may be sold separately or as units
with other securities registered hereunder. Subject to Footnote (4), there
are being registered hereunder an indeterminate principal amount of Debt
Securities, Preferred Stock, Common Stock and Warrants as may be sold from
time to time by the Registrant. This Registration Statement also covers
contracts that may be issued by the Registrant under which the counterparty
may be required to purchase Debt Securities, Preferred Stock, Common Stock
or Warrants. Such contracts would be issued with Debt Securities, Preferred
Stock, Common Stock or Warrants. There are also being registered hereunder
an indeterminate principal amount of Debt Securities, Preferred Stock,
Common Stock and Warrants as may be issuable upon conversion or exchange of
Debt Securities, Preferred Stock or Warrants pursuant to antidilution
provisions thereof.
(2) The proposed maximum offering price per unit will be determined from
time to time by the Registrant in connection with the issuance by the
Registrant of the securities registered hereunder.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering
price of the Debt Securities, Preferred Stock, Common Stock and Warrants
issued under this Registration Statement exceed $300,000,000.
(4) No separate consideration will be received for (i) Debt Securities,
shares of Common Stock or Preferred Stock that are issued upon conversion
of Debt Securities or Preferred Stock or (ii) Debt Securities, shares of
Common Stock or Preferred Stock that are issued upon exercise of Warrants
registered hereby.
(5) If any such Debt Securities are issued at an original issue discount,
then the offering price shall be in such greater principal amount as shall
result in an aggregate initial offering price of up to $300,000,000.
(6) This Registration Statement also covers Preferred Stock Purchase
Rights under the Registrant's Preferred Stock Purchase Rights Plan, which
are attached to and tradeable only with the shares of Common Stock
registered hereby. No registration fees are required for such shares and
such rights because they will be issued for no additional consideration.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Securities and
Commission, acting pursuant to said Section 8(a), may determine.
HEALTH CARE REIT, INC.
CROSS-REFERENCE SHEET
Information Required to be
Included in Prospectus Location in Prospectus
Item 1 Not Applicable
Outside Front Cover Page
Item 2
(a) Available Information Inside front cover page
(b) Reports to Security Holders Not Applicable
(c) Incorporation by Reference Incorporation of certain
documents by reference
(d) Stabilization Not Applicable
(e) Delivery of Prospectus by Dealers Not Applicable
(f) Enforceability of Civil Liabilities
Against Foreign Persons Not Applicable
(g) Table of Contents Outside back cover page
Item 3
(a) Summary Information Front cover page
(b) Address and Telephone Number The Company;
Incorporation of certain
documents by reference
(c) Risk Factors Not Applicable
(d) Ratio of Earnings to Fixed Charges Ratio of Earnings to
Fixed Charges
Item 4
Use of Proceeds Use of Proceeds
Item 5
Determination of Offering Price Description of Debt
Securities, Description
of Warrants, Description
of Common Stock and
Preferred Stock
Item 6
Dilution Not Applicable
Item 7
Selling Security Holders Not Applicable
Item 8
Plan of Distribution Plan of Distribution
Item 9
Description of Securities to be Registered Description of Debt
Securities, Description
of Warrants, Description
of Common Stock and
Preferred Stock
Item 10
Interests of Named Experts and Counsel Legal Opinions
Experts
Item 11
Material Changes Not Applicable
Item 12
Incorporation of Certain Information Incorporation of Certain
Documents
Item 13
Disclosure of Commission Position on Indemnification of Officers
Indemnification for Securities Act and Directors
Liabilities
PROSPECTUS
HEALTH CARE REIT, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
Health Care REIT, Inc. (the "Company") intends to issue from time to time,
in one or more series, its (i) unsecured and senior or subordinated debt
securities ("Debt Securities"); (ii) shares or fractional shares of
preferred stock, $1.00 par value ("Preferred Stock"); (iii) shares of
common stock, $1.00 par value ("Common Stock"); and (iv) warrants
("Warrants") to purchase Debt Securities, Preferred Stock or Common Stock
("Warrants"). The Debt Securities, the Preferred Stock, the Common Stock
and the Warrants offered hereby (collectively, the "Offered Securities")
may be offered, separately or as units with other offered securities, in
separate series and amounts at prices and on terms to be determined at the
time of sale and to be set forth in a supplement to this Prospectus (a
"Prospectus Supplement"), at an aggregate initial public offering price not
to exceed $300,000,000, on terms to be determined at the time of sale.
The specific terms of the Offered Securities will be set forth in the
applicable Prospectus Supplement and will include, where applicable,
(i) in the case of Debt Securities, the specific designation, aggregate
principal amount, denomination, maturity, priority, interest rate, time of
interest, terms of redemption at the option of the Company or repayment at
the option of the holder or for sinking fund payments, terms for conversion
into or exchange for other Offered Securities and the initial public
offering price; (ii) in the case of Preferred Stock, the series designation,
the number of shares, the dividend, liquidation, redemption, conversion,
voting and other rights and the initial public offering price; (iii) in the
case of Common Stock, the specific number of shares and the initial public
offering price; (iv) in the case of Warrants, the number and terms thereof,
the designation and the number of Offered Securities issuable upon their
exercise, the exercise price, any listing of the Warrants or the underlying
Offered Securities on a securities exchange and any other terms in
connection with the offering, sale and exercise; and, (v) in the case of
all Offered Securities, whether such Offered Securities will be offered
separately or as a unit with other Offered Securities. In addition, such
specific terms may include limitations on direct or beneficial ownership
and restrictions on transfer of the Offered Securities, in each case as may
be appropriate to preserve the status of the Company as a qualified real
estate investment trust ("REIT") under the Internal Revenue Code of 1986,
as amended (the "Code"). The applicable Prospectus Supplement will contain
information, where applicable, concerning certain United States Federal
income tax considerations relating to, and any listing on a securities
exchange of, the Offered Securities.
The Offered Securities may be offered directly, through agents designated
from time to time by the Company, or to or through underwriters or dealers.
If any designated agents or underwriters are involved in the sale of the
Offered Securities, they will be identified and their compensation will be
described in the applicable Prospectus Supplement. See "Plan of
Distribution." Also, the net proceeds to the Company from such sale will
be set forth in the Prospectus Supplement. No Offered Securities may be
sold without the delivery of the applicable Prospectus Supplement describing
such Offered Securities and the method and terms of the offering thereof.
The shares of Common Stock of the Company are listed on the New York Stock
Exchange under the symbol "HCN." On January 28, 1997, the reported last
sale price of the shares of Common Stock on the New York Stock Exchange was
$24.75 per share.
____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSIONER NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTA-
TION TO THE CONTRARY IS A CRIMINAL OFFENSE.
___________________
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
____________________
The date of this Prospectus is January 29, 1997
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission
can be inspected and copied at the public reference facilities maintained
by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549; and at its Regional Offices at Suite 1400, Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and
Suite 1300, Seven World Trade Centre, New York, New York 10048, and can
also be inspected and copied at the offices of the New York Stock Exchange,
20 Broad Street, New York, New York, 10005. Copies of such material can
be obtained from the public reference section of the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, upon
payment of the prescribed fees.
This Prospectus is part of a Registration Statement on Form S-3 (together
with all amendments and all exhibits, the "Registration Statement"), filed
by the Company with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus does not contain all the
information set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules of the Commission. For further
information, reference is made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1995.
2. Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1996.
3. Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1996.
4. Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1996.
5. Current Reports on Form 8-K filed with the Commission on
May 16, 1996, September 5, 1996 and December 12, 1996.
6. All documents filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities shall be deemed
to be incorporated herein by reference and to be a part of this
Prospectus from the date of filing of each such document.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein, and any accompanying Prospectus Supplement relating to a
specific offering of Offered Securities or in any other subsequently filed
document, as the case may be, which also is or is deemed to be incorporated
by reference herein, modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus or any
accompanying Prospectus Supplement. The Company will provide on request
and without charge to each person to whom this Prospectus is delivered,
upon the oral or written request of such person, a copy (without exhibits)
of any or all documents incorporated by reference to this Prospectus.
Requests for such copies should be directed to Erin C. Ibele, Vice President
and Corporate Secretary, Health Care REIT, Inc., One SeaGate, Suite 1500,
Toledo, Ohio 43604, telephone number (419) 247-2800.
THE COMPANY
Health Care REIT, Inc. (the "Company") is a self-administered real estate
investment trust ("REIT") that invests in health care facilities, primarily
nursing homes, assisted living facilities and retirement centers. As of
September 30, 1996, nursing homes, assisted living facilities and retirement
centers comprised approximately 84% of the investment portfolio. Founded
in 1970, the Company was the first real estate investment trust to invest
exclusively in health care facilities.
The Company's objective is to enable stockholders to participate in health
care investments that produce income and preserve principal. Since its
inception, the Company has paid 102 consecutive quarterly dividends.
The shares of the common stock of the Company are listed on the New York
Stock Exchange under the symbol "HCN." The Company's executive offices
are located at One SeaGate, Suite 1500, Toledo, Ohio, 43604, and the
telephone number is (419) 247-2800.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Offered Securities will be used to
finance, either directly or indirectly, the Company's investments in
health care facilities and will allow the Company to pursue additional
health care property investments and complete unfunded commitments.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
the Company for the periods indicated. For purposes of calculating such
ratio, "earnings" includes net income plus fixed charges reduced by the
amount of interest capitalized. "Fixed charges" consists of interest
whether expensed or capitalized and the amortization of loan expenses.
The Company did not have any Preferred Stock outstanding for any period
presented. Accordingly, the ratio of earnings to combined fixed charges
and preferred stock dividends is identical to the ratio of earnings to
fixed charges for the periods presented.
Nine Months Ended Year ended December 31,
Sept. 30, --------------------------------
1996 1995 1994 1993 1992 1991
----------------- ---- ---- ---- ---- ----
Consolidated ratio
of earnings to
fixed charges
(unaudited) ........ 2.80 2.01 3.42 2.80 2.97 2.17
DESCRIPTION OF DEBT SECURITIES
General
The Debt Securities may be issued in one or more series under an Indenture
to be executed by the Company and a trustee (the "Trustee"), a form of
which is included as an exhibit to the Registration Statement of which this
Prospectus is a part (the "Indenture"). The terms of the Debt Securities
may include those stated in the Indenture and those made a part of the
Indenture (before any supplements) by reference to the Trust Indenture Act
of 1939, as amended (the "TIA").
The following is a summary of certain provisions of the Indenture and does
not purport to be complete and is qualified in its entirety by reference to
the detailed provisions of the Indenture, including the definitions of
certain terms therein to which reference is hereby made for a complete
statement of such provisions. Wherever particular provisions or sections of
the Indenture or terms defined therein are referred to herein, such
provisions or definitions are incorporated herein by reference.
Terms
The Debt Securities will be direct, unsecured obligations of the Company.
The Indenture provides that the Debt Securities may be issued without
limit as to aggregate principal amount, in one or more series, in each
case as established from time to time in or pursuant to authority granted
by a resolution of the Board of Directors of the Company or as established
in one or more indentures supplemental to such Indenture. Debt Securities
may be issued with terms different from those of Debt Securities previously
issued. All Debt Securities of one series need not be issued at the same
time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders of the Debt Securities of such series, for issuances
of additional Debt Securities of such series.
The Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities. Any Trustee
under the Indenture may resign or be removed with respect to one or more
series of Debt Securities, and a successor Trustee may be appointed to act
with respect to such series. In the event that two or more persons are
acting as Trustee with respect to different series of Debt Securities, each
such Trustee shall be a Trustee of a trust under the applicable Indenture
separate and apart from the trust administered by any other Trustee and,
except as otherwise indicated herein, any action described herein to be
taken by the Trustee may be taken by each such Trustee with respect to, and
only with respect to, the one or more series of Debt Securities for which
it is Trustee under the applicable Indenture.
The Prospectus Supplement will describe certain terms of any Debt
Securities offered hereby, including:
(1) the title of such Debt Securities;
(2) the aggregate principal amount of such Debt Securities and any
limit on such principal amount;
(3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal
amount thereof, the portion of the principal amount payable
upon declaration of acceleration of the maturity thereof, or
(if applicable) the portion of the principal amount of such
Debt Securities that is convertible into Capital Stock of the
Company or the method by which any such portion will be
determined;
(4) if convertible, in connection with the preservation of the
Company's status as a REIT, any applicable limitations on the
ownership or transferability of the Capital Stock of the Company
into which such Debt Securities are convertible;
(5) the date or dates, or the method by which such date or dates
will be determined, on which the principal of such Debt
Securities will be payable and the amount of principal payable
thereon;
(6) the rate or rates (which may be fixed or variable) at which such
Debt Securities will bear interest, if any, or the method by
which such rate or rates will be determined, the date or dates
from which such interest will accrue or the method by which such
date or dates will be determined, the Interest Payment Dates on
which any such interest will be payable and the Regular Record
Dates for such Interest Payment Dates, or the method by which
such Dates will be determined, and the basis upon which interest
will be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
(7) the place or places where the principal of (and premium or
Make-Whole Amount as defined in the Indenture, if any), interest,
if any, and Additional Amounts, if any, payable in respect of,
such Debt Securities will be payable, where such Debt Securities
may be surrendered for registration of, transfer or exchange and
where notices or demands to or upon the Company in respect of
such Debt Securities and the applicable Indenture may be served;
(8) the period or periods within which, the price or prices
(including premium or Make-Whole Amount, if any) at which, the
currency or currencies, currency unit or units or composite
currency or currencies in which and other terms and conditions
upon which such Debt Securities may be redeemed in whole or in
part, at the option of the Company, if the Company is to have
the option;
(9) the obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and
the period or periods within which or the date or dates on which,
the price or prices at which, the currency or currencies,
currency unit or units or composite currency or currencies in
which, and other terms and conditions upon which such Debt
Securities will be redeemed, repaid or purchased, in whole or
in part, pursuant to such obligation;
(10) whether such Debt Securities will be in registered or bearer
form and terms and conditions relating thereto, and, if other
than $1,000 and any integral multiple thereof, the denominations
in which any registered Debt Securities will be issuable and,
if other than $1,000 the denomination or denominations in which
any bearer Debt Securities will be issuable;
(11) if other than United States dollars, the currency or currencies
in which such Debt Securities will be denominated and payable,
which may be a foreign currency or units of two or more foreign
currencies or a composite currency or currencies;
(12) whether the amount of payments of principal (and premium or
Make-Whole Amount, if any) or interest, if any, on such Debt
Securities may be determined with reference to an index, formula
or other method (which index, formula or method may be based,
without limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts will be determined;
(13) whether the principal of (and premium or Make-Whole Amount,
if any) or interest or Additional Amounts, if any, on such Debt
Securities are to be payable, at the election of the Company or
a Holder thereof, in a currency or currencies, currency unit or
units or composite currency or currencies other than that in
which such Debt Securities are denominated or stated to be
payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time
and manner of, and identity of the exchange rate agent with
responsibility for, determining the exchange rate between the
currency or currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are
denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
such Debt Securities upon the occurrence of such events as may
be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
such Debt Securities, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants
set forth in the applicable Indenture;
(16) whether such Debt Securities will be issued in certificated or
book-entry form;
(17) the applicability, if any, of the defeasance provisions of the
applicable Indenture;
(18) whether and under what circumstances the Company will pay
Additional Amounts as contemplated in the applicable Indenture
on such Debt Securities in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have
the option to redeem such Debt Securities rather than pay such
Additional Amounts (and the terms of any such option); and
(19) any other terms of such Debt Securities not inconsistent with
the provisions of the applicable Indenture.
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity
thereof ("Original Issue Discount Securities"). Special United States
federal income tax, accounting and other considerations applicable to
Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
Conversion Rights
-----------------
(1) The terms, if any, on which Debt Securities of any series may
be converted into shares of Common Stock or Debt Securities of
another series will be set forth in the Prospectus Supplement
relating thereto. To protect the Company's status as a REIT,
the holders of Debt Securities of any series ("Holders") may
not convert any Debt Security, and such Debt Security shall not
be convertible by any Holder, if as a result of such conversion
any person would then be deemed to beneficially own, directly or
indirectly, 9.8% or more of the then outstanding shares of
Common Stock.
(2) The conversion price will be subject to adjustment under certain
conditions, including (a) the payment of dividends (and other
distributions) in shares of Common Stock; (b) subdivisions,
combinations and reclassifications of shares of Common Stock;
(c) the issuance to all or substantially all holders of shares
of Common Stock of rights or warrants entitling them to
subscribe for or purchase shares of Common Stock at a price per
share (or having a conversion price per share of Common Stock)
less than the then current market price; and (iv) distributions
to all or substantially all holders of shares of Common Stock or
shares of any other class, of evidences of indebtedness or assets
(including securities, but excluding those rights, warrants,
dividends and distributions referred to above and dividends and
distributions not prohibited under the terms of the Indenture) of
the Company, subject to the limitation that all adjustments by
reason of any of the foregoing would not be made until they
result in a cumulative change in the conversion price of at
least 1%. In the event the Company shall effect any capital
reorganization or reclassification of its shares of Common Stock
or shall consolidate or merge with or into any trust or
corporation (other than a consolidation or merger in which the
Company is the surviving entity) or shall sell or transfer
substantially all its assets to any other trust or corporation,
the Holders shall, if entitled to convert such Debt Securities
at any time after such transaction, receive upon conversion
thereof, in lieu of each share of Common Stock into which the
Debt Securities of such series would have been convertible prior
to such transaction, the same kind and amount of stock and other
securities, cash or property as shall have been issuable or
distributable in connection with such transaction with respect
to each share of Common Stock.
(3) A conversion price adjustment made according to the provisions
of the Debt Securities of any series (or the absence of provision
for such an adjustment) might result in a constructive
distribution to the Holders of Debt Securities of such series
or holders of shares of Common Stock that would be subject to
taxation as a dividend. The Company may, at its option, make
such reductions in the conversion price, in addition to those
set forth above, as the Board of Directors of the Company deems
advisable to avoid or diminish any income tax to holders of
shares of Common Stock resulting from any dividend or
distribution of shares of Common Stock (or rights to acquire
shares of Common Stock) or from any event treated as such for
income tax purposes or for any other reason. The Board of
Directors will also have the power to resolve any ambiguity or
correct any error in the provisions relating to the adjustment
of the conversion price of the Debt Securities of such series
and its actions in so doing shall be final and conclusive.
(4) Fractional shares of Common Stock will not be issued upon
conversion, but, in lieu thereof, the Company will pay a cash
adjustment based upon market price.
(5) The Holders of Debt Securities of any series at the close of
business on an interest payment record date shall be entitled
to receive the interest payable on such Debt Securities on the
corresponding interest payment date notwithstanding the
conversion thereof. However, Debt Securities surrendered for
conversion during the period from the close of business on any
record date for the payment of interest to the opening of
business on the corresponding interest payment date must be
accompanied by payment of an amount equal to the interest
payable on such interest payment date. Holders of Debt
Securities of any series who convert Debt Securities of such
series on an interest payment date will receive the interest
payable by the Company on such date and need not include payment
in the amount of such interest upon surrender of such Debt
Securities for conversion.
CERTAIN COVENANTS
Merger, Consolidation or Sale.
------------------------------
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other
entity, provided that (a) either the Company shall be the continuing
entity, or the successor entity (if other than the Company) formed by
or resulting from any such consolidation or merger or which shall have
received the transfer of such assets is a Person organized and existing
under the laws of the United States or any State thereof and shall
expressly assume payment of the principal of (and premium or Make-Whole
Amount, if any) and interest on all of the Debt Securities and the due
and punctual performance and observance of all of the covenants and
conditions contained in each Indenture; (b) immediately after giving
effect to such transaction and treating any indebtedness which becomes
an obligation of the Company or any Subsidiary as a result thereof as
having been incurred by the Company or such Subsidiary at the time of
such transaction, no Event of Default under an Indenture, and no event
which, after notice or the lapse of time, or both, would become such an
Event of Default, shall have occurred and be continuing; and (c) an
Officers' Certificate and legal opinion covering such conditions shall
be delivered to the Trustee.
Optional Redemption.
--------------------
The Debt Securities of any series that are convertible into shares of
Common Stock will be subject to redemption, in whole or from time to
time in part, at any time for certain reasons intended to protect the
Company's status as a REIT at the option of the Company on at least 30
days' prior notice by mail at a redemption price equal to 100% of the
principal amount, plus interest accrued to the date of redemption.
See DESCRIPTION OF CAPITAL STOCK - "Redemption and Restrictions on
Transfer."
Dividends, Distributions and Acquisitions.
------------------------------------------
The Indenture provides that the Company will not (a) declare or pay any
dividend or make any distribution on its shares of Common Stock or to
holders of its shares of Common Stock (other than dividends or
distributions payable in its shares of Common Stock or other than as the
Company determines is necessary to maintain its status as a REIT) or
(b) purchase, redeem or otherwise acquire or retire for value any of
its shares of Common Stock or permit any subsidiary to do so, if at the
time of such action an Event of Default (as defined in the Indenture)
has occurred and is continuing or would exist immediately after giving
effect to such action.
Additional Covenants.
---------------------
Any additional covenants of the Company with respect to a series of the
Debt Securities will be set forth in the Prospectus Supplement relative
thereto.
Modification of the Indentures
Modifications and amendments of the Indenture may be made with the
consent of the Holders of not less than a majority in principal amount
of all Outstanding Debt Securities issued under such Indenture that are
affected by such modification or amendment; provided, however, that no
such modification or amendment may, without the consent of the Holder
of each such Debt Security affected thereby, (a) change the Stated
Maturity of the principal of (or premium or Make-Whole Amount, if any),
or any installment of principal of or interest or Additional Amounts
payable on, any such Debt Security; (b) reduce the principal amount of,
or the rate or amount of interest on, or any premium or Make-Whole
Amount payable on redemption of, or any Additional Amounts payable with
respect to, any such Debt Security, or reduce the amount of principal of
an Original Issue Discount Security or Make-Whole Amount, if any, that
would be due and payable upon declaration of acceleration of the maturity
thereof or would be provable in bankruptcy, or adversely affect any right
of repayment of the Holder of any such Debt Security; (c) change the Place
of Payment, or the coin or currency, for payment of principal of (and
premium or Make-Whole Amount, if any), or interest on, or any Additional
Amounts payable with respect to, any such Debt Security; (d) impair the
right to institute suit for the enforcement of any payment on or with
respect to any such Debt Security; (e) reduce the percentage of
Outstanding Debt Securities of any series necessary to modify or amend
the applicable Indenture, to waive compliance with certain provisions
thereof or certain defaults and consequences thereunder or to reduce
the quorum or voting requirements set forth in the Indenture; or
(f) modify any of the foregoing provisions or any of the provisions
relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to
provide that certain other provisions may not be modified or waived
without the consent of the Holder of such Debt Security.
The Holders of not less than a majority in principal amount of
Outstanding Debt Securities issued under the Indenture have the right
to waive compliance by the Company with certain covenants in the Indenture.
Events of Default, Notice and Waiver
The Indenture provides that the following events are "Events of Default"
with respect to any series of Debt Securities issued thereunder:
(a) default for 30 days in the payment of any installment of interest or
Additional Amounts payable on any Debt Security of such series;
(b) default in the payment of the principal of (or premium or Make-Whole
Amount, if any, on) any Debt Security of such series at its Maturity;
(c) default in making any sinking fund payment as required for any Debt
Security of such series; (d) default in the performance of any other
covenant of the Company contained in the Indenture (other than a covenant
added to the Indenture solely for the benefit of a series of Debt
Securities issued thereunder other than such series), continued for 60
days after written notice as provided in the Indenture; (e) default under
any bond, debenture, note, mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (or by any Subsidiary,
the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor) having
an aggregate principal amount outstanding of at least $10,000,000,
whether such indebtedness now exists or shall hereafter be created,
which default shall have resulted in such indebtedness being declared
due and payable prior to the date on which it would otherwise have become
due and payable, without such acceleration having been rescinded or
annulled within 10 days after written notice as provided in the Indenture;
(f) the entry by a court of competent jurisdiction of one or more
judgments, orders or decrees against the Company or any Subsidiary in
an aggregate amount (excluding amounts fully covered by insurance) in
excess of $10,000,000 and such judgments, orders or decrees remain
undischarged, unstayed and unsatisfied in an aggregate amount (excluding
amounts fully covered by insurance) in excess of $10,000,000 for a period
of 30 consecutive days; (g) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or trustee
of the Company or any Significant Subsidiary or for all or substantially
all of either of its property; and (h) any other Event of Default
provided with respect to such series of Debt Securities. The term
"Significant Subsidiary" means each significant subsidiary as defined
in Regulation S-X promulgated under the Securities Act of the Company.
If an event of Default under the Indenture with respect to Debt
Securities of any series at the time outstanding occurs and is continuing,
then in every such case the Trustees or Holders of not less than 25% in
principal amount of the Outstanding Debt Securities of that series may
declare the principal amount (or, if the Debt Securities of that series
are Original Issue Discount Securities or Indexed Securities, such portion
of the principal amount as may be specified in the terms thereof) of, and
premium or Make-Whole Amount, if any, on, all of the Debt Securities of
that series to be due and payable immediately by written notice thereof
to the Company and to the Trustee if given by the Holders. However, at
any time after such declaration of acceleration with respect to Debt
Securities of such series (or of all Debt Securities then Outstanding
under the applicable Indenture, as the case may be) has been made, but
before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of such series
(or of all Debt Securities then Outstanding under the applicable
Indenture, as the case may be) may rescind and annul such declaration
and its consequences if (a) the Company shall have deposited with the
Trustee all required payments of the principal of (and premium or
Make-Whole Amount, if any) and interest, and any Additional Amounts,
on the Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be), plus
certain fees, expenses, disbursements and advances of the Trustee and
(b) all Events of Default, other than the nonpayment of accelerated
principal (or specified portion thereof and the premium or Make-Whole
Amount, if any) or interest, with respect to the Debt Securities of
such series (or of all Debt Securities then Outstanding under the
applicable Indenture, as the case may be) have been cured or waived
as provided in the Indenture. The Indenture also provides that the
Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series (or of all Debt Securities
then Outstanding under the applicable Indenture, as the case may be)
may waive any past default with respect to such series and its
consequences, except a default (i) in the payment of the principal of
(or premium or Make-Whole Amount, if any) or interest or Additional
Amounts payable on any Debt Security of such series or (ii) in respect
of a covenant or provision contained in the applicable Indenture that
cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security affected thereby.
A Trustee is required to give notice to the Holders of Debt Securities
within 90 days of a default under the applicable Indenture; provided,
however, that a Trustee may withhold notice to the Holders of any series
of Debt Securities of any default with respect to such series (except
a default in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest or Additional Amounts payable on any Debt
Security of such series or in the payment of any sinking fund installment
in respect of any Debt Security of such series) if the Responsible
Officers of such Trustee consider such withholding to be in the interest
of such Holders.
The Indenture provides that no Holders of Debt Securities of any series
may institute any proceedings, judicial or otherwise, with respect to
such Indenture or for any remedy thereunder, except in the case of
failure of the Trustee, for 60 days, to act after it has received a
written request to institute proceedings in respect of an Event of
Default from the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such series, as well as an offer of
reasonable indemnity. This provision will not prevent, however, any
Holder of Debt Securities from instituting suit for the enforcement of
payment of the principal of (and premium or Make-Whole Amount, if any),
interest on and Additional Amounts payable with respect to, such Debt
Securities at the respective due dates thereof.
Book-Entry System
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of a depository (the "Depository") identified
in the Prospectus Supplement relating to such series. Global Securities
may be issued in fully registered form and may be issued in either
temporary or permanent form. Unless and until it is exchanged in whole
or in part for the individual Debt Securities represented thereby, a
Global Security may not be transferred except as a whole by the Depository
for such Global Security to a nominee of such Depository or by a nominee
of such Depository to such Depository or another nominee of such
Depository or by such Depository or any nominee of such Depository to a
successor Depository or any nominee of such successor.
The specific terms of the depository arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating
to such series. The Company expects that unless otherwise indicated in
the applicable Prospectus Supplement, the following provisions will apply
to depository arrangements.
Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit on its book-entry registration and
transfer system the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of persons
that have accounts with such Depository ("Participants"). Such accounts
shall be designated by the underwriters, dealers or agents with respect
to such Debt Securities or by the Company if such Debt Securities are
offered directly by the Company. Ownership of beneficial interests in
such Global Security will be limited to Participants or persons that may
hold interests through Participants. Ownership of beneficial interests
in such Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the
Depository for such Global Security or its nominee (with respect to
beneficial interests of Participants) and records of Participants (with
respect to beneficial interests of persons who hold through Participants).
The laws of some states require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such
limits and laws may impair the ability to own, pledge or transfer
beneficial interest in a Global Security.
So long as the Depository for a Global Security or its nominee is the
registered owner of such Global Security, such Depository or such nominee,
as the case may be, will be considered the sole owner or holder of the
Debt Securities represented by such Global Security for all purposes under
the applicable Indenture. Except as described below or in the applicable
Prospectus Supplement, owners of beneficial interest in a Global Security
will not be entitled to have any of the individual Debt Securities
represented by such Global Security registered in their names, will not
receive or be entitled to receive physical delivery of any such Debt
Securities in definitive form and will not be considered the owners or
holders thereof under the applicable Indenture.
Payments of principal of, any premium or Make-Whole Amount and any
interest on, or any Additional Amounts payable with respect to, individual
Debt Securities represented by a Global Security registered in the name
of a Depository or its nominee will be made to the Depository or its
nominee, as the case may be, as the registered owner of the Global Security.
None of the Company, the Trustee, any Paying Agent or the Security Registrar
for such Debt Securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in the Global Security for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Company expects that the Depository for any Debt Securities or its
nominee, upon receipt of any payment of principal, premium, Make-Whole
Amount, interest or Additional Amounts in respect of the Global Security
representing such Debt Securities will immediately credit Participants'
accounts with payments in amounts proportionate to their respective
beneficial interests in the principal amount of such Global Security as
shown on the records of such Depository or its nominee. The Company also
expects that payments by Participants to owners of beneficial interests
in such Global Security held through such Participants will be governed
by standing instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or registered
in street name. Such payments will be the responsibility of such
Participants.
If a Depository for any Debt Securities is at any time unwilling, unable
or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days, the Company will issue individual
Debt Securities in exchange for the Global Security representing such
Debt Securities. In addition, the Company may at any time and in its sole
discretion, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities, determine not to have any
of such Debt Securities represented by one or more Global Securities and
in such event will issue individual Debt Securities in exchange for the
Global Security or Securities representing such Debt Securities.
Individual Debt Securities so issued will be issued in denominations of
$1,000 and integral multiples thereof.
Governing Law
The Indenture and the Debt Securities will be governed by and construed
in accordance with the laws of the State of Ohio.
DESCRIPTION OF WARRANTS
The Company may issue, together with any other series of Securities
offered or separately, Warrants entitling the holder to purchase from
or sell to the Company, or to receive from the Company the cash value
of the right to purchase or sell, Debt Securities, shares of Preferred
Stock or Common Stock. The Warrants are to be issued under a Warrant
Agreement (each a "Warrant Agreement") to be entered into between the
Company and a bank or trust company, as warrant agent (the "Warrant
Agent"), all as set forth in the applicable Prospectus Supplement
relating to the particular issue of Warrants. Copies of the form of
Warrant Agreement, including the form of Warrant Certificate representing
the Warrants (the "Warrant Certificates"), are filed as exhibits to the
Registration Statement of which this Prospectus forms a part.
In the case of each series of Warrants, the applicable Prospectus
Supplement will describe the terms of the Warrants being offered thereby,
including the following, if applicable: (a) the offering price;
(b) the currencies in which such Warrants are being offered; (c) the
number of Warrants offered; (d) the securities underlying the Warrants;
(e) the exercise price, the procedures for exercise of the Warrants and
the circumstances, if any, that will cause the Warrants to be deemed to
be automatically exercised; (f) the date on which the right to exercise
the Warrants shall commence and the date on which such right shall
expire; (g) U.S. federal income tax consequences; and (h) other terms of
the Warrants.
Warrants may be exercised at the appropriate office of the Warrant Agent
or any other office indicated in the applicable Prospectus Supplement.
Prior to the exercise of Warrants entitling the holder to purchase any
securities, holders of such Warrants will not have any of the rights of
holders of the securities purchasable upon such exercise and will not
be entitled to payments made to holders of such securities.
The Warrant Agreements may be amended or supplemented without the consent
of the holders of the Warrants issued thereunder to effect changes that
are not inconsistent with the provisions of the Warrants and that do not
adversely affect the interests of the holders of the Warrants.
DESCRIPTION OF COMMON STOCK
AND PREFERRED STOCK
General
The Company is authorized to issue 40,000,000 shares of Common Stock,
$1.00 par value per share. The Company had outstanding 16,079,931 shares
of common stock, $1.00 par value per share (the "Common Stock"), on
September 30, 1996. The shares constitute the only class of outstanding
voting securities of the Company.
The Company is authorized to issue 10,000,000 shares of Preferred Stock,
$1.00 par value per share. No shares of Preferred Stock (the "Preferred
Stock") were outstanding on September 30, 1996. The Company has
authorized the issuance of 13,000 shares of Junior Participating Stock,
Series A ("Series A Preferred Stock") which is discussed below.
The following statements with respect to the capital stock of the Company
are subject to detailed provisions of the Company's Certificate of
Incorporation, as amended (the "Certificate"), and the Company's By-Laws
(the "By-Laws") as currently in effect. These statements do not purport
to be complete, or to give full effect of the terms of the provisions of
statutory or common law, and are subject to, and are qualified in their
entirety by reference to, the terms of the Certificate and By-Laws which
are filed as exhibits to the registration statement.
Series A Preferred Stock
On July 19, 1994, the Board of Directors of the Company authorized the
issuance of one preferred share purchase right (a "Right") for each
outstanding share of Common Stock. Under certain conditions, each Right
may be exercised to purchase one one-thousandth of a share of Junior
Participation Preferred Stock, Series A, par value $1.00 per share
("Series A Preferred Stock"), of the Company at a price of $48. The
number of Rights outstanding and Series A Preferred Stock issuable upon
exercise, as well as the Series A Preferred Stock purchase price, are
subject to customary antidilution adjustments.
The Rights are evidenced by the certificates for shares of Common Stock,
and in general are not transferable apart from the Common Stock or
exercisable until after a party has acquired beneficial ownership of, or
made a tender offer for 15% or more of the outstanding Common Stock of
the Company (an "Acquiring Person"), or the occurrence of other events
as specified in a Rights Agreement between the Company and Chase Mellon
Shareholder Services, L.L.C., as Rights Agent. Under certain conditions
as specified in the Rights Agreement, including but not limited to, the
acquisition by a party of 15% or more of the outstanding Common Stock of
the Company, or the acquisition of the Company in a merger or other
business combination, each holder of a Right (other than an Acquiring
Person, whose Rights will be void) will receive upon exercise thereof and
payment of the exercise price that number of shares of Common Stock of
the Company, or of the other party, as applicable, having a market value
of two times the exercise price of the Right.
The Rights expire on August 5, 2004, and until exercised, the holder
thereof, as such, will have no rights as a stockholder of the Company.
At the Company's option, the Rights may be redeemed in whole at a price
of $.01 per Right at any time prior to becoming exercisable. In general,
the Company may also exchange the Rights at a ratio of one share of
Common Stock per Right after becoming exercisable but prior to the
acquisition of 50% or more of the outstanding shares of Common Stock by
any party.
Series A Preferred Stock issuable upon exercise of the Rights will not
be redeemable. Each share of Series A Preferred Stock will have 1,000
votes and will be entitled to (a) a minimum preferential quarterly
dividend payment equal to the greater of $25.00 per share or 1,000 times
the amount of the dividends per share paid on the Common Stock,
(b) a liquidation preference in an amount equal to the greater of $100
or 1,000 times the amount per share paid on the Common Stock, and
(c) a payment in connection with a business combination (in which shares
of Common Stock are exchanged) equal to 1,000 times the amount per share
paid on the Common Stock.
Common Stock
Holders of the shares of Common Stock are entitled to receive dividends
when declared by the Board of Directors and after payment of, or
provision for, full cumulative dividends on and any required redemptions
of shares of Preferred Stock then outstanding. Holders of the shares of
Common Stock have one vote per share and noncumulative voting rights,
which means that holders of more than 50% of the shares of voting Common
Stock can elect all the directors if they choose to do so, and, in such
event, the holders of the remaining shares of Common Stock will not be
able to elect any directors. In the event of any voluntary or involuntary
liquidation or dissolution of the Company, holders of the shares of
Common Stock are to share ratably in the distributable assets of the
Company remaining after the satisfaction of the prior preferential rights
of the holders of the shares of Preferred Stock and the satisfaction of
all debts and liabilities of the Company. Holders of the shares of Common
Stock do not have preemptive rights. The transfer agent for the Common
Stock is Chase Mellon Shareholder Services, L.L.C.
Preferred Stock
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which a
Prospectus Supplement may relate. Specific terms of any series of
Preferred Stock offered by a Prospectus Supplement will be described in
that Prospectus Supplement. The description set forth below is subject
to and qualified in its entirety by reference to the Certificate fixing
the preferences, limitations and relative rights of a particular series
of Preferred Stock.
General.
--------
Under the Certificate, the Board of Directors of the Company is
authorized, without further stockholder action, to provide for the
issuance of up to 10,000,000 shares of Preferred Stock, in one or more
series, with such voting powers and with such designations, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions, as the Board of Directors
shall approve.
The Preferred Stock will have the dividend, liquidation, redemption,
conversion and voting rights set forth below unless otherwise provided
in the Prospectus Supplement relating to a particular series of
Preferred Stock. Reference is made to the Prospectus Supplement
relating to the particular series of Preferred Stock offered thereby
for specific terms, including: (a) the title and liquidation preference
per share of such Preferred Stock and the number of shares offered;
(b) the price at which such series will be issued; (c) the dividend rate
(or method of calculation), the dates on which dividends shall be
payable and the dates from which dividends shall commence to accumulate;
(d) any redemption or sinking fund provisions of such series; (e) any
conversion provisions of such series; and (f) any additional dividend,
liquidation, redemption, sinking fund and other rights, preferences,
privileges, limitations and restrictions of such series.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Preferred Stock, each series will rank on a parity
as to dividends and distributions in the event of a liquidation with
each other series of Preferred Stock and, in all cases, will be senior
to the shares of Common Stock.
Dividend Rights.
----------------
Holders of the shares of Preferred Stock of each series will be entitled
to receive, when, as and if declared by the Board of Directors, out of
assets of the Company legally available therefor, cash dividends at such
rates and on such dates as are set forth in the Prospectus Supplement
relating to such series of Preferred Stock. Such rate may be fixed or
variable or both and may be cumulative, noncumulative or partially
cumulative.
If the applicable Prospectus Supplement so provides, as long as any shares
of Preferred Stock are outstanding, no dividends will be declared or paid
or any distributions be made on the Common Stock, other than a dividend
payable in shares of Common Stock, unless the accrued dividends on each
series of Preferred Stock have been fully paid or declared and set apart
for payment and the Company shall have set apart all amounts, if any,
required to be set apart for all sinking funds, if any, for each series
of Preferred Stock.
If the applicable Prospectus Supplement so provides, when dividends are
not paid in full upon any series of Preferred Stock and any other series
of Preferred Stock ranking on a parity as to dividends with such series
of Preferred Stock, all dividends declared upon such series of Preferred
Stock and any other series of Preferred Stock ranking on a parity as to
dividends will be declared pro rata so that the amount of dividends
declared per share on such series of Preferred Stock and such other
series will in all cases bear to each other the same ratio that accrued
in dividends per share on such series of Preferred Stock and such other
series bear to each other.
Each series of Preferred Stock will be entitled to dividends as described
in the Prospectus Supplement relating to such series, which may be based
upon one or more methods of determination. Different series of Preferred
Stock may be entitled to dividends at different dividend rates or based
upon different methods of determination. Except as provided in the
applicable Prospectus Supplement, no series of Preferred Stock will be
entitled to participate generally in the earnings or assets of the Company.
Rights Upon Liquidation.
------------------------
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of each series of Preferred Stock
will be entitled to receive out of the assets of the Company available for
distribution to stockholders the amount stated or determined on the basis
set forth in the Prospectus Supplement relating to such series, which may
include accrued dividends, if such liquidation, dissolution or winding up
is involuntary or may equal the current redemption price per share
(otherwise than for the sinking fund, if any, provided for such series)
provided for such series set forth in such Prospectus Supplement, if such
liquidation, dissolution or winding up is voluntary, and on such
preferential basis as is set forth in such Prospectus Supplement. If,
upon any voluntary or involuntary liquidation, dissolution or winding up
of the Company, the amounts payable with respect to Preferred Stock of
any series and any other shares of stock of the Company ranking as to
any such distribution on a parity with such series of Preferred Stock
are not paid in full, the holders of shares of Preferred Stock of such
series and of such other shares will share ratably in any such
distribution of assets of the Company in proportion to the full
respective preferential amounts to which they are entitled or on such
other basis as is set forth in the applicable Prospectus Supplement.
The rights, if any, of the holders of any series of Preferred Stock to
participate in the assets of the Company remaining after the holders of
other series of Preferred Stock have been paid their respective specified
liquidation preferences upon any liquidation, dissolution or winding up
the Company will be described in the Prospectus Supplement relating to
such series.
Redemption.
-----------
A series of Preferred Stock may be redeemable, in whole or in part, at
the option of the Company, and may be subject to mandatory redemption
pursuant to a sinking fund, in each case upon terms, at the times, the
redemption prices and for the types of consideration set forth in the
Prospectus Supplement relating to such series. The Prospectus Supplement
relating to a series of Preferred Stock which is subject to mandatory
redemption shall specify the number of shares of such series that shall
be redeemed by the Company in each year commencing after a date to be
specified, at a redemption price per share to be specified, together with
an amount equal to any accrued and unpaid dividends thereon to the date
of redemption.
If, after giving notice of redemption to the holders of a series of
Preferred Stock, the Company deposits with a designated bank funds
sufficient to redeem such shares of Preferred Stock, then from and after
such deposit, all shares called for redemption will no longer be
outstanding for any purpose, other than the right to receive the
redemption price and the right to convert such shares into other classes
of capital stock of the Company. The redemption price will be stated in
the Prospectus Supplement relating to a particular series of Preferred
Stock.
Except as indicated in the applicable Prospectus Supplement, the Preferred
Stock is not subject to any mandatory redemption at the option of the
holder.
Sinking Fund.
-------------
The Prospectus Supplement for any series of Preferred Stock will state
the terms, if any, of a sinking fund for the purchase or redemption of
that series.
Conversion Rights.
------------------
The Prospectus Supplement for any series of Preferred Stock will state
the terms, if any, on which shares of that series are convertible into
shares of Common Stock or another series of Preferred Stock. The
Preferred Stock will have no preemptive rights.
Voting Rights.
---------------
Except as indicated in the Prospectus Supplement relating to a particular
series of Preferred Stock, or except as expressly required by Delaware
law, a holder of Preferred Stock will not be entitled to vote. Except
as indicated in the Prospectus Supplement relating to a particular series
of Preferred Stock, in the event the Company issues full shares of any
series of Preferred Stock, each such share will be entitled to one vote
on matters on which holders of such series of Preferred Stock are entitled
to vote.
Under Delaware law, the affirmative vote of the holders of a majority of
the outstanding shares of all series of Preferred Stock, voting as a
separate voting group, will be required for (a) the authorization of any
class of stock ranking prior to or on parity with shares of Preferred
Stock or the increase in the number of authorized shares of any such stock,
(b) any increase in the number of authorized shares of shares of Preferred
Stock, and (c) certain amendments to the Articles that may be adverse to
the rights of Preferred Stock outstanding.
Transfer Agent and Registrar.
-----------------------------
The transfer agent, registrar and dividend disbursement agent for a series
of Preferred Stock will be selected by the Company and be described in the
applicable Prospectus Supplement. The registrar for shares of Preferred
Stock will send notices to stockholders of any meetings at which holders
of the shares of Preferred Stock have the right to vote on any matter.
Redemption and Restrictions on Transfer
In order to preserve the Company's status as a REIT as defined in the Code,
the Company can redeem or stop the transfer of its shares. The Company's
Certificate of Incorporation provides that the Company is organized to
qualify as a REIT. Because the Code provides that the concentration of
more than 50% in value of the direct or indirect ownership of its shares
in five or fewer individual stockholders during the last six months of any
year would result in the disqualification of the Company as a REIT, the
Company's Certificate of Incorporation provides that the Company has the
power to treat any transfer or issuance resulting in the 9.8% to be
exceeded as null and void and treat the stockholder as holding the
securities on behalf of the Company.
REIT Qualification
Generally, for each taxable year during which the Company qualifies as a
real estate investment trust, it will not be taxed on the portion of its
taxable income (including capital gains) that is distributed to
stockholders. Any undistributed income or gains will be taxed to the
Company at regular corporate tax rates. The Company will be subject to
tax at the highest corporate rate on its net income from foreclosure
property, regardless of the amount of its distributions. The highest
corporate tax rate is currently 35%. Failure to qualify could result in
the Company's incurring indebtedness and perhaps liquidating investments
in order to pay the resulting taxes.
PLAN OF DISTRIBUTION
The Company may sell Offered Securities to or through underwriters or
may sell Offered Securities to investors directly or through designated
agents. Any such underwriter or agent involved in the offer or sale of
the Offered Securities will be named in the applicable Prospectus
Supplement.
Underwriters may offer and sell the Offered Securities at a fixed price
or prices, which may be changed, or from time to time, at market prices
prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. The Company also may, from time
to time, authorize underwriters acting as agents to offer and sell the
Offered Securities upon the terms and conditions set forth in the
Prospectus Supplement. In connection with the sale of the Offered
Securities, underwriters may be deemed to have received compensation from
the Company in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of Offered Securities for whom
they may act as agent. Underwriters may sell Offered Securities to or
through dealers, and such dealers may receive compensation in the form
of discounts, concessions or commissions (which may be changed from time
to time) from the underwriters and or from the purchasers for whom they
may act as agents.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Offered Securities and any
discounts, concessions, or commissions allowed by the underwriters to
participating dealers would be set forth in the applicable Prospectus
Supplement. Underwriters, dealers and agents participating in the
distribution of the Offered Securities may be deemed to be underwriters
and any discounts and commissions received by them and any profit
realized by them on resale of the Offered Securities may be deemed to
be underwriting discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements
entered into with the Company, to indemnification against and
contribution toward certain civil liabilities, including liabilities
under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize dealers acting as the Company's agents to solicit offers
by certain institutions to purchase Offered Securities from the Company
at the public offering price set forth in the Prospectus Supplement
pursuant to Delayed Delivery Contracts ("Contracts") providing for
payment and delivery on the date or dates stated in such Prospectus
Supplement. Each contract will be for an amount not less than, and the
principal amount of Offered Securities sold pursuant to Contracts shall
not be less or more than the respective amount stated in such Prospectus
Supplement. Institutions with which Contracts, when authorized, may be
made with commercial and savings banks, insurance companies, pension
funds, investment companies, education and charitable institutions and
other institutions, but will in all cases be subject to the approval of
the Company. Contracts will not be subject to any conditions except
(a) the purchase by an institution of the Offered Securities covered by
its Contract shall not at the time of delivery be prohibited under the
laws of any jurisdiction in the United States to which such institution
is subject; and (b) the Company shall have sold to such underwriters the
total principal amount of the Offered Securities less the principal
amount thereof covered by Contracts. The commission indicated in the
Prospectus Supplement will be paid to agents and underwriters soliciting
purchases of Offered Securities pursuant to Contracts accepted by the
Company. Agents and underwriters shall have no responsibility in respect
to this delivery or performance of Contracts.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with, and perform services for, the Company in
the ordinary course of business.
LEGAL OPINIONS
The validity of the Offered Securities will be passed upon by Shumaker,
Loop & Kendrick, LLP, Toledo, Ohio.
EXPERTS
The consolidated financial statements of Health Care REIT, Inc.
appearing in Health Care REIT, Inc.'s Annual Report (Form 10-K) for the
year ended December 31, 1995, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance
upon such report given upon the authority of such firm as experts in
accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses payable in connection with the issuance and distribution of the
securities to be registered, other than underwriting discounts and
commissions, are estimated as follows:
Securities and Exchange Commission filing fees . . $90,909.09
Legal fees and expenses. . . . . . . . . . . . . . 22,000.00
Accounting fees and expenses . . . . . . . . . . . 4,000.00
Miscellaneous. . . . . . . . . . . . . . . . . . . 2,000.00
TOTAL . . . . . . . . . . . . . . . . . . . . $118,909.09
Item 15. Indemnification of Officers and Directors.
Section 7 of the Company's Restated Certificate of Incorporation, as
amended (the "Restated Certificate") provides that a director of the
Company shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve international misconduct
or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of Delaware (the "GCL"), or (iv) for any transaction
from which the director derived any improper personal benefit. Section
7 also provides that if the GCL is amended to further eliminate or limit
the personal liability of directors, then the liability of a director of
the Company shall be eliminated or limited to the extent permitted by
the GCL, as so amended. The Restated Certificate also states that any
repeal or modification of the foregoing paragraph by the stockholders of
the Company shall not adversely affect any right or protection of a
director of the Company existing at the time of such repeal or
modification.
The Company's By-Laws (the "By-Laws") provide that the Company shall
indemnify, to the extent permitted by the GCL, any person who was or is
a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or
was a director or officer of the Company, or is or was serving at the
request of the Company as a director, officer, employee, trustee,
partner or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement, actually and
reasonably incurred by him in connection with such action, suit or
proceeding.
Item 16. Exhibits
Exhibit
Number Exhibit
------- -------
4.1<F1> Second Restated Certificate of Incorporation.
4.2<F2> By-Laws of Health Care REIT, Inc.
4.3<F3> Rights Agreement.
4.4<F4> Form of Indenture
5.1<F5> Opinion of Shumaker, Loop & Kendrick, LLP.
23.1 Consent of Ernst & Young LLP, independent
auditors.
23.2<F5> Consent of Shumaker, Loop & Kendrick, LLP to the use of
their opinion as an exhibit to this Registration
Statement is included in their opinion filed herewith
as Exhibit 5.1.
24.1<F6> Powers of Attorney.
<F1> Previously filed as Exhibit 3(i) to the Company's Annual Report
(Form 10-K) for the year ended December 31, 1994.
<F2> Previously filed as Exhibit 3(ii) to the Company's Annual Report
(Form 10-K) for the year ended December 31, 1994.
<F3> Previously filed as an Exhibit to the Company's Form 8-A filed
August 3, 1994 (File No. 1-8923).
<F4> Previously filed as Exhibit 4.4 to the Company's Registration
Statement (Form S-3) filed February 9, 1996 (File No. 33-64877).
<F5> Previously filed as Exhibit 5.1 to the Company's Registration
Statement (Form S-3) filed January 15, 1997 (File No. 333-19801).
<F6> Previously filed as Exhibit 24.1 to the Company's Registration
Statement on Form S-3 filed January 15, 1997 (File No. 333-19801).
Item 17. Undertakings
(A) The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the commission pursuant to
Rule 424(b) if, in the aggregate, the charges in
volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(B) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(C) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Company pursuant to the
foregoing provisions or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such
liabilities (other than the payment by the Company of
expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
(D) The undersigned registrant hereby undertakes that:
(i) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the
form of prospectus filed as part of this Registration
Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Company pursuant to Rule
424(b)(l) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this Registration Statement as of
the time it was declared effective.
(ii) For purposes of determining any liability under the
Securities Act of 1933, each post-effective amendment
that contains a form of prospectus shall be deemed to be
a new registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(E) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the Trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under section
305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this amendment to registration statement to be signed on its behalf by
the undersigned thereunto duly authorized in the City of Toledo, State
of Ohio on January 29, 1997.
HEALTH CARE REIT, INC.
By: /S/ George L. Chapman
----------------------------
George L. Chapman
Chairman of the Board, Chief
Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons
in the capacities and on the dates indicated.
Signature Title Date
- ----------------------- ----------------------- ----------------
/S/ PIER C. BORRA Director
Pier C. Borra January 29, 1997
/S/ BRUCE G. THOMPSON Director
Bruce G. Thompson January 29, 1997
/S/ RICHARD A. UNVERFERTH Director
Richard A. Unverferth January 29, 1997
/S/ FREDERIC D. WOLFE Director
Frederic D. Wolfe January 29, 1997
/S/ SHARON M. OSTER Director January 29, 1997
Sharon M. Oster
/S/ WILLIAM C. BALLARD, JR. Director
William C. Ballard, Jr. January 29, 1997
/S/ MICHAEL A. CRABTREE Principal Accounting
Michael A. Crabtree Officer January 29, 1997
/S/ BRUCE DOUGLAS Director
Bruce Douglas January 29, 1997
/S/ RICHARD C. GLOWACKI Director
Richard C. Glowacki January 29, 1997
/S/ EDWARD F. LANGE, JR. Vice President and
Edward F. Lange, Jr. Principal Financial
Officer January 29, 1997
/S/ GEORGE L. CHAPMAN Chairman of the Board,
George L. Chapman Principal Executive
Officer and President January 29, 1997
*By:/S/ GEORGE L. CHAPMAN
GEORGE L. CHAPMAN, Attorney-in-Fact
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Amendment No. 1 to the Registration Statement (Form S-3 No. 333-19801)
and related Prospectus of Health Care REIT, Inc. for the registration of
Offered Securities not to exceed an initial public offering price of
$300,000,000 and to the incorporation by reference therein of our report
dated February 6, 1996, with respect to the consolidated financial
statements and schedule of Health Care REIT, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Toledo, Ohio
January 29, 1997
