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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):
October 24, 1997
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 3 pages
The Exhibit Index is located on page 3.
ITEM 5. OTHER EVENTS.
In connection with the Company's Registration Statement on Form S-3 (File
No. 333-19801) effective February 4, 1997 the Company has entered
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into an Underwriting Agreement with BT Alex. Brown Incorporated (the
"Underwriter") for an offering of 2,000,000 Shares of Common Stock, $1.00 par
value per share plus an additional 300,000 shares of Common Stock if the
Representatives execerise the over-allotment option granted therein.
On October 21, 1997 the Board of Directors of the Company adopted Amended
and Restated By-Laws (the "By-Laws"). The By-Laws now include language regarding
the settlement of trades on the New York Stock Exchange and use of a corporate
seal.
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.
(3.1) Amended and Restated By-Laws
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/ GEORGE L. CHAPMAN
---------------------------
George L. Chapman
Its: Chairman of the Board, Chief
Executive Officer and President
Dated: October 24, 1997
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EXHIBIT INDEX
Designation
Number Under
Item 601 of
Exhibit No. Regulation S-K Description Page #
- ----------- -------------- ----------- ------
1.1 1 Underwriting Agreement 4
3.1 3(ii) Amended and Restated 23
By-Laws
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Exhibit 1.1
2,000,000 SHARES
HEALTH CARE REIT, INC.
Common Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
----------------------
October 23, 1997
BT Alex. Brown Incorporated
One South Street
Baltimore, Maryland 21202
Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the "Company"),
proposes to sell to BT Alex. Brown Incorporated (the "Underwriter"), an
aggregate of 2,000,000 shares (the "Firm Shares") of the Company's Common Stock,
$1.00 par value per share ("Common Stock"). The Company also proposes to sell at
the Underwriter's option an aggregate of up to 300,000 additional shares of the
Company's Common Stock (the "Option Shares") as set forth below.
As the Underwriter, you have advised the Company (a) that you are
authorized to enter into this Agreement and (b) that you are willing to purchase
the Firm Shares, plus such Option Shares if you elect to exercise the
over-allotment option in whole or in part for your account. The Firm Shares and
the Option Shares (to the extent the aforementioned option is exercised) are
herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants as follows:
(i) A registration statement on Form S-3 (File No. 333-19801)
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
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amendments thereto, the preliminary prospectuses (meeting the
requirements of Rule 430A of the Rules and Regulations) contained
therein, the exhibits, financial statements and schedules, as finally
amended and revised, and all documents incorporated by reference have
heretofore been delivered by the Company to you. Such registration
statement, herein referred to as the "Registration Statement," which
shall be deemed to include all information omitted therefrom in
reliance upon Rule 430A and contained in the Prospectus referred to
below and all information incorporated by reference therein, has been
declared effective by the Commission under the Act and no
post-effective amendment to the Registration Statement has been filed
as of the date of this Agreement. The form of prospectus first filed by
the Company with the Commission pursuant to its Rule 424(b) and Rule
430A, or if no such filing is required, the form of final prospectus
included in the Registration Statement at the time the Registration
Statement is declared effective, is herein referred to as the
"Prospectus." Each preliminary prospectus included in the Registration
Statement prior to the time it becomes effective is herein referred to
as a "Preliminary Prospectus." Any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein and any supplements or
amendments thereto filed with the Commission as of the date of such
Preliminary Prospectus or Prospectus, as the case may be, and in the
case of any reference herein to any Preliminary Prospectus or
Prospectus, also shall be deemed to include any documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Act, as
of the date of such Preliminary Prospectus or Prospectus, and any
supplements or amendments thereto, filed with the Commission after the
date of the filing of the Prospectus under Rule 424(b) or 430A, and
prior to the termination of the offering of the Shares by the
Underwriter. Any reference to any amendment or supplement to any
Preliminary Prospectus or Prospectus, as the case may be, shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities and Exchange Act of 1934, as amended (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., HCRI Texas Properties, Inc. and HCRI Overlook Green,
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.
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(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, contain or will contain, all
statements which are required to be stated therein by, and in all
material respects conform to or will conform to, as the case may be,
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 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
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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 applicable to the Company or the
Company's properties or 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 Underwriter 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
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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 through 860 of the Internal Revenue Code of
1986, as amended, has so qualified for the taxable years ended December
31, 1984 through December 31, 1996 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
LLP, 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 stockholders, 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 Regulation M promulgated under the Exchange
Act, or designed to cause or result in, or which has constituted or
which reasonably might be expected to constitute, the stabilization or
manipulation of the price of the Company's Common Stock. The Company
acknowledges that the Underwriters may engage in transactions that
stabilize, maintain or otherwise affect the price of the Common Stock,
including stabilizing bids, syndicate covering transactions and the
imposition of penalty bids.
(xix) Except as disclosed in the Registration Statement, the
Company is not a party to any written contract or agreement relating to
any purchase of real property or the lending of funds secured by real
property which is probable of being consummated.
(xx) The Shares have been approved for listing upon official
notice of issuance on the New York Stock Exchange.
(xxi) The Company is not, and immediately after the sale of the
Shares pursuant to the terms and conditions of this Agreement will not
be, an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES. On the basis of the
representations, warranties and covenants herein contained, and subject to the
conditions herein set forth, the Company agrees to sell to the Underwriter, and
the Underwriter agrees to purchase, at a price of $25.45 per share, the Firm
Shares.
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Payment for the Firm Shares to be sold hereunder is to be made
in New York Clearing House funds by certified or bank cashier's checks drawn to
the order of the Company for the Shares to be sold by it against delivery of
certificates therefor to the Underwriter. Such payment and delivery are to be
made at the offices of BT Alex. Brown Incorporated, One South Street, Baltimore,
Maryland, at 10:00 A.M. Baltimore time, on the third business day after the date
of this Agreement or at such other time and date not later than three business
days thereafter as you and the Company shall agree upon, such time and date
being herein referred to as the "Closing Date." (As used herein, "business day"
means a day on which the New York Stock Exchange is open for trading and on
which banks in New York are open for business and not permitted by law or
executive order to be closed). The certificates for the Firm Shares will be
delivered by ChaseMellon Shareholder Services, L.L.C. (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 at such place as the Underwriter and the
Company shall agree.
In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants an option to the Underwriter to purchase the
Option Shares at the price per share as set forth in the first paragraph of this
Section 2. The option granted hereby may be exercised in whole or in part by
giving notice (i) at any time before the Closing Date and (ii) only once
thereafter within 30 days after the date of this Agreement, by the Underwriter
to the Company setting forth the number of Option Shares as to which the
Underwriter is exercising the option, the names and denominations in which the
Option Shares are to be registered and the time and date at which such
certificates are to be delivered. The time and date at which certificates for
Option Shares are to be delivered shall be determined by the Underwriter but
shall not be earlier than three nor later than 10 full business days after the
exercise of such option, nor in any event prior to the Closing Date (such time
and date being herein referred to as the "Option Closing Date"). If the date of
exercise of the option is three or more days before the Closing Date, the notice
of exercise shall set the Closing Date as the Option Closing Date. The option
with respect to the Option Shares granted hereunder may be exercised only to
cover over-allotments in the sale of the Firm Shares by the Underwriter. The
Underwriter may cancel such option at any time prior to its expiration by giving
written notice of such cancellation to the Company. To the extent, if any, that
the option is exercised, payment for the Option Shares shall be made on the
Option Closing Date in New York Clearing House funds by certified or bank
cashier's check drawn to the order of the Company against delivery of
certificates therefor (in such denominations and in such registrations as the
Representatives request in writing not later than the second full business day
prior the Option Closing Date) at the offices of BT Alex. Brown Incorporated,
One South Street, Baltimore, Maryland. The Transfer Agent shall make the
certificates for the Option Shares available for inspection by the Underwriter
at least one business day prior to the Option Closing Date.
3. OFFERING BY THE UNDERWRITER. It is understood that the Underwriter
is to make a public offering of the Firm Shares as soon as the Underwriter deems
it advisable to do so. The Firm 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. To the extent, if at all, that any Option Shares are purchased pursuant
to Section 2 hereof, the Underwriter will offer them to the public on the
foregoing terms.
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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 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
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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 the
Underwriter 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.
(viii) No offering, sale or other disposition of any Common
Stock of the Company will be made for a period of 90 days after the
date of this Agreement, directly or indirectly, by the Company
otherwise than hereunder or with the prior written consent of the
Underwriter except that the Company may, without such consent, (i)
issue options under the Stock Option Plans described in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1996;
(ii) issue shares upon the exercise of options issued pursuant to the
Stock Option Plans described in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996; or (iii) sell shares
of Common Stock pursuant to the Dividend Reinvestment Plan described in
the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
(ix) The Company will use its best efforts to list the Shares
on the New York Stock Exchange.
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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 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 (iv) 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 its obligations
hereunder, but the Company shall not in any event be liable to the Underwriter
for damages on account of loss of anticipated profits from the sale by it of the
Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITER. The obligation of the
Underwriter to purchase the Firm Shares on the Closing Date and the Option
Shares, if any, on the Option Closing Date is subject to the accuracy, as of the
Closing Date or the Option Closing Date, as the case may be, of the
representations and warranties of the Company contained herein, and to the
performance by the Company of its covenants and obligations hereunder and to the
following additional conditions:
(i) 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.
(ii) The Underwriter shall have received on the Closing Date
or the Option Closing Date, as the case may be, the opinion of
Shumaker, Loop & Kendrick, LLP, counsel for the Company, dated the
Closing Date or the option closing date, as the case may be, and
addressed to the Underwriter to the effect that:
(a) 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.
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<PAGE> 10
(b) 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.
(c) 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 nonassessable; all of the Shares conform in
all material respects to the description thereof contained in
the Prospectus; the certificates for the Shares are in due and
proper form; the shares of Common Stock, including the Option
Shares, if any, to be sold by the Company pursuant to this
Agreement have been duly authorized and will be validly
issued, fully paid and non-assessable when issued and paid for
as contemplated by this Agreement; and no preemptive or
similar rights of stockholders exist with respect to any of
the Shares or the issue and sale thereof.
(d) 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.
(e) The Registration Statement, 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).
(f) 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.
(g) The statements under the caption "Certain
Government Regulations" in the Company's Annual Report on Form
10-K, and any amendments thereto, for the fiscal year ended
December 31, 1996 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.
(h) 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.
(i) Such counsel knows of no material legal
proceedings pending or threatened against the Company except
as set forth in the Prospectus.
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<PAGE> 11
(j) 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.
(k) This Agreement has been duly authorized, executed
and delivered by the Company.
(l) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in
connection with the execution and delivery of this Agreement
and the consummation of the transactions herein contemplated
(other than as may be required by the NASD or as required by
state securities and Blue Sky laws as to which such counsel
need express no opinion) except such as have been obtained or
made by the Company, specifying the same.
(m) 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, 1996, 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, 1997. 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, and any amendments, for the fiscal year ended
December 31, 1996 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, LLP 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, LLP 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
11
<PAGE> 12
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 or the Option Closing Date,
as the case may be, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (except that
such counsel need express no view as to financial statements, schedules
and other financial or statistical information included therein). With
respect to such statement, Shumaker, Loop & Kendrick, LLP, may state
that their belief is based upon the procedures set forth or
incorporated by reference therein, but is without independent check and
verification.
(iii) The Underwriter shall have received from Calfee, Halter
& Griswold LLP, counsel for the Underwriter, an opinion dated the
Closing Date or the Option Closing Date, as the case may be, with
respect to the organization of the Company, the validity of the Shares,
the Registration Statement, the Prospectus and other related matters as
the 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.
(iv) The Underwriter shall have received at or prior to the
Closing Date from Calfee, Halter & Griswold LLP, 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.
(v) The Underwriter shall have received on the Closing Date or
the Option Closing Date, as the case may be, a signed letter from Ernst
& Young LLP, dated the Closing Date or the Option Closing Date, as the
case may be, which shall confirm, on the basis of a review in
accordance with the procedures set forth in the letter, dated October
23, 1997, signed by such firm and delivered to the Underwriter by Ernst
& Young LLP, 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 or the Option Closing Date, as
the case may be, which would require any change in its letter dated
October 23, 1997 if it were required to be dated and delivered on the
Closing Date or the Option Closing Date, as the case may be. All such
letters shall be in form and substance satisfactory to the Underwriter.
(vi) The Underwriter shall have received on the Closing Date
or the Option Closing Date, as the case may be, a certificate or
certificates of the Chairman of the Board, Chief
12
<PAGE> 13
Executive Officer and President and the Chief Financial Officer of the
Company to the effect that as of the Closing Date or the Option Closing
Date, as the case may be, each of them severally represents as follows:
(a) 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
knowledge, contemplated by the Commission.
(b) He 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 does not know of any material contract required
to be filed as an exhibit to the Registration Statement which
is not so filed; and the representations and warranties of the
Company contained in Section 1 hereof are true and correct as
of the Closing Date or the Option Closing Date, as the case
may be.
(c) He has carefully examined the Registration
Statement and the Prospectus and in his 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 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.
(vii) 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 (vii).
(vii) The Shares to be sold by the Company as of the Closing
Date or the Option Closing Date, as the case may be, shall have been
duly listed, subject to notice of issuance, on the New York Stock
Exchange.
The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if
they are in all material respects reasonably satisfactory to the
Underwriter and to Calfee, Halter & Griswold LLP, 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 or the Option Closing Date, as the case
may be.
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<PAGE> 14
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of the
Company to sell and deliver the portion of the Shares required to be delivered
as and when specified in this Agreement are subject to the conditions that at
the Closing Date or the Option Closing Date, as the case may be, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and in effect or proceedings therefor initiated or threatened.
8. INDEMNIFICATION.
(i) 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 (a) 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 (b) 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.
(ii) 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 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,
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<PAGE> 15
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.
(iii) 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(i) or (ii) shall be
available to any party who shall fail to give notice as provided in
this Section 8(iii) 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(i) or (ii). 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 (a) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (b) 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(i) and by the Company in the case of parties indemnified pursuant to
Section 8(ii). 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
(a) such settlement is entered into more than 30 days after receipt by
such indemnifying party of the aforesaid request and (b) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.
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<PAGE> 16
(iv) 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(i) or (ii) 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 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(iii) 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(iv) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this Section 8(iv). 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(iv) 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(iv), (a) the
Underwriter shall not be required to contribute any amount in excess of
the underwriting discounts and commissions applicable to the Shares
purchased by the Underwriter and (b) 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.
(v) 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. 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 Underwriter,
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<PAGE> 17
to BT Alex. Brown Incorporated, One South 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, Chairman of the Board, Chief Executive
Officer and President.
10. TERMINATION. This Agreement may be terminated by you by notice to
the Company as follows:
(i) at any time prior to the earlier of (a) the time the
Shares are released by you for sale, or (b) 11:30 A.M. on the first
business day following the date of this Agreement;
(ii) at any time prior to the Closing Date if any of the
following has occurred: (a) 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, (b) 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, (c) 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, (d) 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, (e)
declaration of a banking moratorium by either federal or New York State
authorities, (f) 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 (g) any litigation or
proceeding is pending or threatened against the Underwriter 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
(iii) as provided in Section 6 of this Agreement.
This Agreement also may be terminated by you, by notice to the
Company, as to any obligation of the Underwriter to purchase the Option Shares,
upon the occurrence at any time prior to the Option Closing Date of any of the
events described in subparagraph (ii) above or as provided in Section 6 of this
Agreement.
11. 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.
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<PAGE> 18
12. 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
(i) any termination of this Agreement, (ii) 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 (iii) delivery of and payment for
the Shares under this Agreement.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Maryland.
If the foregoing letter is in accordance with your
understanding of our agreement, please sign and return to us the enclosed
duplicates hereof, whereupon it will become a binding agreement among the
Company and the Underwriter in accordance with its terms.
Very truly yours,
HEALTH CARE REIT, INC.
By:
------------------------------------------
George L. Chapman, Chairman of the Board,
Chief Executive Officer and President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
BT ALEX. BROWN INCORPORATED
By:
-------------------------------------
18
<PAGE> 1
Exhibit 3.1
AMENDED AND RESTATED
BY-LAWS
OF
HEALTH CARE REIT, INC.
(HEREINAFTER CALLED THE "CORPORATION")
AS OF OCTOBER 21, 1997
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also have offices in Toledo,
Ohio, and at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine.
SECTION 3. CORPORATE SEAL. The corporate seal of the Corporation shall be
in the form of a circle and shall state within the circle, "Health Care REIT,
Inc., Toledo, Ohio" and the words "Corporate Seal" in the middle of the seal.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. Meetings of the stockholders for the
election of directors or for any other purpose shall be held in the City of
Toledo, Ohio, or at such place, either within or without the State of Delaware,
as shall be designated from time to time by the Board of Directors and stated
in the notice of the meeting or in a duly executed waiver of notice
<PAGE> 2
thereof.
SECTION 2. ANNUAL MEETINGS. Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting, at which meetings
the stockholders shall elect a Board of Directors and transact such other
business as may properly be brought before the meeting. Written notice of the
Annual Meeting stating the place, date and hour of the meeting shall be given
to each stockholder entitled to vote at such meeting not less than twenty nor
more than sixty days before the date of the meeting. At each Annual Meeting,
the Chief Executive Officer or any other person appointed by the Board of
Directors in his absence shall report on the business and operations of the
Corporation and present a statement of the financial condition of the
Corporation as of the close of the fiscal year next preceding such Annual
Meeting. Any appropriate business may be conducted at an Annual Meeting.
SECTION 3. QUORUM. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such a quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted that might have been transacted at
the meeting as originally noticed. If the adjournment is for more than thirty
days, or if after the adjournment
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a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
SECTION 4. VOTING. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, any question brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. Each stockholder represented at
a meeting of stockholders shall be entitled to cast one vote for each share of
the capital stock entitled to vote thereat held by such stockholder. Such votes
may be cast in person or by proxy but no proxy shall be voted on or after three
years from its date, unless such proxy provides for a longer period. The Board
of Directors, in its discretion, or the officer of the Corporation presiding at
a meeting of stockholders, in his discretion, may require that any votes cast
at such meeting shall be cast by written ballot.
SECTION 5. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder for any purpose germane to the meeting
during ordinary business hours for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
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SECTION 6. STOCK LEDGER. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 5 of this Article II, or the books of the
Corporation, or entitled to vote in person or by proxy at any meeting of
stockholders.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND ELECTION OF DIRECTORS. The Board of Directors shall
consist of not less than three (3) nor more than fifteen (15) members, the
exact number of which shall be fixed from time to time by affirmative vote of a
majority of the entire Board of Directors, and such exact number shall be nine
(9) until otherwise determined by resolution adopted by affirmative vote of a
majority of the entire Board of Directors.
SECTION 2. INDEPENDENT DIRECTORS. At least two of the directors shall be
Independent Directors as hereinafter defined. Among other duties specified
herein or by resolution of the Board of Directors, the Independent Directors
shall review policies of the Board of Directors on investments and borrowing
and shall monitor the administrative procedures, investment operations and
performance of the Corporation to assure that such policies are carried out.
The Independent Directors shall fulfill their review and monitoring function by
reviewing, monitoring and making recommendations to the Board of Directors with
respect to the matters specified as responsibilities or duties of the Board of
Directors in Articles VII and VIII hereof.
SECTION 3. CLASSIFICATION OF THE BOARD. The Board of Directors shall be
divided into three classes, to be known as Class I, Class II and Class III,
respectively, of at least one (1)
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director each, with each class to be as nearly equal in number as the then
total number of directors constituting the entire Board of Directors permits,
with the term of office of one class expiring in each year. At each Annual
Meeting of Stockholders, the successors to the class of directors whose term
shall then expire shall be elected to hold office for a term expiring at the
third succeeding Annual Meeting, or until their successors are elected and
qualified.
SECTION 4. ELECTION OF DIRECTORS. Directors shall be elected at the Annual
Meeting of Stockholders, but when the Annual Meeting is not held or directors
are not elected thereat, they may be elected at a Special Meeting called and
held for that purpose. Such election shall be by ballot whenever requested by
any stockholder entitled to vote at such election; but, unless a request is
made, the election may be conducted in any manner approved at such meeting. At
each meeting of stockholders for the election of directors the persons
receiving the greatest number of votes shall be directors. In order to serve as
a director of the Corporation, persons need to be the beneficial owner of at
least 100 shares of the Corporation's Common Stock.
SECTION 5. NOMINATION OF DIRECTORS. Nominations for the election of
directors may be made by the Board of Directors or by any stockholder entitled
to vote for the election of directors. Any nominations by stockholders shall be
made by notice in writing, delivered or mailed by first class United States
mail, postage prepaid, to the Secretary of the Corporation not less than
fourteen (14) days nor more than ninety (90) days prior to any meeting of the
stockholders called for the election of directors. Such notice of nomination
shall set forth (i) the name, age, business address and, if known, residence
address of each nominee proposed in such notice, (ii) the principal occupation
or employment of each such nominee, and (iii) the number of shares of stock of
the Corporation that are beneficially owned by each such nominee. The
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Chairman of a meeting for election of directors may, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall be
disregarded.
SECTION 6. VACANCIES. Any vacancies in the Board of Directors for any
reason, and any newly created directorships resulting from any increase in the
number of directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director, provided, however, that an Independent Director
vacancy shall be filled by a majority of the Independent Directors then in
office or by a sole remaining Independent Director. Any directors so chosen
shall hold office until the next election of the class for which such directors
shall have been chosen and until their successors shall be elected and
qualified. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. No decrease in the number of
directors shall shorten the term of any incumbent director. A director may be
removed from office only for good cause upon the affirmative vote of the Board
of Directors or holders of at least a majority of the shares of capital stock
of the Corporation, issued, outstanding and entitled to vote. As used in this
section, good cause shall mean conviction of a felony by a court of competent
jurisdiction, or negligence or misconduct in the performance of a duty to the
Corporation in a matter of substantial importance to the Corporation.
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SECTION 7. DUTIES AND POWERS. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise
all such powers of the Corporation and do all such lawful acts and things as
are not by statute or by the Certificate of Incorporation or by these By-Laws
directed or required to be exercised or done by the stockholders.
SECTION 8. MEETINGS. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without notice
at such time and at such place as may from time to time be determined by the
Board of Directors. There shall be at least four (4) regular meetings each
year. Special meetings of the Board of Directors may be called by the
Chairman, if there be one, the President, the Secretary, or any three of the
directors. Notice thereof stating the place, date and hour of the meeting
shall be given to each director not less than three (3) days before the
meeting.
SECTION 9. QUORUM. Except as may be otherwise specifically provided by
law, the Certificate of Incorporation or these By-Laws, a majority of the
entire Board of Directors shall constitute a quorum for the transaction of
business at all meetings of the Board of Directors, and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors. If a quorum shall not be present at any meeting
of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
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SECTION 10. ACTIONS OF THE BOARD. Unless otherwise provided by the
Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting if all the members of the Board of
Directors or committee, as the case may be, consent thereto in writing. Any
such writing or writings shall be filed with the minutes of proceedings of the
Board of Directors or committee.
SECTION 11. MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Unless otherwise
provided by the Certificate of Incorporation or these By-Laws, members of the
Board of Directors of the Corporation, or any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 11 shall
constitute presence in person at such meeting.
SECTION 12. COMMITTEES. The Board of Directors may, by resolution passed
by a majority of the entire Board of Directors, designate one or more
committees, each committee to consist of two or more of the directors of the
Corporation. All of the members of the Audit Committee of the Board of
Directors shall be Independent Directors, as hereinafter defined. Subject to
the foregoing, the Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or disqualification
of a member of a committee, and in the absence of a designation by the Board of
Directors of any alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not
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disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any absent or disqualified member. Any committee, to
the extent allowed by law, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation as specified in the resolution establishing such
committee. Each committee shall keep regular minutes or make reports to the
Board of Directors when required.
SECTION 13. COMPENSATION. The directors may be paid their expenses, if
any, of attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors and a stated
annual sum for service as director. Members of special or standing committees
may be allowed like compensation for such additional service. No such payment
shall preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor. Such services may include, but are not
limited to, service as an officer of the Corporation, legal or other
professional services, mortgage servicing, or services as an insurance broker,
transfer agent, or underwriter.
SECTION 14. INTERESTED DIRECTORS. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof that
authorizes the contract or transaction, or solely because his or their votes
are counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known
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to the Board of Directors or the committee, and the Board of Directors or
committee in good faith determines that the contract or transaction is fair and
reasonable to stockholders of the Corporation and authorizes or ratifies the
contract or transaction by the affirmative votes of a majority of the members
of the entire Board of Directors or committee who do not have any interest in
such transaction, even though the disinterested directors or committee members
be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, the contract or
transaction is specifically approved or ratified in good faith by vote of the
stockholders, and the contract or transaction is fair and reasonable as to the
Corporation and the stockholders as of the time it is approved or ratified by
the stockholders. Interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
SECTION 1. GENERAL. The officers of the Corporation shall be chosen by the
Board of Directors and shall be a Chairman of the Board of Directors, a
President, a Secretary and a Treasurer. The Board of Directors, in its
discretion, may also choose one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by
the same person, unless otherwise prohibited by law, the Certificate of
Incorporation or these By-Laws. The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman of the
Board of Directors, need such officers
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be directors of the Corporation.
SECTION 2. ELECTION. The Board of Directors at its first meeting held
after each Annual Meeting of Stockholders shall elect the officers of the
Corporation who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board of Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation
or removal. Any officer elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors.
SECTION 3. VOTING SECURITIES OWNED BY THE CORPORATION. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the Chairman of the Board, the President, or any
Vice President. Any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security holders of any
corporation, partnership, trust or other entity in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and power incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
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SECTION 4. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board
of Directors shall preside at all meetings of the stockholders and of the Board
of Directors. He shall be the Chief Executive Officer of the Corporation and
have general supervision of the business of the Corporation. He shall see that
all orders and resolutions of the Board of Directors are carried into effect
and shall possess the power to sign all contracts, certificates and other
instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other
duties and may exercise such other powers as from time to time may be assigned
to him by these By-Laws or by the Board of Directors.
SECTION 5. PRESIDENT. The President shall, subject to the control of the
Board of Directors and the Chairman of the Board of Directors, have general
supervision of the operations of the Corporation and shall see that all orders
and resolutions of the Board of Directors and the Chairman of the Board are
carried into effect. In the absence or disability of the Chairman of the Board
of Directors, or if there be none, the President shall preside at all meetings
of the stockholders and the Board of Directors. If there be no Chairman of the
Board of Directors, the President shall be the Chief Executive Officer of the
Corporation. The President shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these
By-Laws or by the Board of Directors.
SECTION 6. VICE-PRESIDENTS. In the absence or disability of the President
and at the request of the Chairman of the Board of Directors, the
Vice-President or the Vice-Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the
President, and when so acting, shall have all the powers of and be
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subject to all the restrictions upon the President. Each Vice-President shall
perform such other duties and have such other powers as the Board of Directors
or the Chairman of the Board of Directors from time to time may prescribe. If
there be no Vice-President, the Board of Directors shall designate the officer
of the Corporation who, in the absence of the President or in the event of the
inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President.
SECTION 7. SECRETARY. The Secretary shall attend all meetings of the Board
of Directors and all meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose. The Secretary shall
also perform like duties for the standing committees when requested. The
Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and meetings of the Board of Directors, and shall perform such
other duties as may be prescribed by the Board of Directors or Chairman of the
Board of Directors, under whose supervision he shall be. If the Secretary shall
be unable or shall refuse to cause to be given notice of all meetings of the
stockholders and meetings of the Board of Directors, and if there be no
Assistant Secretary, then either the Board of Directors or the Chairman of the
Board of Directors may choose another officer to cause such notice to be given.
The Secretary shall have custody of the seal of the Corporation, if any, and
the Secretary or any Assistant Secretary, if there be one, shall have authority
to affix the same to any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation, if any, and to attest the
affixing by his signature. The Secretary
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shall see that all books, reports, statements, certificates and other documents
and records required by law to be kept or filed are properly kept or filed, as
the case may be.
SECTION 8. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chairman of the Board of Directors and
the Board of Directors, at its regular meetings, or when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors,
the Treasurer shall give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
SECTION 9. ASSISTANT SECRETARIES. Except as may be otherwise provided in
these By-Laws, Assistant Secretaries, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any
Vice-President, if there be one, or the Secretary, and in the absence of the
Secretary or in the event of his disability or refusal to act, shall perform
the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the
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restrictions upon the Secretary.
SECTION 10. ASSISTANT TREASURERS. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President and Vice-President, if there be one, or the Treasurer,
and in the absence of the Treasurer or in the event of his disability or
refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
Treasurer. If required by the Board of Directors, an Assistant Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of his office and for the restoration to the Corporation, in case of
his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession
or under his control belonging to the Corporation.
SECTION 11. OTHER OFFICERS. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of Directors. The Board of Directors may
delegate to any other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
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ARTICLE V
STOCK
SECTION 1. FORM OF CERTIFICATES. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation
(i) by the Chairman of the Board of Directors, the President or a
Vice-President and (ii) by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number
of shares owned by him in the Corporation.
SECTION 2. SIGNATURES. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
SECTION 3. LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as the Board of Directors shall require and/or
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to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
SECTION 4. TRANSFERS. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these By-Laws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the
certificate or by his attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.
SECTION 5. RECORD DATE. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty days nor less than twenty
days before the date of such meeting of stockholders, nor more than sixty days
prior to any other action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
SECTION 6. BENEFICIAL OWNERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, and shall be entitled
to hold liable for calls and assessments a person
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registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not the Corporation shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
RESTRICTIONS ON ISSUANCE AND TRANSFER OF STOCK
SECTION 1. LIMIT ON STOCK OWNERSHIP. No person may own more than 9.8% of
the outstanding shares of the Corporation's Common Stock (the "Limit"), and no
Securities, as defined herein, may be issued or transferred to any person if,
following such issuance or transfer, such person's ownership of Common Stock
would exceed the Limit. For purposes of computing the Limit, Convertible
Securities, as defined herein, owned by such person shall be treated as if the
Convertible Securities had been converted into shares of Common Stock.
SECTION 2. TRANSFERS IN EXCESS OF THE LIMIT. If any Securities in excess
of the Limit are issued or transferred to any person in violation of Section 1
hereof (the "Excess Securities"), such issuance or transfer shall be valid only
with respect to such amount of Securities as does not result in a violation of
Section 1 hereof, and such issuance or transfer shall be null and void with
respect to such Excess Securities. If the last clause of the foregoing sentence
is determined to be invalid by virtue of any legal decision, statute, rule or
regulation, such person shall be conclusively deemed to have acted as an agent
on behalf of the Corporation in acquiring the Excess Securities to hold such
Excess Securities on behalf of the Corporation. As the equivalent of treasury
securities for such purposes, the Excess Securities shall not be
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entitled to any voting rights, shall not be considered to be outstanding for
quorum or voting purposes, and shall not be entitled to receive dividends,
interest or any other distribution with respect to such securities. Any person
who receives dividends, interest or any other distribution in respect of Excess
Securities shall hold the same as agent for the Corporation and for the
transferee of the Excess Securities following a permitted transfer.
SECTION 3. TRANSFERS OF EXCESS SECURITIES. Notwithstanding anything herein
to the contrary, any holder of Excess Securities may transfer the same
(together with any distributions thereon) to any person who, following such
transfer, would not own shares of Common Stock in excess of the Limit. Upon
such a permitted transfer, the Corporation shall pay or distribute to the
transferee any distributions on the Excess Securities not previously paid or
distributed.
SECTION 4. DEFINITIONS. For purposes of this Article:
(a) "Person" includes an individual, corporation, partnership,
association, joint stock company, trust, unincorporated association or
other entity.
(b) "Convertible Securities" means any securities of the Corporation
that are convertible into, or afford rights to purchase, shares of Common
Stock.
(c) "Securities" means shares of Common Stock and Convertible
Securities.
(d) "Ownership" means beneficial ownership determined on the basis of
the beneficial ownership rules applicable under the Securities Exchange
Act of 1934, as amended, or such other basis as the Board of Directors
reasonably determines to be appropriate to effectuate the purposes hereof.
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SECTION 5. ADDITIONAL RESTRICTIONS. Notwithstanding anything herein to the
contrary, the Corporation and its transfer agent may refuse to transfer any
shares, passing either by voluntary transfer, by operation of law, or under the
last will and testament of any stockholder, if such transfer would or might, in
the opinion of the Board of Directors or counsel to the Corporation, disqualify
the Corporation as a Real Estate Investment Trust under the Internal Revenue
Code. Nothing herein contained shall limit the ability of the Corporation to
impose or to seek judicial or other imposition of additional restrictions if
deemed necessary or advisable to preserve the Corporation's tax status as a
qualified Real Estate Investment Trust.
SECTION 6. CERTIFICATE LEGEND. All certificates representing Securities of
the Corporation within the meaning of this Section shall, if deemed necessary
by the Board of Directors, be marked with a legend sufficient under the laws of
the State of Delaware to provide a purchaser of such Securities with notice of
the restrictions on transfer under this Article VI.
SECTION 7. INVALIDITY OF PROVISIONS. If any provision of this Article or
any application of any such provision is determined to be invalid by any
federal or state court having jurisdiction over the issue, the validity of the
remaining provisions shall not be affected and other applications of such
provision shall be affected only to the extent necessary to comply with the
determination of such court.
SECTION 8. NEW YORK STOCK EXCHANGE TRANSACTIONS. Nothing in this Article
VI, including but not limited to Section 5, shall preclude the settlement of
any transactions entered into through the facilities of the New York Stock
Exchange or any other stock exchange. The fact that settlement of any
transaction takes place shall not, however, negate the effect of any other
provision of this Article VI, and any transferee, and the shares of capital
stock transferred
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to such transferee in such a transaction, shall be subject to all of the
provisions and limitations in this Article VI.
ARTICLE VII
INVESTMENT POLICY AND RESTRICTIONS
SECTION 1. INVESTMENT OF FUNDS. It shall be the policy of the Board of
Directors to invest the major portion of the funds of the Corporation
(excluding funds used for compensating deposit balances with lending banks and
for working capital purposes) in entire or participating interests in real
property, mortgage loans, and other Real Estate Assets, as hereinafter defined,
and loans arising out of the development or ownership of real estate and Real
Estate Assets.
SECTION 2. INVESTMENT POLICY. The prospectus relating to each offering of
securities of the Corporation shall contain a statement in reasonable detail of
the investment policies and objectives of the Corporation and an explanation of
the borrowing policies of the Corporation. The Board of Directors shall review
the investment policies of the Corporation with sufficient frequency and at
least annually to determine that the policies being followed by the Corporation
at any time are in the best interests of its stockholders. Each such
determination and the basis therefor shall be set forth in the minutes of the
Board of Directors.
SECTION 3. LIMITATIONS ON TRANSACTIONS. The Corporation shall not:
(a) Invest more than 10% of its total assets in Unimproved Real
Property, as hereinafter defined, or mortgage loans on Unimproved Real
Property.
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(b) Invest in commodities or commodity future contracts. Such
limitation is not intended to apply to interest rate, financial
instrument, or market index futures or options, when used solely for
hedging purposes.
(c) Invest in junior mortgage loans unless, by appraisal or other
method that the Board of Directors select, (i) the capital invested in any
such mortgage loan is adequately secured on the basis of the equity of the
borrower in the property underlying such investment and the ability of the
borrower to repay the mortgage loan, or (ii) such mortgage loan of the
Corporation is a financing device entered into by the Corporation to
establish the priority of its capital investment over the capital of
others who are investing with the Corporation in a real estate project.
The Board of Directors shall determine that any such junior mortgage loan
is not and may not be made subordinate to a mortgage held by a director of
the Corporation.
(d) Issue debt securities unless the historical debt service coverage
(in the most recently completed fiscal year) as adjusted for known changes
is sufficient to properly service the higher level of debt.
(e) Have aggregate borrowings, secured and unsecured, that are
unreasonable in relation to the Net Assets of the Corporation, as
hereinafter defined. Borrowings of the Corporation shall be reviewed by
the Board of Directors at least quarterly. The maximum amount of such
borrowings in relation to the Net Assets shall, in the absence of a
satisfactory showing that a higher level of borrowing is appropriate, not
exceed 400%. Any excess in borrowing over such 400% level shall be
approved by the Board of Directors and disclosed to stockholders in the
next quarterly report of the Corporation along with justification for such
excess.
(f) Pay more than the fair market value, as determined by the Board
of Directors, for any real property acquired by the Corporation unless
specifically approved by the Board of Directors. In cases in which the
Board of Directors so specify, such fair market value shall be determined
by a qualified independent real estate appraiser selected by the Board of
Directors.
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SECTION 4. PERMISSIBLE REMEDIES. Notwithstanding any provision in these
ByLaws to the contrary, when an obligor to the Corporation is in default under
the terms of any obligation to the Corporation, the Board of Directors shall
have the power to pursue any remedies permitted by law that, in its sole
discretion, are in the interests of the Corporation, and the Board of Directors
shall have the power to enter into any necessary investment, commitment, or
obligation of the Corporation resulting from the pursuit of such remedies or
necessary or desirable to dispose of property acquired in the pursuit of such
remedies.
SECTION 5. INCOME TAX STATUS. It shall be the policy of the Board of
Directors that the Corporation shall qualify as a Real Estate Investment Trust
under the Internal Revenue Code. Anything herein to the contrary
notwithstanding, however, the Board of Directors makes no commitment or
representation that the Corporation will qualify in any given year for the
dividends paid deduction permitted by the Internal Revenue Code and the rules
and regulations thereunder pertaining to the Real Estate Investment Trusts. The
failure of the Corporation to qualify as a Real Estate Investment Trust under
the Internal Revenue Code shall not render the directors or officers of the
Corporation liable to the stockholders or to any other person.
ARTICLE VIII
BUSINESS COMBINATIONS
SECTION 1. VOTE REQUIREMENT. In addition to any vote otherwise required by
law, the Certificate of Incorporation, or these By-Laws, a Business
Combination, as defined herein, shall require the affirmative vote of the
holders of at least seventy-five percent (75%) of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to
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vote generally in the election of directors (the "Voting Stock"), voting
together as a single class.
SECTION 2. EXCEPTIONS. The provisions of Section 1 of this Article VIII
shall not apply to any Business Combination if:
(a) The Corporation is at the time of the consummation of the
Business Combination, and at all times throughout the preceding twelve
months has been, directly or indirectly, the beneficial owner of a
majority of each class of the outstanding Equity Securities, as defined
herein, of the Interested Stockholder, as defined herein, that is a party
to such transaction; or
(b) Such Business Combination has been approved by a majority of the
Board of Directors who, at the time such approval is given, were not
Affiliates, as defined herein, or nominees of the Interested Stockholder
and were either members of the Board of Directors prior to the time that
the Interested Stockholder became an Interested Stockholder (the
"Continuing Directors") or were successors of Continuing Directors on the
recommendation of a majority of Continuing Directors then on the Board of
Directors; or
(c) Both of the following conditions have been met:
(i) The aggregate amount of the cash and the Fair Market Value,
as defined herein, of consideration other than cash to be received
per share by holders of Voting Stock in such Business Combination
shall be at least equal to the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any shares of Voting Stock
acquired by it (1) within the two-year period immediately prior to
the first public announcement of the proposal of the Business
Combination or (2) in the transaction in which it became an
Interested Stockholder, whichever is higher; and
(ii) The consideration to be received by holders of a particular
class of outstanding Voting Stock shall be in cash or in the same
form as the
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Interested Stockholder previously paid for shares of such Voting
Stock. If the Interested Stockholder paid for shares of any class of
Voting Stock with varying forms of consideration, the form of
consideration to be paid by the Interested Stockholder for such class
of Voting Stock shall be either cash or the form used to acquire the
largest number of shares of such class of Voting Stock previously
acquired by the Interested Stockholder.
SECTION 3. DEFINITIONS. For purposes of this Article VIII:
(a) A "Business Combination" shall mean:
(i) Any merger or consolidation of the Corporation with or into
(1) any Interested Stockholder (as hereinafter defined) or (2) any
other corporation or entity (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) of an Interested
Stockholder; or
(ii) Any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Stockholder or an Affiliate of any Interested
Stockholder of substantially all assets of the Corporation; or
(iii) Any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation or any other
transaction (whether or not with or into or otherwise involving an
Interested Stockholder) that has the effect, directly or indirectly,
of increasing the proportionate share of the outstanding shares of
any class of Equity Securities of the Corporation that is directly or
indirectly owned by any Interested Stockholder or any Affiliate of
any Interested Stockholder; or
(iv) The adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested
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Stockholder or any Affiliate of any Interested Stockholder.
(b) "Interested Stockholder" shall mean any individual, firm,
corporation (other than the Corporation) or other entity which, as of the
record date for the determination of stockholders entitled to notice of
and to vote on any of the transactions described in clauses (i) through
(iv) of subsection (a) of this Section 3, or immediately prior to the
consummation of any such transaction, is the beneficial owner of five
percent (5%) or more of the outstanding Voting Stock.
(c) "Beneficial Owner" or "beneficially owned" shall have the meaning
set forth in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). The Board of Directors of the Corporation
shall have the power and duty to determine for purposes of this Article,
on the basis of information then known to it, whether any person is a
beneficial owner of 5% or more of the outstanding Voting Stock.
(d) "Affiliate" or "Associate" shall have the meanings set forth in
Rule 405 under the Securities Act of 1933, as amended.
(e) "Fair Market Value" shall mean the fair market value of such
property on the date in question as determined by the Board of Directors
in good faith.
(f) "Equity Securities" shall have the meaning specified in Rule
13a11-1 under the Exchange Act.
ARTICLE IX
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may
be paid in cash, in property, or in shares of the capital stock. Before payment
of any dividend, there may be set aside out of any funds
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of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any such reserve.
SECTION 2. DISBURSEMENTS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
SECTION 3. FISCAL YEAR. The fiscal year of the Corporation shall be a
calendar year unless otherwise fixed by resolution of the Board of Directors.
SECTION 4. BOOKS AND RECORDS. The books and records of the Corporation may
be kept in Toledo, Ohio (subject to any provision of law or the Certificate of
Incorporation), or within or without the State of Delaware, at such place or
places as may be designated from time to time by the Board of Directors of the
Corporation.
SECTION 5. NOTICES. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his
address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may also be given
personally or by telegram, telex or cable. Whenever any notice is required by
law, the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or
after
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the time stated therein, shall be deemed equivalent thereto.
ARTICLE X
INDEMNIFICATION
To the extent permitted by The General Corporation Law of Delaware as the
same exists or may hereafter be enacted or amended, the Corporation shall
indemnify 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 Corporation, or is or was serving at the
request of the Corporation 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.
ARTICLE XI
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or repealed, in whole or
in part, or new By-Laws may be adopted by the stockholders or by the Board of
Directors, provided, however, that notice of such alteration, amendment, repeal
or adoption of new By-Laws be contained in the notice of such meeting of
stockholders or Board of Directors as the case may be. Any amendment by the
Board of Directors must be approved by a majority of the entire Board of
Directors then in office, provided that the approval of a majority of the
entire number
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of Independent Directors then in office shall be required as well if the
proposed amendment affects any of the duties or responsibilities of Independent
Directors specified in these By-Laws. All such amendments by the stockholders
must be approved by holders of capital stock having a majority of the voting
power of all outstanding capital stock of the Corporation voting together as a
single class, provided that any amendment by the stockholders to Article III,
Sections 1, 3 and 6, of these By-Laws (concerning the number of directors,
classification of the Board of Directors and vacancies in the Board of
Directors, including removal of directors), Article VI of these By-Laws
(concerning restrictions on issuance and transfer of stock) or Article VIII of
these By-Laws (concerning business combinations) must be approved by holders of
capital stock having 75% of the voting power of all outstanding capital stock
of the Corporation, voting together as a single class.
ARTICLE XII
DEFINITIONS
SECTION 1. DEFINITIONS. As used herein, the following terms shall have the
following meanings where the context admits:
(a) "Average Invested Assets" for any period shall mean the average
of the aggregate book value of the assets of the Corporation invested,
directly or indirectly, in (i) Real Estate Assets and (ii) equity
interests in and loans secured by real estate, before allowances for
doubtful amounts or allowances to reduce certain leases to option prices
or other similar non-cash allowances; as determined by generally accepted
accounting principles computed by taking the average of such values at the
end of each month during such period.
(b) "Entire Board of Directors" shall mean the total
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number of directors that the Corporation would have if there were no
vacancies.
(c) "Independent Director" means a director of the Corporation who is
not (i) a person directly or indirectly owning, controlling, or holding
with power to vote five percent or more of the outstanding voting
securities of the Corporation; (ii) an officer or employee of the
Corporation; (iii) a person who either individually or as a member of an
organization acts as an advisor, consultant, legal counsel to the
Corporation or provides similar types of services to the Corporation and
receives compensation on a continuing basis from the Corporation in
addition to Director's fees; (v) an affiliate of any person described in
(i), (ii), or (iii) related to the Corporation in any other way that, in
the view of the Board of Directors, would interfere with the exercise of
independent judgment.
(d) "Net Assets" means the total assets (other than intangibles) at
book value as determined by generally accepted accounting principles
before deducting allowances for doubtful amounts or other non-cash
allowances less total liabilities, calculated at least quarterly on a
basis consistently applied. Prepaid and deferred expenses are not
considered intangibles for the purpose of this definition.
(e) "Net Income" for any period shall mean total revenues applicable
to such period, less the expenses applicable to such period other than
additions to allowances for doubtful amounts or allowances to reduce
certain leases to option prices or other similar non-cash allowances; as
determined by generally accepted accounting principles.
(f) "Real Estate Assets" shall mean (i) real property (including
interests in real property and interests in mortgages on real property),
(ii) shares (or transferable certificates of beneficial interest) in other
real estate investment trusts, and (iii) any other property or interest,
which meet the requirements as expressed from time to time in Section
856(c)(6)(B) of the Internal Revenue Code, or any successor provision, or
in the rules and regulations or in court and administrative decisions
which interpret such section or sections.
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(g) "Real Estate Investment Trust" is a corporation, trust or
association (other than a real estate syndication) that is engaged
primarily in investing in equity interests in real estate (including fee
ownership and leasehold interests) or in loans secured by real estate or
both.
(h) "Total Operating Expenses" for any period shall mean all cash
operating expenses, including additional expenses paid directly or
indirectly by the Corporation to its affiliates or third parties based
upon their relationship with the Corporation, including loan
administration, servicing, engineering, inspection and all other expenses
paid by the Corporation, except the expenses related to raising capital,
for interest, taxes, and direct property acquisition, operation,
maintenance and management costs.
(i) "Unimproved Real Property" means the property of the Corporation
which has the following three characteristics: (1) an equity interest in
property which was not acquired for the purpose of producing rental or
other operating income, (2) has no development or construction in process
on such land, and (3) no development or construction on such land is
planned in good faith to commence on such land within one year.
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