<PAGE> 1
As filed with the Securities and Exchange Commission
on January 7, 1998
Registration No. 333-43177
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
AMENDMENT NO.1 TO FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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HEALTH CARE REIT, INC.
(Exact name of Registrant as specified in governing instrument)
DELAWARE 34-1096634
(State of incorporation) (IRS Employer Identification No.)
One SeaGate, Suite 1950
Toledo, Ohio 43604
Telephone: 419-247-2800
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
GEORGE L. CHAPMAN
Chairman of the Board, Chief Executive
Officer and President
Health Care REIT, Inc.
One SeaGate, Suite 1500
Toledo, Ohio 43604
Telephone: 419-247-2800
Copy to:
Mary Ellen Pisanelli, Esquire
Shumaker, Loop & Kendrick
North Courthouse Square
1000 Jackson
Toledo, Ohio 43624
(419) 241-9000
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement as determined by
the Registrant.
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If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. XX
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration number of the earlier effective registration
statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration number of the earlier registration statement for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Title of Shares Proposed Maximum Aggregate Amount of
to be Amount to be Offering Price Offering Price Registration
Registered (1) Registered Per Share (2) (3) (4) Fee (3)
- ------------- ------------ ---------------- ---------------- ----------
<S> <C> <C> <C> <C>
Debt Securities
(5)
Preferred Stock,
$1.00 par value,
Depositary Shares
Common Stock,
$1.00 par value
(6)
Warrants
Total $500,000,000 $500,000,000 $147,500.00
</TABLE>
(1) Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder. Subject to Footnote (4), there are being
registered hereunder an indeterminate principal amount of Debt Securities,
Preferred Stock, Common Stock and Warrants as may be sold from time to time
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by the Registrant. This Registration Statement also covers contracts that may be
issued by the Registrant under which the counterparty may be required to
purchase Debt Securities, Preferred Stock, Common Stock or Warrants. Such
contracts would be issued with Debt Securities, Preferred Stock, Common Stock or
Warrants. There are also being registered hereunder an indeterminate principal
amount of Debt Securities, Preferred Stock, Common Stock and Warrants as may be
issuable upon conversion or exchange of Debt Securities, Preferred Stock or
Warrants pursuant to antidilution provisions thereof.
(2) The proposed maximum offering price per unit will be determined form time to
time by the Registrant in connection with the issuance by the Registrant of the
securities registered hereunder.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering price
of the Debt Securities, Preferred Stock, Common Stock and Warrants issued under
this Registration Statement exceed $500,000,000.
(4) No separate consideration will be received for (i) Debt Securities, shares
of Common Stock or Preferred Stock that are issued upon conversion of Debt
Securities or Preferred Stock or (ii) Debt Securities, shares of Common Stock or
Preferred Stock that are issued upon exercise of Warrants registered hereby.
(5) If any such Debt Securities are issued at an original issue discount, then
the offering price shall be in such greater principal amount as shall result in
an aggregate initial offering price of up to $500,000,000.
(6) This Registration Statement also covers Preferred Stock Purchase Rights
under the Registrant's Preferred Stock Purchase Rights Plan, which are attached
to and tradeable only with the shares of Common Stock registered hereby. No
registration fees are required for such shares and such rights because they will
be issued for no additional consideration.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Commission, acting pursuant to said
Section 8(a), may determine.
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HEALTH CARE REIT, INC.
CROSS-REFERENCE SHEET
INFORMATION REQUIRED
TO BE INCLUDED IN PROSPECTUS LOCATION IN PROSPECTUS
---------------------------------------------------
Item 1 Not Applicable
Outside Front Cover Page
Item 2
(a) Available Information Inside front
cover page
(b) Reports to Security Holders Not Applicable
(c) Incorporation by Reference Incorporation of
certain documents
by reference
(d) Stabilization Not Applicable
(e) Delivery of Prospectus by Dealers Not Applicable
(f) Enforceability of Civil Liabilities
Against Foreign Persons Not Applicable
(g) Table of Contents Outside back
cover page
Item 3
(a) Summary Information Front cover page
(b) Address and Telephone Number The Company;
Incorporation of
certain documents
by reference
(c) Risk Factors Not Applicable
(d) Ratio of Earnings to Fixed Charges Ratio of Earnings
to Fixed Charges
Item 4
Use of Proceeds Use of Proceeds
Item 5
Determination of Offering Price Description of
Debt Securities,
Description of
Warrants,
Description of
Common Stock and
Preferred Stock
Item 6
Dilution Not Applicable
Item 7
Selling Security Holders Not Applicable
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Item 8
Plan of Distribution Plan of
Distribution
Item 9
Description of Securities to be Registered Description of
Debt Securities,
Description of
Warrants,
Description of
Common Stock and
Preferred Stock
Item 10
Interests of Named Experts and Counsel Legal Opinions;
Experts
Item 11
Material Changes Not Applicable
Item 12
Incorporation of Certain Information Incorporation of
Certain Documents
Item 13
Disclosure of Commission Position on Indemnification
Indemnification for Securities Act of Officers and
Liabilities Directors
PROSPECTUS
HEALTH CARE REIT, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
Health Care REIT, Inc. (the "Company") intends to issue from time to
time, in one or more series, its (i) unsecured and senior or subordinated debt
securities ("Debt Securities"); (ii) shares or fractional shares of preferred
stock, $1.00 par value ("Preferred Stock"); (iii) shares of common stock, $1.00
par value ("Common Stock"); and (iv) warrants ("Warrants") to purchase Debt
Securities, Preferred Stock or Common Stock ("Warrants"). The Debt Securities,
the Preferred Stock, the Common Stock and the Warrants offered hereby
(collectively, the "Offered Securities") may be offered, separately or as units
with other offered securities, in separate series and amounts at prices and on
terms to be determined at the time of sale and to be set forth in a supplement
to this Prospectus (a "Prospectus Supplement"), at an
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aggregate initial public offering price not to exceed $500,000,000, on terms to
be determined at the time of sale.
The specific terms of the Offered Securities will be set forth in the
applicable Prospectus Supplement and will include, where applicable, (i) in the
case of Debt Securities, the specific designation, aggregate principal amount,
denomination, maturity, priority, interest rate, time of interest, terms of
redemption at the option of the Company or repayment at the option of the holder
or for sinking fund payments, terms for conversion into or exchange for other
Offered Securities and the initial public offering price; (ii) in the case of
Preferred Stock, the series designation, the number of shares, the dividend,
liquidation, redemption, conversion, voting and other rights and the initial
public offering price; (iii) in the case of Common Stock, the specific number of
shares and the initial public offering price; (iv) in the case of Warrants, the
number and terms thereof, the designation and the number of Offered Securities
issuable upon their exercise, the exercise price, any listing of the Warrants or
the underlying Offered Securities on a securities exchange and any other terms
in connection with the offering, sale and exercise; and, (v) in the case of all
Offered Securities, whether such Offered Securities will be offered separately
or as a unit with other Offered Securities. In addition, such specific terms may
include limitations on direct or beneficial ownership and restrictions on
transfer of the Offered Securities, in each case as may be appropriate to
preserve the status of the Company as a qualified real estate investment trust
("REIT") under the Internal Revenue Code of 1986, as amended (the "Code"). The
applicable Prospectus Supplement will contain information, where applicable,
concerning certain United States Federal income tax considerations relating to,
and any listing on a securities exchange of, the Offered Securities.
The Offered Securities may be offered directly, through agents
designated from time to time by the Company, or to or through underwriters or
dealers. If any designated agents or underwriters are involved in the sale of
the Offered Securities, they will be identified and their compensation will be
described in the applicable Prospectus Supplement. See "Plan of Distribution."
Also, the net proceeds to the Company from such sale will be set forth in the
Prospectus Supplement. No Offered Securities may be sold without the delivery of
the applicable Prospectus Supplement describing such Offered Securities and the
method and terms of the offering thereof.
The shares of Common Stock of the Company are listed on the New York
Stock Exchange under the symbol "HCN." On January 6, 1998, the reported last
sale price of the shares of Common Stock on the New York Stock Exchange was
$28 1/4 per share.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSIONER NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED THE
MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
"This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement."
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The date of this Prospectus is January 7, 1998
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Exchange Act, and in accordance therewith files reports, proxy statements and
other information with the SEC. Such reports, proxy statements and other
information filed by the Company with the SEC can be inspected and copied at the
public reference facilities maintained by the SEC at 450 Fifth Street, N.W.,
Room 1024, Washington, DC 20549, and at the SEC's regional offices at 7 World
Trade Center, 13th Floor, NY, NY 10048 and Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can
be obtained from the Public Reference Section of the SEC at 450 Fifth Street,
N.W., Washington, DC, 20549 upon payment of the prescribed fees, or at the Web
site maintained by the SEC (http://www.sec.gov), that contains reports, proxy
statements and other information regarding firms (including the Company) that
file electronically with the Commission. In addition, such materials may also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, NY, NY
10005.
This Prospectus is part of a Registration Statement on Form S-3
(together with all amendments and all exhibits, the "Registration Statement"),
filed by the Company with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus does not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules of the Commission. For further information,
reference is made to the
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Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1996.
2. Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1997.
3. Quarterly Report on Form 10-Q for the quarterly period ended June 30,
1997.
4. Quarterly Report on Form 10-Q for the quarterly period ended September
30, 1997.
5. Current Reports on Form 8-K filed with the Commission on March 6, 1997,
April 8, 1997 April 21, 1997 and October 24, 1997.
6. All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the Securities
shall be deemed to be incorporated herein by reference and to be a part of this
Prospectus from the date of filing of each such document.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein, and any accompanying Prospectus Supplement relating to a
specific offering of Offered Securities or in any other subsequently filed
document, as the case may be, which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus or any accompanying Prospectus
Supplement. The Company will provide on request and without charge to each
person to whom this Prospectus is delivered, upon the oral or written request of
such person, a copy (without exhibits) of any or all documents incorporated by
reference to this Prospectus. Requests for such copies should be directed to
Erin C. Ibele, Vice President and Corporate Secretary, Health Care REIT, Inc.,
One SeaGate, Suite 1500, Toledo, Ohio 43604, telephone number (419) 247-2800.
THE COMPANY
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Health Care REIT, Inc. (the "Company") is a self-administered real
estate investment trust ("REIT") that invests in health care facilities,
primarily nursing homes, assisted living facilities and retirement centers. As
of September 30, 1997, nursing homes, assisted living facilities and retirement
centers comprised approximately 84% of the investment portfolio. Founded in
1970, the Company was the first real estate investment trust to invest
exclusively in health care facilities.
The Company's objective is to enable stockholders to participate in
health care investments that produce income and preserve principal. Since its
inception, the Company has paid 105 consecutive quarterly dividends.
The shares of the common stock of the Company are listed on the New
York Stock Exchange under the symbol "HCN." The Company's executive offices are
located at One SeaGate, Suite 1500, Toledo, Ohio, 43604, and the telephone
number is (419) 247-2800.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement,
the net proceeds from the sale of the Offered Securities will be used to
finance, either directly or indirectly, the Company's investments in health care
facilities and will allow the Company to pursue additional health care property
investments and complete unfunded commitments.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
of the Company for the periods indicated. For purposes of calculating such
ratio, "earnings" includes net income plus fixed charges reduced by the amount
of interest capitalized. "Fixed charges" consists of interest whether expensed
or capitalized and the amortization of loan expenses. The Company did not have
any Preferred Stock outstanding for any period presented. Accordingly, the ratio
of earnings to combined fixed charges and preferred stock dividends is identical
to the ratio of earnings to fixed charges for the periods presented.
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<TABLE>
<CAPTION>
Nine Months Ended Year ended December 31,
Sept. 30, --------------------------------
1997 1996 1995 1994 1993 1992
----------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Consolidated ratio
of earnings to
fixed charges
(unaudited) ........ 3.39 2.93 2.01 3.42 2.80 2.97
</TABLE>
DESCRIPTION OF DEBT SECURITIES
General
The Debt Securities may be issued in one or more series under an
Indenture to be executed by the Company and a trustee (the "Trustee"), a form of
which is included as an exhibit to the Registration Statement of which this
Prospectus is a part (the "Indenture"). The terms of the Debt Securities may
include those stated in the Indenture and those made a part of the Indenture
(before any supplements) by reference to the Trust Indenture Act of 1939, as
amended (the "TIA").
The following is a summary of certain provisions of the Indenture and
does not purport to be complete and is qualified in its entirety by reference to
the detailed provisions of the Indenture, including the definitions of certain
terms therein to which reference is hereby made for a complete statement of such
provisions. Wherever particular provisions or sections of the Indenture or terms
defined therein are referred to herein, such provisions or definitions are
incorporated herein by reference.
Terms
The Debt Securities will be direct, unsecured obligations of the
Company.
The Indenture provides that the Debt Securities may be issued without
limit as to aggregate principal amount, in one or more series, in each case as
established from time to time in or pursuant to authority granted by a
resolution of the Board of Directors of the Company or as established in one or
more indentures supplemental to such Indenture. Debt Securities may be issued
with terms different from those of Debt Securities previously issued. All Debt
Securities of one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the Holders
of the Debt Securities of such series, for issuances of additional Debt
Securities of such series.
The Indenture provides that there may be more than one
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Trustee thereunder, each with respect to one or more series of Debt Securities.
Any Trustee under the Indenture may resign or be removed with respect to one or
more series of Debt Securities, and a successor Trustee may be appointed to act
with respect to such series. In the event that two or more persons are acting as
Trustee with respect to different series of Debt Securities, each such Trustee
shall be a Trustee of a trust under the applicable Indenture separate and apart
from the trust administered by any other Trustee and, except as otherwise
indicated herein, any action described herein to be taken by the Trustee may be
taken by each such Trustee with respect to, and only with respect to, the one or
more series of Debt Securities for which it is Trustee under the applicable
Indenture.
The Prospectus Supplement will describe certain terms of any Debt
Securities offered hereby, including:
(1) the title of such Debt Securities;
(2) the aggregate principal amount of such Debt Securities and any limit on
such principal amount;
(3) the percentage of the principal amount at which such Debt Securities
will be issued and, if other than the principal amount thereof, the portion of
the principal amount payable upon declaration of acceleration of the maturity
thereof, or (if applicable) the portion of the principal amount of such Debt
Securities that is convertible into Capital Stock of the Company or the method
by which any such portion will be determined;
(4) if convertible, in connection with the preservation of the Company's
status as a REIT, any applicable limitations on the ownership or transferability
of the Capital Stock of the Company into which such Debt Securities are
convertible;
(5) the date or dates, or the method by which such date or dates will be
determined, on which the principal of such Debt Securities will be payable and
the amount of principal payable thereon;
(6) the rate or rates (which may be fixed or variable) at which such Debt
Securities will bear interest, if any, or the method by which such rate or rates
will be determined, the date or dates from which such interest will accrue or
the method by which such date or dates will be determined, the Interest Payment
Dates on which any such interest will be payable and the Regular Record Dates
for such Interest Payment Dates, or the method by which such Dates will be
determined, and the basis upon which interest will be calculated if other than
that of a 360-day year consisting of twelve 30-day months;
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(7) the place or places where the principal of (and premium or Make-Whole
Amount as defined in the Indenture, if any), interest, if any, and Additional
Amounts, if any, payable in respect of, such Debt Securities will be payable,
where such Debt Securities may be surrendered for registration of, transfer or
exchange and where notices or demands to or upon the Company in respect of such
Debt Securities and the applicable Indenture may be served;
(8) the period or periods within which, the price or prices (including
premium or Make-Whole Amount, if any) at which, the currency or currencies,
currency unit or units or composite currency or currencies in which and other
terms and conditions upon which such Debt Securities may be redeemed in whole or
in part, at the option of the Company, if the Company is to have the option;
(9) the obligation, if any, of the Company to redeem, repay or purchase
such Debt Securities pursuant to any sinking fund or analogous provision or at
the option of a Holder thereof, and the period or periods within which or the
date or dates on which, the price or prices at which, the currency or
currencies, currency unit or units or composite currency or currencies in which,
and other terms and conditions upon which such Debt Securities will be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(10) whether such Debt Securities will be in registered or bearer form and
terms and conditions relating thereto, and, if other than $1,000 and any
integral multiple thereof, the denominations in which any registered Debt
Securities will be issuable and, if other than $1,000 the denomination or
denominations in which any bearer Debt Securities will be issuable;
(11) if other than United States dollars, the currency or currencies in
which such Debt Securities will be denominated and payable, which may be a
foreign currency or units of two or more foreign currencies or a composite
currency or currencies;
(12) whether the amount of payments of principal (and premium or Make-Whole
Amount, if any) or interest, if any, on such Debt Securities may be determined
with reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on one or more currencies, currency
units, composite currencies, commodities, equity indices or other indices), and
the manner in which such amounts will be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on such Debt Securities are to be
payable, at the election of the Company
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or a Holder thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such Debt Securities
are denominated or stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made, and the time and
manner of, and identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or currencies, currency unit
or units or composite currency or currencies in which such Debt Securities are
denominated or stated to be payable and the currency or currencies, currency
unit or units or composite currency or currencies in which such Debt Securities
are to be so payable;
(14) provisions, if any, granting special rights to the Holders of such
Debt Securities upon the occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to such Debt Securities,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth in the applicable Indenture;
(16) whether such Debt Securities will be issued in certificated or
book-entry form;
(17) the applicability, if any, of the defeasance provisions of the
applicable Indenture;
(18) whether and under what circumstances the Company will pay Additional
Amounts as contemplated in the applicable Indenture on such Debt Securities in
respect of any tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Debt Securities rather than pay such
Additional Amounts (and the terms of any such option); and
(19) any other terms of such Debt Securities not inconsistent with the
provisions of the applicable Indenture.
The Debt Securities may provide for less than the entire principal
amount thereof to be payable upon declaration of acceleration of the maturity
thereof ("Original Issue Discount Securities"). Special United States federal
income tax, accounting and other considerations applicable to Original Issue
Discount Securities will be described in the applicable Prospectus Supplement.
Conversion Rights
(1) The terms, if any, on which Debt Securities of any series may be
converted into shares of Common Stock or Debt
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Securities of another series will be set forth in the Prospectus Supplement
relating thereto. To protect the Company's status as a REIT, the holders of Debt
Securities of any series ("Holders") may not convert any Debt Security, and such
Debt Security shall not be convertible by any Holder, if as a result of such
conversion any person would then be deemed to beneficially own, directly or
indirectly, 9.8% or more of the then outstanding shares of Common Stock.
(2) The conversion price will be subject to adjustment under certain
conditions, including (a) the payment of dividends (and other distributions) in
shares of Common Stock; (b) subdivisions, combinations and reclassifications of
shares of Common Stock; (c) the issuance to all or substantially all holders of
shares of Common Stock of rights or warrants entitling them to subscribe for or
purchase shares of Common Stock at a price per share (or having a conversion
price per share of Common Stock) less than the then current market price; and
(iv) distributions to all or substantially all holders of shares of Common Stock
or shares of any other class, of evidences of indebtedness or assets (including
securities, but excluding those rights, warrants, dividends and distributions
referred to above and dividends and distributions not prohibited under the terms
of the Indenture) of the Company, subject to the limitation that all adjustments
by reason of any of the foregoing would not be made until they result in a
cumulative change in the conversion price of at least 1%. In the event the
Company shall effect any capital reorganization or reclassification of its
shares of Common Stock or shall consolidate or merge with or into any trust or
corporation (other than a consolidation or merger in which the Company is the
surviving entity) or shall sell or transfer substantially all its assets to any
other trust or corporation, the Holders shall, if entitled to convert such Debt
Securities at any time after such transaction, receive upon conversion thereof,
in lieu of each share of Common Stock into which the Debt Securities of such
series would have been convertible prior to such transaction, the same kind and
amount of stock and other securities, cash or property as shall have been
issuable or distributable in connection with such transaction with respect to
each share of Common Stock.
(3) A conversion price adjustment made according to the provisions of the
Debt Securities of any series (or the absence of provision for such an
adjustment) might result in a constructive distribution to the Holders of Debt
Securities of such series or holders of shares of Common Stock that would be
subject to taxation as a dividend. The Company may, at its option, make such
reductions in the conversion price, in addition to those set forth above, as the
Board of Directors of the Company deems advisable to avoid or diminish any
income tax to holders of shares of Common Stock resulting from any dividend or
distribution of shares of
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Common Stock (or rights to acquire shares of Common Stock) or from any event
treated as such for income tax purposes or for any other reason. The Board of
Directors will also have the power to resolve any ambiguity or correct any error
in the provisions relating to the adjustment of the conversion price of the Debt
Securities of such series and its actions in so doing shall be final and
conclusive.
(4) Fractional shares of Common Stock will not be issued upon conversion,
but, in lieu thereof, the Company will pay a cash adjustment based upon market
price.
(5) The Holders of Debt Securities of any series at the close of business
on an interest payment record date shall be entitled to receive the interest
payable on such Debt Securities on the corresponding interest payment date
notwithstanding the conversion thereof. However, Debt Securities surrendered for
conversion during the period from the close of business on any record date for
the payment of interest to the opening of business on the corresponding interest
payment date must be accompanied by payment of an amount equal to the interest
payable on such interest payment date. Holders of Debt Securities of any series
who convert Debt Securities of such series on an interest payment date will
receive the interest payable by the Company on such date and need not include
payment in the amount of such interest upon surrender of such Debt Securities
for conversion.
CERTAIN COVENANTS
Merger, Consolidation or Sale.
------------------------------
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other entity,
provided that (a) either the Company shall be the continuing entity, or the
successor entity (if other than the Company) formed by or resulting from any
such consolidation or merger or which shall have received the transfer of such
assets is a Person organized and existing under the laws of the United States or
any State thereof and shall expressly assume payment of the principal of (and
premium or Make-Whole Amount, if any) and interest on all of the Debt Securities
and the due and punctual performance and observance of all of the covenants and
conditions contained in each Indenture; (b) immediately after giving effect to
such transaction and treating any indebtedness which becomes an obligation of
the Company or any Subsidiary as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default
under an Indenture, and no event which, after notice or the lapse of time, or
both, would become such an Event of Default, shall have occurred and be
continuing; and (c) an Officers' Certificate and legal opinion
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covering such conditions shall be delivered to the Trustee.
Optional Redemption.
--------------------
The Debt Securities of any series that are convertible into shares of
Common Stock will be subject to redemption, in whole or from time to time in
part, at any time for certain reasons intended to protect the Company's status
as a REIT at the option of the Company on at least 30 days' prior notice by mail
at a redemption price equal to 100% of the principal amount, plus interest
accrued to the date of redemption. See DESCRIPTION OF CAPITAL STOCK -
"Redemption and Restrictions on Transfer."
Additional Covenants.
---------------------
Any additional covenants of the Company with respect to a series of
the Debt Securities will be set forth in the Prospectus Supplement relative
thereto.
Modification of the Indentures
Modifications and amendments of the Indenture may be made with the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Debt Securities issued under such Indenture that are affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each such Debt Security
affected thereby, (a) change the Stated Maturity of the principal of (or premium
or Make-Whole Amount, if any), or any installment of principal of or interest or
Additional Amounts payable on, any such Debt Security; (b) reduce the principal
amount of, or the rate or amount of interest on, or any premium or Make-Whole
Amount payable on redemption of, or any Additional Amounts payable with respect
to, any such Debt Security, or reduce
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the amount of principal of an Original Issue Discount Security or Make-Whole
Amount, if any, that would be due and payable upon declaration of acceleration
of the maturity thereof or would be provable in bankruptcy, or adversely affect
any right of repayment of the Holder of any such Debt Security; (c) change the
Place of Payment, or the coin or currency, for payment of principal of (and
premium or Make-Whole Amount, if any), or interest on, or any Additional Amounts
payable with respect to, any such Debt Security; (d) impair the right to
institute suit for the enforcement of any payment on or with respect to any such
Debt Security; (e) reduce the percentage of Outstanding Debt Securities of any
series necessary to modify or amend the applicable Indenture, to waive
compliance with certain provisions thereof or certain defaults and consequences
thereunder or to reduce the quorum or voting requirements set forth in the
Indenture; or (f) modify any of the foregoing provisions or any of the
provisions relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to provide
that certain other provisions may not be modified or waived without the consent
of the Holder of such Debt Security.
The Holders of not less than a majority in principal amount of
Outstanding Debt Securities issued under the Indenture have the right to waive
compliance by the Company with certain covenants in the Indenture.
Events of Default, Notice and Waiver
The Indenture provides that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder: (a)
default for 30 days in the payment of any installment of interest or Additional
Amounts payable on any Debt Security of such series; (b) default in the payment
of the principal of (or premium or Make-Whole Amount, if any, on) any Debt
Security of such series at its Maturity; (c) default in making any sinking fund
payment as required for any Debt Security of such series; (d) default in the
performance of any other covenant of the Company contained in the Indenture
(other than a covenant added to the Indenture solely for the benefit of a series
of Debt Securities issued thereunder other than such series), continued for 60
days after written notice as provided in the Indenture; (e) default under any
bond, debenture, note, mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any indebtedness for
money borrowed by the Company (or by any Subsidiary, the repayment of which the
Company has guaranteed or for which the Company is directly responsible or
liable as obligor or guarantor) having an aggregate principal amount outstanding
of at least $10,000,000, whether such indebtedness now exists or shall hereafter
be created, which default shall have resulted in such indebtedness
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<PAGE> 18
being declared due and payable prior to the date on which it would otherwise
have become due and payable, without such acceleration having been rescinded or
annulled within 10 days after written notice as provided in the Indenture; (f)
the entry by a court of competent jurisdiction of one or more judgments, orders
or decrees against the Company or any Subsidiary in an aggregate amount
(excluding amounts fully covered by insurance) in excess of $10,000,000 and such
judgments, orders or decrees remain undischarged, unstayed and unsatisfied in an
aggregate amount (excluding amounts fully covered by insurance) in excess of
$10,000,000 for a period of 30 consecutive days; (g) certain events of
bankruptcy, insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Company or any Significant Subsidiary or for all or
substantially all of either of its property; and (h) any other Event of Default
provided with respect to such series of Debt Securities. The term "Significant
Subsidiary" means each significant subsidiary as defined in Regulation S-X
promulgated under the Securities Act of the Company.
If an event of Default under the Indenture with respect to Debt
Securities of any series at the time outstanding occurs and is continuing, then
in every such case the Trustees or Holders of not less than 25% in principal
amount of the Outstanding Debt Securities of that series may declare the
principal amount (or, if the Debt Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the principal amount
as may be specified in the terms thereof) of, and premium or Make-Whole Amount,
if any, on, all of the Debt Securities of that series to be due and payable
immediately by written notice thereof to the Company and to the Trustee if given
by the Holders. However, at any time after such declaration of acceleration with
respect to Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be) has been made,
but before a judgment or decree for payment of the money due has been obtained
by the Trustee, the Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be) may rescind and
annul such declaration and its consequences if (a) the Company shall have
deposited with the Trustee all required payments of the principal of (and
premium or Make-Whole Amount, if any) and interest, and any Additional Amounts,
on the Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be), plus certain
fees, expenses, disbursements and advances of the Trustee and (b) all Events of
Default, other than the nonpayment of accelerated principal (or specified
portion thereof and the premium or Make-Whole Amount, if any) or interest, with
respect to the Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the
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<PAGE> 19
case may be) have been cured or waived as provided in the Indenture. The
Indenture also provides that the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any series (or of all
Debt Securities then Outstanding under the applicable Indenture, as the case may
be) may waive any past default with respect to such series and its consequences,
except a default (i) in the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest or Additional Amounts payable on any Debt
Security of such series or (ii) in respect of a covenant or provision contained
in the applicable Indenture that cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security affected thereby.
A Trustee is required to give notice to the Holders of Debt Securities
within 90 days of a default under the applicable Indenture; provided, however,
that a Trustee may withhold notice to the Holders of any series of Debt
Securities of any default with respect to such series (except a default in the
payment of the principal of (or premium or Make-Whole Amount, if any) or
interest or Additional Amounts payable on any Debt Security of such series or in
the payment of any sinking fund installment in respect of any Debt Security of
such series) if the Responsible Officers of such Trustee consider such
withholding to be in the interest of such Holders.
The Indenture provides that no Holders of Debt Securities of any
series may institute any proceedings, judicial or otherwise, with respect to
such Indenture or for any remedy thereunder, except in the case of failure of
the Trustee, for 60 days, to act after it has received a written request to
institute proceedings in respect of an Event of Default from the Holders of not
less than 25% in principal amount of the Outstanding Debt Securities of such
series, as well as an offer of reasonable indemnity. This provision will not
prevent, however, any Holder of Debt Securities from instituting suit for the
enforcement of payment of the principal of (and premium or Make-Whole Amount, if
any), interest on and Additional Amounts payable with respect to, such Debt
Securities at the respective due dates thereof.
Book-Entry System
The Debt Securities of a series may be issued in whole or in part in
the form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of a depository (the "Depository") identified in
the Prospectus Supplement relating to such series. Global Securities may be
issued in fully registered form and may be issued in either temporary or
permanent form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security may not be
transferred except as a
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<PAGE> 20
whole by the Depository for such Global Security to a nominee of such Depository
or by a nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any nominee of such Depository to a
successor Depository or any nominee of such successor.
The specific terms of the depository arrangement with respect to a
series of Debt Securities will be described in the Prospectus Supplement
relating to such series. The Company expects that unless otherwise indicated in
the applicable Prospectus Supplement, the following provisions will apply to
depository arrangements.
Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depository ("Participants"). Such accounts shall be
designated by the underwriters, dealers or agents with respect to such Debt
Securities or by the Company if such Debt Securities are offered directly by the
Company. Ownership of beneficial interests in such Global Security will be
limited to Participants or persons that may hold interests through Participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depository for such Global Security or its nominee (with respect to
beneficial interests of Participants) and records of Participants (with respect
to beneficial interests of persons who hold through Participants). The laws of
some states require that certain purchasers of securities take physical delivery
of such securities in definitive form. Such limits and laws may impair the
ability to own, pledge or transfer beneficial interest in a Global Security.
So long as the Depository for a Global Security or its nominee is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as described below or in the applicable Prospectus
Supplement, owners of beneficial interest in a Global Security will not be
entitled to have any of the individual Debt Securities represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of any such Debt Securities in definitive form and
will not be considered the owners or holders thereof under the applicable
Indenture.
Payments of principal of, any premium or Make-Whole Amount and any
interest on, or any Additional Amounts payable with
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respect to, individual Debt Securities represented by a Global Security
registered in the name of a Depository or its nominee will be made to the
Depository or its nominee, as the case may be, as the registered owner of the
Global Security. None of the Company, the Trustee, any Paying Agent or the
Security Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in the Global Security for such Debt
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company expects that the Depository for any Debt Securities or its
nominee, upon receipt of any payment of principal, premium, Make-Whole Amount,
interest or Additional Amounts in respect of the Global Security representing
such Debt Securities will immediately credit Participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of such
Depository or its nominee. The Company also expects that payments by
Participants to owners of beneficial interests in such Global Security held
through such Participants will be governed by standing instructions and
customary practices, as is the case with securities held for the account of
customers in bearer form or registered in street name. Such payments will be the
responsibility of such Participants.
If a Depository for any Debt Securities is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities in exchange for the Global Security representing such Debt
Securities. In addition, the Company may at any time and in its sole discretion,
subject to any limitations described in the Prospectus Supplement relating to
such Debt Securities, determine not to have any of such Debt Securities
represented by one or more Global Securities and in such event will issue
individual Debt Securities in exchange for the Global Security or Securities
representing such Debt Securities. Individual Debt Securities so issued will be
issued in denominations of $1,000 and integral multiples thereof.
Governing Law
The Indenture and the Debt Securities will be governed by and
construed in accordance with the laws of the State of Ohio.
DESCRIPTION OF WARRANTS
The Company may issue, together with any other series of Securities
offered or separately, Warrants entitling the holder to
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<PAGE> 22
purchase from or sell to the Company, or to receive from the Company the cash
value of the right to purchase or sell, Debt Securities, shares of Preferred
Stock or Common Stock. The Warrants are to be issued under a Warrant Agreement
(each a "Warrant Agreement") to be entered into between the Company and a bank
or trust company, as warrant agent (the "Warrant Agent"), all as set forth in
the applicable Prospectus Supplement relating to the particular issue of
Warrants. Copies of the form of Warrant Agreement, including the form of Warrant
Certificate representing the Warrants (the "Warrant Certificates"), are filed as
exhibits to the Registration Statement of which this Prospectus forms a part.
In the case of each series of Warrants, the applicable Prospectus
Supplement will describe the terms of the Warrants being offered thereby,
including the following, if applicable: (a) the offering price; (b) the
currencies in which such Warrants are being offered; (c) the number of Warrants
offered; (d) the securities underlying the Warrants; (e) the exercise price, the
procedures for exercise of the Warrants and the circumstances, if any, that will
cause the Warrants to be deemed to be automatically exercised; (f) the date on
which the right to exercise the Warrants shall commence and the date on which
such right shall expire; (g) U.S. federal income tax consequences; and (h) other
terms of the Warrants.
Warrants may be exercised at the appropriate office of the Warrant
Agent or any other office indicated in the applicable Prospectus Supplement.
Prior to the exercise of Warrants entitling the holder to purchase any
securities, holders of such Warrants will not have any of the rights of holders
of the securities purchasable upon such exercise and will not be entitled to
payments made to holders of such securities.
The Warrant Agreements may be amended or supplemented without the
consent of the holders of the Warrants issued thereunder to effect changes that
are not inconsistent with the provisions of the Warrants and that do not
adversely affect the interests of the holders of the Warrants.
DESCRIPTION OF COMMON STOCK
AND PREFERRED STOCK
General
The Company is authorized to issue 40,000,000 shares of Common Stock,
$1.00 par value per share. The Company had outstanding 24,124,633 shares of
common stock, $1.00 par value per share (the "Common Stock"), on October 31,
1997. The shares constitute the only class of outstanding voting securities of
the Company.
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<PAGE> 23
The Company is authorized to issue 10,000,000 shares of Preferred
Stock, $1.00 par value per share. No shares of Preferred Stock (the "Preferred
Stock") were outstanding on October 31, 1997. The Company has authorized the
issuance of 13,000 shares of Junior Participating Stock, Series A ("Series A
Preferred Stock") which is discussed below.
The following statements with respect to the capital stock of the
Company are subject to detailed provisions of the Company's Certificate of
Incorporation, as amended (the "Certificate"), and the Company's By-Laws (the
"By-Laws") as currently in effect. These statements do not purport to be
complete, or to give full effect of the terms of the provisions of statutory or
common law, and are subject to, and are qualified in their entirety by reference
to, the terms of the Certificate and By-Laws which are filed as exhibits to the
registration statement.
Series A Preferred Stock
On July 19, 1994, the Board of Directors of the Company authorized the
issuance of one preferred share purchase right (a "Right") for each outstanding
share of Common Stock. Under certain conditions, each Right may be exercised to
purchase one one-thousandth of a share of Junior Participation Preferred Stock,
Series A, par value $1.00 per share ("Series A Preferred Stock"), of the Company
at a price of $48. The number of Rights outstanding and Series A Preferred Stock
issuable upon exercise, as well as the Series A Preferred Stock purchase price,
are subject to customary antidilution adjustments.
The Rights are evidenced by the certificates for shares of Common
Stock, and in general are not transferable apart from the Common Stock or
exercisable until after a party has acquired beneficial ownership of, or made a
tender offer for 15% or more of the outstanding Common Stock of the Company (an
"Acquiring Person"), or the occurrence of other events as specified in a Rights
Agreement between the Company and Chemical Mellon Bank, as Rights Agent. Under
certain conditions as specified in the Rights Agreement, including but not
limited to, the acquisition by a party of 15% or more of the outstanding Common
Stock of the Company, or the acquisition of the Company in a merger or other
business combination, each holder of a Right (other than an Acquiring Person,
whose Rights will be void) will receive upon exercise thereof and payment of the
exercise price that number of shares of Common Stock of the Company, or of the
other party, as applicable, having a market value of two times the exercise
price of the Right.
The Rights expire on August 5, 2004, and until exercised, the holder
thereof, as such, will have no rights as a
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stockholder of the Company. At the Company's option, the Rights may be redeemed
in whole at a price of $.01 per Right at any time prior to becoming exercisable.
In general, the Company may also exchange the Rights at a ratio of one share of
Common Stock per Right after becoming exercisable but prior to the acquisition
of 50% or more of the outstanding shares of Common Stock by any party.
Series A Preferred Stock issuable upon exercise of the Rights will not
be redeemable. Each share of Series A Preferred Stock will have 1,000 votes and
will be entitled to (a) a minimum preferential quarterly dividend payment equal
to the greater of $25.00 per share or 1,000 times the amount of the dividends
per share paid on the Common Stock, (b) a liquidation preference in an amount
equal to the greater of $100 or 1,000 times the amount per share paid on the
Common Stock, and (c) a payment in connection with a business combination (in
which shares of Common Stock are exchanged) equal to 1,000 times the amount per
share paid on the Common Stock.
Common Stock
Holders of the shares of Common Stock are entitled to receive
dividends when declared by the Board of Directors and after payment of, or
provision for, full cumulative dividends on and any required redemptions of
shares of Preferred Stock then outstanding. Holders of the shares of Common
Stock have one vote per share and noncumulative voting rights, which means that
holders of more than 50% of the shares of voting Common Stock can elect all the
directors if they choose to do so, and, in such event, the holders of the
remaining shares of Common Stock will not be able to elect any directors. In the
event of any voluntary or involuntary liquidation or dissolution of the Company,
holders of the shares of Common Stock are to share ratably in the distributable
assets of the Company remaining after the satisfaction of the prior preferential
rights of the holders of the shares of Preferred Stock and the satisfaction of
all debts and liabilities of the Company. Holders of the shares of Common Stock
do not have preemptive rights. The transfer agent for the Common Stock is
Chemical Bank.
Preferred Stock
The following description of the terms of the Preferred Stock sets
forth certain general terms and provisions of the Preferred Stock to which a
Prospectus Supplement may relate. Specific terms of any series of Preferred
Stock offered by a Prospectus Supplement will be described in that Prospectus
Supplement. The description set forth below is subject to and qualified in its
entirety by reference to the Certificate fixing the preferences, limitations and
relative rights of a particular
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<PAGE> 25
series of Preferred Stock.
General.
--------
Under the Certificate, the Board of Directors of the Company is authorized,
without further stockholder action, to provide for the issuance of up to
10,000,000 shares of Preferred Stock, in one or more series, with such voting
powers and with such designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions, as the Board of Directors shall approve.
The Preferred Stock will have the dividend, liquidation, redemption,
conversion and voting rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of Preferred Stock.
Reference is made to the Prospectus Supplement relating to the particular series
of Preferred Stock offered thereby for specific terms, including: (a) the title
and liquidation preference per share of such Preferred Stock and the number of
shares offered; (b) the price at which such series will be issued; (c) the
dividend rate (or method of calculation), the dates on which dividends shall be
payable and the dates from which dividends shall commence to accumulate; (d) any
redemption or sinking fund provisions of such series; (e) any conversion
provisions of such series; and (f) any additional dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges, limitations
and restrictions of such series.
The Preferred Stock will, when issued, be fully paid and
nonassessable. Unless otherwise specified in the Prospectus Supplement relating
to a particular series of Preferred Stock, each series will rank on a parity as
to dividends and distributions in the event of a liquidation with each other
series of Preferred Stock and, in all cases, will be senior to the shares of
Common Stock.
Dividend Rights.
----------------
Holders of the shares of Preferred Stock of each series will be
entitled to receive, when, as and if declared by the Board of Directors, out of
assets of the Company legally available therefor, cash dividends at such rates
and on such dates as are set forth in the Prospectus Supplement relating to such
series of Preferred Stock. Such rate may be fixed or variable or both and may be
cumulative, noncumulative or partially cumulative.
If the applicable Prospectus Supplement so provides, as long as any
shares of Preferred Stock are outstanding, no
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dividends will be declared or paid or any distributions be made on the Common
Stock, other than a dividend payable in shares of Common Stock, unless the
accrued dividends on each series of Preferred Stock have been fully paid or
declared and set apart for payment and the Company shall have set apart all
amounts, if any, required to be set apart for all sinking funds, if any, for
each series of Preferred Stock.
If the applicable Prospectus Supplement so provides, when dividends
are not paid in full upon any series of Preferred Stock and any other series of
Preferred Stock ranking on a parity as to dividends with such series of
Preferred Stock, all dividends declared upon such series of Preferred Stock and
any other series of Preferred Stock ranking on a parity as to dividends will be
declared pro rata so that the amount of dividends declared per share on such
series of Preferred Stock and such other series will in all cases bear to each
other the same ratio that accrued in dividends per share on such series of
Preferred Stock and such other series bear to each other.
Each series of Preferred Stock will be entitled to dividends as
described in the Prospectus Supplement relating to such series, which may be
based upon one or more methods of determination. Different series of Preferred
Stock may be entitled to dividends at different dividend rates or based upon
different methods of determination. Except as provided in the applicable
Prospectus Supplement, no series of Preferred Stock will be entitled to
participate generally in the earnings or assets of the Company.
Rights Upon Liquidation.
------------------------
In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Company, the holders of each series of Preferred Stock will
be entitled to receive out of the assets of the Company available for
distribution to stockholders the amount stated or determined on the basis set
forth in the Prospectus Supplement relating to such series, which may include
accrued dividends, if such liquidation, dissolution or winding up is involuntary
or may equal the current redemption price per share (otherwise than for the
sinking fund, if any, provided for such series) provided for such series set
forth in such Prospectus Supplement, if such liquidation, dissolution or winding
up is voluntary, and on such preferential basis as is set forth in such
Prospectus Supplement. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the amounts payable with respect to
Preferred Stock of any series and any other shares of stock of the Company
ranking as to any such distribution on a parity with such series of Preferred
Stock are not paid in full, the holders of shares of Preferred Stock of
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such series and of such other shares will share ratably in any such distribution
of assets of the Company in proportion to the full respective preferential
amounts to which they are entitled or on such other basis as is set forth in the
applicable Prospectus Supplement. The rights, if any, of the holders of any
series of Preferred Stock to participate in the assets of the Company remaining
after the holders of other series of Preferred Stock have been paid their
respective specified liquidation preferences upon any liquidation, dissolution
or winding up the Company will be described in the Prospectus Supplement
relating to such series.
Redemption.
-----------
A series of Preferred Stock may be redeemable, in whole or in part, at
the option of the Company, and may be subject to mandatory redemption pursuant
to a sinking fund, in each case upon terms, at the times, the redemption prices
and for the types of consideration set forth in the Prospectus Supplement
relating to such series. The Prospectus Supplement relating to a series of
Preferred Stock which is subject to mandatory redemption shall specify the
number of shares of such series that shall be redeemed by the Company in each
year commencing after a date to be specified, at a redemption price per share to
be specified, together with an amount equal to any accrued and unpaid dividends
thereon to the date of redemption.
If, after giving notice of redemption to the holders of a series of
Preferred Stock, the Company deposits with a designated bank funds sufficient to
redeem such shares of Preferred Stock, then from and after such deposit, all
shares called for redemption will no longer be outstanding for any purpose,
other than the right to receive the redemption price and the right to convert
such shares into other classes of capital stock of the Company. The redemption
price will be stated in the Prospectus Supplement relating to a particular
series of Preferred Stock.
Except as indicated in the applicable Prospectus Supplement, the
Preferred Stock is not subject to any mandatory redemption at the option of the
holder.
Sinking Fund.
-------------
The Prospectus Supplement for any series of Preferred Stock will state
the terms, if any, of a sinking fund for the purchase or redemption of that
series.
Conversion Rights.
------------------
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The Prospectus Supplement for any series of Preferred Stock will state
the terms, if any, on which shares of that series are convertible into shares of
Common Stock or another series of Preferred Stock. The Preferred Stock will have
no preemptive rights.
Voting Rights.
--------------
Except as indicated in the Prospectus Supplement relating to a
particular series of Preferred Stock, or except as expressly required by
Delaware law, a holder of Preferred Stock will not be entitled to vote. Except
as indicated in the Prospectus Supplement relating to a particular series of
Preferred Stock, in the event the Company issues full shares of any series of
Preferred Stock, each such share will be entitled to one vote on matters on
which holders of such series of Preferred Stock are entitled to vote.
Under Delaware law, the affirmative vote of the holders of a majority
of the outstanding shares of all series of Preferred Stock, voting as a separate
voting group, will be required for (a) the authorization of any class of stock
ranking prior to or on parity with shares of Preferred Stock or the increase in
the number of authorized shares of any such stock, (b) any increase in the
number of authorized shares of shares of Preferred Stock, and (c) certain
amendments to the Articles that may be adverse to the rights of Preferred Stock
outstanding.
Transfer Agent and Registrar.
-----------------------------
The transfer agent, registrar and dividend disbursement agent for a
series of Preferred Stock will be selected by the Company and be described in
the applicable Prospectus Supplement. The registrar for shares of Preferred
Stock will send notices to stockholders of any meetings at which holders of the
shares of Preferred Stock have the right to vote on any matter.
Redemption and Restrictions on Transfer
In order to preserve the Company's status as a REIT as defined in the
Code, the Company can redeem or stop the transfer of its shares. The Company's
Certificate of Incorporation provides that the Company is organized to qualify
as a REIT. Because the Code provides that the concentration of more than 50% in
value of the direct or indirect ownership of its shares in five or fewer
individual stockholders during the last six months of any year would result in
the disqualification of the Company as a REIT, the Company's Certificate of
Incorporation provides that the
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Company has the power to treat any transfer or issuance resulting in the 9.8% to
be exceeded as null and void and treat the stockholder as holding the securities
on behalf of the Company.
REIT Qualification
Generally, for each taxable year during which the Company qualifies as
a real estate investment trust, it will not be taxed on the portion of its
taxable income (including capital gains) that is distributed to stockholders.
Any undistributed income or gains will be taxed to the Company at regular
corporate tax rates. The Company will be subject to tax at the highest corporate
rate on its net income from foreclosure property, regardless of the amount of
its distributions. The highest corporate tax rate is currently 35%. Failure to
qualify could result in the Company's incurring indebtedness and perhaps
liquidating investments in order to pay the resulting taxes.
PLAN OF DISTRIBUTION
The Company may sell Offered Securities to or through underwriters or
may sell Offered Securities to investors directly or through designated agents.
Any such underwriter or agent involved in the offer or sale of the Offered
Securities will be named in the applicable Prospectus Supplement.
Underwriters may offer and sell the Offered Securities at a fixed
price or prices, which may be changed, or from time to time, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Company also may, from time to time,
authorize underwriters acting as agents to offer and sell the Offered Securities
upon the terms and conditions set forth in the Prospectus Supplement. In
connection with the sale of the Offered Securities, underwriters may be deemed
to have received compensation from the Company in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of
Offered Securities for whom they may act as agent. Underwriters may sell Offered
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions (which may be changed from
time to time) from the underwriters and or from the purchasers for whom they may
act as agents.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Offered Securities and any discounts,
concessions, or commissions allowed by the underwriters to participating dealers
would be set forth in the applicable Prospectus Supplement. Underwriters,
dealers and agents participating in the distribution of the Offered Securities
may be deemed to be underwriters and any discounts and commissions received by
them and any profit realized by them on resale of the
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Offered Securities may be deemed to be underwriting discounts and commissions
under the Securities Act. Underwriters, dealers and agents may be entitled,
under agreements entered into with the Company, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize dealers acting as the Company's agents to solicit offers by
certain institutions to purchase Offered Securities from the Company at the
public offering price set forth in the Prospectus Supplement pursuant to Delayed
Delivery Contracts ("Contracts") providing for payment and delivery on the date
or dates stated in such Prospectus Supplement. Each contract will be for an
amount not less than, and the principal amount of Offered Securities sold
pursuant to Contracts shall not be less or more than the respective amount
stated in such Prospectus Supplement. Institutions with which Contracts, when
authorized, may be made with commercial and savings banks, insurance companies,
pension funds, investment companies, education and charitable institutions and
other institutions, but will in all cases be subject to the approval of the
Company. Contracts will not be subject to any conditions except (a) the purchase
by an institution of the Offered Securities covered by its Contract shall not at
the time of delivery be prohibited under the laws of any jurisdiction in the
United States to which such institution is subject; and (b) the Company shall
have sold to such underwriters the total principal amount of the Offered
Securities less the principal amount thereof covered by Contracts. The
commission indicated in the Prospectus Supplement will be paid to agents and
underwriters soliciting purchases of Offered Securities pursuant to Contracts
accepted by the Company. Agents and underwriters shall have no responsibility in
respect to this delivery or performance of Contracts.
Certain of the underwriters and their affiliates may be customers of,
engaged in transaction with, and perform services for, the Company in the
ordinary course of business.
LEGAL OPINIONS
The validity of the Offered Securities will be passed upon by
Shumaker, Loop & Kendrick, LLP, Toledo, Ohio.
EXPERTS
The consolidated financial statements of Health Care REIT, Inc.
appearing in Health Care REIT, Inc.'s Annual Report (Form 10-K) for the year
ended December 31, 1996, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein
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by reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
TABLE OF CONTENTS
Available Information.....................................................7
Incorporation of Certain Documents by Reference...........................8
The Company...............................................................8
Use of Proceeds...........................................................9
Ratio of Earnings to Fixed Charges........................................9
Description of Debt Securities...........................................10
Description of Warrants..................................................21
Description of Common Stock and Preferred Stock..........................22
Plan of Distribution.....................................................29
Legal Opinions...........................................................30
Experts..................................................................30
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses payable in connection with the issuance and distribution of the
securities to be registered, other than underwriting discounts and commissions,
are estimated as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fees . . $147,500.00
Legal fees and expenses. . . . . . . . . . . . . . 22,000.00
Accounting fees and expenses . . . . . . . . . . . 4,000.00
Miscellaneous. . . . . . . . . . . . . . . . . . . 2,000.00
--------
TOTAL. . . . . . . . . . . . . . . . . . . . . . .$ 175,500.00
------------
</TABLE>
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<PAGE> 32
Item 15. Indemnification of Officers and Directors.
Section 7 of the Company's Restated Certificate of Incorporation, as
amended (the "Restated Certificate") provides that a director of the Company
shall not be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve international
misconduct or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of Delaware (the "GCL"), or (iv) for any transaction from which
the director derived any improper personal benefit. Section 7 also provides that
if the GCL is amended to further eliminate or limit the personal liability of
directors, then the liability of a director of the Company shall be eliminated
or limited to the extent permitted by the GCL, as so amended. The Restated
Certificate also states that any repeal or modification of the foregoing
paragraph by the stockholders of the Company shall not adversely affect any
right or protection of a director of the Company existing at the time of such
repeal or modification.
The Company's By-Laws (the "By-Laws") provide that the Company shall
indemnify, to the extent permitted by the GCL, any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Company, or is or was serving at the request of the Company as a director,
officer, employee, trustee, partner or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement,
actually and reasonably incurred by him in connection with such action, suit or
proceeding.
Item 16. Exhibits
Exhibit
Number Exhibit
------- -------
4.1(1) Second Restated Certificate of Incorporation.
4.2(2) By-Laws of Health Care REIT, Inc.
- ----------
(1)Previously filed as Exhibit 3(i) to the Company's Annual Report (Form
10-K) for the year ended December 31, 1994.
(2)Previously filed as Exhibit 3.1 to the Company's Form 8-K filed on
October 24, 1993.
.........
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<PAGE> 33
4.3(3) Rights Agreement.
4.4(4) Form of Indenture
5.1(5) Opinion of Shumaker, Loop & Kendrick, LLP.
23.1 Consent of Ernst & Young LLP, independent
auditors.
23.2(5) Consent of Shumaker, Loop & Kendrick, LLP to the
use of their opinion as an exhibit to this
Registration Statement is included in their
opinion filed herewith as Exhibit 5.1.
24.1(5) Powers of Attorney.
Item 17. Undertakings
(A) The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 18(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the commission pursuant to Rule 424(b) if, in the aggregate, the
charges in volume and price represent no more than a 20%
- ----------
(3) Previously filed as an Exhibit to the Company's Form 8-A filed
August 3, 1994 (File No. 1-8923).
(4) Previously filed as Exhibit 4.4 to the Company's Registration Statement
(Form S-3) filed February 9, 1996 (File No. 33-64877).
(5) Previously filed as an Exhibit to the Company's Registration Statement
(Form S-3) filed December 23, 1997 (File No. 333-43177).
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<PAGE> 34
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(B) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(C) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent,
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<PAGE> 35
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(D) The undersigned registrant hereby undertakes that:
(i) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Company pursuant to Rule 424(b)(i) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(ii) For purposes of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(E) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the Trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under section 305(b)(2) of
the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this amendment to
registration statement to be signed on its behalf by the undersigned thereunto
duly authorized in the City of Toledo, State of Ohio on January 6, 1998.
HEALTH CARE REIT, INC.
By: /S/ George L. Chapman
----------------------------
George L. Chapman
Chairman of the Board, Chief
Executive Officer and
President
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<PAGE> 36
Pursuant to the requirements of the Securities Act of 1933, this
amendment to registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
- ----------------------- ----------------------- --------------------
/S/ PIER C. BORRA* Director
Pier C. Borra January 6, 1998
/S/ BRUCE G. THOMPSON* Director
Bruce G. Thompson January 6, 1998
/S/ RICHARD A. UNVERFERTH* Director
Richard A. Unverferth January 6, 1998
/S/ FREDERIC D. WOLFE* Director
Frederic D. Wolfe January 6, 1998
/S/ JEFFREY H. DONAHUE* Director
Jeffrey H. Donahue January 6, 1998
/S/ SHARON M. OSTER* Director January 6, 1998
Sharon M. Oster
/S/ WILLIAM C. BALLARD, JR.* Director
William C. Ballard, Jr. January 6, 1998
/S/ MICHAEL A. CRABTREE Principal Accounting
Michael A. Crabtree Officer January 6, 1998
/S/ BRUCE DOUGLAS* Director
Bruce Douglas January 6, 1998
/S/ RICHARD C. GLOWACKI* Director
Richard C. Glowacki January 6, 1998
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<PAGE> 37
/S/ EDWARD F. LANGE, JR. Vice President and
Edward F. Lange, Jr. Principal Financial
Officer January 6, 1998
/S/ GEORGE L. CHAPMAN Chairman of the Board,
George L. Chapman Principal Executive
Officer and
President January 6, 1998
*By: /S/ GEORGE L. CHAPMAN
GEORGE L. CHAPMAN, Attorney-in-Fact
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<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-43177) and related Prospectus of
Health Care REIT, Inc. for the registration of Offered Securities not to exceed
an initial public offering price of $500,000,000 and to the incorporation by
reference therein of our report dated January 31, 1997, with respect to the
consolidated financial statements and schedules of Health Care REIT, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1996,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Toledo, Ohio
January 5, 1998
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