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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HEALTH CARE REIT, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 34-1096634
(State of incorporation) (I.R.S. Employer Identification No.)
One SeaGate, Suite 1500, Toledo, Ohio 43604
(Address of principal executive offices) (Zip Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
8 7/8% SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
(Title of each class to be registered)
NEW YORK STOCK EXCHANGE
(Name of each exchange on which each class is to be registered)
If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box: [X]
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box: [ ]
Securities Act registration statement file number to which this form relates:
333-43177
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
NONE
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
A description of the 8 7/8% Series B Cumulative Redeemable Preferred
Stock (the "Series B Preferred Stock") to be registered hereunder is contained
in the section entitled "Description of Common Stock and Preferred Stock -
Preferred Stock" on pages 11 through 15 of the Prospectus included in the
Registrant's Form S-3 Registration Statement (File No. 333-43177) as filed with
the Securities and Exchange Commission on January 7, 1998, and as supplemented
in the section entitled "Description of the Series B Preferred Stock" on pages
S-16 through S-22 of the Prospectus Supplement to be filed pursuant to Rule
424(b) of the Securities Act of 1933, as amended. Such description is
incorporated herein by reference.
ITEM 2. EXHIBITS.
Exhibit No. Description
2.1 Second Restated Certificate of Incorporation, filed
as Exhibit 3(i) to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1992
and incorporated herein by reference
2.2 Amended and Restated By-Laws, filed as Exhibit 3(ii)
to Registrant's Form 8-K filed on October 24,
1997 and incorporated herein by reference
2.3 Form of Certificate of Designation of 8 7/8% Series B
Cumulative Redeemable Preferred Stock
2.4 Specimen Share Certificate for 8 7/8% Series B
Cumulative Redeemable Preferred Stock
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, as amended, the Registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
Dated: May 7, 1998 HEALTH CARE REIT, INC.
("Registrant")
By: /s/ George L. Chapman
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George L. Chapman, Chairman of the Board, Chief
Executive Officer and President
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INDEX TO EXHIBITS
Exhibit Number Description
2.1 Second Restated Certificate of Incorporation, filed
as Exhibit 3(i) to Registrant's Annual Report on Form
10-K for the year ended December 31, 1992 and
incorporated herein by reference
2.2 Amended and Restated By-Laws, filed as Exhibit 3(ii)
to Registrant's Form 8-K filed on October 24, 1997
and incorporated herein by reference
2.3 Form of Certificate of Designation of 8 7/8% Series B
Cumulative Redeemable Preferred Stock
2.4 Specimen Share Certificate for 8 7/8% Series B
Cumulative Redeemable Preferred Stock
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Exhibit 2.3
FORM
OF
CERTIFICATE OF DESIGNATION
OF
8 7/8% SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
HEALTH CARE REIT, INC.
PURSUANT TO SECTION 151 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
The undersigned duly authorized officer of Health Care REIT,
Inc., a corporation organized and existing under the General Corporation Law of
the State of Delaware (the "Corporation"), in accordance with the provisions of
Section 151 thereof, DOES HEREBY CERTIFY:
That the Certificate of Incorporation of the Corporation
provides that the Corporation is authorized to issue ten million (10,000,000)
shares of Preferred Stock, par value $1.00 per share ("Preferred Stock"),
issuable in series by the Board. On July 19, 1994, the Corporation authorized
the issuance of thirteen thousand (13,000) shares of Junior Participating
Preferred Stock, Series A, which constitute a separate series of Preferred
Stock, which shares are reserved for issuance. Such shares are the only shares
of Preferred Stock authorized by the Board to be issued.
That pursuant to the authority conferred upon the Board of
Directors by the Second Restated Certificate of Incorporation of the
Corporation, the said Board of Directors on April 21, 1998 and May 7, 1998
adopted the following resolution creating a series of three million (3,000,000)
shares of Preferred Stock designated as 8 7/8% Series B Cumulative Redeemable
Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board
of Directors of the Corporation in accordance with the provisions of its Second
Restated Certificate of Incorporation, a series of Preferred Stock of the
Corporation be, and it hereby is, created, and that the designation and amount
thereof and the voting powers, preferences and relative, participating, optional
and other special rights of the shares of such series, and the qualifications,
limitation or restrictions thereof are as follows:
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Section 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as "8 7/8% Series B Cumulative Redeemable Preferred Stock"
(the "Series B Preferred Stock") and the number of shares constituting such
series shall be three million (3,000,000).
Section 2. MATURITY. The Series B Preferred Stock shall have
no stated maturity and will not be subject to any sinking fund or mandatory
redemption.
Section 3. RANK. The Series B Preferred Stock shall, with
respect to dividend rights and rights upon liquidation, dissolution or winding
up of the Corporation, rank (i) senior to all classes or series of common stock
of the Corporation, and to all equity securities ranking junior to the Series B
Preferred Stock with respect to dividend rights or rights upon liquidation,
dissolution or winding up of the Corporation, (ii) on a parity with all equity
securities issued by the Corporation the terms, of which specifically provide
that such equity securities rank on a parity with the Series B Preferred Stock
with respect to dividend rights or rights upon liquidation, dissolution or
winding up of the Corporation, and (iii) junior to all equity securities issued
by the Corporation the terms of which specifically provide that such equity
securities rank senior to the Series B Preferred Stock with respect to dividend
rights or rights upon liquidation, dissolution or winding up of the Corporation.
Section 4. DIVIDENDS.
(A) Holders of shares of the Series B Preferred Stock are
entitled to receive, when, as and if declared by the Board of Directors (or a
duly authorized committee thereof), out of funds of the Corporation legally
available for the payment of dividends, cumulative preferential cash dividends
at the rate of 8 7/8% of the liquidation preference per annum per share
(equivalent to $2.21875 per share).
(B) Dividends on the Series B Preferred Stock shall be
cumulative from the date of original issue and shall be payable quarterly in
arrears on or about the 15th day of January, April, July and October or, if not
a business day, the next succeeding business day (each, a "Dividend Payment
Date"). The first dividend on the Series B Preferred Stock is scheduled to be
paid on July 15, 1998. Any dividend payable on the Series B Preferred Stock for
any partial dividend period will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Dividends will be payable to holders of
record as they appear in the stock records of the Corporation at the close of
business on the applicable record date, which shall be the last day of the
previous calendar month in which the applicable Dividend Payment Date falls or
on such other date designated by the Board of Directors of the Corporation for
the payment of dividends that is not more than 30 nor less than 10 days prior to
such Dividend Payment Date (each, a "Dividend Record Date").
(C) No dividends on shares of Series B Preferred Stock shall
be declared by the Board of Directors or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness, prohibits
such declaration, payment or setting apart for payment or provides
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that such declaration, payment or setting apart for payment would constitute a
breach thereof or a default thereunder, or if such declaration or payment shall
be restricted or prohibited by law.
(D) Notwithstanding the foregoing, dividends on the Series B
Preferred Stock will accrue whether or not the Corporation has earnings, whether
or not there are funds legally available for the payment of such dividends and
whether or not such dividends are declared. Accrued but unpaid dividends on the
Series B Preferred Stock will not bear interest and holders of the Series B
Preferred Stock will not be entitled to any dividends in excess of full
cumulative dividends described above. Any dividend payment made on the Series B
Preferred Stock shall first be credited against the earliest accumulated but
unpaid dividend due with respect to such shares that remains payable.
(E) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the Internal
Revenue Code of 1986, as amended (the "Code")) any portion (the "Capital Gains
Amount") of the dividends (as determined for federal income tax purposes) paid
or made available for the year to holders of all classes of stock (the "Total
Dividends"), then the portion of the Capital Gains Amount that shall be
allocable to the holders of Series B Preferred Stock shall be the amount that
the total dividends (as determined for federal income tax purposes) paid or made
available to the holders of the Series B Preferred Stock for the year bears to
the Total Dividends. Beginning January 1, 1998, the Corporation will make a
similar allocation with respect to any undistributed long-term capital gains of
the Corporation which are to be included in its shareholders' long-term capital
gains, based on the allocation of the Capital Gains Amount which would have
resulted if such undistributed long-term capital gains had been distributed as
"capital gains dividends" by the Corporation to its shareholders.
(F) No full dividends will be declared or paid or set apart
for payment on any series of preferred stock ranking, as to dividends, on a
parity with or junior to the Series B Preferred Stock (other than a dividend in
shares of any class of stock ranking junior to the Series B Preferred Stock as
to dividends and upon liquidation) for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof is set apart for such payment on the
Series B Preferred Stock for all past dividend periods and the then current
dividend period. When dividends are not paid in full (or a sum sufficient for
such full payment is not so set apart) upon the Series B Preferred Stock and the
shares of any other series of preferred stock ranking on a parity as to
dividends with the Series B Preferred Stock, all dividends declared upon the
Series B Preferred Stock and any other series of preferred stock ranking on a
parity as to dividends with the Series B Preferred Stock shall be declared pro
rata so that the amount of dividends declared per share of Series B Preferred
Stock and such other series of preferred stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the Series B Preferred
Stock and such other series of preferred stock (which shall not include any
accrual in respect of unpaid dividends for prior dividend periods if such
preferred stock does not have a cumulative dividend) bear to each other.
(G) Except as provided in the immediately preceding paragraph,
unless full cumulative dividends on the Series B Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for
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payment for all past dividend periods and the then current dividend period, no
dividends (other than in shares of Common Stock or other shares of capital stock
ranking junior to the Series B Preferred Stock as to dividends and upon
liquidation) shall be declared or paid or set aside for payment nor shall any
other distribution be declared or made upon the Common Stock, or any other
capital stock of the Corporation ranking junior to or on a parity with the
Series B Preferred Stock as to dividends or upon liquidation, nor shall any
shares of Common Stock, or any other shares of capital stock of the Corporation
ranking junior to or on a parity with the Series B Preferred Stock as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any such shares of any such stock) by the Corporation
(except by conversion into or exchange for other capital stock of the
Corporation ranking junior to the Series B Preferred Stock as to dividends and
upon liquidation or for the purpose of preserving the Corporation's
qualification as a Real Estate Investment Trust (a "REIT")).
Section 5. LIQUIDATION PREFERENCES. Upon any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, the holders of the Series B Preferred Stock shall be entitled to be
paid out of the assets of the Corporation legally available for distribution to
its shareholders a liquidation preference of $25.00 per share, plus an amount
equal to any accrued and unpaid dividends to the date of payment, before any
distribution of assets is made to holders of Common Stock or any other class or
series of capital stock of the Corporation that ranks junior to the Series B
Preferred Stock as to liquidation rights. For such purposes, the consolidation
or merger of the Corporation with or into any other corporation, or the sale,
lease or conveyance of all or substantially all of the property or business of
the Corporation, shall not be deemed to constitute a liquidation, dissolution or
winding up of the Corporation.
Section 6. REDEMPTION.
(A) The Series B Preferred Stock shall not be redeemable prior
to May 1, 2003. On and after May 1, 2003, the Corporation, at its option, upon
not less than 30 nor more than 60 days' written notice, may redeem shares of the
Series B Preferred Stock, in whole or in part, at any time or from time to time,
for cash at a redemption price of $25.00 per share, plus all accrued and unpaid
dividends thereon to the date fixed for redemption, to the extent the
Corporation has funds legally available therefor. The redemption price (other
than the portion thereof consisting of accrued and unpaid dividends) is payable
solely out of the sale proceeds of other capital stock of the Corporation, which
may include shares of other series of preferred stock. For purposes of the
preceding sentence, "capital stock" means any common stock, preferred stock,
depository shares, interests, participation or other ownership interests
(however designated) and any rights (other than debt securities convertible into
or exchangeable for equity securities) or options to purchase any of the
foregoing. Holders of Series B Preferred Stock to be redeemed shall surrender
such Series B Preferred Stock at the place designated in such notice and shall
be entitled to the redemption price and any accrued and unpaid dividends payable
upon such redemption following such surrender. If notice of redemption of any
shares of Series B Preferred Stock has been given and if the funds necessary for
such redemption have been set aside by the Corporation in trust for the benefit
of the holders of any shares of Series B Preferred Stock so called for
redemption, then from and after the redemption date dividends will cease to
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accrue on such shares of Series B Preferred Stock, such shares of Series B
Preferred Stock shall no longer be deemed outstanding and all rights of the
holders of such shares will terminate, except the right to receive the
redemption price. If less than all of the outstanding Series B Preferred Stock
is to be redeemed, the Series B Preferred Stock to be redeemed shall be selected
pro rata (as nearly as may be practicable without creating fractional shares) or
by any other equitable method determined by the Corporation.
(B) Unless full cumulative dividends on all shares of Series B
Preferred Stock shall have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for payment for
all past dividend periods and the then current dividend period, no shares of
Series B Preferred Stock shall be redeemed unless all outstanding shares of
Series B Preferred Stock are simultaneously redeemed and the Corporation shall
not purchase or otherwise acquire directly or indirectly any shares of Series B
Preferred Stock (except by exchange for capital stock of the Corporation ranking
junior to the Series B Preferred Stock as to dividends and upon liquidation);
provided, however, that the foregoing shall not prevent the purchase by the
Corporation of shares of Series B Preferred Stock in order to ensure that the
Corporation continues to meet the requirements for qualification as a REIT, or
the purchase or acquisition of shares of Series B Preferred Stock pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding
shares of Series B Preferred Stock. So long as no dividends are in arrears, the
Corporation shall be entitled at any time and from time to time to repurchase
shares of Series B Preferred Stock in open-market transactions duly authorized
by the Board of Directors and effected in compliance with applicable laws.
(C) Notice of redemption shall be given by publication in a
newspaper of general circulation in the City of New York, such publication to be
made once a week for two successive weeks commencing not less than 30 nor more
than 60 days prior to the redemption date. A similar notice furnished by the
Corporation will be mailed, postage prepaid, not less than 30 nor more than 60
days prior to the redemption date, addressed to the respective holders of record
of the Series B Preferred Stock to be redeemed at their respective addresses as
they appear on the stock transfer records of the transfer agent. No failure to
give such notice or any defect therein or in the mailing thereof shall affect
the validity of the proceedings for the redemption of any shares of Series B
Preferred Stock except as to the holder to whom notice was defective or not
given. Each notice shall state: (i) the redemption date; (ii) the redemption
price; (iii) the number of shares of Series B Preferred Stock to be redeemed;
(iv) the place or places where the Series B Preferred Stock is to be surrendered
for payment of the redemption price; and (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date. If less than all of the
Series B Preferred Stock held by any holder is to be redeemed, the notice mailed
to such holder shall also specify the number of shares of Series B Preferred
Stock held by such holder to be redeemed.
(D) Immediately prior to any redemption of Series B Preferred
Stock, the Corporation shall pay, in cash, any accumulated and unpaid dividends
through the redemption date, unless a redemption date falls after a Dividend
Record Date and prior to the corresponding Dividend Payment Date, in which case
each holder of Series B Preferred Stock at the close of business on such
Dividend Record Date shall be entitled to the dividend payable on such shares
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on the corresponding Dividend Payment Date notwithstanding the redemption of
such shares before such Dividend Payment Date.
(E) From and after the redemption date (unless default shall
be made by the Corporation in providing for the payment of the redemption price
plus accumulated and unpaid dividends, if any), dividends shall cease to
accumulate on the shares of the Series B Preferred Stock called for redemption
and all rights of the holders thereof (except the right to receive the
redemption price plus accumulated and unpaid dividends, if any) shall cease.
Section 7. VOTING RIGHTS.
(A) Holders of the Series B Preferred Stock shall not have any
voting rights except as set forth in this Section 7 or as otherwise required by
law.
(B) Whenever dividends on any shares of Series B Preferred
Stock shall be in arrears for six or more quarterly periods, whether or not
consecutive, the holders of such shares of Series B Preferred Stock (voting
separately as a class with all other series of preferred stock upon which like
voting rights have been conferred and are exercisable) will be entitled to vote
for the election of a total of two additional directors of the Corporation at a
special meeting called by holders of record of at least 25% of the Series B
Preferred Stock or the holders of any other series of preferred stock so in
arrears (unless such request is received less than 90 days before the date fixed
for the next annual or special meeting of shareholders) or at the next annual
meeting of shareholders, and at each subsequent annual meeting until all
dividends accumulated on such shares of Series B Preferred Stock for the past
dividend periods and the dividend for the then current dividend period shall
have been fully paid or declared and a sum sufficient for the payment thereof
set aside for payment. In such case, the entire Board of Directors of the
Corporation will be increased by two directors.
(C) So long as any shares of Series B Preferred Stock remain
outstanding, the Corporation shall not, without the consent of the affirmative
vote of the holders of two-thirds of the shares of Series B Preferred Stock
outstanding at the time given in person or by proxy, either in writing or at a
meeting (such Series B Preferred Stock voting separately as a class) (i)
authorize, create or issue, or increase the authorized or issued amount of, any
series of stock ranking prior to such Series B Preferred Stock with respect to
payment of dividends, or in the distribution of assets on liquidation,
dissolution or winding up, or reclassify any authorized stock of the Corporation
into any such shares, or create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase any such shares or (ii)
repeal, amend, or otherwise change any of the provisions applicable to the
Series B Preferred Stock in any manner which materially and adversely affects
the powers, preferences, voting power or other rights or privileges of the
Series B preferred Stock or the holders thereof; provided, however, that any
increases in the amount of the authorized preferred stock or the creation or
issuance of other series of Preferred Stock, or any increase in the amount of
authorized shares of such series or of any other series of Preferred Stock, in
each case ranking on a parity with or junior to the Series B Preferred Stock,
shall not be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers.
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(D) The foregoing voting provisions will not apply if, at or
prior to the time when the act with respect to which such vote would otherwise
be required shall be effected, all outstanding shares of Series B Preferred
Stock shall have been redeemed or called for redemption upon proper notice and
sufficient funds shall have been deposited in trust to effect such redemption.
(E) Except as expressly stated in this Certificate of
Designation, the Series B Preferred Stock shall not have any relative,
participating, optional or other special voting rights and powers, and the
consent of the holders thereof shall not be required for the taking of any
corporate action, including but not limited to, any merger or consolidation
involving the Corporation or a sale of all or substantially all of the assets of
the Corporation, irrespective of the effect that such merger, consolidation or
sale may have upon the rights, preferences or voting powers of the holders of
the Series B Preferred Stock.
Section 8. CONVERSION. The Series B Preferred Stock shall not
be convertible into or exchangeable for any other property or securities of the
Corporation.
Section 9. RESTRICTIONS ON OWNERSHIP AND TRANSFER.
(A) Limit on Stock Ownership. No person may own more than 9.8%
of the outstanding shares of the Corporation's Series B Preferred Stock (the
"Ownership 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 Series B Preferred Stock would exceed the Ownership Limit. No
person may actually or constructively own shares of stock of the Corporation
that would result in the Corporation being "closely held" under Section 856(h)
of the Code (including, but not limited to, Ownership that would result in the
Corporation owning (actually or constructively) an interest in a tenant that is
described in Section 856(d)(2)(B) of the Code if the income derived by the
Corporation (either directly or indirectly through one or more partnerships)
from such tenant would cause the Corporation to fail to satisfy any of the gross
income requirements of Section 856(c) of the Code) or otherwise cause the
Corporation to fail to qualify as a REIT. Notwithstanding any other provisions
contained in this Section 9, if any purported transfer of shares of the Series B
Preferred Stock would cause the Corporation to be beneficially owned by fewer
than 100 persons, such transfer will be null and void in its entirety and the
intended transferee will acquire no rights to the stock.
(B) Notice and Request for Information. Any person who
acquires or attempts or intends to acquire actual or constructive ownership of
shares of Series B Preferred Stock that will or may violate any of the
restrictions on transferability and ownership contained in this Section 9 is
required to give notice immediately to the Corporation and provide the
Corporation with such other information as the Corporation may request in order
to determine the effect of such transfer on the Corporation's status as a REIT.
In addition, each holder of Series B Preferred Stock shall upon demand be
required to disclose to the Corporation in writing such information as the
Corporation may request in order to determine the effect, if any, of such
stockholder's actual and constructive ownership of the Series B Preferred Stock
on the Corporation's status as a REIT and to ensure compliance with the
Ownership Limit, or such other limit as permitted by the Board of Directors.
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(C) Transfers in Excess of the Ownership Limit. If any
purported transfer of Series B Preferred Stock or any other event would
otherwise result in any person violating the Ownership Limit or such other limit
as permitted by the Board of Directors, then any such purported transfer will be
void and of no force or effect with respect to the purported transferee (the
"Prohibited Transferee") as to that number of shares of Series B Preferred Stock
in excess of the Ownership Limit or such other limit (the "Excess Shares"), and
the Prohibited Transferee shall acquire no right or interest (or, in the case of
any event other than a purported transfer, the person or entity holding record
title to any such Excess Shares (the "Prohibited Owner") shall cease to own any
right or interest) in such Excess Shares. Any such Excess Shares described above
will be transferred automatically, by operation of law, to a trust, the
beneficiary of which will be a qualified charitable organization described in
Sections 170(b)(1)(A), 170(c)(2) or 501(c)(3) of the Code and selected by the
Corporation (the "Beneficiary"). Such automatic transfer shall be deemed to be
effective as of the close of business on the business day prior to the date of
such violative transfer. Within 20 days of receiving notice from the Corporation
of the transfer of shares to the trust, the trustee of the trust (who shall be
designated by the Corporation and be unaffiliated with the Corporation and any
Prohibited Transferee or Prohibited Owner) will be required to sell such Excess
Shares to a person or entity who could own such shares without violating the
Ownership Limit, or such other limit as permitted by the Board of Directors, and
distribute to the Prohibited Transferee or Prohibited Owner, as applicable, an
amount equal to the lesser of the price paid by the Prohibited Transferee or
Prohibited Owner for such Excess Shares or the sales proceeds received by the
trust for such Excess Shares. In the case of any Excess Shares resulting from
any event other than a transfer, or from a transfer for no consideration (such
as a gift), the trustee will be required to sell such Excess Shares to a
qualified person or entity and distribute to the Prohibited Owner an amount
equal to the lesser of the Market Price of such Excess Shares as of the date of
such event or the sales proceeds received by the trust for such Excess Shares.
In either case, any proceeds in excess of the amount distributable to the
Prohibited Transferee or Prohibited Owner as applicable will be distributed to
the Beneficiary. Prior to a sale of any such Excess Shares by the trust, the
trustee will be entitled to receive, in trust for the Beneficiary, all dividends
and other distributions paid by the Corporation with respect to such Excess
Shares, and also will be entitled to exercise all voting rights with respect to
such Excess Shares. Subject to Delaware law, effective as of the date that such
shares have been transferred to the trust, the trustee shall have the authority
(at the trustee's sole discretion) (i) to rescind as void any vote cast by a
Prohibited Transferee or Prohibited Owner, as applicable, prior to the discovery
by the Corporation that such shares have been transferred to the trust and (ii)
to recast such vote in accordance with the desires of the trustee acting for the
benefit of the Beneficiary. However, if the Corporation has already taken
irreversible corporate action, then the trustee shall not have the authority to
rescind and recast such vote. Any dividend or other distribution paid to the
Prohibited Transferee or Prohibited Owner (prior to the discovery by the
Corporation that such shares had been automatically transferred to a trust as
described above) will be required to be repaid to the trustee upon demand for
distribution to the Beneficiary. In the event that the transfers to the trust as
described above is not automatically effective (for any reason) to prevent
violation of the Ownership Limit or such other limit as permitted by the Board
of Directors, then the transfer of the Excess Shares shall be void. In addition,
shares of the Series B Preferred Stock of the Corporation held in the trust
shall be deemed to have been offered for sale to the Corporation, or its
designee, at a price
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per share equal to the lesser of (i) the price per share in the transaction that
resulted in such transfer to the trust (or, in the case of a devise or gift, the
Market Price at the time of such devise or gift) and (ii) the Market Price on
the date the Corporation, or its designee, accepts such offer. The Corporation
shall have the right to accept such offer until the trustee has sold the shares
of stock held in the trust. Upon such a sale to the Corporation, the interest of
the Beneficiary in the shares sold shall terminate and the trustee shall
distribute the net proceeds of the sale to the Prohibited Transferee or
Prohibited Owner.
(D) Exceptions.
(i) The Board of Directors may, but in no event will
be required to, waive the Ownership Limit with respect to a particular
shareholder if it determines that such ownership will not jeopardize the
Corporation's status as a REIT and the Board of Directors otherwise decides such
action would be in the best interest of the Corporation. As a condition of such
waiver, the Board of Directors may require an opinion of counsel satisfactory to
it and/or undertakings or representations from the applicant with respect to
preserving the REIT status of the Corporation.
(ii) The restrictions on transferability and
ownership contained in this Section 9 will not apply if the Board of Directors
determines that it is no longer in the best interest of the Corporation to
attempt to qualify, or to continue to qualify, as a REIT.
(E) Definitions. For purposes of this Section 9: (a) "Person"
includes an individual, corporation, partnership, association, joint stock
company, trust, unincorporated association or other entity; (b) "Securities"
means shares of Series B Preferred Stock; (c) "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; (d) "Market Price" means the price of the shares reflected in
the closing sales price for the shares, if then listed on a national securities
exchange, or if the shares are not then listed on a national securities
exchange, the "Market Price" means the redemption price of such shares of Series
B Preferred Stock.
(F) 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 REIT 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 REIT.
(G) Certificate Legend. All certificates representing shares
of the Series B Preferred Stock shall 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 Section 9.
9
<PAGE> 10
(H) New York Stock Exchange. Nothing in this Section 9,
including but not limited to Paragraph (B), 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
Section 9, and any transferee, and the shares of capital stock transferred to
such transferee in such a transaction, shall be subject to all of the provisions
and limitations in this Section 9.
(I) 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.
(J) The provisions set forth in this Section 9 shall apply to
the Series B Preferred Stock notwithstanding any contrary provisions of the
Series B Preferred Stock described in this Certificate of Designation.
Section 10. AMENDMENT. Neither the Second Restated Certificate
of Incorporation of the Corporation nor this Certificate of Designation shall be
amended in any manner which would materially and adversely affect the holders of
the Series B Preferred Stock without the affirmative consent or vote of the
holders of two-thirds of the Series B Preferred Stock outstanding at the time.
Except as otherwise described in this Certificate of Designation, any change in
the Ownership Limit requires an amendment to this Certificate of Designation in
accordance with this Section 10.
10
<PAGE> 11
IN WITNESS WHEREOF, the undersigned has executed and
subscribed this certificate and does affirm the foregoing as true under the
penalties of perjury this 7th day of May, 1998.
------------------------------------
George L. Chapman
Chairman of the Board, Chief Executive
Officer and President
ATTEST:
- --------------------------------------
Erin C. Ibele
Vice President and Corporate Secretary
11
<PAGE> 1
Exhibit 2.4
Specimen Share Certificate
FRONT
PREFERRED STOCK
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
HEALTH CARE REIT, INC.
CUSIP 42217K 20 5
SEE REVERSE SIDE FOR CERTAIN RESTRICTIONS
This certifies that is the owner of
FULLY PAID AND NONASSESSABLE SHARES OF THE 8 7/8% SERIES B CUMULATIVE REDEEMABLE
PREFERRED STOCK, LIQUIDATION PREFERENCE $25.00 PER SHARE OF
Health Care REIT, Inc., transferable on the books of the corporation in person
or by duly authorized attorney upon surrender of this certificate properly
endorsed. This certificate is not valid until countersigned by the transfer
agent and registered by the registrar. Witness the facsimile signatures of its
duly authorized officers.
Dated:
COUNTERSIGNED AND REGISTERED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE SECRETARY PRESIDENT
<PAGE> 2
BACK
EXPLANATION OF ABBREVIATIONS
The following abbreviations, when used in the inscription of ownership
on the face of this certificate, shall be construed as if they were written out
in full according to applicable laws or regulations.
Abbreviations in addition to those appearing below may be used.
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right
of survivorship and not as tenants in common
UNIF GIF MIN ACT-________Custodian_______
(Cust) (Minor)
under Uniform Gifts to Minors
This certificate and the shares represented hereby are issued and shall be held
subject to all provisions of the Certificate of Incorporation and By-Laws of
the Corporation, and the amendments from time to time made to each, to all of
which the holder by acceptance hereof assents. The Corporation will mail to the
registered holder hereof a copy of the Certificate of Incorporation and By-Laws
of the Corporation, without charge, within five days after receipt of a written
request therefor.
For value received, _________________________ hereby sell, assign and
transfer unto
Please insert social security or other identifying number of Assignee
________________________________________________________________________________
Please print or typewrite name and address including postal zip code of Assignee
________________________________________________________________________________
________________________________________________________________________ Shares
represented by the within certificate, and do hereby irrevocably constitute and
appoint
______________________________________________________________________ Attorney
to transfer the said shares on the books of the within-named Corporation with
full power of substitution in the premises.
Dated____________________, 19___.
SIGNED:
_______________________________________________________
_______________________________________________________
NOTICE: The signature to this assignment must correspond
with the name as written upon the face of the certificate
in every particular, without alteration or enlargement or
any change whatever, and must be guaranteed by a bank
or broker.
