EXHIBIT 1.1
EXECUTION COPY
HEALTH CARE REIT, INC.
$342,394,000
3.00% Convertible Senior Notes Due 2029
UNDERWRITING AGREEMENT
March 10, 2010
UBS Securities LLC
J.P. Morgan Securities Inc.
As Representatives of the Several Underwriters
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the “Company”), proposes to sell to the
underwriters (the “Underwriters”) named in Schedule I hereto for whom you are acting as
representatives (the “Representatives”), $342,394,000 aggregate principal amount of the Company’s
3.00% Convertible Senior Notes due 2029 (the “Notes”), to be issued pursuant to the provisions of
an indenture dated as of March 15, 2010, between the Company and The Bank of New York Trust
Company, N.A., as trustee (the “Trustee”), as supplemented by a supplemental indenture thereto, to
be dated as of March 15, 2010 (the indenture, as so supplemented, the “Indenture”).
The Notes will be convertible into shares of common stock of the Company, $1.00 par value per
share (“Common Stock”), in the manner described in the Indenture. The shares of Common Stock into
which the Notes may be converted are referred to herein as the “Underlying Securities.”
As the Representatives, you have advised the Company (a) that you are authorized to enter into
this Agreement and (b) that the Underwriters are willing to purchase, acting severally and not
jointly, the Notes set forth in Schedule I hereto.
In consideration of the mutual agreements contained herein and of the interests of the parties
in the transactions contemplated hereby, the parties hereto agree as follows:
1. Representations and Warranties of the Company.
The Company represents and warrants to the
Underwriters as follows:
(i) An “automatic shelf registration statement” as defined in Rule 405 under the
Securities Act of 1933, as amended (the “Securities Act”), on Form S-3 (File No. 333-159040)
in respect of the Notes and the Underlying Securities, including a form of prospectus (the
“Base Prospectus”), has been prepared and filed by the Company not earlier than three years
prior to the date hereof, in conformity with the requirements of the Securities Act, and the
rules and
regulations of the Securities and Exchange Commission (the “Commission”) thereunder (the
“Rules and Regulations”). The Company and the transactions contemplated by this Agreement
meet the requirements and comply with the conditions for the use of Form S-3. Copies of
such registration statement, including any amendments thereto, the Base Prospectus, as
supplemented by any preliminary prospectus (including any preliminary prospectus supplement)
relating to the Notes filed with the Commission pursuant to Rule 424(b) under the Securities
Act (a “Preliminary Prospectus”), and including the documents incorporated in the Base
Prospectus by reference, and the exhibits, financial statements and schedules to such
registration statement, in each case as finally amended and revised, have heretofore been
delivered by the Company to the Representatives. Such registration statement is herein
referred to as the “Registration Statement,” which shall be deemed to include all
information omitted therefrom in reliance upon Rules 430A, 430B or 430C under the Securities
Act and contained in the Prospectus referred to below, has become effective under the
Securities Act and no post-effective amendment to the Registration Statement has been filed
as of the date of this Agreement. “Prospectus” means the form of prospectus relating to the
Notes first filed with the Commission pursuant to and within the time limits described in
Rule 424(b) under the Securities Act and in accordance with Section 4(i) hereof. Any
reference herein to the Registration Statement, any Preliminary Prospectus or to the
Prospectus or to any amendment or supplement to any of the foregoing documents shall be
deemed to refer to and include any documents incorporated by reference therein, and, in the
case of any reference herein to the Prospectus, also shall be deemed to include any
documents incorporated by reference therein, and any supplements or amendments thereto,
filed with the Commission after the date of filing of the Prospectus under Rule 424(b) under
the Securities Act, and prior to the termination of the offering of the Notes by the
Underwriters.
(ii) As of the Applicable Time (as defined below), neither (i) the General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time, and the
Statutory Prospectus (as defined below), all considered together (collectively, the “General
Disclosure Package”), nor (ii) any individual Limited Use Free Writing Prospectus (as
defined below), when considered together with the General Disclosure Package, included any
untrue statement of a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from any Issuer Free Writing
Prospectus, in reliance upon, and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter through the Representatives, specifically for use
therein, it being understood and agreed that the only such information is that described in
Section 13 herein. As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 6:30 a.m. (New York time) on March 10, 2010 or such other time
as agreed to by the Company and the Representatives.
“Statutory Prospectus” means the Base Prospectus, as amended and supplemented
immediately prior to the Applicable Time, including any document incorporated by reference
therein and any prospectus supplement deemed to be a part thereof.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 under the Securities Act, relating to the Notes in the form filed or required to
be filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g) under the Securities Act.
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“General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
identified on Schedule II to this Agreement.
“Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
not a General Use Free Writing Prospectus.
(iii) The Company has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with corporate power and authority to
own its properties and conduct its business as described in the Registration Statement, the
General Disclosure Package and the Prospectus; the Company is duly qualified to transact
business in all jurisdictions in which the conduct of its business requires such
qualification, and in which the failure to qualify would (a) have a materially adverse
effect upon the business of the Company and its Subsidiaries (as defined below), taken as a
whole, (b) adversely affect the issuance, validity or enforceability of the Notes or the
enforceability of the Indenture or (c) prevent or materially interfere with the consummation
of the transactions contemplated by this Agreement (each of (a), (b) and (c) above, a
“Material Adverse Effect”). All of the Company’s subsidiaries are listed in Schedule III
hereto (the “Subsidiaries”).
(iv) The Notes have been duly authorized and, when issued, authenticated and delivered
pursuant to this Agreement and the Indenture, will be (a) duly and validly executed,
authenticated, issued and delivered and will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by (x) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws now or hereafter in effect relating to
creditors’ rights generally and (y) general principles of equity and the limits of specific
performance and injunctive relief (regardless of whether enforceability is considered in a
proceeding at law or in equity), (b) entitled to the benefits provided by the Indenture, and
(c) convertible into Common Stock in accordance with the Indenture; the Indenture has been
duly authorized and qualified under the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”), and constitutes a valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by (x) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws now or hereafter in effect relating to creditors’ rights
generally and (y) general principles of equity and the limits of specific performance and
injunctive relief (regardless of whether enforceability is considered in a proceeding at law
or in equity); the Notes and the Indenture will conform to the statements relating thereto
contained in the Registration Statement, the General Disclosure Package and the Prospectus;
and the Underlying Securities issuable upon conversion of the Notes in accordance with the
Indenture and the Notes have been duly authorized and reserved for issuance, and when issued
and delivered upon conversion of the Notes in accordance with the Indenture, will be duly
and validly issued, fully paid and free of statutory and contractual preemptive rights,
resale rights, rights of first refusal and similar rights.
(v) The information contained in the line items “Preferred Stock” and “Common Stock”
set forth in the consolidated balance sheet as of December 31, 2009 contained in the
Company’s Annual Report on Form 10-K for the year ended December 31, 2009 and in the section
captioned “Capitalization” in the Prospectus (and any similar section or information
contained in the General Disclosure Package) sets forth the authorized, issued and
outstanding capital stock of the Company at the indicated date, and, except for issuances
since such date of (a) 262,807 shares of Common Stock under the Company’s Dividend
Reinvestment and Stock Purchase Plan, (b) 259,954 shares of Common Stock granted or issued
under the Company’s 2005 Long-Term Incentive Plan and (c) 17,166 shares of Common Stock
issued upon conversion
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of outstanding shares of the Company’s Series G Convertible Preferred Stock, there has been
no material change in such information since December 31, 2009; all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued and are fully
paid and non-assessable; and the shares of Common Stock of the Company are duly listed on
the New York Stock Exchange (“NYSE”).
(vi) The shares of authorized capital stock of the Company, including the Underlying
Securities, conform in all material respects with the statements concerning them in the
Registration Statement, the General Disclosure Package and the Prospectus.
(vii) The Commission has not issued an order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus relating to the
proposed offering of the Notes, and no proceeding for that purpose or pursuant to Section 8A
of the Securities Act has been instituted or, to the Company’s knowledge, threatened by the
Commission. The Registration Statement complies, and the Prospectus and any amendments or
supplements thereto will comply, as to form in all material respects with the requirements
of the Securities Act, the Trust Indenture Act and the rules and regulations of the
Commission thereunder. The documents incorporated, or to be incorporated, by reference in
the Prospectus, at the time filed with the Commission, complied or will comply as to form in
all material respects to the requirements of the Securities Exchange Act of 1934 (“Exchange
Act”) or the Securities Act, as applicable, and the rules and regulations of the Commission
thereunder. The Registration Statement and any amendment thereto do not contain, and, at
all times during the period that begins on the date hereof and ends as of the Closing Date,
and as of the Closing Date, will not contain, any untrue statement of a material fact and do
not omit, and will not omit, to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus and any amendments
and supplements thereto do not contain, and, at all times during the period that begins on
the date hereof and ends as of the Closing Date, and as of the Closing Date, will not
contain, any untrue statement of a material fact and do not omit, and will not omit, to
state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to information contained in or omitted
from the Registration Statement or the Prospectus, or any such amendment or supplement, in
reliance upon, and in conformity with, written information furnished to the Company by or on
behalf of any Underwriter through the Representatives, specifically for use therein, it
being understood and agreed that the only such information is that described in Section 13
herein.
(viii) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Notes or until any earlier
date that the Company notified or notifies the Representatives, did not, does not and will
not include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any document
incorporated by reference and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified.
(ix) The Company has not, directly or indirectly, distributed and will not distribute
any offering material in connection with the offering and sale of the Notes other than any
Preliminary Prospectus, the Prospectus and other materials, if any, permitted under the
Securities Act and consistent with Section 4(ii) below. The Company will file with the
Commission all Issuer Free Writing Prospectuses required to be filed with the Commission in
the time and manner required under Rules 163(b)(2) and 433(d) under the Securities Act.
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(x) (a) At the time of filing the Registration Statement, (b) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) under the
Securities Act (whether such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (c) at the
time the Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) under the Securities Act) made any offer relating to the Notes in
reliance on the exemption of Rule 163 under the Securities Act and (d) at the date hereof,
the Company is a “well-known seasoned issuer” as defined in Rule 405 under the Securities
Act. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2)
under the Securities Act objecting to the use of the automatic shelf registration form.
(xi) (a) At the earliest time after the filing the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Securities Act) of the Notes and (b) as of the date hereof (with such
date being used as the determination date for purposes of this clause (b)), the Company was
not and is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act,
without taking into account any determination by the Commission pursuant to Rule 405 under
the Securities Act that it is not necessary that the Company be considered an ineligible
issuer), including, without limitation, for purposes of Rules 164 and 433 under the
Securities Act with respect to the offering of the Notes as contemplated by the Registration
Statement.
(xii) The financial statements of the Company, together with related notes and
schedules, as set forth or incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus, present fairly in all material respects the
consolidated financial position and the results of operations of the Company and its
Subsidiaries at the indicated dates and for the indicated periods. Such financial
statements and the related notes and schedules have been prepared in accordance with
generally accepted accounting principles, consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of results for such periods
have been made. The summary financial and statistical data included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the Prospectus
present fairly in all material respects the information shown therein and, to the extent
based upon or derived from the financial statements, have been compiled on a basis
consistent with the financial statements presented therein. All disclosures contained in
the Registration Statement, the General Disclosure Package and the Prospectus, including the
documents incorporated by reference therein, regarding “non-GAAP financial measures” (as
such term is defined by the Rules and Regulations) comply in all material respects with
Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to
the extent applicable.
(xiii) There is no action or proceeding pending or, to the knowledge of the Company,
threatened (a) against the Company or its Subsidiaries or (b) involving any property of the
Company or its Subsidiaries before any court or administrative agency which, if determined
adversely to the Company or its Subsidiaries, would reasonably be expected to result in any
Material Adverse Effect, except as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus.
(xiv) The Company, together with its Subsidiaries, has good and marketable title to all
of the properties and assets reflected in the financial statements hereinabove described (or
as described in the Registration Statement, the General Disclosure Package and the
Prospectus as owned by it), subject to no lien, mortgage, pledge, charge or encumbrance of
any kind except those reflected in such financial statements (or as described in the
Registration Statement, the
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General Disclosure Package and the Prospectus) or which are not material in amount or which
do not materially interfere with the use made or proposed to be made of the property. The
leases, agreements to purchase and mortgages to which the Company or any of its Subsidiaries
is a party, and the guaranties of third parties (a) are the legal, valid and binding
obligations of the Company, its Subsidiaries and, to the knowledge of the Company, of all
other parties thereto, and the Company knows of no default or defenses currently existing
with respect thereto which would reasonably be expected to result in any Material Adverse
Effect, and (b) conform to any descriptions thereof set forth in the Registration Statement,
the General Disclosure Package and the Prospectus. Each mortgage which the Company or any
of its Subsidiaries holds on the properties described in the Registration Statement, the
General Disclosure Package and the Prospectus constitutes a valid mortgage lien for the
benefit of the Company or its Subsidiary, as the case may be, on such property.
(xv) The Company has filed all Federal, state and foreign income tax returns which have
been required to be filed and has paid all taxes indicated by said returns and all
assessments received by it to the extent that such taxes have become due and are not being
contested in good faith. All tax liabilities have been adequately provided for in the
financial statements of the Company.
(xvi) Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, as each may be amended or
supplemented, except in each case as otherwise disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus, there has not been any material adverse
change or any development involving a prospective material adverse change in or affecting
the condition, financial or otherwise, of the Company or the earnings, capital stock (except
that issued and outstanding Common Stock of the Company has increased due to stock issuances
under the Company’s 2005 Long-Term Incentive Plan, issuances under the Company’s Second
Amended and Restated Dividend Reinvestment and Stock Purchase Plan and conversions of
preferred stock since December 31, 2009), business affairs, management, or business
prospects of the Company, whether or not occurring in the ordinary course of business, and
the Company has not incurred any material liabilities or obligations and there has not been
any material transaction entered into by the Company, other than transactions in the
ordinary course of business and transactions described in the Registration Statement, the
General Disclosure Package and the Prospectus, as each may be amended or supplemented. The
Company has no material contingent obligations which are not disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus.
(xvii) The Company is not in violation of its charter or by-laws. No Subsidiary is in
violation of its charter or by-laws, which violation will have, or after any required notice
and passage of any applicable grace period would have, a Material Adverse Effect. Neither
the Company nor any of its Subsidiaries are (a) in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a party or by which it
or any of its properties is bound, (b) in violation of any statute, or (c) in violation of
any order, rule or regulation applicable to the Company, its Subsidiaries or its properties,
of any court or of any regulatory body, administrative agency or other governmental body,
any of which defaults or violations described in clauses (a) through (c) will have, or after
any required notice and passage of any applicable grace period would have, a Material
Adverse Effect. The issue and sale of the Notes and the performance by the Company of all
of its obligations under the Notes, the Indenture and this Agreement and the consummation of
the transactions herein and therein contemplated and the fulfillment of the terms hereof and
thereof will not after any required notice and passage of any applicable grace period
conflict with or constitute a violation of any statute or
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conflict with or result in a breach of any of the terms or provisions of, constitute a
default under or result in the imposition of any lien pursuant to, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company, or any of its
Subsidiaries, is a party or by which it or any of its properties may be bound, or a
violation of its charter or by-laws or any order, rule or regulation applicable to the
Company, its Subsidiaries or its properties of any court or of any regulatory body,
administrative agency or other governmental body.
(xviii) Each approval, consent, order, authorization, designation, declaration or
filing by or with any regulatory, administrative or other governmental body necessary in
connection with the execution and delivery by the Company of this Agreement and the
consummation of the transactions contemplated by this Agreement and the Indenture (except
such additional steps as may be required by the Commission, the Financial Industry
Regulatory Authority, Inc. (“FINRA”) or may be necessary to qualify the Notes for public
offering by the Underwriters under state securities or Blue Sky laws) has been obtained or
made by the Company, and is in full force and effect.
(xix) The Company and its Subsidiaries hold all material licenses, certificates and
permits from governmental authorities which are necessary to the conduct of their businesses
and neither the Company nor any of its Subsidiaries have received any notice of infringement
or of conflict with asserted rights of others with respect to any patents, patent rights,
trade names, trademarks or copyrights, which infringement is material to the business of the
Company and its Subsidiaries.
(xx) The Company qualifies as a real estate investment trust pursuant to Sections 856
through 860 of the Internal Revenue Code of 1986, as amended, has so qualified for the
taxable years ended December 31, 1984 through December 31, 2009 and no transaction or other
event has occurred or is contemplated which would prevent the Company from so qualifying for
its current taxable year.
(xxi) To the best of the Company’s knowledge, Ernst & Young LLP, who have certified
certain of the financial statements and related schedules filed with the Commission as part
of, or incorporated by reference in, the Registration Statement, the General Disclosure
Package and the Prospectus, is an independent registered public accounting firm with respect
to the Company as required by the Securities Act and the Rules and Regulations and the
Public Company Accounting Oversight Board (the “PCAOB”).
(xxii) The Company and its Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (a) transactions are executed in
accordance with management’s general or specific authorization; (b) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for assets; (c)
access to assets is permitted only in accordance with management’s general or specific
authorization; and (d) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(xxiii) The Company has established and maintains disclosure controls and procedures
(as such term is defined in Rules 13a-15 and 15d-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information relating to the
Company, including its Subsidiaries, is made known to the Company’s Chief Executive Officer
and its Chief Financial Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for which they were
established; the Company’s auditors and
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the Audit Committee of the Board of Directors of the Company have been advised of: (a) any
significant deficiencies in the design or operation of internal controls which could
adversely affect the Company’s ability to record, process, summarize, and report financial
data; and (b) any fraud, whether or not material, that involves management or other
employees who have a role in the Company’s internal controls; any material weaknesses in
internal controls have been identified for the Company’s auditors; and since the date of the
most recent evaluation of such disclosure controls and procedures, there have been no
significant changes in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to significant deficiencies
and material weaknesses.
(xxiv) Since July 30, 2002, the Company has not, directly or indirectly, including
through any Subsidiary: (a) extended credit, arranged to extend credit, or renewed any
extension of credit, in the form of a personal loan, to or for any director or executive
officer of the Company, or to or for any family member or affiliate of any director or
executive officer of the Company; or (b) made any material modification, including any
renewal thereof, to any term of any personal loan to any director or executive officer of
the Company, or any family member or affiliate of any director or executive officer, which
loan was outstanding on July 30, 2002.
(xxv) To the knowledge of the Company, after inquiry of its officers and directors,
there are no affiliations with any FINRA member firm among the Company’s officers,
directors, or principal stockholders, except as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus, or as otherwise disclosed in writing to the
Underwriters.
(xxvi) This Agreement and the Indenture have been duly authorized, executed and
delivered by the Company.
(xxvii) Neither the Company nor any of its officers or directors has taken nor will any
of them take, directly or indirectly, any action resulting in a violation of Regulation M
promulgated under the Exchange Act, or designed to cause or result in, or which has
constituted or which reasonably might be expected to constitute, the stabilization or
manipulation of the price of the Notes or the Underlying Securities. The Company
acknowledges that the Underwriters may engage in transactions that stabilize, maintain or
otherwise affect the price of the Notes or the Underlying Securities, including stabilizing
bids, syndicate covering transactions and the imposition of penalty bids.
(xxviii) The Underlying Securities have been, or as of the Closing Date will be,
approved for listing subject to official notice of issuance on the NYSE.
(xxix) The Company is not, and immediately after the sale of the Notes pursuant to the
terms and conditions of this Agreement will not be, an “investment company” within the
meaning of the Investment Company Act of 1940.
2. Purchase, Sale and Delivery of the Notes.
On the basis of the representations, warranties
and covenants herein contained, and subject to the conditions herein set forth, the Company agrees
to sell to each Underwriter, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, the principal amount of Notes set forth opposite the name of such Underwriter in
Schedule I hereto (plus any additional principal amount of Notes which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 11 hereof) at a purchase price of
98.00% of the principal amount thereof, plus accrued interest (if any) to the Closing Date (as
defined below).
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Payment of the purchase price for, and delivery of certificate(s) for, the Notes shall be made
at the offices of UBS Securities LLC, 299 Park Avenue, New York, New York, at 10:00 a.m. New York
time, on March 15, 2010 or at such other time and date thereafter as the Representatives and the
Company shall agree upon, such time and date being herein referred to as the “Closing Date.” (As
used herein, “business day” means a day on which the New York Stock Exchange is open for trading
and on which banks in New York are open for business and not permitted by law or executive order to
be closed). Payment for the Notes to be sold hereunder is to be made by Federal Funds wire
transfer to an account designated by the Company, against delivery of the Notes to the
Underwriters. The Notes will be evidenced by a single definitive global certificate in book entry
form, fully registered in the name of Cede & Co., as nominee for The Depository Trust Company
(“DTC”), or registered in such other names and in such denominations as the Representatives request
in writing not later than the second full business day prior to the Closing Date. The single
global certificate will be made available for inspection by the Representatives at least one
business day prior to the Closing Date at such place as the Representatives, DTC and the Company
shall agree.
3. Offering by the Underwriters.
It is understood that the several Underwriters are to make a
public offering of the Notes as soon as the Representatives deem it advisable to do so. The Notes
are to be initially offered to the public at the price and upon the terms set forth in the
Prospectus. The Representatives may from time to time thereafter change the public offering price
and other selling terms.
4. Covenants of the Company.
The Company covenants and agrees with the Underwriters that:
(i) The Company will (a) prepare and timely file with the Commission under Rule 424(b)
(without reliance on Rule 424(b)(8)) under the Securities Act a prospectus in a form
approved by the Representatives containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under
the Securities Act, (b) not file any amendment to the Registration Statement or distribute
an amendment or supplement to the General Disclosure Package or the Prospectus or document
incorporated by reference therein of which the Representatives shall not previously have
been advised and furnished with a copy or to which the Representatives shall have reasonably
objected in writing or which is not in compliance with the Rules and Regulations for so long
as the Representatives may deem necessary to in order to complete the distribution of the
Notes and (c) file on a timely basis all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission subsequent to the date of
the Prospectus and prior to the termination of the offering of the Notes by the
Underwriters; provided, however, that for each such report or preliminary or definitive
proxy or information statement, the Company will not file any such report or preliminary or
definitive proxy or information statement, or amendment thereto, of which the
Representatives shall not previously have been advised and furnished with a copy or to which
the Representatives shall have reasonably objected in writing or which is not in compliance
with the Exchange Act.
(ii) The Company will (a) not make any offer relating to the Notes that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed
by the Company with the Commission under Rule 433 under the Securities Act unless the
Representatives approve its use in writing prior to first use (each, a “Permitted Free
Writing Prospectus”); provided that the prior written consent of the Representatives hereto
shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es)
included in Schedule II hereto, (b) treat each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus, (c) comply with the requirements of Rules 163, 164 and 433
under the Securities Act applicable to any Issuer Free Writing Prospectus,
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including the requirements relating to timely filing with the Commission, legending and
record keeping and (d) not take any action that would result in an Underwriter or the
Company being required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that
such Underwriter otherwise would not have been required to file thereunder.
(iii) The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting
the final terms of the Notes, in form and substance satisfactory to the Representatives, and
shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433
under the Securities Act prior to the close of business two business days after the date
hereof; provided that the Company shall provide the Representatives with copies of any such
Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use
or file any such document to which the Representatives or counsel to the Underwriters shall
reasonably object.
(iv) The Company will advise the Representatives promptly (a) when any post-effective
amendment to the Registration Statement or new registration statement relating to the Notes
shall have become effective, or any supplement to the Prospectus shall have been filed, (b)
of the receipt of any comments from the Commission, (c) of any request of the Commission for
amendment of the Registration Statement or the filing of a new registration statement or any
amendment or supplement to the General Disclosure Package or the Prospectus or any document
incorporated by reference therein or otherwise deemed to be a part thereof or for any
additional information, and (d) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or such new registration
statement or any order preventing or suspending the use of any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings
for that purpose for so long as the Representatives may deem necessary in order to complete
the distribution of the Notes, or of the suspension of the qualification of the Notes for
offering or sale in any jurisdiction, and the Company will use its best efforts to prevent
(x) the issuance of any such stop order suspending the effectiveness of the Registration
Statement or such new registration statement or any order preventing or suspending the use
of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or
(y) any such suspension of the qualification of the Notes for offering or sale in any
jurisdiction, and to obtain as soon as possible the lifting of any such order, if issued, or
such suspension of qualification.
(v) The Company will pay the fees applicable to the Registration Statement in
connection with the offering of the Notes within the time required by Rule 456(b)(1)(i)
under the Securities Act (without reliance on the proviso to Rule 456(b)(1)(i) under the
Securities Act) and in compliance with Rule 456(b) and Rule 457(r) under the Securities Act.
(vi) If at any time when Notes remain unsold by the Underwriters the Company receives
from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or
otherwise ceases to be eligible to use the automatic shelf registration statement form, the
Company will (a) promptly notify the Representatives, (b) promptly file a new registration
statement or post-effective amendment on the proper form relating to the Notes and the
Underlying Securities, in a form satisfactory to the Representatives, (c) use its best
efforts to cause such registration statement or post-effective amendment to be declared
effective as soon as practicable (if such filing is not otherwise effective immediately
pursuant to Rule 462 under the Securities Act), and (d) promptly notify the Representatives
of such effectiveness. The Company will take all other action necessary or appropriate to
permit the public offering and sale of the Notes to continue as contemplated in the
Registration Statement that was the subject of the notice under Rule 401(g)(2) under the
Securities Act or for which the Company has otherwise become
10
ineligible. References herein to the Registration Statement relating to the Notes and the
Underlying Securities shall include such new registration statement or post-effective
amendment, as the case may be.
(vii) If immediately prior to the third anniversary (the “Renewal Deadline”) of the
initial effective date of the Registration Statement, any of the Notes remain unsold by the
Underwriters, the Company will, prior to the Renewal Deadline file, if it has not already
done so and is eligible to do so, a new automatic shelf registration statement relating to
the Notes and the Underlying Securities, in a form satisfactory to the Representatives. If
the Company is not eligible to file an automatic shelf registration statement, the Company
will, prior to the Renewal Deadline, if it has not already done so, file a new shelf
registration statement relating to the Notes, in a form satisfactory to the Representatives,
and will use its best efforts to cause such registration statement to be declared effective
within 180 days after the Renewal Deadline. The Company will take all other action
necessary or appropriate to permit the public offering and sale of the Notes to continue as
contemplated in the expired registration statement. References herein to the Registration
Statement shall include such new automatic shelf registration statement or such new shelf
registration statement, as the case may be.
(viii) The Company will deliver to, or upon the order of, the Representatives, from
time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing
Prospectus as the Representatives may reasonably request. The Company will deliver to, or
upon the order of, the Representatives during the period when delivery of a Prospectus (or,
in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) is
required under the Securities Act, as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Representatives may reasonably request. The
Company will furnish upon request to the Representatives signed copies of the Registration
Statement and all amendments thereto including all exhibits filed therewith.
(ix) The Company will comply with the Securities Act and the Rules and Regulations and
the Exchange Act, and the rules and regulations of the Commission thereunder, so as to
permit the completion of the distribution of the Notes as contemplated in this Agreement and
the Prospectus. Subject to the provisions of Section 4(i) above, if during the period in
which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the
Securities Act) is required by law to be delivered by an Underwriter or a dealer any event
shall occur as a result of which, in the judgment of the Company or in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any
time to amend or supplement the Prospectus to comply with any law, the Company promptly will
either (a) prepare and file with the Commission an appropriate amendment to the Registration
Statement or supplement to the Prospectus or (b) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented will not, in the light of
the circumstances when it is so delivered, be misleading, or so that the Prospectus will
comply with law.
(x) If the General Disclosure Package is being used to solicit offers to buy the Notes
at a time when the Prospectus is not yet available to prospective purchasers and any event
shall occur as a result of which, in the judgment of the Company or in the reasonable
opinion of the Underwriters, it becomes necessary to amend or supplement the General
Disclosure Package in order to make the statements therein, in the light of the
circumstances, not misleading, or to make the statements therein not conflict with the
information contained in the Registration Statement then on file, or if it
11
is necessary at any time to amend or supplement the General Disclosure Package to comply
with any law, the Company promptly will either (a) prepare, file with the Commission (if
required) and furnish to the Underwriters and any dealers an appropriate amendment or
supplement to the General Disclosure Package or (b) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated by reference in the
General Disclosure Package so that the General Disclosure Package as so amended or
supplemented will not, in the light of the circumstances, be misleading or conflict with the
Registration Statement then on file, or so that the General Disclosure Package will comply
with law.
(xi) The Company will make generally available to its security holders, as soon as it
is practicable to do so, but in any event not later than 15 months after the effective date
of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an
earnings statement (which need not be audited) in reasonable detail, covering a period of
twelve consecutive months beginning after the effective date of the Registration Statement,
which earnings statement shall satisfy the requirements of Section 11(a) of the Securities
Act and Rule 158 under the Securities Act.
(xii) The Company will, for a period of five years from the Closing Date, furnish upon
request to the Representatives, as soon as practicable after the end of each fiscal year, a
copy of its annual report to shareholders for such year and the Company will furnish upon
request to the Representatives, as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the Exchange Act
or mailed to stockholders.
(xiii) The Company will use the net proceeds from the sale of the Notes pursuant to
this Agreement in the manner specified under the heading “Use of Proceeds” in the
Prospectus.
(xiv) No offering, sale or other disposition of any Notes, Common Stock or any
securities of the Company that are substantially similar to the Notes or the Common Stock
will be made for a period of 30 days after the date of this Agreement, directly or
indirectly, by the Company otherwise than hereunder or with the prior written consent of UBS
Securities LLC, except that the Company may, without such consent, (a) issue securities
under the Company’s equity compensation plans for officers, employees, and non-employee
directors described in the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2009; (b) issue shares upon the exercise of options or other stock rights
issued pursuant to the Company’s equity compensation plans for officers, employees, and
non-employee directors described in the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2009 and the Windrose Medical Properties Trust 2002 Stock Incentive
Plan; (c) sell shares of Common Stock pursuant to the Second Amended and Restated Dividend
Reinvestment and Stock Purchase Plan filed with the Commission on
May 15, 2007; (d) issue shares of Common Stock upon conversion of any shares of 6% Series E Cumulative Convertible
and Redeemable Preferred Stock or 7.5% Series G Cumulative Convertible Preferred Stock
outstanding as of the date hereof; or (e) issue shares of Common Stock upon conversion of
any 4.75% Convertible Senior Notes due 2026 and 4.75% Convertible Senior Notes due 2027
outstanding as of the date hereof.
(xv) Between the date of this Agreement and the Closing Date, the Company will not take
any action or authorize any action that would result in an adjustment of the conversion
price of the Notes if the Notes had been issued on the date hereof.
(xvi) The Company will reserve and keep available at all times, free of preemptive
rights, shares of Common Stock for the purpose of enabling the Company to satisfy any
obligations to issue its Common Stock upon conversion of the Notes.
12
5. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to the
performance of its obligations under this Agreement and the Indenture, including, without limiting
the generality of the foregoing, the following: the fees incident to the preparation, issuance,
execution, authentication and delivery of the Notes, including any expenses of the Trustee; the
fees payable to rating agencies in connection with the rating of the Notes; accounting fees of the
Company; the fees and disbursements of counsel for the Company; the cost of printing and delivering
to, or as requested by, the Underwriters, copies of the Registration Statement, the Preliminary
Prospectuses, the Issuer Free Writing Prospectuses, the Prospectus, this Agreement, the Indenture
and any amendments or supplements thereto; the fees incident to the listing of the Notes on any
securities exchange; the filing fees of the Commission; the filing fees and expenses (including
legal fees and disbursements) incident to securing any required review by the FINRA of the terms of
the sale of the Notes; and the fees incident to the listing of the Underlying Securities on the
NYSE and the applicable listing agreement with the NYSE. Any transfer taxes imposed on the sale of
the Notes to the several Underwriters will be paid by the Company. The Company shall not, however,
be required to pay for any of the Underwriters’ expenses except that, if this Agreement shall not
be consummated because the conditions in Section 7 hereof are not satisfied, or because this
Agreement is terminated by the Representatives pursuant to Section 6 hereof, or this Agreement is
terminated pursuant to Section 10(i)(a) or Section 10(i)(g) hereof, or by reason of any failure,
refusal or inability on the part of the Company to perform any undertaking or satisfy any condition
of this Agreement or to comply with any of the terms hereof on its part to be performed, unless
such failure to satisfy said condition or to comply with said terms be due to the default or
omission of any Underwriter, then the Company shall reimburse the several Underwriters for
reasonable out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred
in connection with investigating, marketing and proposing to market the Notes or in contemplation
of performing their obligations hereunder, but the Company shall not in any event be liable to any
of the several Underwriters for damages on account of loss of anticipated profits from the sale by
any of them of the Notes.
6. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters
to purchase the Notes on the Closing Date are subject to the accuracy, as of the Closing Date, of
the representations and warranties of the Company contained herein, and to the performance by the
Company of its covenants and obligations hereunder and to the following additional conditions:
(i) No stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and no proceedings for that purpose shall
have been taken or, to the knowledge of the Company, shall be contemplated or threatened by
the Commission. The Prospectus and each Issuer Free Writing Prospectus required to be filed
with the Commission shall have been filed as required by Rules 424, 430A, 430B, 430C or 433
under the Securities Act, as applicable, within the time period prescribed by, and in
compliance with, the Rules and Regulations, and any request by the Commission for additional
information (to be included in the Registration Statement or otherwise) shall have been
disclosed to the Representatives and complied with to their reasonable satisfaction.
(ii) Subsequent to the execution and delivery of this Agreement and prior to the
Closing Date, there shall not have occurred any downgrading, nor shall any notice have been
given of (a) any intended or potential downgrading or (b) any review or possible change that
does not indicate an affirmation or improvement in the rating, if any, accorded any
securities of or guaranteed by the Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities
Act.
13
(iii) The Representatives shall have received on the Closing Date the opinion of
Shumaker, Loop & Kendrick, LLP, counsel for the Company, dated the Closing Date and
addressed to the Representatives, as representatives of the several Underwriters, to the
effect that:
(a) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with corporate
power and authority to own its properties and conduct its business as described in
the Registration Statement, the General Disclosure Package and the Prospectus.
(b) The Company is duly qualified to transact business in all jurisdictions in
which the Company owns or leases real property, and in which the failure to qualify
would have a Material Adverse Effect.
(c) The information contained in the section captioned “Capitalization” in the
Prospectus (and any similar section or information contained in the General
Disclosure Package) sets forth the authorized, issued and outstanding capital stock
of the Company at the indicated date; the authorized shares of capital stock of the
Company have been duly authorized; the issued and outstanding shares of the capital
stock of the Company have been duly authorized and validly issued and are fully paid
and non-assessable; the Notes are free of statutory and contractual preemptive
rights and similar rights; the certificates for the Notes are in due and proper
form.
(d) The Registration Statement has become effective under the Securities Act
and, to such counsel’s knowledge no stop order proceedings with respect thereto have
been instituted or are pending or threatened under the Securities Act.
(e) The Registration Statement at the time the Registration Statement became
effective, the Prospectus, as of the date of the Prospectus and as of the date
hereof, and any amendment or supplement thereto, as of the date thereof, each
complied as to form in all material respects with the requirements of the Securities
Act and the rules and regulations of the Commission promulgated under the Securities
Act (except in each case such counsel need express no opinion as to the financial
statements, schedules and other financial or statistical data included or
incorporated by reference therein or omitted therefrom). The documents incorporated
by reference in the Prospectus (except, as to the financial statements and the
schedules and other financial and accounting data, and the statistical data derived
therefrom, as to all of which such counsel need express no opinion), at the
respective times such documents were filed with the Commission, complied as to form
in all material respects with the applicable requirements of the Exchange Act and
the rules and regulations of the Commission promulgated thereunder.
(f) The statements under the captions “Description of Notes,” “Description of
Debt Securities” and “Description of Our Common Stock” in the General Disclosure
Package and the Prospectus, insofar as such statements constitute a summary of
documents referred to therein or matters of law, fairly summarize in all material
respects the information called for with respect to such documents and matters.
(g) The statements under the caption “Certain Government Regulations” in the
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009,
and any amendments thereto, as to matters of law stated therein, have been reviewed
by such counsel and fairly summarize in all material respects the matters
14
described therein which are material to the business or condition (financial or
otherwise) of the Company.
(h) Such counsel does not know of any contracts or documents required to be
filed as exhibits to or incorporated by reference in the Registration Statement or
described in the Registration Statement or the Prospectus or any amendment or
supplement thereto which are not so filed, incorporated by reference or described as
required, and such contracts and documents that are required to be described in the
Registration Statement or the Prospectus or any amendment or supplement thereto are
fairly summarized therein in all material respects.
(i) Such counsel knows of no material legal proceedings pending or threatened
against the Company, except as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus.
(j) The execution and delivery of this Agreement and the Indenture and the
consummation of the transactions contemplated in this Agreement and the Indenture,
including the issuance and sale of the Notes, the issuance of the Underlying
Securities upon conversion of the Notes and the performance by the Company of its
obligations under the Notes, the Indenture and this Agreement, do not and will not
after any required notice and passage of any applicable grace period conflict with
or constitute a violation of any statute or conflict with or result in a breach of
any of the terms or provisions of, constitute a default under or result in the
imposition of any lien pursuant to, (1) the charter or by-laws of the Company, (2)
any agreement or instrument known to such counsel to which the Company is a party or
by which the Company or the Company’s properties may be bound, which conflict,
violation, breach, default or lien could reasonably be expected to have a Material
Adverse Effect or (3) any order known to such counsel or rule or regulation of any
court or governmental agency or body that in the experience of such counsel is
customarily applicable to the transactions herein contemplated (except that such
counsel expresses no opinion with respect to any requirement of FINRA or pursuant to
any state securities or Blue Sky laws).
(k) This Agreement has been duly authorized, executed and delivered by the
Company.
(l) The Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws now or hereafter in effect
relating to creditors’ rights generally and (B) general principles of equity and the
limits of specific performance and injunctive relief (regardless of whether
enforceability is considered in a proceeding at law or in equity); and the Indenture
has been duly qualified under the Trust Indenture Act.
(m) The Notes have been duly authorized and executed by the Company and when
authenticated in accordance with the terms of the Indenture and delivered to and
paid for by the Underwriters in accordance with the terms of the Agreement, will
constitute a valid and binding obligation of the Company entitled to the benefits
provided by the Indenture, enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by (A)
bankruptcy, insolvency,
15
reorganization, fraudulent conveyance, moratorium or similar laws now or hereafter
in effect relating to creditors’ rights generally and (B) general principles of
equity and the limits of specific performance and injunctive relief (regardless of
whether enforceability is considered in a proceeding at law or in equity).
(n) The Underlying Securities issuable upon conversion of the Notes pursuant to
the Indenture have been duly authorized by all necessary corporate action and, when
issued upon conversion of the Notes in accordance with the terms of the Indenture,
will be validly issued, fully paid and non-assessable and free of statutory and
contractual preemptive rights and similar rights. The resolutions of the Board of
Directors of the Company approving the issuance of the Notes state that they have
reserved the Underlying Securities for issuance.
(o) The Indenture, the Notes and the Underlying Securities conform in all
material respects to the descriptions thereof contained in the Registration
Statement, the General Disclosure Package and the Prospectus.
(p) No approval, consent, order, authorization, designation, declaration or
filing by or with any regulatory, administrative or other governmental body is
necessary in connection with the execution and delivery of this Agreement or the
Indenture and the consummation of the transactions contemplated in this Agreement
and the Indenture (other than as may be required by the Commission or FINRA or as
required by state securities and Blue Sky laws as to which such counsel need express
no opinion) except such as have been obtained or made by the Company, specifying the
same.
(q) The Company is not an “investment company” within the meaning of the
Investment Company Act of 1940.
(r) Any required filing pursuant to Rule 433 under the Securities Act of each
Issuer Free Writing Prospectus that is identified in Schedule III hereto has been
made within the time period required by Rule 433(d) under the Securities Act.
In addition, either such counsel or Arnold & Porter LLP, special tax counsel to the
Company, will provide an opinion, based on such counsel’s own review of the Company’s
certificate of incorporation, stating that the Company was organized and continues to be
organized in conformity with the requirements for qualification as a real estate investment
trust under subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), and,
based on such counsel’s review of the Company’s federal income tax returns and discussions
with management and independent public accountants for the Company, that the Company, taking
into account operations for its taxable and fiscal years ended December 31, 2003 through
December 31, 2009, satisfied the requirements for qualification and taxation as a real
estate investment trust under the Code for such years and that its proposed method of
operation will enable it to meet the requirements for qualification and taxation as a real
estate investment trust under the Code for its taxable and fiscal year ending December 31,
2010. Furthermore, such counsel shall opine that the statements contained under the
headings “Certain Federal Income Tax Considerations” and “U.S. Federal Income Tax
Considerations” in the Registration Statement, the General Disclosure Package and the
Prospectus and under the heading “Taxation” in the Company’s Annual Report on Form 10-K for
the fiscal year ended December 31, 2009, and any amendments thereto (and any similar
sections or information contained in the General Disclosure Package), are correct and
accurate in all material respects and present fairly and accurately the
16
material aspects of the federal income tax (i) treatment of the Company (ii) considerations
that are likely to be material to a holder of the Common Stock.
In rendering such opinion, such counsel may rely as to matters governed by the laws of
states other than the laws of the State of Ohio, the corporate laws of the State of Delaware
or Federal laws on local counsel in such jurisdictions, provided that in such case such
counsel shall state that they believe that they and the Underwriters are justified in
relying on such other counsel and such other counsel shall indicate that the Underwriters
may rely on such opinion. As to matters of fact, to the extent they deem proper, such
counsel may rely on certificates of officers of the Company and public officials so long as
such counsel states that they have no reason to believe that either the Underwriters or they
are not justified in relying on such certificates. In addition to the matters set forth
above, the opinion of Shumaker, Loop & Kendrick, LLP shall also include a statement to the
effect that nothing has come to the attention of such counsel which leads them to believe
that (a) the Registration Statement, as of the time of its effectiveness for purposes of
Section 11 of the Securities Act and as of the Applicable Time, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, (b) the
General Disclosure Package, as of the Applicable Time, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading and
(c) the Prospectus, or any supplement thereto, as of its date and as of the Closing Date
contained or contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except, in each of clauses (a),
(b) and (c), that such counsel need express no view as to the financial statements thereto
and the schedules and other financial and accounting data, and the statistical data derived
therefrom, included in the General Disclosure Package, Registration Statement or the
Prospectus and the Form T-1). With respect to such statement, Shumaker, Loop & Kendrick,
LLP may state that this statement is based upon the procedures set forth or incorporated by
reference therein, but is without independent check and verification.
(iv) The Representatives shall have received on the Closing Date from Dewey & LeBoeuf
LLP, counsel for the Underwriters, an opinion dated the Closing Date with respect to the
organization of the Company, the validity of the Indenture and the Notes, the Registration
Statement, the General Disclosure Package and the Prospectus, and other related matters as
the Representatives reasonably may request, and such counsel shall have received such papers
and information as it reasonably requests to enable it to pass upon such matters.
(v) At the time of execution of this Agreement, the Representatives shall have received
from Ernst & Young LLP a signed letter, in form and substance satisfactory to the
Representatives, dated the date hereof (a) confirming that they are an independent
registered public accounting firm with respect to the Company and its Subsidiaries within
the meaning of the Securities Act, the Rules and Regulations and the PCAOB and are in
compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission and (b) stating the conclusions and
findings of such firm with respect to the financial information examined by them and
included or incorporated by reference in the Registration Statement and the General
Disclosure Package and containing such other statements and information as is ordinarily
included in accountants’ “comfort letters” to underwriters in connection with registered
public offerings.
(vi) With respect to the letter of Ernst & Young LLP referred to in the preceding
paragraph and delivered to the Representatives concurrently with the execution of this
Agreement
17
(the “initial letter”), the Company shall have furnished to the Representatives a letter, in
form and substance satisfactory to the Representatives (the “bring-down letter”), of such
accountants, dated the Closing Date, (a) confirming that they are an independent registered
public accounting firm with respect to the Company and its Subsidiaries within the meaning
of the Securities Act, the Rules and Regulations and the PCAOB and are in compliance with
the applicable requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (b) stating the conclusions and findings of such firm with
respect to the financial information and other matters covered by the initial letter and the
financial information examined by them and included in the Prospectus and (c) confirming in
all material respects the conclusions and findings set forth in the initial letter.
(vii) The Representatives shall have received on the Closing Date a certificate or
certificates of the Chairman of the Board and Chief Executive Officer and the Senior Vice
President and Chief Financial Officer of the Company to the effect that on and as of the
Closing Date, each of them severally represents as follows:
(a) The Registration Statement has become effective under the Securities Act
and no stop order suspending the effectiveness of the Registration Statement or no
order preventing or suspending the use of any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus has been issued, and no proceedings for
such purpose have been taken or are, to his knowledge, contemplated by the
Commission.
(b) Subsequent to the delivery of this Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall any notice have been given
of (A) any intended or potential downgrading or (B) any review or possible change
that does not indicate an affirmation or improvement in the rating, if any, accorded
any securities of or guaranteed by the Company by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule
436(g)(2) of the Securities Act.
(c) He does not know of any litigation instituted or threatened against the
Company of a character required to be disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus which is not so disclosed therein or
in a document incorporated by reference therein; he does not know of any material
contract required to be filed as an exhibit to the Registration Statement which is
not so filed therein or in a document incorporated by reference therein.
(d) He has carefully examined the General Disclosure Package and any individual
Limited Use Free Writing Prospectus and, in his opinion, as of the Applicable Time,
the statements contained in the General Disclosure Package and any individual
Limited Use Free Writing Prospectus did not contain any untrue statement of a
material fact, and such General Disclosure Package and any individual Limited Use
Free Writing Prospectus, when considered together with the General Disclosure
Package, did not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made,
not misleading.
(e) He has carefully examined the Registration Statement and the Prospectus and
in his opinion, as of the effective date of the Registration Statement, the
statements contained in the Registration Statement, including any document
incorporated by reference therein, were true and correct, and such Registration
Statement and Prospectus, or any document incorporated by reference therein, did not
omit to state a material fact
18
required to be stated therein or necessary in order to make the statements therein
not misleading and, in his opinion, since the effective date of the Registration
Statement, no event has occurred which should have been set forth in a supplement to
or an amendment of the Prospectus which has not been so set forth in such supplement
or amendment.
(f) The representations and warranties of the Company as set forth in this
Agreement are true and correct as of the Closing Date as if made on such date. The
Company has performed all of its obligations under this Agreement as are to be
performed at or before the Closing Date. The representations and warranties made in
this clause (f) shall be deemed made by the Company.
(viii) The Representatives shall have received at or prior to the Closing Date, an
agreement, in form and substance satisfactory to the Representatives, signed by the
executive officers of the Company, as listed on Schedule IV hereto (the “Executive
Officers”), to the effect that they will not, prior to the expiration of 30 days from the
date of this Agreement, offer, sell or otherwise dispose of any Notes, shares of Common
Stock, securities of the Company substantially similar to the Notes or the Common Stock, or
any securities that the Executive Officers have, or will have, the right to acquire through
the exercise of options, warrants, subscription or other rights, without the prior written
consent of UBS Securities LLC, except (a) pursuant to bona fide gifts, provided that the
Company shall have delivered to UBS Securities LLC written consent to such gift, but in no
event shall the gifts under this subsection (a) of the Executive Officers exceed 75,000
shares of Common Stock in the aggregate, (b) pursuant to routine dispositions under Rule
10b5-1 Sales Plans entered into by certain Executive Officers of the Company prior to or
after the date hereof, but in no event shall the dispositions under this subsection (b) of
the Executive Officers of the Company exceed 300,000 shares of Common Stock in the
aggregate, and (c) shares obtained pursuant to the Company’s equity compensation plans for
officers, employees, and non-employee directors, provided that the Company shall have
delivered to UBS Securities LLC written consent to such sale, but in no event shall the
sales under this subsection (c) of the Executive Officers exceed 500,000 shares of Common
Stock in the aggregate.
(ix) The Common Stock issuable upon conversion of the Notes to be sold by the Company
as of the Closing Date shall have been duly listed, subject to notice of issuance, on the
NYSE.
The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in all material respects reasonably satisfactory to the
Representatives and to Dewey & LeBoeuf LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the obligations of the
Underwriters hereunder may be terminated by the Representatives by notifying the Company of such
termination in writing or by telecopy at or prior to the Closing Date. In such event, the Company
and the Underwriters shall not be under any obligation to each other (except to the extent provided
in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company.
The obligations of the Company to sell and
deliver the portion of the Notes required to be delivered as and when specified in this Agreement
are subject to the conditions that, at the Closing Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued and in effect or proceedings therefor
initiated or threatened.
19
8. Indemnification.
(i) The Company agrees to indemnify and hold harmless each Underwriter, its officers
and directors, and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act against any
losses, claims, damages or liabilities to which such Underwriter or such controlling person
may become subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (a) any untrue statement or alleged untrue statement of any material fact
contained or incorporated by reference in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any amendment or
supplement thereto or (b) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading in
the case of the Registration Statement or any amendment thereto, or in the case of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus or any
amendment or supplement thereto, in light of the circumstances under which they were made,
and will reimburse each such Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim, damage, liability, action
or proceeding; provided, however, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or alleged omission made or
incorporated by reference in the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the Company by or
through the Representatives specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which the Company may otherwise have.
(ii) Each Underwriter, severally and not jointly, will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the Registration
Statement, and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which the Company or any such director, officer or controlling
person may become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any material fact
contained or incorporated by reference in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in the case of the Registration Statement or any amendment
thereto, or in the case of any Preliminary Prospectus, any Issuer Free Writing Prospectus or
the Prospectus, or any amendment or supplement thereto, in the light of the circumstances
under which they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in connection
with investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that each Underwriter will be liable in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission has been made or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus,
or such amendment or supplement, in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives specifically for use in the
preparation thereof
20
as described in Section 13 of this Agreement. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(iii) In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought pursuant to this
Section 8, such person (the “indemnified party”) shall promptly notify the person against
whom such indemnity may be sought (the “indemnifying party”) in writing; provided that the
failure to so notify will not relieve the indemnifying party from any liability that the
indemnifying party may have on account of the provisions of Sections 8(i) or (ii) or
otherwise, except to the extent that the indemnifying party shall not have otherwise learned
of such proceeding and such failure is materially prejudicial to the indemnifying party. In
case any such proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party and shall pay as incurred the fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of the counsel
retained by the indemnified party in the event (a) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or (b) the
named parties to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them,
in which case the indemnifying party shall not be entitled to assume the defense of such
suit notwithstanding its obligation to bear the fees and expenses of such counsel. It is
understood that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses
of more than one separate firm for all such indemnified parties and one local counsel. Such
firm shall be designated in writing by the Representatives in the case of parties
indemnified pursuant to Section 8(i) and by the Company in the case of parties indemnified
pursuant to Section 8(ii). No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement, compromise or consent to the entry of
judgment in any pending or threatened action, suit or proceeding in respect of which such
indemnified party is a party and indemnity was sought hereunder by such indemnified party,
unless such settlement, compromise or consent (x) includes an unconditional release of such
indemnified party from al liability on claims that are the subject matter of such action,
suit or proceeding and (y) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of such indemnified party. The
indemnifying party shall not be liable for any settlement of any proceeding effected without
its written consent but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel as contemplated by
the fifth sentence of this paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent to which the
indemnification obligations of the Company hereunder are applicable if (a) such settlement
is entered into more than 60 days after receipt by such indemnifying party of the aforesaid
request and (b) such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement (unless the indemnified
party is contesting in good faith the amount reimbursable).
21
(iv) If the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless to the extent required therein an indemnified party under
Sections 8(i) or (ii) above in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received by the Company
and the Underwriters from the offering of the Notes. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 8(iii) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company and the Underwriters bear to the total proceeds of the offering (the
proceeds received by the Underwriters being equal to the total underwriting discounts and
commissions received by the Underwriters), in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(iv) were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable considerations
referred to above in this Section 8(iv). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above in this Section 8(iv) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 8(iv), (a) no Underwriter shall be required to contribute any amount in excess of
the underwriting discounts and commissions applicable to the Notes purchased by such
Underwriter and (b) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations under
this Section 8(iv) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(v) In any proceeding relating to the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any supplement or
amendment thereto, each party against whom contribution may be sought under this Section 8
hereby consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served upon him or it
by any other contributing party and consents to the service of such process and agrees that
any other contributing party may join him or it as an additional defendant in any such
proceeding in which such other contributing party is a party.
9. Notices.
All communications hereunder shall be in writing and, except as otherwise
provided herein, will be mailed, delivered or telecopied and confirmed as follows: if to the
Underwriters,
22
to UBS Securities LLC, 299 Park Avenue, New York, New York 10171, or via fax at (212) 821-4610,
Attention: Equity Capital Markets, with a copy to the General Counsel via fax at (212) 821-4042; if
to the Company, to Health Care REIT, Inc., One SeaGate, Suite 1500, Toledo, Ohio 43603-1475, or via
fax at (419) 247-2826, Attention: George L. Chapman, Chairman of the Board, Chief Executive
Officer and President.
10. Termination.
This Agreement may be terminated by the Representatives by notice to the
Company as follows:
(i) at any time prior to the Closing Date, if any of the following has occurred:
(a) since the date hereof, any adverse change or any development involving a prospective
adverse change in or affecting the condition, financial or otherwise, of the Company or the
earnings, business affairs, management or business prospects of the Company, whether or not
arising in the ordinary course of business, that, in your judgment, is material so as to
make the offering or delivery of the Notes impracticable or inadvisable, (b) any outbreak or
escalation of hostilities or declaration of war or national emergency after the date hereof
or other national or international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, escalation, declaration, emergency, calamity,
crisis or change on the financial markets of the United States would, in your judgment, make
the offering or delivery of the Notes impracticable or inadvisable, (c) trading in
securities generally on the NYSE, the NYSE Amex Equities or the NASDAQ, or in the Company’s
securities on the NYSE, shall have been suspended or materially limited (other than
limitations on hours or numbers of days of trading) or minimum prices shall have been
established for securities on any such exchange, (d) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation, rule or order of any court
or other governmental authority which in your reasonable opinion materially and adversely
affects or will materially or adversely affect the business or operations of the Company,
(e) declaration of a banking moratorium by either federal or New York State authorities or
material disruption in securities settlement or clearance services in the United States,
(f) any litigation or proceeding is pending or threatened against any Underwriter which
seeks to enjoin or otherwise restrain, or seeks damages in connection with, or questions the
legality or validity of this Agreement or the transactions contemplated hereby, or (g) any
downgrading, or the giving of any notice of (1) any intended or potential downgrading or (2)
any review or possible change that does not indicate an affirmation or improvement in the
rating, if any, accorded to any securities of or guaranteed by the Company by any
“nationally recognized statistical rating organization,” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; or
(ii) as provided in Sections 6 and 11 of this Agreement.
11. Default by Underwriters.
If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Notes that it has or they have agreed to purchase hereunder on
such date (except in the event of a default on the part of the Company), and the aggregate
principal amount of Notes which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is ten percent or less of the aggregate principal amount of Notes to be
purchased on such date, the other Underwriters may make arrangements satisfactory to the
Representatives for the purchase of such Notes by other persons (who may include one or more of the
non-defaulting Underwriters, including the Representatives), but if no such arrangements are made
by the Closing Date, the other Underwriters shall be obligated severally in the proportions that
the principal amount of Notes set forth opposite their respective names in Schedule I hereto bears
to the aggregate principal amount of Notes set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify, to purchase the
Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on
such date. If, on the Closing Date, any Underwriter or Underwriters shall fail or
23
refuse to purchase Notes and the aggregate principal amount of Notes with respect to which such
default (except in the event of a default on the part of the Company) occurs is more than ten
percent of the aggregate principal amount of Notes to be purchased, and arrangements satisfactory
to the Representatives and the Company for the purchase of such Notes are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the Representatives or the
Company shall have the right to postpone the Closing, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement, the General Disclosure
Package or the Prospectus or in any other documents or arrangements may be effected. As used in
this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under
this Section 11. Any action taken under this Section 11 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under this Agreement.
12. Successors.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and their respective successors, executors, administrators, heirs and
assigns, and the officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. The term “successors” shall not include any
purchaser of the Notes merely because of such purchase.
13. Information Provided by Underwriters.
The Company and the Underwriters acknowledge and
agree that the only information furnished or to be furnished by the Underwriters to the Company for
inclusion in the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus consists of the information set forth in the third, fourth and tenth
through thirteenth paragraphs (provided that, with respect to such thirteenth paragraph, only the
Underwriter that maintains a website through which information relating to the sale of the Notes is
provided shall be deemed to have provided information through such website for purposes of this
Section 13 and the information so provided shall be deemed to include only the information
contained in such website other than the Prospectus) under the caption “Underwriting” in the
Prospectus.
14. Miscellaneous.
The reimbursement, indemnification and contribution agreements contained
in this Agreement and the representations, warranties and covenants in this Agreement shall remain
in full force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or controlling person thereof, or by or on
behalf of the Company or its directors or officers and (iii) delivery of and payment for the Notes
under this Agreement.
The Company hereby acknowledges that each of the Underwriters is acting solely as an
underwriter in connection with the purchase and sale of the Company’s securities. The Company
further acknowledges that the Underwriters are acting pursuant to a contractual relationship
created solely by this Agreement entered into on an arm’s length basis and in no event do the
parties intend that any Underwriter act or be responsible as a fiduciary to the Company, its
management, stockholders, creditors or any other person in connection with any activity that any
Underwriter may undertake or has undertaken in furtherance of the purchase and sale of the
Company’s securities, either before or after the date hereof. The Underwriters hereby expressly
disclaim any fiduciary or similar obligations to the Company, either in connection with the
transactions contemplated by this Agreement or any matters leading up to such transactions, and the
Company hereby confirms its understanding and agreement to that effect. The Company and the
Underwriters agree that they are each responsible for making their own independent judgments with
respect to any such transactions, and that any opinions or views expressed by the Underwriters to
the Company regarding such transactions, including but not limited to any opinions or views with
respect to the price or market for the Company’s securities, do not constitute advice or
recommendations to the Company. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Underwriters with respect to any
24
breach or alleged breach of any fiduciary or similar duty to the Company in connection with
the transactions contemplated by this Agreement or any matters leading up to such transactions.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with, the laws of the State
of New York. The Company and the Underwriters each submits to the exclusive jurisdiction of the
courts of the State of New York located in the City and County of New York and the United States
District Court for the Southern District of New York with respect to any action or dispute in any
way arising out of or relating to this Agreement. Each of the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and affiliates) and the
Underwriters waives all right to trial by jury in any action, proceeding or counterclaim (whether
based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement.
[The remainder of this page is intentionally left blank.]
25
If the foregoing letter is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among
the Company and the Underwriters in accordance with its terms.
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Very truly yours,
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HEALTH CARE REIT, INC.
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By:
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/s/ Michael A. Crabtree
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Name:
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Michael A. Crabtree
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Title:
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Senior Vice President and Treasurer
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The foregoing Underwriting Agreement
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is hereby confirmed and accepted as
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of the date first above written.
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UBS SECURITIES LLC
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J.P. MORGAN SECURITIES INC.
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As Representatives of the Underwriters listed on Schedule I
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By:
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UBS SECURITIES LLC
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By:
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/s/ Robert Crowell
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Name:
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Robert Crowell
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Title:
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Executive Director
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By:
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/s/ Kristin Kusmierz
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Name:
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Kristin Kusmierz
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Title:
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Director
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By:
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J.P. MORGAN SECURITIES INC.
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By:
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/s/ Santosh Sreenivasan
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Name:
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Santosh Sreenivasan
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Title:
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Managing Director
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SCHEDULE I
Schedule of Underwriters
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Amount of Notes to
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Underwriter
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be Purchased
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UBS Securities LLC
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$
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256,795,500
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J.P. Morgan Securities Inc.
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85,598,500
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Total
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$
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342,394,000
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SCHEDULE II
1. Indicative Pricing Term Sheet, dated March 9, 2010, as attached.
2. Pricing Term Sheet, dated March 10, 2010, as attached.
SCHEDULE III
Schedule of Subsidiaries
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State of Organization
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Date of
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Name of Subsidiary
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and Type of Entity
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Organization
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Paramount Real Estate Services, Inc.
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Delaware limited liability company
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March 23, 1989
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HCRI Pennsylvania Properties, Inc.
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Pennsylvania corporation
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November 1, 1993
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HCRI Texas Properties, Inc.
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Delaware corporation
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December 27, 1996
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HCRI Texas Properties, Ltd.
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Texas limited partnership
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December 30, 1996
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HCRI Nevada Properties, Inc.
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Nevada corporation
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March 27, 1998
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HCRI Southern Investments I, Inc.
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Delaware corporation
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June 11, 1998
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HCRI Louisiana Properties, L.P.
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Delaware limited partnership
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June 11, 1998
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HCN BCC Holdings, Inc.
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Delaware corporation
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September 25, 1998
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HCRI Tennessee Properties, Inc.
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Delaware corporation
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September 25, 1998
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HCRI Limited Holdings, Inc.
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Delaware corporation
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September 25, 1998
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Pennsylvania BCC Properties, Inc.
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Pennsylvania corporation
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September 25, 1998
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HCRI North Carolina Properties, LLC
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Delaware limited liability company
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December 10, 1999
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HCRI Massachusetts Properties, Inc.
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Delaware corporation
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March 17, 2000
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HCRI Massachusetts Properties Trust
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Massachusetts trust
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March 30, 2000
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HCRI Indiana Properties, Inc.
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Delaware corporation
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June 15, 2000
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HCRI Indiana Properties, LLC
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Indiana limited liability company
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June 16, 2000
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HCRI Holdings Trust
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Massachusetts trust
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September 11, 2000
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Hammes Company Green Bay I, LLC
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Wisconsin limited liability company
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October 27, 2000
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Hammes Company Green Bay II, LLC
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Wisconsin limited liability company
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October 27, 2000
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HCRI Maryland Properties, LLC
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Maryland limited liability company
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July 19, 2001
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HCRI Massachusetts Properties Trust II
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Massachusetts trust
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September 26, 2001
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HCRI Beachwood, Inc.
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Ohio corporation
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October 11, 2001
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HCRI Broadview, Inc.
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Ohio corporation
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October 11, 2001
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State of Organization
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Date of
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Name of Subsidiary
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and Type of Entity
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Organization
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HCRI Westlake, Inc.
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Ohio corporation
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October 11, 2001
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HCRI Wisconsin Properties, LLC
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Wisconsin limited liability company
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December 11, 2001
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HCRI North Carolina Properties I, Inc.
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North Carolina corporation
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January 1, 2002
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HCRI North Carolina Properties II, Inc.
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North Carolina corporation
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January 1, 2002
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HCRI North Carolina Properties III,
Limited Partnership
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North Carolina limited partnership
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January 1, 2002
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HCRI Kentucky Properties, LLC
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Kentucky limited liability company
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January 7, 2002
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Badger RE Portfolio I, LLC
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Wisconsin limited liability company
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March 6, 2002
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HCRI Mississippi Properties, Inc.
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Mississippi corporation
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March 28, 2002
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HCRI Illinois Properties, LLC
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Delaware limited liability company
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August 21, 2002
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HCRI Missouri Properties, LLC
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Delaware limited liability company
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August 21, 2002
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Badger RE Portfolio II, LLC
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Wisconsin limited liability company
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October 11, 2002
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Badger RE Portfolio III, LLC
|
|
Wisconsin limited liability company
|
|
October 22, 2002
|
|
HCRI Tucson Properties, Inc.
|
|
Delaware corporation
|
|
November 14, 2002
|
|
Badger RE Portfolio IV, LLC
|
|
Wisconsin limited liability company
|
|
December 6, 2002
|
|
AMCO I, LLC
|
|
Wisconsin limited liability company
|
|
January 14, 2003
|
|
HCRI Cold Spring Properties, LLC
|
|
Delaware limited liability company
|
|
June 25, 2003
|
|
HCRI Eddy Pond Properties Trust
|
|
Massachusetts trust
|
|
June 26, 2003
|
|
HCRI Investments, Inc.
|
|
Delaware corporation
|
|
July 30, 2003
|
|
HCRI Forest City Holdings, Inc.
|
|
North Carolina corporation
|
|
August 19, 2003
|
|
HCRI Asheboro Holdings, Inc.
|
|
North Carolina corporation
|
|
August 19, 2003
|
|
HCRI Smithfield Holdings, Inc.
|
|
North Carolina corporation
|
|
August 19, 2003
|
|
HCRI Greenville Holdings, Inc.
|
|
North Carolina corporation
|
|
August 19, 2003
|
|
HCRI Forest City Properties, LP
|
|
North Carolina limited partnership
|
|
August 19, 2003
|
|
HCRI Asheboro Properties, LP
|
|
North Carolina limited partnership
|
|
August 19, 2003
|
|
HCRI Smithfield Properties, LP
|
|
North Carolina limited partnership
|
|
August 19, 2003
|
|
HCRI Greenville Properties, LP
|
|
North Carolina limited partnership
|
|
August 19, 2003
|
|
|
|
|
|
|
|
|
|
State of Organization
|
|
Date of
|
|
Name of Subsidiary
|
|
and Type of Entity
|
|
Organization
|
|
HCRI Kirkland Properties, LLC
|
|
Delaware limited liability company
|
|
August 22, 2003
|
|
HCRI Ridgeland Pointe Properties, LLC
|
|
Delaware limited liability company
|
|
August 22, 2003
|
|
HCRI Drum Hill Properties, LLC
|
|
Delaware limited liability company
|
|
August 22, 2003
|
|
HCRI Fairmont Properties, LLC
|
|
Delaware limited liability company
|
|
August 22, 2003
|
|
HCRI Abingdon Holdings, Inc.
|
|
North Carolina corporation
|
|
September 10, 2003
|
|
HCRI Gaston Manor Holdings, Inc.
|
|
North Carolina corporation
|
|
September 10, 2003
|
|
HCRI Eden Holdings, Inc.
|
|
North Carolina corporation
|
|
September 10, 2003
|
|
HCRI Weddington Park Holdings, Inc.
|
|
North Carolina corporation
|
|
September 10, 2003
|
|
HCRI Concord Place Holdings, Inc.
|
|
North Carolina corporation
|
|
September 10, 2003
|
|
HCRI Burlington Manor Holdings, Inc.
|
|
North Carolina corporation
|
|
September 10, 2003
|
|
HCRI Skeet Club Manor Holdings, Inc.
|
|
North Carolina corporation
|
|
September 10, 2003
|
|
HCRI High Point Manor Holdings, Inc.
|
|
North Carolina corporation
|
|
September 10, 2003
|
|
HCRI Statesville Place Holdings I, Inc.
|
|
North Carolina corporation
|
|
September 10, 2003
|
|
HCRI Statesville Place Holdings II, Inc.
|
|
North Carolina corporation
|
|
September 10, 2003
|
|
HCRI Abingdon Properties, LP
|
|
North Carolina limited partnership
|
|
September 10, 2003
|
|
HCRI Gaston Manor Properties, LP
|
|
North Carolina limited partnership
|
|
September 10, 2003
|
|
HCRI Eden Properties, LP
|
|
North Carolina limited partnership
|
|
September 10, 2003
|
|
HCRI Weddington Park Properties, LP
|
|
North Carolina limited partnership
|
|
September 10, 2003
|
|
HCRI Concord Place Properties, LP
|
|
North Carolina limited partnership
|
|
September 10, 2003
|
|
HCRI Burlington Manor Properties, LP
|
|
North Carolina limited partnership
|
|
September 10, 2003
|
|
HCRI Skeet Club Manor Properties, LP
|
|
North Carolina limited partnership
|
|
September 10, 2003
|
|
HCRI High Point Manor Properties, LP
|
|
North Carolina limited partnership
|
|
September 10, 2003
|
|
HCRI Statesville Place Properties I, LP
|
|
North Carolina limited partnership
|
|
September 10, 2003
|
|
HCRI Statesville Place Properties II, LP
|
|
North Carolina limited partnership
|
|
September 10, 2003
|
|
Badger RE Portfolio V, LLC
|
|
Wisconsin limited liability company
|
|
November 19, 2003
|
|
HCRI Kansas Properties, LLC
|
|
Delaware limited liability company
|
|
September 3, 2004
|
|
|
|
|
|
|
|
|
|
State of Organization
|
|
Date of
|
|
Name of Subsidiary
|
|
and Type of Entity
|
|
Organization
|
|
HCRI Hunters Glen Properties, LLC
|
|
Delaware limited liability company
|
|
September 21, 2004
|
|
HCRI Wilburn Gardens Properties, LLC
|
|
Delaware limited liability company
|
|
September 21, 2004
|
|
HCRI Draper Place Properties Trust
|
|
Massachusetts trust
|
|
September 24, 2004
|
|
HCRI Marina Place Properties Trust
|
|
Massachusetts trust
|
|
September 24, 2004
|
|
HCRI Tennessee Properties, LLC
|
|
Delaware limited liability company
|
|
November 12, 2004
|
|
HH Florida, LLC
|
|
Delaware limited liability company
|
|
November 23, 2004
|
|
HCRI New Hampshire Properties, LLC
|
|
Delaware limited liability company
|
|
May 24, 2005
|
|
HCRI Dayton Place – Denver Properties,
LLC
|
|
Delaware limited liability company
|
|
May 24, 2005
|
|
HCRI Provider Properties, LLC
|
|
Delaware limited liability company
|
|
November 10, 2005
|
|
1920 Cleveland Road West, LLC
|
|
Delaware limited liability company
|
|
December 15, 2005
|
|
721 Hickory Street, LLC
|
|
Delaware limited liability company
|
|
December 15, 2005
|
|
111 Lazelle Road East, LLC
|
|
Delaware limited liability company
|
|
December 15, 2005
|
|
5166 Spanson Drive SE, LLC
|
|
Delaware limited liability company
|
|
December 15, 2005
|
|
1425 Yorkland Road, LLC
|
|
Delaware limited liability company
|
|
December 15, 2005
|
|
222 East Beech Street – Jefferson, L.L.C.
|
|
Delaware limited liability company
|
|
December 16, 2005
|
|
130 Buena Vista Street, LLC
|
|
Delaware limited liability company
|
|
December 19, 2005
|
|
1850 Crown Park Court, LLC
|
|
Delaware limited liability company
|
|
December 19, 2005
|
|
1785 Freshley Avenue, LLC
|
|
Delaware limited liability company
|
|
December 19, 2005
|
|
5700 Karl Road, LLC
|
|
Delaware limited liability company
|
|
December 19, 2005
|
|
HCRI Senior Housing Properties, Inc.
|
|
Delaware corporation
|
|
March 24, 2006
|
|
209 Merriman Road, L.L.C.
|
|
Delaware limited liability company
|
|
May 10, 2006
|
|
HCRI Financing, Inc.
|
|
Delaware corporation
|
|
June 26, 2006
|
|
Warrior LP Holdco, LLC
|
|
Delaware limited liability company
|
|
September 12, 2006
|
|
Heat Merger Sub, LLC
|
|
Delaware limited liability company
|
|
September 12, 2006
|
|
Heat OP TRS, Inc.
|
|
Delaware limited liability company
|
|
December 14, 2006
|
|
|
|
|
|
|
|
|
|
State of Organization
|
|
Date of
|
|
Name of Subsidiary
|
|
and Type of Entity
|
|
Organization
|
|
Anchor HCN Properties, LLC
|
|
Delaware limited liability company
|
|
December 21, 2006
|
|
HCRI Logistics, Inc.
|
|
Delaware corporation
|
|
December 28, 2006
|
|
HCN Access Holdings, LLC
|
|
Delaware limited liability company
|
|
May 23, 2007
|
|
HCN Access Las Vegas I, LLC
|
|
Delaware limited liability company
|
|
May 23, 2007
|
|
Plaza / HCN Properties Phoenix
Biomedical Plaza L.L.C.
|
|
Delaware limited liability company
|
|
June 13, 2007
|
|
HCRI Financial Services, LLC
|
|
Delaware limited liability company
|
|
June 19, 2007
|
|
HCN Interra Lake Travis LTACH, LLC
|
|
Delaware limited liability company
|
|
June 28, 2007
|
|
HCN Lake Travis Holdings, LLC
|
|
Delaware limited liability company
|
|
June 28, 2007
|
|
HCN Lake Travis Property One, LLC
|
|
Delaware limited liability company
|
|
June 28, 2007
|
|
HCN Lake Travis Property Two, LLC
|
|
Delaware limited liability company
|
|
June 28, 2007
|
|
HCN Plaza Holdings, LLC
|
|
Delaware limited liability company
|
|
July 23, 2007
|
|
Bellevue Healthcare Properties, LLC
|
|
Delaware limited liability company
|
|
July 27, 2007
|
|
WTP Healthcare Properties, LLC
|
|
Delaware limited liability company
|
|
October 30, 2007
|
|
Anchor HCN Doylestown, LLC
|
|
Delaware limited liability company
|
|
December 17, 2007
|
|
HCN Anchor Covington, LLC
|
|
Delaware limited liability company
|
|
January 23, 2008
|
|
Anchor HCN Properties II, LLC
|
|
Delaware limited liability company
|
|
January 28, 2008
|
|
HCRI Illinois Properties II, LLC
|
|
Delaware limited liability company
|
|
January 29, 2008
|
|
HCN Medicus Holdings, LLC
|
|
Delaware limited liability company
|
|
April 29, 2008
|
|
HCRI Exchange Properties I, LLC
|
|
Delaware limited liability company
|
|
June 19, 2008
|
|
HCRI Cumberland Properties, LLC
|
|
Delaware limited liability company
|
|
June 19, 2008
|
|
HCRI Exchange Management I, LLC
|
|
Delaware limited liability company
|
|
June 23, 2008
|
|
Stafford Medical Office Pavilion, LLC
|
|
Delaware limited liability company
|
|
July 9, 2008
|
|
HCRI Boardman Properties, LLC
|
|
Delaware limited liability company
|
|
August 18, 2008
|
|
4500 Dorr Street Holdings, LLC
|
|
Delaware limited liability company
|
|
February 9, 2009
|
|
HCN Rendina Holdings, LLC
|
|
Delaware limited liability company
|
|
February 13, 2009
|
|
HCN Rendina Merced, LLC
|
|
Delaware limited liability company
|
|
February 13, 2009
|
|
12429 Scofield Farms Drive, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
|
|
|
|
|
|
|
|
State of Organization
|
|
Date of
|
|
Name of Subsidiary
|
|
and Type of Entity
|
|
Organization
|
|
1460 Johnson Ferry Road, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
1565 Virginia Ranch Road, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
1710 S. W. Health Parkway, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
2860 Country Drive, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
350 Locust Drive, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
430 North Union Road, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
4855 Snyder Lane, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
655 Mansell Road, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
7231 East Broadway, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
799 Yellowstone Drive, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
800 Oregon Street, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
9802 48
th
Drive NE, LLC
|
|
Delaware limited liability company
|
|
March 13, 2009
|
|
1011 E. Pecan Grove Road, LLC
|
|
Delaware limited liability company
|
|
June 17, 2009
|
|
1329 Brown Street, LLC
|
|
Delaware limited liability company
|
|
June 17, 2009
|
|
1625 W. Spring Street, LLC
|
|
Delaware limited liability company
|
|
June 17, 2009
|
|
1818 Martin Drive, LLC
|
|
Delaware limited liability company
|
|
June 17, 2009
|
|
2281 Country Club Drive, LLC
|
|
Delaware limited liability company
|
|
June 17, 2009
|
|
311 E. Hawkins Parkway, LLC
|
|
Delaware limited liability company
|
|
June 17, 2009
|
|
402 South Colonial Drive, LLC
|
|
Delaware limited liability company
|
|
June 17, 2009
|
|
5550 Old Jacksonville Highway, LLC
|
|
Delaware limited liability company
|
|
June 17, 2009
|
|
5902 North Street, LLC
|
|
Delaware limited liability company
|
|
June 17, 2009
|
|
750 North Collegiate Drive, LLC
|
|
Delaware limited liability company
|
|
June 17, 2009
|
|
HCN Navvis Clarkson Valley, LLC
|
|
Delaware limited liability company
|
|
June 25, 2009
|
|
23 Southpointe Drive, LLC
|
|
Delaware limited liability company
|
|
July 9, 2009
|
|
2416 Brentwood Street, LLC
|
|
Delaware limited liability company
|
|
July 9, 2009
|
|
2341 W. Norvell Bryant Highway, LLC
|
|
Delaware limited liability company
|
|
July 9, 2009
|
|
200 E. Village Road, LLC
|
|
Delaware limited liability company
|
|
July 9, 2009
|
|
1340 N. Washington Boulevard, LLC
|
|
Delaware limited liability company
|
|
July 9, 2009
|
|
|
|
|
|
|
|
|
|
State of Organization
|
|
Date of
|
|
Name of Subsidiary
|
|
and Type of Entity
|
|
Organization
|
|
5165 Summit Ridge Court, LLC
|
|
Delaware limited liability company
|
|
July 9, 2009
|
|
2695 Valleyview Boulevard, LLC
|
|
Delaware limited liability company
|
|
July 9, 2009
|
|
500 Seven Fields Boulevard, LLC
|
|
Delaware limited liability company
|
|
July 9, 2009
|
|
100 Knoedler Road, LLC
|
|
Delaware limited liability company
|
|
July 9, 2009
|
|
HCN-TH Wisconsin II, LLC
|
|
Delaware limited liability company
|
|
July 9, 2009
|
|
HCN-TH Wisconsin III, LLC
|
|
Delaware limited liability company
|
|
July 9, 2009
|
|
HCN-TH Wisconsin I, LLC
|
|
Delaware limited liability company
|
|
July 9, 2009
|
|
8503 Mystic Park, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
3434 Watters Road, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
3200 West Slaughter Lane, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
8702 South Course Drive, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
3625 Green Crest Street, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
3921 North Main Street, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
17231 Mill Forest Road, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
5437 Eisenhauer Road, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
HCN-TH Wisconsin IV, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
HCN-TH Wisconsin V, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
HCN-TH Wisconsin VI, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
HCN-TH Wisconsin VII, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
HCN-TH Wisconsin VIII, LLC
|
|
Delaware limited liability company
|
|
August 6, 2009
|
|
HCRI TRS Acquirer, LLC
|
|
Delaware limited liability company
|
|
October 1, 2009
|
|
Murrieta Healthcare Investors, LLC
|
|
Delaware limited liability company
|
|
November 5, 2009
|
|
HCRI Akron Properties, LLC
|
|
Delaware limited liability company
|
|
November 23, 2009
|
|
HCRI TRS Acquirer II, LLC
|
|
Delaware limited liability company
|
|
December 14, 2009
|
|
HCN FCE Life Sciences, LLC
|
|
Delaware limited liability company
|
|
December 29, 2009
|
|
Murrieta Healthcare Properties, LLC
|
|
Delaware limited liability company
|
|
January 25, 2010
|
|
|
|
|
|
|
|
WINDROSE ENTITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
State of Organization
|
|
Date of
|
|
Name of Subsidiary
|
|
and Type of Entity
|
|
Organization
|
|
HCN Development Services Group, Inc. f/k/a
Hospital Affiliates Development
Corporation
|
|
Indiana corporation
|
|
December 22, 1989
|
|
Windrose Southside Properties, Ltd.
|
|
Florida limited partnership
|
|
June 18, 1991
|
|
Windrose Northside Properties, Ltd.
|
|
Florida limited partnership
|
|
June 21, 1993
|
|
Windrose Wellington Properties, Ltd.
|
|
Florida limited partnership
|
|
June 29, 1998
|
|
Lake Mead Medical Investors Limited
Partnership
|
|
Florida limited partnership
|
|
July 24, 1998
|
|
Windrose Columbia Properties, Ltd.
|
|
Florida limited partnership
|
|
December 17, 1999
|
|
FLA-PALM COURT, limited partnership
|
|
Florida limited partnership
|
|
December 17, 1999
|
|
Windrose Palms West III Properties, Ltd.
|
|
Florida limited partnership
|
|
December 17, 1999
|
|
Windrose Palms West IV Properties, Ltd.
|
|
Florida limited partnership
|
|
December 17, 1999
|
|
Windrose Palms West V Properties, Ltd.
|
|
Florida limited partnership
|
|
December 17, 1999
|
|
Windrose West Boca Properties, Ltd.
|
|
Florida limited partnership
|
|
December 17, 1999
|
|
CAL-LAK Limited Partnership
|
|
Florida limited partnership
|
|
December 20, 1999
|
|
CAL-GAT Limited Partnership
|
|
Florida limited partnership
|
|
December 20, 1999
|
|
Windrose Sierra Properties, Ltd.
|
|
Florida limited partnership
|
|
December 20, 1999
|
|
Windrose West Tower Properties, Ltd.
|
|
Florida limited partnership
|
|
December 20, 1999
|
|
Brierbrook Partners, L.L.C.
|
|
Tennessee limited liability company
|
|
June 2, 2000
|
|
Med Properties Asset Group, L.L.C.
|
|
Indiana limited liability company
|
|
May 24, 2001
|
|
Windrose Medical Properties, L.P.
|
|
Virginia limited partnership
|
|
May 23, 2002
|
|
WMPT Bellaire Properties, L.L.C.
|
|
Virginia limited liability company
|
|
January 16, 2003
|
|
WMPT Bellaire L.P.
|
|
Virginia limited partnership
|
|
January 16, 2003
|
|
Windrose Ocala Urology Properties, L.L.C.
|
|
Virginia limited liability company
|
|
February 28, 2003
|
|
Windrose Winn Way Properties, L.L.C.
|
|
Virginia limited liability company
|
|
February 28, 2003
|
|
Windrose Mount Vernon Properties, L.L.C.
|
|
Virginia limited liability company
|
|
February 28, 2003
|
|
WMPT Pearland Properties, L.L.C.
|
|
Virginia limited liability company
|
|
February 28, 2003
|
|
WMPT Pearland, L.P.
|
|
Virginia limited partnership
|
|
February 28, 2003
|
|
|
|
|
|
|
|
|
|
State of Organization
|
|
Date of
|
|
Name of Subsidiary
|
|
and Type of Entity
|
|
Organization
|
|
WMPT Stone Oak Properties, L.L.C.
|
|
Virginia limited liability company
|
|
February 28, 2003
|
|
WMPT Stone Oak, L.P.
|
|
Virginia limited partnership
|
|
February 28, 2003
|
|
WMPT Tomball Properties, L.L.C.
|
|
Virginia limited liability company
|
|
February 28, 2003
|
|
WMPT Tomball, L.P.
|
|
Virginia limited partnership
|
|
February 28, 2003
|
|
Windrose 310 Properties, L.L.C.
|
|
Tennessee limited liability company
|
|
March 4, 2003
|
|
Windrose Copley Properties, L.L.C.
|
|
Virginia limited liability company
|
|
March 13, 2003
|
|
Windrose 4475 Sierra Properties, L.L.C.
|
|
Delaware limited liability company
|
|
April 23, 2003
|
|
Windrose Medical Properties Management,
L.L.C.
|
|
Virginia limited liability company
|
|
May 7, 2003
|
|
Windrose SPE Mount Vernon Properties, Inc.
|
|
Georgia corporation
|
|
May 12, 2003
|
|
Windrose Park Medical Properties, L.L.C.
|
|
Virginia limited liability company
|
|
September 1, 2003
|
|
Windrose Partell Medical Center, L.L.C.
|
|
Virginia limited liability company
|
|
September 1, 2003
|
|
Windrose Aberdeen I Properties, L.L.C.
|
|
Florida limited liability company
|
|
September 12, 2003
|
|
Cooper Holding, L.L.C.
|
|
Florida limited liability company
|
|
September 12, 2003
|
|
Cooper, L.L.C.
|
|
Delaware limited liability company
|
|
September 19, 2003
|
|
WMPT Sacramento Properties, L.L.C.
|
|
Virginia limited liability company
|
|
September 25, 2003
|
|
Windrose Coral Springs Properties, L.L.C.
|
|
Virginia limited liability company
|
|
October 15, 2003
|
|
Windrose St. Mary’s Medical Professional
Building, L.L.C.
|
|
Virginia limited liability company
|
|
November 6, 2003
|
|
WMPT Bellaire POB Properties, L.L.C.
|
|
Virginia limited liability company
|
|
November 6, 2003
|
|
WMPT Bellaire POB, L.P.
|
|
Virginia limited partnership
|
|
November 6, 2003
|
|
WMPT Trinity Properties, L.L.C.
|
|
Virginia limited liability company
|
|
November 6, 2003
|
|
Windrose Central Medical II Properties,
L.L.C.
|
|
Virginia limited liability company
|
|
December 2, 2003
|
|
WMPT Bellaire HP, L.P.
|
|
Virginia limited partnership
|
|
March 10, 2004
|
|
WMPT Bellaire HP Properties, L.L.C.
|
|
Virginia limited liability company
|
|
March 16, 2004
|
|
Windrose East West Properties, L.L.C.
|
|
Virginia limited liability company
|
|
April 23, 2004
|
|
|
|
|
|
|
|
|
|
State of Organization
|
|
Date of
|
|
Name of Subsidiary
|
|
and Type of Entity
|
|
Organization
|
|
Windrose Gwinnett I Properties, L.L.C.
|
|
Virginia limited liability company
|
|
April 23, 2004
|
|
Windrose Biltmore Properties, L.L.C.
|
|
Virginia limited liability company
|
|
May 17, 2004
|
|
WMPT Pearland II Properties, L.L.C.
|
|
Virginia limited liability company
|
|
May 17, 2004
|
|
Windrose Lake Mead Properties, L.L.C.
|
|
Virginia limited liability company
|
|
May 18, 2004
|
|
WMPT Pearland II, L.P.
|
|
Virginia limited partnership
|
|
May 18, 2004
|
|
WMPT Gwinnett II Properties, L.L.C.
|
|
Delaware limited liability company
|
|
June 21, 2004
|
|
West Boynton Investors, LLLP
|
|
Florida limited liability limited
partnership
|
|
August 11, 2004
|
|
Windrose Central Medical Properties, L.L.C.
|
|
Delaware limited liability company
|
|
October 19, 2004
|
|
Windrose Central Medical III Properties,
L.L.C.
|
|
Virginia limited liability company
|
|
October 20, 2004
|
|
Windrose Johns Creek I Properties, L.L.C.
|
|
Delaware limited liability company
|
|
December 1, 2004
|
|
Windrose Johns Creek II Properties, L.L.C.
|
|
Virginia limited liability company
|
|
December 2, 2004
|
|
Windrose Johns Creek III Properties, L.L.C.
|
|
Virginia limited liability company
|
|
December 2, 2004
|
|
Windrose Lakewood Properties, L.L.C.
|
|
Virginia limited liability company
|
|
April 7, 2005
|
|
Windrose Los Gatos Properties, L.L.C.
|
|
Virginia limited liability company
|
|
April 7, 2005
|
|
Windrose Palm Court Properties, L.L.C.
|
|
Virginia limited liability company
|
|
April 7, 2005
|
|
Windrose Fox Valley Properties, L.L.C.
|
|
Virginia limited liability company
|
|
April 19, 2005
|
|
Windrose Yorkville Properties, L.L.C.
|
|
Virginia limited liability company
|
|
April 19, 2005
|
|
Medical Real Estate Property Managers of
America, LLC
|
|
Florida limited liability company
|
|
April 26, 2005
|
|
Healthcare Property Managers of America,
LLC
|
|
Florida limited liability company
|
|
April 26, 2005
|
|
Windrose Union City Properties, L.L.C.
|
|
Virginia limited liability company
|
|
May 19, 2005
|
|
Windrose Union City II Properties, L.L.C.
|
|
Tennessee limited liability company
|
|
July 5, 2005
|
|
Windrose Fayetteville Properties, L.L.C.
|
|
Delaware limited liability company
|
|
August 2, 2005
|
|
WMPT Aberdeen II Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Aberdeen I Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
Windrose Aberdeen II Properties, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
|
|
|
|
|
|
|
|
State of Organization
|
|
Date of
|
|
Name of Subsidiary
|
|
and Type of Entity
|
|
Organization
|
|
WMPT Atrium Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
Windrose Atrium Properties, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Columbia Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Congress I Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Congress II Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Desert Springs Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Edinburg Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
Windrose Edinburg Properties, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Northside Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Osler Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
Windrose Osler Properties, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Palms West III Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Palms West IV Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Palms West V Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Santa Anita Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
Windrose Santa Anita Properties, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Sierra Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Southpointe Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
Windrose Southpointe Properties, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Southside Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT Wellington Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT West Boca Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT West Tower Management, L.L.C.
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
WMPT WPC Management, L.L.C
|
|
Delaware limited liability company
|
|
September 21, 2005
|
|
Windrose Congress I Properties, L.P.
|
|
Delaware limited partnership
|
|
September 26, 2006
|
|
Windrose Congress II Properties, L.P.
|
|
Delaware limited partnership
|
|
September 26, 2005
|
|
Windrose Desert Springs Properties, L.P.
|
|
Delaware limited partnership
|
|
September 26, 2005
|
|
|
|
|
|
|
|
|
|
State of Organization
|
|
Date of
|
|
Name of Subsidiary
|
|
and Type of Entity
|
|
Organization
|
|
WMPT Webster Management, L.L.C.
|
|
Delaware limited liability company
|
|
March 1, 2006
|
|
Windrose Webster Properties, L.P.
|
|
Delaware limited partnership
|
|
March 1, 2006
|
|
Windrose WPC Properties, L.P.
|
|
Delaware limited partnership
|
|
March 1, 2006
|
|
Windrose Orange Properties, L.L.C.
|
|
Delaware limited liability company
|
|
April 4, 2006
|
|
WMPT 119 Management L.L.C.
|
|
Delaware limited liability company
|
|
April 4, 2006
|
|
Windrose 119 Properties, L.L.C.
|
|
Delaware limited liability company
|
|
April 4, 2006
|
|
WMPT Princeton Management, L.L.C.
|
|
Delaware limited liability company
|
|
April 4, 2006
|
|
Windrose Princeton Properties, L.L.C.
|
|
Delaware limited liability company
|
|
April 4, 2006
|
|
WMPT Trussville Management, L.L.C.
|
|
Delaware limited liability company
|
|
April 4, 2006
|
|
Windrose Trussville Properties, L.L.C.
|
|
Delaware limited liability company
|
|
April 4, 2006
|
|
WMPT Lafayette Management, L.L.C.
|
|
Delaware limited liability company
|
|
June 9, 2006
|
|
Windrose Lafayette Properties, L.L.C.
|
|
Delaware limited liability company
|
|
June 9, 2006
|
|
WMPT Tulsa Management, L.L.C.
|
|
Delaware limited liability company
|
|
June 9, 2006
|
|
Windrose Tulsa Properties, L.L.C.
|
|
Delaware limited liability company
|
|
June 9, 2006
|
|
WMPT Sacramento, L.P.
|
|
Virginia limited partnership
|
|
October 20, 2006
|
|
WMPT Trinity, L.P.
|
|
Virginia limited partnership
|
|
October 20, 2006
|
|
WMPT Orange Centre Management, LLC
|
|
Delaware limited liability company
|
|
November 13, 2006
|
|
Windrose Orange Centre Properties, LLC
|
|
Delaware limited liability company
|
|
November 13, 2006
|
|
WMPT Bartlett Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
Windrose Bartlett Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT Boynton West Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
HCRI Tallahassee Medical Facility, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT Claremore Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
Windrose Claremore Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT Denton Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
|
|
|
|
|
|
|
|
State of Organization
|
|
Date of
|
|
Name of Subsidiary
|
|
and Type of Entity
|
|
Organization
|
|
Windrose Denton Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT Frisco I Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
Windrose Frisco I Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT Frisco II Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
Windrose Frisco II Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT Glendale Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
Windrose Glendale Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT Las Vegas Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
Windrose Las Vegas Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT Los Alamitos Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
Windrose Los Alamitos Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT Okatie I Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
Windrose Okatie I Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT Palmer Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
Windrose Palmer Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT St. Louis I Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
Windrose St. Louis I Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT AZ-Tempe Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
Windrose AZ-Tempe Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
WMPT Tucson Management, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
Windrose Tucson Properties, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
HCRI Summit Properties, LLC
|
|
Delaware limited liability company
|
|
January 9,2007
|
|
HCRI Merrillville Medical Facility, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
HCRI SHC Medical Facility, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
HCRI Van Nuys Medical Facility, LLC
|
|
Delaware limited liability company
|
|
January 9, 2007
|
|
|
|
|
|
|
|
|
|
State of Organization
|
|
Date of
|
|
Name of Subsidiary
|
|
and Type of Entity
|
|
Organization
|
|
WMP Physicians Plaza Management, LLC
|
|
Delaware limited liability company
|
|
March 6, 2007
|
|
Windrose Physicians Plaza Properties, LLC
|
|
Delaware limited liability company
|
|
March 6, 2007
|
|
WMP West Seneca Management, LLC
|
|
Delaware limited liability company
|
|
March 6, 2007
|
|
Windrose West Seneca Properties, LLC
|
|
Delaware limited liability company
|
|
March 6, 2007
|
|
WMP Niagara Falls Management, LLC
|
|
Delaware limited liability company
|
|
March 6, 2007
|
|
Windrose Niagara Falls Properties, LLC
|
|
Delaware limited liability company
|
|
March 6, 2007
|
|
WMP AWPC II Management, LLC
|
|
Delaware limited liability company
|
|
April 24, 2007
|
|
Windrose AWPC II Properties, LLC
|
|
Delaware limited liability company
|
|
April 24, 2007
|
|
WMP Wellington Management, LLC
|
|
Delaware limited liability company
|
|
April 24, 2007
|
|
Windrose Wellington Properties, LLC
|
|
Delaware limited liability company
|
|
April 24, 2007
|
|
WMP Bethesda Management, LLC
|
|
Delaware limited liability company
|
|
April 24, 2007
|
|
Windrose Bethesda Properties, LLC
|
|
Delaware limited liability company
|
|
April 24, 2007
|
|
WMP Boynton Beach Management, LLC
|
|
Delaware limited liability company
|
|
April 24, 2007
|
|
HCRI Prestonwood Medical Facility, LLC
|
|
Delaware limited liability company
|
|
June 19, 2007
|
|
Windrose Cottonwood Properties, LLC
|
|
Delaware limited liability company
|
|
August 23, 2007
|
|
WMP Cottonwood Management, LLC
|
|
Delaware limited liability company
|
|
August 23, 2007
|
|
Windrose Southlake Properties, LLC
|
|
Delaware limited liability company
|
|
September 10, 2007
|
|
WMP Southlake Management, LLC
|
|
Delaware limited liability company
|
|
September 10, 2007
|
|
Windrose TSM I Properties, LLC
|
|
Delaware limited liability company
|
|
September 28, 2007
|
|
WMP TSM I Management, LLC
|
|
Delaware limited liability company
|
|
September 28, 2007
|
|
HC Summit I, LLC
|
|
Wisconsin limited liability company
|
|
November 6, 2007
|
|
Windrose East Valley Properties, LLC
|
|
Delaware limited liability company
|
|
November 21, 2007
|
|
WMP East Valley Management, LLC
|
|
Delaware limited liability company
|
|
November 21, 2007
|
|
Windrose Northwest Professional Plaza
Properties, LLC
|
|
Delaware limited liability company
|
|
December 13, 2007
|
|
WMP Northwest Professional Plaza
Management, LLC
|
|
Delaware limited liability company
|
|
December 13, 2007
|
SCHEDULE IV
Executive Officers
|
1.
|
|
George L. Chapman
|
|
|
|
2.
|
|
Scott A. Estes
|
|
|
|
3.
|
|
Charles J. Herman, Jr.
|
|
|
|
4.
|
|
Jeffrey H. Miller
|
|
|
|
5.
|
|
John T. Thomas
|
|
|
|
6.
|
|
Michael A. Crabtree
|
|
|
|
7.
|
|
Erin C. Ibele
|
|
|
|
8.
|
|
Daniel R. Loftus
|
EXHIBIT 4.2
EXECUTION COPY
HEALTH CARE REIT, INC.
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
SUPPLEMENTAL INDENTURE NO. 1
Dated as of March 15, 2010
$342,394,000 Principal Amount
3.00% Convertible Senior Notes due 2029
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
Page
|
|
I. DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
|
1
|
|
|
|
|
|
|
|
|
1.01 Definitions
|
|
|
1
|
|
|
1.02 Other Definitions
|
|
|
4
|
|
|
1.03 Incorporation by Reference of the Trust Indenture Act
|
|
|
6
|
|
|
|
|
|
|
|
|
II. THE SECURITIES
|
|
|
6
|
|
|
|
|
|
|
|
|
2.01 Form and Dating
|
|
|
6
|
|
|
2.02 Execution and Authentication
|
|
|
7
|
|
|
2.03 Registrar, Paying Agent and Conversion Agent
|
|
|
7
|
|
|
2.04 Additional Securities
|
|
|
7
|
|
|
2.05 Book-Entry Provisions for And Restrictions on Transfer and Exchange
of Global Securities
|
|
|
7
|
|
|
2.06 Ranking
|
|
|
8
|
|
|
|
|
|
|
|
|
III. REDEMPTION AND REPURCHASE
|
|
|
9
|
|
|
|
|
|
|
|
|
3.01 Redemption and Repurchase
|
|
|
9
|
|
|
3.02 Notices to Trustee
|
|
|
10
|
|
|
3.03 Selection of Securities to Be Redeemed
|
|
|
10
|
|
|
3.04 Notice of Redemption
|
|
|
10
|
|
|
3.05 Effect of Notice of Redemption
|
|
|
12
|
|
|
3.06 Deposit of Redemption Price
|
|
|
12
|
|
|
3.07 Securities Redeemed in Part
|
|
|
12
|
|
|
3.08 Purchase of Securities at Option of the Holder
|
|
|
12
|
|
|
3.09 Repurchase at Option of Holder Upon a Fundamental Change
|
|
|
17
|
|
|
|
|
|
|
|
|
IV. ADDITIONAL COVENANTS
|
|
|
23
|
|
|
|
|
|
|
|
|
4.01 SEC Reports
|
|
|
23
|
|
|
4.02 Corporate Existence
|
|
|
24
|
|
|
4.03 Further Instruments and Acts
|
|
|
24
|
|
|
|
|
|
|
|
|
V. DEFAULTS AND REMEDIES
|
|
|
24
|
|
|
|
|
|
|
|
|
5.01 Events of Default
|
|
|
24
|
|
|
5.02 Acceleration
|
|
|
26
|
|
|
5.03 Waiver of Past Defaults
|
|
|
26
|
|
|
5.04 Limitation on Suits
|
|
|
27
|
|
|
5.05 Rights of Holders to Receive Payments and to Convert Securities
|
|
|
27
|
|
|
5.06 Notice of Defaults
|
|
|
27
|
|
-i-
|
|
|
|
|
|
|
|
|
Page
|
|
VI. DISCHARGE OF INDENTURE
|
|
|
28
|
|
|
|
|
|
|
|
|
6.01 Termination of the Obligations of the Company
|
|
|
28
|
|
|
|
|
|
|
|
|
VII. SUPPLEMENTAL INDENTURES
|
|
|
28
|
|
|
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7.01 Supplemental Indentures Without Consent of Holders
|
|
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28
|
|
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7.02 Supplemental Indentures With Consent of Holders
|
|
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29
|
|
|
7.03 Revocation and Effect of Consents
|
|
|
30
|
|
|
7.04 Notation on or Exchange of Securities
|
|
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30
|
|
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7.05 Trustee Protected
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|
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31
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|
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VIII. CONVERSION
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31
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8.01 Conversion Privilege; Restrictive Legends
|
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31
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|
8.02 Conversion Procedure and Payment Upon Conversion
|
|
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34
|
|
|
8.03 Fractional Shares
|
|
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37
|
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|
8.04 Taxes on Conversion
|
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37
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8.05 Company to Provide Stock
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37
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|
8.06 Adjustment of Conversion Rate
|
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37
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8.07 No Adjustment
|
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44
|
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|
8.08 Other Adjustments
|
|
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45
|
|
|
8.09 Adjustments for Tax Purposes
|
|
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45
|
|
|
8.10 Notice of Adjustment
|
|
|
45
|
|
|
8.11 Notice of Certain Transactions
|
|
|
46
|
|
|
8.12 Effect of Reclassifications, Consolidations, Amalgamations,
Statutory Arrangements, Mergers, Binding Share Exchanges or Asset Sales on
Conversion Privilege
|
|
|
46
|
|
|
8.13 Trustee’s Disclaimer
|
|
|
48
|
|
|
8.14 Rights Distributions Pursuant to Stockholders’ Rights Plans
|
|
|
48
|
|
|
8.15 Increased Conversion Rate Applicable to Certain Notes Surrendered in
Connection With Make-Whole Fundamental Changes
|
|
|
49
|
|
|
8.16 Ownership Limit
|
|
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52
|
|
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|
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|
|
IX. NO DEFEASANCE OR COVENANT DEFEASANCE
|
|
|
52
|
|
|
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|
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|
|
X. MISCELLANEOUS
|
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52
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|
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|
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|
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|
10.01 Governing Law
|
|
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52
|
|
|
10.02 No Adverse Interpretation of Other Agreements
|
|
|
52
|
|
|
10.03 Successors
|
|
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52
|
|
|
10.04 Calculations in Respect of the Securities
|
|
|
52
|
|
|
10.05 Trustee’s Disclaimer
|
|
|
52
|
|
|
|
|
|
|
|
Exhibit A — Form of Global Security
Exhibit B — Form of Legend for Global Security
-ii-
This SUPPLEMENTAL INDENTURE NO. 1 (the
“Supplemental Indenture”
) is made and entered into as
of March 15, 2010, between HEALTH CARE REIT, INC., a Delaware corporation (the “
Company
”), and THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, as trustee (the
“
Trustee
”).
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have executed and delivered a base indenture, dated as of
March 15, 2010 (as amended, supplemented or otherwise modified from time to time, the
“Base
Indenture”
and, together with this Supplemental Indenture, as amended, supplemented or otherwise
modified from time to time,
the “Indenture”
) to provide for the future issuance of the Company’s
senior debt securities to be issued from time to time in one or more series; and
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to provide for the
establishment of a series of its Securities, to be known as its 3.00% Convertible Senior Notes due
2029 (the “
Securities
”), the form and substance of such Securities and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
I.
DEFINITIONS AND INCORPORATION BY REFERENCE
1.01
Definitions.
The following definitions supplement, and, to the extent
inconsistent with, replace the definitions in Section 101 of the Base Indenture:
“
Agent
” means any Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or
co-Registrar or co-agent.
“
Asset Sale Make-Whole Fundamental Change
” means a sale, transfer, lease, conveyance or other
disposition of all or substantially all of the property or assets of the Company to any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), including any
group acting for the purpose of acquiring, holding, voting or disposing of securities within the
meaning of Rule 13d-5(b)(1) under the Exchange Act.
“
Bid Solicitation Agent
” means a Company-appointed agent that performs calculations as set
forth in
Section 8.01
hereof.
“
Capital Stock
” of any Person means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of such Person and all warrants or options to
acquire such capital stock.
“
Closing Sale Price
” on any Trading Day means the price of a share of Common Stock on such
Trading Day, determined (i) on the basis of the closing sale price per share (or if no closing sale
price per share is reported, the average of the bid and ask prices or, if more than one in either
case, the average of the average bid and the average ask prices per share) on such Trading Day on
the U.S. principal national or regional securities exchange on which the
-1-
Common Stock is listed; or (ii) if the Common Stock is not listed on a U.S. national or
regional securities exchange, as reported by Pink Sheets LLC or a similar organization. In the
absence of a quotation, the Closing Sale Price shall be the average of the mid-point of the last
bid and ask prices for the Common Stock on the relevant Trading Day from each of at least three
nationally recognized independent investment banking firms selected by the Company for this
purpose.
“
Common Stock
” means the common stock, $1.00 par value per share, of the Company, or such
other Capital Stock of the Company into which the Company’s common stock is reclassified or
changed.
“
Common Stock Change Make-Whole Fundamental Change
” means any transaction or series of related
transactions (other than a Listed Stock Business Combination), in connection with which (whether by
means of an exchange offer, liquidation, tender offer, consolidation, amalgamation, statutory
arrangement, merger, combination, reclassification, recapitalization, asset sale, lease of assets
or otherwise) the Common Stock is exchanged for, converted into, acquired for or constitutes solely
the right to receive other securities, other property, assets or cash.
“
Conversion Price
” means, as of any date of determination, the dollar amount derived by
dividing one thousand dollars ($1,000) by the Conversion Rate in effect on such date.
“
Conversion Rate
” means the number of shares of Common Stock issuable upon conversion of a
Security per $1,000 principal amount, which Conversion Rate shall initially be 19.5064 shares of
Common Stock per $1,000 principal amount of Securities, subject to adjustment as provided in
Article VIII
hereof.
“
DTC
” means The Depository Trust Company, its nominees and successors.
“
Holder
” or “
Securityholder
” means a person in whose name a Security is registered on the
Registrar’s books.
“
Indebtedness
” of a person means the principal of, premium, if any, and interest on, and all
other obligations in respect of (a) all indebtedness of such person for borrowed money (including
all indebtedness evidenced by notes, bonds, debentures or other securities), (b) all obligations
incurred by such person in the acquisition (whether by way of purchase, merger, consolidation or
otherwise and whether by such person or another person) of any business, real property or other
assets, (c) all reimbursement obligations of such person with respect to letters of credit,
bankers’ acceptances or similar facilities issued for the account of such person, (d) all capital
lease obligations of such person, (e) all net obligations of such person under interest rate swap,
currency exchange or similar agreements of such person, (f) all obligations and other liabilities,
contingent or otherwise, under any lease or related document, including a purchase agreement,
conditional sale or other title retention agreement, in connection with the lease of real property
or improvements thereon (or any personal property included as part of any such lease) which
provides that such person is contractually obligated to purchase or cause a third party to purchase
the leased property or pay an agreed-upon residual value of the leased property, including such
person’s obligations under such lease or related document to purchase or cause a third party to
purchase such leased property or pay an agreed-upon residual value of the leased
-2-
property to the lessor, (g) guarantees by such person of indebtedness described in
clauses (a)
through (f)
of another person, and (h) all renewals, extensions, refundings, deferrals,
restructurings, amendments and modifications of any indebtedness, obligation, guarantee or
liability of the kind described in
clauses (a) through (g)
.
“
Issue Date
” means March 15, 2010.
“
Make-Whole Fundamental Change
” means an Asset Sale Make-Whole Fundamental Change or a Common
Stock Change Make-Whole Fundamental Change that occurs prior to December 1, 2014.
“
Market Disruption Event
” means (i) a failure by the primary United States national securities
exchange or market on which the Common Stock is listed or admitted to trading to open for trading
during its regular trading session; or (ii) the occurrence or existence prior to 1:00 p.m. on any
day during which trading in the Common Stock generally occurs on the primary U.S. national
securities exchange or market on which the Common Stock is listed or admitted to trading, for an
aggregate of at least thirty (30) minutes, of any suspension or limitation imposed on trading (by
reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the
Common Stock or in any options, contracts or future contracts relating to the Common Stock.
“
Maturity Date
” means December 1, 2029.
“
Officer
” means the Chairman of the Board, the Chief Executive Officer, the President, the
Chief Operating Officer, the Chief Financial Officer, any Executive Vice President, any Senior Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the
Company.
“
Prospectus
” means the final prospectus supplement and the related prospectus of the Company,
dated March 10, 2010, relating to the Securities.
“
Purchase Notice
” means a Purchase Notice in the form set forth in the Securities.
“
Redemption Price
” means, with respect to a Security to be redeemed by the Company in
accordance with
Article III
, one hundred percent (100%) of the outstanding principal amount of such
Security to be redeemed.
“
Regular Quarterly Cash Dividend
” shall mean any regular quarterly cash dividend paid in a
single quarterly installment or any combination of cash dividends paid in any calendar quarter that
are designated by the Company pursuant to a resolution of the Board as being portions of the
Company’s regular quarterly cash dividend and that are paid in lieu of a single regular quarterly
cash dividend (provided that, in the case of a regular quarterly cash dividend paid in portions,
the aggregate amount of such portions is no greater than the regular quarterly cash dividend paid
in the immediately preceding calendar quarter).
“
Scheduled Trading Day
” means, with respect to the Common Stock or any other security, a day
that is scheduled to be a Trading Day on the primary United States national securities exchange or
market on which the Common Stock or the relevant securities are listed or
-3-
admitted for trading. If the Common Stock is not listed or admitted for trading, “Scheduled
Trading Day” means any business day.
“
Securities
” means the 3.00% Convertible Senior Notes due 2029 issued by the Company pursuant
to this Indenture.
“
Trading Day
” means any day during which: (i) trading in the Common Stock generally occurs;
(ii) there is no Market Disruption Event; and (iii) a closing sale price for the Common Stock is
provided on the New York Stock Exchange or, if the Common Stock is not then listed on the New York
Stock Exchange, on the principal other U.S. national or regional securities exchange on which the
Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or
regional securities exchange, on the principal other market on which the Common Stock is then
traded. If shares of the Common Stock are not listed for trading or quotation on any exchange,
bureau or other organization, “trading day” will mean any business day.
“
Trading Price
” means, on any day, the average of the secondary market bid quotations for the
Securities obtained by the Bid Solicitation Agent for five million dollars ($5,000,000) principal
amount of Securities at approximately 4:00 p.m., New York City time, on such day from three (3)
independent, nationally recognized securities dealers selected by the Company;
provided,
that if
the Bid Solicitation Agent can reasonably obtain only two (2) such bids, then the average of such
two (2) bids shall instead be used;
provided further
, that if the Bid Solicitation Agent can
reasonably obtain only one (1) such bid, then such bid shall instead be used;
provided further
,
that if, on a given day, (i) the Bid Solicitation Agent cannot reasonably obtain at least one bid
for five million dollars ($5,000,000) principal amount of Securities from an independent,
nationally recognized securities dealer, or (ii) if, in the reasonable, good faith judgment of the
Board, the bid quotation or quotations that the Bid Solicitation Agent has obtained are not
indicative of the secondary market value of the Securities, then, in each case, the Trading Price
per $1,000 principal amount of Securities on such day shall be deemed to be equal to 97% of the
product of (I) the Conversion Rate in effect on such day and (II) the Closing Sale Price on such
day.
“
Underwriters
” means UBS Securities LLC and J.P.Morgan Securities Inc.
“
Underwriting Agreement
” means the Underwriting Agreement dated March 10, 2010 among the
Company and the Underwriters.
“
Voting Stock
” of any Person means the total outstanding voting power of all classes of the
Capital Stock of such Person entitled to vote generally in the election of directors of such
Person.
1.02
Other Definitions.
|
|
|
|
|
|
|
Term
|
|
Defined in Section
|
|
“
Aggregate Amount
”
|
|
|
8.06
|
|
|
“
Applicable Price
”
|
|
|
8.15
|
|
|
“
Bankruptcy Law
”
|
|
|
5.01
|
|
-4-
|
|
|
|
|
|
|
Term
|
|
Defined in Section
|
|
“
BCF Make-Whole Cap
”
|
|
|
8.15
|
|
|
“
Cash Settlement Averaging Period
”
|
|
|
8.02
|
|
|
“
Change in Control
”
|
|
|
3.09
|
|
|
“
Collective Election
”
|
|
|
8.12
|
|
|
“
Conversion Agent
”
|
|
|
2.03
|
|
|
“
Conversion Date
”
|
|
|
8.02
|
|
|
“
Conversion Value
”
|
|
|
8.01
|
|
|
“
Custodian
”
|
|
|
5.01
|
|
|
“
Daily Conversion Value
”
|
|
|
8.02
|
|
|
“
Daily Net Shares
”
|
|
|
8.02
|
|
|
“
Daily Principal Return
”
|
|
|
8.02
|
|
|
“
Effective Date
”
|
|
|
8.15
|
|
|
“
Event of Default
”
|
|
|
5.01
|
|
|
“
Ex Date
”
|
|
|
8.06
|
|
|
“
Expiration Date
”
|
|
|
8.06
|
|
|
“
Expiration Time
”
|
|
|
8.06
|
|
|
“
Fundamental Change
”
|
|
|
3.09
|
|
|
“
Fundamental Change Notice
”
|
|
|
3.09
|
|
|
“
Fundamental Change Repurchase Date
”
|
|
|
3.09
|
|
|
“
Fundamental Change Repurchase Price
”
|
|
|
3.09
|
|
|
“
Fundamental Change Repurchase Right
”
|
|
|
3.09
|
|
|
“
Global Security
”
|
|
|
2.01
|
|
|
“
Listed Stock Business Combination
”
|
|
|
3.09
|
|
|
“
Make-Whole Applicable Increase
”
|
|
|
8.15
|
|
|
“
Make-Whole Conversion Period
”
|
|
|
8.15
|
|
|
“
Make-Whole Consideration
”
|
|
|
8.15
|
|
|
“
Net Shares
”
|
|
|
8.02
|
|
|
“
Notice of Default
”
|
|
|
5.01
|
|
|
“
Note Measurement Period
”
|
|
|
8.01
|
|
|
“
Option Purchase Date
”
|
|
|
3.08
|
|
|
“
Option Purchase Notice
”
|
|
|
3.08
|
|
|
“
Option Purchase Price
”
|
|
|
3.08
|
|
|
“
Paying Agent
”
|
|
|
2.03
|
|
|
“
Physical Securities
”
|
|
|
2.01
|
|
|
“
Principal Return
”
|
|
|
8.02
|
|
|
“
Purchase at Holder’s Option
”
|
|
|
3.01
|
|
|
“
Purchased Shares
”
|
|
|
8.06
|
|
|
“
record date
”
|
|
|
8.06
|
|
|
“
Redemption
”
|
|
|
3.01
|
|
|
“
Reference Property
”
|
|
|
8.12
|
|
|
“
Registrar
”
|
|
|
2.03
|
|
|
“
Relevant Date
”
|
|
|
8.02
|
|
|
“
Repurchase Upon Fundamental Change
”
|
|
|
3.01
|
|
|
“
Spin-Off
”
|
|
|
8.06
|
|
|
“
Termination of Trading
”
|
|
|
3.09
|
|
|
“
Trading Price Condition
”
|
|
|
8.01
|
|
-5-
|
|
|
|
|
|
|
Term
|
|
Defined in Section
|
|
“
Trigger Event
”
|
|
|
8.06
|
|
|
“
Underlying Shares
”
|
|
|
8.06
|
|
|
“
Volume-Weighted Average Price
”
|
|
|
8.02
|
|
1.03
Incorporation by Reference of the Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the following meanings:
“
indenture securities
” means the Securities;
“
indenture security holder
” means a Securityholder or a Holder;
“
indenture to be qualified
” means this Indenture;
“
indenture trustee
” or “
institutional trustee
” means the Trustee; and
“
obligor
” on the indenture securities means the Company or any successor.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by
the Trust Indenture Act by reference to another statute or defined by Commission rule under the
Trust Indenture Act and not otherwise defined herein have the meanings so assigned to them.
II.
THE SECURITIES
2.01
Form and Dating.
The Securities and the Trustee’s certificate of authentication shall be substantially in the
form set forth in
Exhibit A
, which is incorporated in and forms a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication.
Securities shall be issued initially in the form of one or more Global Securities,
substantially in the form set forth in
Exhibit A
(the “
Global Security
”), deposited with the
Trustee, as custodian for DTC, registered in the name of DTC or a nominee thereof, duly executed by
the Company and authenticated by the Trustee as hereinafter provided and bearing the legend set
forth in
Exhibit B
. The aggregate principal amount of the Global Security may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC, as
hereinafter provided;
provided
that, subject to
Section 2.04
hereof, the aggregate principal amount
of the Global Security or Securities shall not exceed $342,394,000.
Securities issued in exchange for interests in a Global Security pursuant to
Section 2.05
hereof may be issued in the form of permanent certificated Securities in registered form in
substantially the form set forth in
Exhibit A
(the “
Physical Securities
”).
-6-
2.02
Execution and Authentication.
Upon a written order of the Company signed by one Officer of the Company, the Trustee shall
authenticate Securities for original issue in the aggregate principal amount of $342,394,000. The
aggregate principal amount of Securities outstanding at any time may not exceed $342,394,000 except
as provided in
Section 2.04
hereof.
2.03
Registrar, Paying Agent and Conversion Agent.
The Company shall maintain, or shall cause to be maintained, (i) an office or agency in the
Borough of Manhattan, The City of New York, where Securities may be presented for registration of
transfer or for exchange (“
Registrar
”), (ii) an office or agency in the Borough of Manhattan, The
City of New York, where Securities may be presented for payment (“
Paying Agent
”) and (iii) an
office or agency in the Borough of Manhattan, The City of New York, where Securities may be
presented for conversion (“
Conversion Agent
”). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may appoint or change one or more
co-Registrars, one or more additional paying agents and one or more additional conversion agents
without notice and may act in any such capacity on its own behalf. The term “
Registrar
” includes
any co-Registrar; the term “
Paying Agent
” includes any additional paying agent; and the term
“
Conversion Agent
” includes any additional conversion agent.
The Company shall enter into an appropriate agency agreement with any agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of any agent not a party to
this Indenture. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent,
the Trustee shall act as such.
The Company initially appoints the Trustee as Paying Agent, Bid Solicitation Agent, Registrar
and Conversion Agent.
2.04
Additional Securities.
The Company may, without the consent of the Holders and notwithstanding
Sections 2.01
and
2.02
hereof, reopen the Securities and issue additional Securities hereunder with the same terms and
conditions (except for any difference in the issue price therefor and interest accrued prior to the
date of issuance thereof) and with the same CUSIP number as the Securities initially issued
hereunder, provided that such additional Securities constitute the same issue as the Securities
initially issued hereunder for U.S. federal income tax purposes. The Securities initially issued
hereunder and any such additional Securities would rank equally and ratably and would be treated as
a single series of debt securities for all purposes under the Indenture.
2.05
Book-Entry Provisions for And Restrictions on Transfer and Exchange of Global
Securities.
(A) The Global Securities initially shall (i) be registered in the name of DTC or the nominee
of DTC, (ii) be delivered to the Trustee as custodian for DTC and (iii) bear the legend as set
forth herein.
-7-
Members of, or participants in, DTC (“
Participants
”) shall have no rights under this Indenture
with respect to any Global Security held on their behalf by DTC, or the Trustee as its custodian,
or under the Global Security, and DTC may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of the Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee
or any agent of the Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by DTC or impair, as between DTC and Participants, the operation
of customary practices governing the exercise of the rights of a Holder of any Security.
(B) Transfers of Global Securities shall be limited to transfers in whole, but not in part, to
DTC, its successors or their respective nominees. In addition, Physical Securities shall be
transferred to all beneficial owners, as identified by DTC, in exchange for their beneficial
interests in Global Securities only if (i) DTC notifies the Company that DTC is unwilling or unable
to continue as depositary for any Global Security (or DTC ceases to be a “clearing agency”
registered under Section 17A of the Exchange Act) and a successor Depositary is not appointed by
the Company within ninety (90) days of such notice or cessation or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a written request from DTC to issue
Physical Securities.
(C) In connection with the transfer of a Global Security in its entirety to beneficial owners
pursuant to
Section 2.05(B)
hereof, such Global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee shall upon written
instructions from the Company authenticate and deliver, to each beneficial owner identified by DTC
in exchange for its beneficial interest in such Global Security, an equal aggregate principal
amount of Physical Securities of authorized denominations.
(D) The Holder of any Global Security may grant proxies and otherwise authorize any Person,
including Participants and Persons that may hold interests through Participants, to take any action
which a Holder is entitled to take under this Indenture or the Securities.
(E) Notwithstanding any other provisions of this Indenture, but except as provided in
Section
2.05(B)
hereof, a Global Security may not be transferred except as a whole by DTC to a nominee of
DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
2.06
Ranking.
The indebtedness of the Company arising under or in connection with this Indenture and every
outstanding Security issued under this Indenture from time to time (including any additional
Securities issued pursuant to
Section 2.04
hereof) constitutes and will constitute a senior
unsecured obligation of the Company, ranking equally with other existing and future senior
unsecured indebtedness of the Company and ranking senior to any existing or future subordinated
indebtedness of the Company.
-8-
III.
REDEMPTION AND REPURCHASE
3.01
Redemption and Repurchase.
(A) (i) Redemption of the Securities at the Company’s option, as permitted by this Indenture,
shall be made in accordance with
paragraphs 6 and 7
of the Securities (a “
Redemption
”), (ii)
repurchases at the Holder’s option, as permitted by this Indenture, shall be made in accordance
with
paragraph 8
of the Securities (a “
Purchase at Holder’s Option
”) and (iii) repurchases upon a
Fundamental Change, as permitted by this Indenture, shall be made in accordance with
paragraph 9
of
the Securities (a “
Repurchase Upon Fundamental Change
”), in each case in accordance with the
applicable provisions of this
Article III
.
(B) The Company will comply with all federal and state securities laws, and the applicable
laws of any foreign jurisdiction, in connection with any offer to sell or solicitations of offers
to buy Securities pursuant to this
Article III
.
(C) The Company shall not have the right to redeem any Securities prior to December 1, 2014,
except to preserve the Company’s status as a real estate investment trust. If, at any time, the
Company determines that it is necessary to redeem the Securities in order to preserve the Company’s
status as a real estate investment trust, the Company may redeem all or any part of the Securities
at a price payable in cash equal to the Redemption Price plus accrued and unpaid interest, if any,
to, but excluding, the Redemption Date. In such case, the Company shall provide the Trustee with
an Officers’ Certificate evidencing that the Board of the Company has, in good faith, made the
determination that it is necessary to redeem the Securities in order to preserve the Company’s
status as a real estate investment trust, on which the Trustee may conclusively rely.
The Company shall have the right, at the Company’s option, at any time, and from time to time, on a
Redemption Date on or after December 1, 2014, to redeem all or any part of the Securities at a
price payable in cash equal to the Redemption Price plus accrued and unpaid interest, if any, to,
but excluding, the Redemption Date.
The Redemption Date must be a Business Day. If the Redemption Date with respect to a Security is
after a Regular Record Date and on or before the related Interest Payment Date, then accrued and
unpaid interest to, but excluding, such Interest Payment Date shall be paid, on such Interest
Payment Date, to the Holder of record of such Security at the close of business on such Regular
Record Date, and the Holder surrendering such Security for Redemption shall not be entitled to any
such interest unless such Holder was also the Holder of record of such Security at the close of
business on such Regular Record Date. The Company will make at least ten (10) semi-annual interest
payments on the Securities prior to or on any Redemption Date, provided that the foregoing shall
not apply in the event of a redemption to preserve the Company’s status as a real estate investment
trust.
(D) Securities in denominations larger than $1,000 principal amount may be redeemed in part
but only in integral multiples of $1,000 principal amount.
-9-
3.02
Notices to Trustee.
If the Company elects to redeem Securities pursuant to
paragraph 6
of the Securities, it shall
notify the Trustee of the Redemption Date, the applicable provision of this Indenture pursuant to
which the Redemption is to be made and the aggregate principal amount of Securities to be redeemed,
which notice shall be provided to the Trustee by the Company at least fifteen (15) days prior to
the mailing, in accordance with
Section 3.04
hereof, of the notice of Redemption (unless a shorter
notice period shall be satisfactory to the Trustee).
3.03
Selection of Securities to Be Redeemed.
If the Company has elected to redeem less than all the Securities pursuant to
paragraph 6
of
the Securities, the Trustee shall, within five (5) Business Days after receiving the notice
specified in
Section 3.02
hereof
,
select the Securities to be redeemed by lot, on a
pro rata
basis
or in accordance with any other method the Trustee considers fair and appropriate. The Trustee
shall make such selection from Securities then outstanding and not already to be redeemed by virtue
of having been previously called for Redemption. The Trustee may select for Redemption portions of
the principal amount of Securities that have denominations larger than $1,000 principal amount.
Securities and portions of them the Trustee selects for Redemption shall be in amounts of $1,000
principal amount or integral multiples of $1,000 principal amount. The Trustee shall promptly
notify the Company in writing of the Securities selected for Redemption and the principal amount
thereof to be redeemed.
The Registrar need not register the transfer of or exchange any Securities that have been
selected for Redemption, except the unredeemed portion of the Securities being redeemed in part.
3.04
Notice of Redemption.
At least thirty (30) days but not more than sixty (60) days before a Redemption Date, the
Company shall mail, or cause to be mailed, by first-class mail a notice of Redemption to each
Holder whose Securities are to be redeemed, at the address of such Holder appearing in the security
register.
The notice shall identify the Securities and the aggregate principal amount thereof to be
redeemed pursuant to the Redemption and shall state:
(i) the Redemption Date;
(ii) the Redemption Price plus accrued and unpaid interest, if any, to, but
excluding, the Redemption Date;
(iii) the Conversion Rate and the Conversion Price;
(iv) the names and addresses of the Paying Agent and the Conversion Agent;
-10-
(v) that the right to convert the Securities called for Redemption will terminate at
the close of business on the last Business Day immediately preceding the Redemption Date,
unless there shall be a Default in the payment of the Redemption Price or accrued and
unpaid interest, if any, payable as herein provided upon Redemption;
(vi) that Holders who want to convert Securities must satisfy the requirements of
Article VIII
hereof;
(vii) the paragraph of the Securities pursuant to which the Securities are to be
redeemed;
(viii) that Securities called for Redemption must be surrendered to the Paying Agent
to collect the Redemption Price plus accrued and unpaid interest, if any, payable as
herein provided upon Redemption;
(ix) that, unless there shall be a Default in the payment of the Redemption Price or
accrued and unpaid interest, if any, payable as herein provided upon Redemption
(including, where the Redemption Date is after a record date for the payment of an
installment of interest and on or before the related interest payment date, the payment,
on such interest payment date, of accrued and unpaid interest to, but excluding, such
interest payment date to the Holder of record at the close of business on such record
date), interest on Securities called for Redemption ceases to accrue on and after the
Redemption Date, except as otherwise provided herein, such Securities will cease to be
convertible after the close of business on the last Business Day immediately preceding the
Redemption Date, and all rights of the Holders of such Securities shall terminate on and
after the Redemption Date, other than the right to receive, upon surrender of such
Securities and in accordance with this Indenture, the amounts due hereunder on such
Securities upon Redemption (and the rights of the Holder(s) of record of such Securities
to receive, on the applicable interest payment date, accrued and unpaid interest in
accordance herewith in the event the Redemption Date is after a record date for the
payment of an installment of interest and on or before the related interest payment date);
and
(x) the CUSIP number or numbers, as the case may be, of the Securities.
The right, pursuant to
Article VIII
hereof, to convert Securities called for Redemption shall
terminate at the close of business on the last Business Day immediately preceding the Redemption
Date, unless there shall be a Default in the payment of the Redemption Price or accrued and unpaid
interest, if any, payable as herein provided upon Redemption.
At the Company’s request, the Trustee shall mail the notice of Redemption in the Company’s
name and at the Company’s expense;
provided
,
however
, that the form and content of such notice
shall be prepared by the Company.
-11-
3.05
Effect of Notice of Redemption.
Once notice of Redemption is mailed, Securities called for Redemption become due and payable
on the Redemption Date at the consideration set forth herein, and, on and after such Redemption
Date (unless there shall be a Default in the payment of such consideration), except as otherwise
provided herein, such Securities shall cease to bear interest, and all rights of the Holders of
such Securities shall terminate, other than the right to receive such consideration upon surrender
of such Securities to the Paying Agent.
If any Security shall not be fully and duly paid in accordance herewith upon Redemption, the
principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest at
the rate borne by such Security on the principal amount of such Security, and such Security shall
continue to be convertible pursuant to
Article VIII
hereof.
Notwithstanding anything herein to the contrary, the Company shall not redeem any Securities
on any date if the principal amount of the Securities has been accelerated, and such acceleration
has not been rescinded on or prior to Redemption Date (except in the case of an acceleration
resulting from a Default by the Company in the payment of the Redemption Price with respect to such
Securities).
3.06
Deposit of Redemption Price.
Prior to 10:00 A.M., New York City time on the Redemption Date, the Company shall deposit with
a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust)
money, in funds immediately available on the Redemption Date, sufficient to pay the consideration
payable as herein provided upon Redemption on all Securities to be redeemed on that date. The
Paying Agent shall return to the Company, as soon as practicable, any money not required for that
purpose.
3.07
Securities Redeemed in Part.
Any Security to be submitted for Redemption only in part shall be delivered pursuant to
Section 3.05
hereof (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and make available for delivery to the Holder of such Security
without service charge, a new Security or Securities, of any authorized denomination as requested
by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such
Security not submitted for Redemption.
If any Security selected for partial Redemption is converted in part, the principal of such
Security subject to Redemption shall be reduced by the principal amount of such Security that is
converted.
3.08
Purchase of Securities at Option of the Holder.
(A) At the option of the Holder thereof, Securities (or portions thereof that are integral
multiples of $1,000 in principal amount) shall be purchased by the Company pursuant to
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paragraph 8
of the Securities on December 1, 2014, December 1, 2019 and December 1, 2024
(each, an “
Option Purchase Date
”), at a purchase price, payable in cash, equal to one hundred
percent (100%) of the principal amount of the Securities (or such portions thereof) to be so
purchased (the “
Option Purchase Price
”), plus accrued and unpaid interest, if any, to, but
excluding, the applicable Option Purchase Date (
provided
, that such accrued and unpaid interest
shall be paid to the Holder of record of such Securities at the close of business on the Regular
Record Date immediately preceding such Option Purchase Date), upon:
(i) delivery to the Company (if it is acting as its own Paying Agent), or to a
Paying Agent designated by the Company for such purpose in the Option Purchase Notice, by
such Holder, at any time from the opening of business on the date that is twenty (20)
Business Days prior to the applicable Option Purchase Date until the close of business on
the Business Day immediately preceding the applicable Option Purchase Date, of a Purchase
Notice, in the form set forth in the Securities or any other form of written notice
substantially similar thereto, in each case, duly completed and signed, with appropriate
signature guarantee, stating:
(a) the certificate number(s) of the Securities which the Holder will deliver
to be purchased, if such Securities are in certificated form;
(b) the principal amount of Securities to be purchased, which must be $1,000 or
an integral multiple thereof; and
(c) that such principal amount of Securities are to be purchased as of the
applicable Option Purchase Date pursuant to the terms and conditions specified in
paragraph 8
of the Securities and in this Indenture; and
(ii) delivery to the Company (if it is acting as its own Paying Agent), or to a
Paying Agent designated by the Company for such purpose in the Option Purchase Notice, at
any time after delivery of such Purchase Notice, of such Securities (together with all
necessary endorsements), such delivery being a condition to receipt by the Holder of the
Option Purchase Price therefor plus accrued and unpaid interest, if any, payable as
herein provided upon Purchase at Holder’s Option (
provided
,
however
, that the Holder of
record of such Securities on the record date immediately preceding such Option Purchase
Date need not surrender such Securities in order to be entitled to receive, on the Option
Purchase Date, the accrued and unpaid interest due thereon).
If such Securities are held in book-entry form through DTC, the Purchase Notice shall comply
with applicable procedures of DTC.
Upon such delivery of Securities to the Company (if it is acting as its own Paying Agent) or
such Paying Agent, such Holder shall be entitled to receive from the Company or such Paying Agent,
as the case may be, a nontransferable receipt of deposit evidencing such delivery.
Notwithstanding anything herein to the contrary, any Holder that has delivered the Purchase
Notice contemplated by this
Section 3.08(A)
to the Company (if it is acting as its own Paying
Agent) or to a Paying Agent designated by the Company for such purpose in the Option Purchase
Notice shall have the right to withdraw such Purchase Notice by delivery, at any time
-13-
prior to the close of business on the Business Day immediately preceding the applicable Option
Purchase Date, of a written notice of withdrawal to the Company (if acting as its own Paying Agent)
or the Paying Agent, which notice shall contain the information specified in
Section 3.08(B)(vii)
hereof.
The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice
or written notice of withdrawal thereof.
(B) The Company shall give notice (the “
Option Purchase Notice
”) on a date not less than
twenty (20) Business Days prior to each Option Purchase Date to each Holder at its address shown in
the register of the Registrar and to each beneficial owner as required by applicable law. Such
notice shall state:
(i) the Option Purchase Price plus accrued and unpaid interest, if any, to, but
excluding, such Option Purchase Date and the Conversion Rate;
(ii) the names and addresses of the Paying Agent and the Conversion Agent;
(iii) that Securities with respect to which a Purchase Notice is given by a Holder
may be converted pursuant to
Article VIII
hereof only if such Purchase Notice has been
withdrawn in accordance with this
Section 3.08
or if there shall be a Default in the
payment of such Option Purchase Price or in accrued and unpaid interest, if any, payable
as herein provided upon Purchase at Holder’s Option;
(iv) that Securities must be surrendered to the Paying Agent to collect payment of
the Option Purchase Price plus (if such Holder was the Holder of record of the applicable
Security at the close of business on the record date immediately preceding the Option
Purchase Date) accrued and unpaid interest, if any, payable as herein provided upon
Purchase at Holder’s Option;
(v) that the Option Purchase Price, plus accrued and unpaid interest, if any, to,
but excluding, such Option Purchase Date, for any Security as to which a Purchase Notice
has been given and not withdrawn will be paid as promptly as practicable, but in no event
later than the later of such Option Purchase Date or the time of delivery of the Security
as described in
clause (iv)
above;
provided
,
however
, that such accrued and unpaid
interest shall be paid, on the applicable interest payment date, to the Holder of record
of such Security at the close of business on the record date immediately preceding such
Option Purchase Date;
(vi) the procedures the Holder must follow to exercise rights under this
Section
3.08
(including the name and address of the Paying Agent) and a brief description of
those rights;
(vii) that a Holder will be entitled to withdraw its election in the Purchase Notice
if the Company (if acting as its own Paying Agent) or the Paying Agent receives, at any
time prior to the close of business on the Business Day immediately preceding the
applicable Option Purchase Date, or such longer period as may be
-14-
required by law, a letter or telegram, telex or facsimile transmission (receipt of
which is confirmed and promptly followed by a letter) setting forth (I) the name of such
Holder, (II) a statement that such Holder is withdrawing its election to have Securities
purchased by the Company on such Option Purchase Date pursuant to a Purchase at Holder’s
Option, (III) the certificate number(s) of such Securities to be so withdrawn, if such
Securities are in certificated form, (IV) the principal amount of the Securities of such
Holder to be so withdrawn, which amount must be $1,000 or an integral multiple thereof
and (V) the principal amount, if any, of the Securities of such Holder that remain
subject to the Purchase Notice delivered by such Holder in accordance with this
Section
3.08
, which amount must be $1,000 or an integral multiple thereof;
(viii) that, except as otherwise provided herein, on and after the applicable Option
Purchase Date (unless there shall be a Default in the payment of the consideration
payable as herein provided upon a Purchase at Holder’s Option), interest on Securities
subject to Purchase at Holder’s Option will cease to accrue, and all rights of the
Holders of such Securities shall terminate, other than the right to receive, in
accordance herewith, the consideration payable as herein provided upon a Purchase at
Holder’s Option; and
(ix) the CUSIP number or numbers, as the case may be, of the Securities.
At the Company’s request, the Trustee shall mail such Option Purchase Notice in the Company’s
name and at the Company’s expense;
provided, however
, that the form and content of such Option
Purchase Notice shall be prepared by the Company.
No failure of the Company to give an Option Purchase Notice shall limit any Holder’s right to
exercise its rights to require the Company to purchase such Holder’s Securities pursuant to a
Purchase at Holder’s Option.
(C) Subject to the provisions of this
Section 3.08
, the Company shall pay, or cause to be
paid, the Option Purchase Price, plus accrued and unpaid interest, if any, to, but excluding, the
applicable Option Purchase Date, with respect to each Security subject to Purchase at Holder’s
Option to the Holder thereof as promptly as practicable, but in no event later than the later of
the applicable Option Purchase Date and the time such Security (together with all necessary
endorsements) is surrendered to the Paying Agent;
provided
,
however
, that such accrued and unpaid
interest shall be paid, on the applicable interest payment date, to the Holder of record of such
Security at the close of business on the record date immediately preceding such Option Purchase
Date.
(D) Prior to 10:00 A.M., New York City time on the applicable Option Purchase Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust) money, in funds immediately available on the applicable Option
Purchase Date, sufficient to pay the Option Purchase Price, plus accrued and unpaid interest, if
any, to, but excluding, such Option Purchase Date, of all of the Securities that are to be
purchased by the Company on such Option Purchase Date pursuant to a Purchase at Holder’s Option.
The Paying Agent shall return to the Company, as soon as practicable, any money not required for
that purpose.
-15-
(E) Once the Purchase Notice has been duly delivered in accordance with this
Section 3.08
, the
Option Purchase Price, plus accrued and unpaid interest, if any, relating to the Securities to be
purchased pursuant to the Purchase at Holder’s Option shall, on the applicable Option Purchase
Date, become due and payable in accordance herewith, and, on and after such date (unless there
shall be a Default in the payment of the consideration payable as herein provided upon a Purchase
at Holder’s Option), except as otherwise herein provided, such Securities shall cease to bear
interest, and all rights of the Holders of such Securities shall terminate, other than the right to
receive, in accordance herewith, such consideration.
(F) Securities with respect to which a Purchase Notice has been duly delivered in accordance
with this
Section 3.08
may be converted pursuant to
Article VIII
hereof, if otherwise convertible
in accordance with
Article VIII
hereof, only if such Purchase Notice has been withdrawn in
accordance with this
Section 3.08
or if there shall be a Default in the payment of the
consideration payable as herein provided upon a Purchase at Holder’s Option.
(G) If any Security subject to Purchase at Holder’s Option shall not be paid in accordance
herewith, the principal of, and accrued and unpaid interest on, such Security shall, until paid,
bear interest, payable in cash, at the rate borne by such Security on the principal amount of such
Security, and such Security shall continue to be convertible pursuant to
Article VIII
hereof.
(H) Any Security which is to be submitted for Purchase at Holder’s Option only in part shall
be delivered pursuant to this
Section 3.08
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and make available for delivery to the
Holder of such Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal
to the portion of such Security not submitted for Purchase at Holder’s Option.
(I) Notwithstanding anything herein to the contrary, no Securities shall be purchased by the
Company at the option of the Holders on any Option Purchase Date if the principal amount of the
Securities has been accelerated, and such acceleration has not been rescinded, on or prior to such
Option Purchase Date (except in the case of an acceleration resulting from a Default by the Company
in the payment of the Option Purchase Price with respect to such Securities). The Paying Agent
will promptly return to the respective Holders thereof any Securities held by it during the
continuance of such acceleration.
(J) Notwithstanding anything herein to the contrary, if the option granted to Holders to
require the purchase of the Securities on the applicable Option Purchase Date is determined to
constitute a tender offer, the Company shall comply with all applicable tender offer rules under
the Exchange Act, including Rule 13e-4 and Regulation 14E thereunder, and with all other applicable
laws, and will file a Schedule TO or any other schedules required under the Exchange Act or any
other applicable laws.
-16-
3.09
Repurchase at Option of Holder Upon a Fundamental Change.
(A) In the event any Fundamental Change (as defined below) shall occur, each Holder of
Securities shall have the right (the “
Fundamental Change Repurchase Right
”), at such Holder’s
option, to require the Company to repurchase all of such Holder’s Securities (or portions thereof
that are integral multiples of $1,000 in principal amount), on a date selected by the Company (the
“
Fundamental Change Repurchase Date
”), which Fundamental Change Repurchase Date shall be no later
than thirty five (35) days, nor earlier than twenty (20) days, after the date the Fundamental
Change Notice (as defined below) is mailed in accordance with
Section 3.09(B)
hereof, at a price,
payable in cash, equal to one hundred percent (100%) of the principal amount of the Securities (or
portions thereof) to be so repurchased (the “
Fundamental Change Repurchase Price
”), plus accrued
and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, upon:
(i) delivery to the Company (if it is acting as its own Paying Agent), or to a
Paying Agent designated by the Company for such purpose in the Fundamental Change Notice,
no later than the close of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date, of a Purchase Notice, in the form set forth in the
Securities or any other form of written notice substantially similar thereto, in each
case, duly completed and signed, with appropriate signature guarantee, stating:
(a) the certificate number(s) of the Securities which the Holder will deliver
to be repurchased, if such Securities are in certificated form;
(b) the principal amount of Securities to be repurchased, which must be $1,000
or an integral multiple thereof; and
(c) that such principal amount of Securities are to be repurchased pursuant to
the terms and conditions specified in
paragraph 9
of the Securities and in this
Indenture; and
(ii) delivery to the Company (if it is acting as its own Paying Agent), or to a
Paying Agent designated by the Company for such purpose in the Fundamental Change Notice,
at any time after the delivery of such Purchase Notice, of such Securities (together with
all necessary endorsements) with respect to which the Fundamental Change Repurchase Right
is being exercised;
provided
,
however
, that if such Fundamental Change Repurchase Date is after a Regular Record Date
for the payment of an installment of interest and on or before the related Interest Payment Date,
then the accrued and unpaid interest, if any, to, but excluding, such Interest Payment Date will be
paid on such Interest Payment Date to the Holder of record of such Securities at the close of
business on such Regular Record Date (without any surrender of such Securities by such Holder), and
the Holder surrendering such Securities for repurchase will not be entitled to any such accrued and
unpaid interest unless such Holder was also the Holder of record of such Securities at the close of
business on such Regular Record Date.
-17-
If such Securities are held in book-entry form through DTC, the Purchase Notice shall comply
with applicable procedures of DTC.
Upon such delivery of Securities to the Company (if it is acting as its own Paying Agent) or
such Paying Agent, such Holder shall be entitled to receive from the Company or such Paying Agent,
as the case may be, a nontransferable receipt of deposit evidencing such delivery.
Notwithstanding anything herein to the contrary, any Holder that has delivered the Purchase
Notice contemplated by this
Section 3.09(A)
to the Company (if it is acting as its own Paying
Agent) or to a Paying Agent designated by the Company for such purpose in the Fundamental Change
Notice shall have the right to withdraw such Purchase Notice by delivery, at any time prior to the
close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date,
of a written notice of withdrawal to the Company (if acting as its own Paying Agent) or the Paying
Agent, which notice shall contain the information specified in
Section 3.09(B)(xi)
hereof.
The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice
or written notice of withdrawal thereof.
(B) Within twenty (20) Business Days after the occurrence of a Fundamental Change, the Company
shall mail, or cause to be mailed, to all Holders of record of the Securities at their addresses
shown in the register of the Registrar, and to beneficial owners as required by applicable law, a
notice (the “
Fundamental Change Notice
”) of the occurrence of such Fundamental Change and the
Fundamental Change Repurchase Right arising as a result thereof. The Company shall deliver a copy
of the Fundamental Change Notice to the Trustee and shall cause a copy to be published at the
expense of the Company in
The New York Times
or
The Wall Street Journal
or
another newspaper of national circulation.
Each Fundamental Change Notice shall state:
(i) the events causing the Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the Fundamental Change Repurchase Date;
(iv) the date by which the Fundamental Change Repurchase Right must be exercised;
(v) the Fundamental Change Repurchase Price plus accrued and unpaid interest, if any,
to, but excluding, the Fundamental Change Repurchase Date;
(vi) the names and addresses of the Paying Agent and the Conversion Agent;
(vii) a description of the procedures which a Holder must follow to exercise the
Fundamental Change Repurchase Right;
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(viii) that, in order to exercise the Fundamental Change Repurchase Right, the
Securities must be surrendered for payment of the Fundamental Change Repurchase Price plus
accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon
Fundamental Change;
(ix) that the Fundamental Change Repurchase Price, plus accrued and unpaid interest,
if any, to, but excluding, the Fundamental Change Repurchase Date, for any Security as to
which a Purchase Notice has been given and not withdrawn will be paid as promptly as
practicable, but in no event more than the later of such Fundamental Change Repurchase
Date and the time of delivery of the Security (together with all necessary endorsements)
as described in
clause (viii)
above;
provided
,
however
, that if such Fundamental Change
Repurchase Date is after a Regular Record Date for the payment of an installment of
interest and on or before the related Interest Payment Date, then the accrued and unpaid
interest, if any, to, but excluding, such Interest Payment Date will be paid on such
Interest Payment Date to the Holder of record of such Security at the close of business on
such Regular Record Date (without any surrender of such Securities by such Holder), and
the Holder surrendering such Security for repurchase will not be entitled to any such
accrued and unpaid interest unless such Holder was also the Holder of record of such
Security at the close of business on such Regular Record Date;
(x) that, except as otherwise provided herein, on and after such Fundamental Change
Repurchase Date (unless there shall be a Default in the payment of the consideration
payable as herein provided upon Repurchase Upon Fundamental Change), interest on
Securities subject to Repurchase Upon Fundamental Change will cease to accrue, and all
rights of the Holders of such Securities shall terminate, other than the right to
receive, in accordance herewith, the consideration payable as herein provided upon
Repurchase Upon Fundamental Change;
(xi) that a Holder will be entitled to withdraw its election in the Purchase Notice
if the Company (if acting as its own Paying Agent), or the Paying Agent receives, prior to
the close of business on the Business Day immediately preceding the Fundamental Change
Repurchase Date, or such longer period as may be required by law, a letter or telegram,
telex or facsimile transmission (receipt of which is confirmed and promptly followed by a
letter) setting forth (I) the name of such Holder, (II) a statement that such Holder is
withdrawing its election to have Securities purchased by the Company on such Fundamental
Change Repurchase Date pursuant to a Repurchase Upon Fundamental Change, (III) the
certificate number(s) of such Securities to be so withdrawn, if such Securities are in
certificated form, (IV) the principal amount of the Securities of such Holder to be so
withdrawn, which amount must be $1,000 or an integral multiple thereof and (V) the
principal amount, if any, of the Securities of such Holder that remain subject to the
Purchase Notice delivered by such Holder in accordance with this
Section 3.09
, which
amount must be $1,000 or an integral multiple thereof;
(xii) the Conversion Rate and any adjustments to the Conversion Rate that will result
from such Fundamental Change;
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(xiii) that Securities with respect to which a Purchase Notice is given by a Holder
may be converted pursuant to
Article VIII
hereof only if such Purchase Notice has been
withdrawn in accordance with this
Section 3.09
or if there shall be a Default in the
payment of the Fundamental Change Repurchase Price or in the accrued and unpaid interest,
if any, payable as herein provided upon Repurchase Upon Fundamental Change; and
(xiv) the CUSIP number or numbers, as the case may be, of the Securities.
At the Company’s request, the Trustee shall mail such Fundamental Change Notice in the
Company’s name and at the Company’s expense;
provided, however
, that the form and content of such
Fundamental Change Notice shall be prepared by the Company.
No failure of the Company to give a Fundamental Change Notice shall limit any Holder’s right
to exercise a Fundamental Change Repurchase Right.
(C) Subject to the provisions of this
Section 3.09
, the Company shall pay, or cause to be
paid, the Fundamental Change Repurchase Price, plus accrued and unpaid interest, if any, to, but
excluding, the Fundamental Change Repurchase Date, with respect to each Security as to which the
Fundamental Change Repurchase Right shall have been exercised to the Holder thereof as promptly as
practicable, but in no event later than the later of the Fundamental Change Repurchase Date and the
time such Security is surrendered to the Paying Agent;
provided
,
however
, that if such Fundamental
Change Repurchase Date is after a Regular Record Date for the payment of an installment of interest
and on or before the related Interest Payment Date, then the accrued and unpaid interest, if any,
to, but excluding, such Interest Payment Date will be paid on such Interest Payment Date to the
Holder of record of such Security at the close of business on such Regular Record Date, and the
Holder surrendering such Security for repurchase will not be entitled to any such accrued and
unpaid interest unless such Holder was also the Holder of record of such Security at the close of
business on such Regular Record Date.
(D) Prior to 10:00 A.M., New York City time on a Fundamental Change Repurchase Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust) money, in funds immediately available on the Fundamental Change
Repurchase Date, sufficient to pay the consideration payable as herein provided upon Repurchase
Upon Fundamental Change for all of the Securities that are to be repurchased by the Company on such
Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental Change. The Paying
Agent shall return to the Company, as soon as practicable, any money not required for that purpose.
(E) Once the Fundamental Change Notice and the Purchase Notice have been duly given in
accordance with this
Section 3.09
, the Fundamental Change Repurchase Price, plus accrued and unpaid
interest, if any, relating to the Securities to be repurchased pursuant to a Repurchase Upon
Fundamental Change shall, on the Fundamental Change Repurchase Date, become due and payable in
accordance herewith, and, on and after such date (unless there shall be a Default in the payment of
the consideration payable as herein provided upon Repurchase Upon Fundamental Change), except as
otherwise herein provided, such Securities shall cease to
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bear interest, and all rights of the Holders of such Securities shall terminate, other than
the right to receive, in accordance herewith, such consideration.
(F) Securities with respect to which a Purchase Notice has been duly delivered in accordance
with this
Section 3.09
may be converted pursuant to
Article VIII
hereof, if otherwise convertible
in accordance with
Article VIII
hereof, only if such Purchase Notice has been withdrawn in
accordance with this
Section 3.09
or if there shall be a Default in the payment of the
consideration payable as herein provided upon Repurchase Upon Fundamental Change.
(G) If any Security shall not be paid upon surrender thereof for Repurchase Upon Fundamental
Change, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear
interest, payable in cash, at the rate borne by such Security on the principal amount of such
Security, and such Security shall continue to be convertible pursuant to
Article VIII
hereof.
(H) Any Security which is to be submitted for Repurchase Upon Fundamental Change only in part
shall be delivered pursuant to this
Section 3.09
(with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and make available for delivery to the
Holder of such Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal
to the portion of such Security not duly submitted for Repurchase Upon Fundamental Change.
(I) Notwithstanding anything herein to the contrary, no Securities shall be repurchased by the
Company at the option of the Holders upon a Fundamental Change pursuant to this
Section 3.09
if the
principal amount of the Securities has been accelerated, and such acceleration has not been
rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an
acceleration resulting from a Default by the Company in the payment of the Fundamental Change
Repurchase Price with respect to such Securities). The Paying Agent will promptly return to the
respective Holders thereof any Securities held by it during the continuance of such acceleration.
(J) Notwithstanding anything herein to the contrary, if the option granted to Holders to
require the repurchase of the Securities upon the occurrence of a Fundamental Change is determined
to constitute a tender offer, the Company shall comply with all applicable tender offer rules under
the Exchange Act, including Rule 13e-4 and Regulation 14E thereunder, and with all other applicable
laws, and will file a Schedule TO or any other schedules required under the Exchange Act or any
other applicable laws.
(K) As used herein and in the Securities, a “
Fundamental Change
” shall be deemed to have
occurred upon the occurrence of either a “Change in Control” or a “Termination of Trading.”
(i) A “
Change in Control
” shall be deemed to have occurred at such time as:
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(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the “beneficial owner” (as such term is used in
Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%)
or more of the Company’s Voting Stock; or
(b) there occurs a sale, transfer, lease, conveyance or other disposition of
all or substantially all of the property or assets of the Company to any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act),
including any group acting for the purpose of acquiring, holding, voting or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange
Act (such an event, an “
Asset Sale Control Change
”); or
(c) the Company consolidates with, or merges with or into, another person or
any person consolidates with, or merges with or into, the Company, unless either:
(1) the persons that “beneficially owned” (as such term is used in Rule
13d-3 under the Exchange Act), directly or indirectly, the shares of the
Company’s Voting Stock immediately prior to such consolidation or merger,
“beneficially own,” directly or indirectly, immediately after such
consolidation or merger, shares of the surviving or continuing corporation’s
Voting Stock representing at least a majority of the total outstanding
voting power of all outstanding classes of the Voting Stock of the surviving
or continuing corporation in substantially the same proportion as such
ownership immediately prior to such consolidation or merger; or
(2) at least ninety percent (90%) of the consideration (other than cash
payments for fractional shares or pursuant to statutory appraisal rights) in
such consolidation or merger consists of common stock and any associated
rights traded on a U.S. national securities exchange (or which will be so
traded when issued or exchanged in connection with such consolidation or
merger), and, as a result of such consolidation or merger, the Securities,
upon conversion, will be convertible solely into such common stock and
associated rights (such a consolidation or merger that satisfies the
conditions set forth in this
clause (2)
, a “
Listed Stock Business
Combination
”); or
(d) the following persons cease for any reason to constitute a majority of the
Company’s Board:
(1) individuals who on the Issue Date constituted the Company’s Board;
and
(2) any new directors whose election to the Company’s Board or whose
nomination for election by the Company’s stockholders was approved by at
least a majority of the directors of the Company then still
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in office either who were directors of the Company on the Issue Date or
whose election or nomination for election was previously so approved; or
(e) the Company is liquidated or dissolved or the holders of the Company’s
Capital Stock approve any plan or proposal for the liquidation or dissolution of the
Company.
(ii) A “
Termination of Trading
” shall be deemed to occur if the Common Stock of the
Company (or other common stock into which the Securities are then convertible) is no
longer listed for trading on a U.S. national securities exchange.
IV.
ADDITIONAL COVENANTS
Holders shall have the benefit of the following covenants, in addition to the covenants of the
Company set forth in
Article Ten
of the Base Indenture:
4.01
SEC Reports.
(A) The Company shall deliver to the Trustee, no later than the time such report is required
to be filed with the Commission pursuant to the Exchange Act (including, without limitation, to the
extent applicable, any extension permitted by Rule 12b-25 under the Exchange Act), a copy of each
report the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act;
provided, however
, that the Company shall not be required to deliver to the Trustee
any material for which the Company has sought and received confidential treatment by the
Commission;
provided further
, each such report will be deemed to be so delivered to the Trustee if
the Company files such report with the Commission through the Commission’s EDGAR database no later
than the time such report is required to be filed with the Commission pursuant to the Exchange Act
(including, without limitation, to the extent applicable, any extension permitted by Rule 12b-25
under the Exchange Act). In the event the Company is at any time no longer subject to the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Company shall
continue to provide the Trustee and, upon request, any Holder, within the time period that the
Company would have been required to file such reports with the Commission (including, without
limitation, to the extent applicable, any extension permitted by Rule 12b-25 under the Exchange
Act), annual and quarterly consolidated financial statements substantially equivalent to financial
statements that would have been included in reports filed with the Commission if the Company were
subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act,
including, with respect to annual information only, a report thereon by the Company’s certified
independent public accountants as such would be required in such reports filed with the Commission
and, in each case, together with a management’s discussion and analysis of financial condition and
results of operations which would be so required. The Company also shall comply with the other
provisions of Trust Indenture Act § 314(a). Delivery of such reports, information and documents to
the Trustee is for informational purposes only, and the Trustee’s receipt thereof shall not
constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificates).
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4.02
Corporate Existence.
Subject to
Article Eight
of the Base Indenture, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence, rights (charter and
statutory) and franchises;
provided
,
however
, that the Company shall not be required to preserve
any such right or franchise if the Board shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company.
4.03
Further Instruments and Acts.
Upon request of the Trustee, the Company shall execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out more effectively the
purposes of this Indenture.
V.
DEFAULTS AND REMEDIES
5.01
Events of Default.
An “
Event of Default
” occurs if:
(i) the Company fails to pay the principal of, or premium, if any, on, any Security
when the same becomes due and payable, whether at maturity, upon Redemption, on an Option
Purchase Date with respect to a Purchase at Holder’s Option, on a Fundamental Change
Repurchase Date with respect to a Repurchase Upon Fundamental Change or otherwise;
(ii) the Company fails to pay an installment of interest on any Security when due, if
such failure continues for thirty (30) days after the date when due;
(iii) the Company fails to satisfy its conversion obligations upon exercise of a
Holder’s conversion rights pursuant hereto;
(iv) the Company fails to timely provide a Fundamental Change Notice or an Option
Purchase Notice, as required by the provisions of this Indenture, or fails to timely
provide any notice pursuant to, and in accordance with,
Section 8.15(D)
hereof;
(v) the Company fails to comply with any other term, covenant or agreement set forth
in the Securities or this Indenture and such failure continues for the period, and after
the notice, specified below;
(vi) the Company or any of its Subsidiaries defaults in the payment when due, after
the expiration of any applicable grace period, of principal of, or premium, if any, or
interest on, Indebtedness for money borrowed, in the aggregate principal amount then
outstanding of ten million dollars ($10,000,000) or more, which default results in the
acceleration of Indebtedness of the Company or any of its Subsidiaries for money borrowed
in such aggregate principal amount or more so that it becomes due and payable prior to the
date on which it would otherwise become due and payable and such
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default is not cured or waived, or such acceleration is not rescinded, within ten
(10) days after written notice to the Company by the Trustee or to the Company and the
Trustee by Holders of at least twenty five percent (25%) in aggregate principal amount of
the Securities then outstanding, each in accordance with this Indenture;
(vii) the Company or any of its Subsidiaries fails, within thirty (30) days, to pay,
bond or otherwise discharge any final, non-appealable judgments or orders for the payment
of money the total uninsured amount of which for the Company or any of its Subsidiaries
exceeds ten million dollars ($10,000,000), which are not stayed on appeal;
(viii) the Company or any of its Significant Subsidiaries, pursuant to, or within the
meaning of, any Bankruptcy Law, insolvency law, or other similar law now or hereafter in
effect or otherwise, either:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary
case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors; or
(ix) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(A) is for relief against the Company or any of its Significant Subsidiaries in
an involuntary case or proceeding, or adjudicates the Company or any of its
Significant Subsidiaries insolvent or bankrupt,
(B) appoints a Custodian of the Company or any of its Significant Subsidiaries
for all or substantially all of the property of the Company or any such Significant
Subsidiary, as the case may be, or
(C) orders the winding up or liquidation of the Company or any of its
Significant Subsidiaries,
and, in the case of each of the foregoing clauses (A), (B) and (C) of this
Section
5.01(ix)
, the order or decree remains unstayed and in effect for at least sixty (60)
consecutive days.
The term “
Bankruptcy Law
” means Title 11, U.S. Code or any similar U.S. Federal or State law
for the relief of debtors. The term “
Custodian
” means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
A Default under
clause (v)
above is not an Event of Default until (I) the Trustee notifies the
Company in writing, or the Holders of at least twenty five percent (25%) in aggregate
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principal amount of the Securities then outstanding notify the Company and the Trustee in
writing, of the Default and (II) the Default is not cured within sixty (60) days after receipt of
such notice. Such notice must specify the Default, demand that it be remedied and state that the
notice is a “
Notice of Default
.” If the Holders of at least twenty five percent (25%) in aggregate
principal amount of the outstanding Securities request the Trustee to give such notice on their
behalf, the Trustee shall do so. When a Default is cured, it ceases to exist for all purposes
under this Indenture.
5.02
Acceleration.
If an Event of Default (excluding an Event of Default specified in
Section 5.01(viii)
or
(ix)
hereof with respect to the Company (but including an Event of Default specified in
Section
5.01(viii)
or
(ix)
hereof solely with respect to a Significant Subsidiary of the Company)) occurs
and is continuing, the Trustee by written notice to the Company, or the Holders of at least twenty
five percent (25%) in aggregate principal amount of the Securities then outstanding by written
notice to the Company and the Trustee, may declare the Securities to be immediately due and payable
in full. Upon such declaration, the principal of, and any accrued and unpaid interest on, all
Securities shall be due and payable immediately. If an Event of Default specified in
Section
5.01(viii)
or
(ix)
hereof with respect to the Company (excluding, for purposes of this sentence, an
Event of Default specified in
Section 5.01(viii)
or
(ix)
hereof solely with respect to a
Significant Subsidiary of the Company) occurs, the principal of, and accrued and unpaid interest
on, all the Securities shall
ipso facto
become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders of a majority in
aggregate principal amount of the Securities then outstanding by written notice to the Trustee may
rescind or annul an acceleration and its consequences if (A) the rescission would not conflict with
any order or decree, (B) all existing Events of Default, except the nonpayment of principal or
interest that has become due solely because of the acceleration, have been cured or waived and (C)
all amounts due to the Trustee under
Section 607
of Base the Indenture have been paid.
5.03
Waiver of Past Defaults.
Subject to
Section 508
of the Base Indenture and Section
7.02
hereof, the Holders of a
majority in aggregate principal amount of the Securities then outstanding may, by written notice to
the Trustee, waive any past Default or Event of Default and its consequences, other than (A) a
Default or Event of Default in the payment of the principal of, or premium, if any, or interest on,
any Security, or in the payment of the Redemption Price, the Option Purchase Price or the
Fundamental Change Repurchase Price (or accrued and unpaid interest, if any, payable as herein
provided, upon Redemption, Purchase at Holder’s Option or Repurchase Upon Fundamental Change), (B)
a Default or Event of Default arising from a failure by the Company to convert any Securities in
accordance with this Indenture or (C) any Default or Event of Default in respect of any provision
of this Indenture or the Securities which, under
Section 7.02
hereof, cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. When a Default or an
Event of Default is waived, it is cured and ceases to exist for all purposes under this Indenture.
This
Section 5.03
shall be in lieu of Trust Indenture Act § 316(a)(1)(B), and, as permitted by the
Trust Indenture Act, Trust Indenture Act § 316(a)(1)(B) is hereby expressly excluded from this
Indenture.
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5.04
Limitation on Suits.
Except as provided in
Section 508
of the Base Indenture and
Section 5.05
hereof, a
Securityholder may not institute any proceeding under this Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy under this Indenture unless:
(i) the Holder gives to the Trustee written notice of a continuing Event of Default;
(ii) the Holders of at least twenty five percent (25%) in aggregate principal amount
of the Securities then outstanding make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer and, if requested, provide to the Trustee
indemnity reasonably satisfactory to the Trustee against any loss, liability or expense to
or of the Trustee in connection with pursuing such remedy;
(iv) the Trustee does not comply with the request within sixty (60) days after
receipt of such notice, request and offer of indemnity; and
(v) during such sixty (60) day period, the Holders of a majority in aggregate
principal amount of the Securities then outstanding do not give the Trustee a direction
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of another Securityholder
or to obtain a preference or priority over another Securityholder.
5.05
Rights of Holders to Receive Payments and to Convert Securities.
Notwithstanding any other provision of this Indenture, the right of any Holder to bring suit
for the enforcement of (i) the payment of any amounts due on that Holder’s Securities after the
applicable due date and (ii) the right to convert that Holder’s Securities in accordance with the
Indenture shall not be impaired or affected without the consent of the Holder.
5.06
Notice of Defaults.
If a Default or Event of Default occurs and is continuing as to which the Trustee has received
notice pursuant to the provisions of the Indenture, or as to which a Responsible Officer of the
Trustee shall have actual knowledge, then the Trustee shall mail to each Holder a notice of the
Default or Event of Default within thirty (30) days after receipt of such notice or after acquiring
such knowledge, as applicable, unless such Default or Event of Default has been cured or waived;
provided
,
however
, that, except in the case of a Default or Event of Default in payment of any
amounts due with respect to any Security, the Trustee may withhold such notice if, and so long as
it in good faith determines that, withholding such notice is in the best interests of Holders.
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VI.
DISCHARGE OF INDENTURE
6.01
Termination of the Obligations of the Company.
This Indenture shall cease to be of further effect if (a) either (i) all outstanding
Securities have been delivered to the Trustee for cancellation or (ii) all outstanding Securities
have become due and payable at their scheduled maturity or upon Purchase at Holder’s Option,
Redemption or Repurchase Upon Fundamental Change, and in either case the Company irrevocably
deposits, prior to the applicable due date, with the Trustee or the Paying Agent (if the Paying
Agent is not the Company or any of its Affiliates) cash, and, if applicable as herein provided and
in accordance herewith, such other consideration, sufficient to pay all amounts due and owing on
all outstanding Securities on the Maturity Date or an Option Purchase Date, Redemption Date or
Fundamental Change Repurchase Date, as the case may be; (b) the Company pays to the Trustee all
other sums payable hereunder by the Company; (c) no Default or Event of Default with respect to the
Securities shall exist on the date of such deposit; (d) such deposit will not result in a breach or
violation of, or constitute a Default or Event of Default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is bound; and (e) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture have been complied with;
provided
,
however
, that the obligations of the
Company to the Trustee under Section 607 of the Base Indenture, the obligations of the Trustee to
any Authenticating Agent under Section 614 of the Base Indenture, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 of the Base Indenture, Sections 515, 1001
and 1002 of the Base Indenture and
Sections 2.02
,
2.03, 2.04
,
2.05
,
3.05, 3.08
and
3.09
hereof and
Articles VI
and
VIII
hereof shall survive any discharge of this Indenture until such time as the
Securities have been paid in full and there are no Securities outstanding.
VII.
SUPPLEMENTAL INDENTURES
7.01
Supplemental Indentures Without Consent of Holders.
In addition to the provisions of
Section 901
of the Base Indenture, the Company, with the
consent of the Trustee, may amend or supplement this Indenture or the Securities without notice to
or the consent of any Securityholder:
(i) to comply with
Section 801
of the Base Indenture and
Section 8.12
hereof;
(ii) to secure the obligations of the Company in respect of the Securities; and
(iii) to make provisions with respect to adjustments to the Conversion Rate as
required by this Indenture or to increase the Conversion Rate in accordance with this
Indenture.
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In addition, the Company and the Trustee may enter into a supplemental indenture without the
consent of Securityholders to conform the Indenture or the Securities to the description thereof
contained in the Prospectus under the caption “Description of notes.”
7.02
Supplemental Indentures With Consent of Holders.
The Company, with the consent of the Trustee, may amend or supplement this Indenture or the
Securities without notice to any Securityholder but with the written consent of the Holders of at
least a majority in aggregate principal amount of the outstanding Securities. Subject to
Section
508
of the Base Indenture and
Sections 5.03
and
5.05
hereof, the Holders of a majority in aggregate
principal amount of the outstanding Securities may, by notice to the Trustee, waive compliance by
the Company with any provision of this Indenture or the Securities without notice to any other
Securityholder and waive any past default or event of default and its consequences, except a
default or event of default:
(a) in the payment of principal of, or premium, if any, or interest on, any Security or in the
payment of the Redemption Price, Purchase Price or Fundamental Change Repurchase Price;
(b) arising from the Company’s failure to convert any Security in accordance with
Article VIII
of this Indenture; or
(c) in respect of any provision under this Indenture that cannot be modified or amended
without the consent of the Holders of each outstanding Security affected.
Notwithstanding anything herein to the contrary, without the consent of each Holder of each
outstanding Security affected, no supplemental indenture shall, in addition to the provisions of
Section 902
of the Base Indenture:
(a) impair the right to institute suit for the enforcement of any payment on,
or with respect to, or of the conversion of, any Security;
(b) modify, in a manner adverse to Holders, the provisions with respect to the
right of Holders pursuant to
Article III
hereof to require the Company to purchase
Securities on an Option Purchase Date or to repurchase Securities upon the
occurrence of a Fundamental Change;
(c) modify the provisions of
Section 2.06
hereof in a manner adverse to
Holders;
(d) adversely affect the right of Holders to convert Securities in accordance
with
Article VIII
hereof;
(e) reduce the percentage in aggregate principal amount of outstanding
Securities whose Holders must consent to a modification to or amendment of any
provision of this Indenture or the Securities;
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(f) modify the provisions of this Indenture with respect to modification and
waiver (including waiver of a Default or an Event of Default), except to increase
the percentage required for modification or waiver or to provide for the consent of
each affected Holder.
Promptly after an amendment, supplement or waiver under
Section 901
of the Base Indenture and
Section 7.01
hereof or
Section 902
of the Base Indenture and this
Section 7.02
becomes effective,
the Company shall mail, or cause to be mailed, to Securityholders a notice briefly describing such
amendment, supplement or waiver. Any failure of the Company to mail such notice shall not in any
way impair or affect the validity of such amendment, supplement or waiver.
7.03
Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder’s Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to its Security or portion of a Security if the Trustee receives the notice of revocation before
the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every Holder.
After an amendment, supplement or waiver becomes effective with respect to the Securities, it
shall bind every Holder unless such amendment, supplement or waiver makes a change that requires,
pursuant to
Section 7.02
hereof, the consent of each Holder affected. In that case, the amendment,
supplement or waiver shall bind each Holder of a Security who has consented to it and, provided
that notice of such amendment, supplement or waiver is reflected on a Security that evidences the
same debt as the consenting Holder’s Security, every subsequent Holder of a Security or portion of
a Security that evidences the same debt as the consenting Holder’s Security.
Nothing in this
Section 7.03
shall impair the Company’s rights pursuant to
Section 901
of the
Base Indenture and
Section 7.01
hereof to amend this Indenture or the Securities without the
consent of any Securityholder in the manner set forth in, and permitted by, such
Section 901
and
Section 7.01
.
7.04
Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security as directed and prepared by the Company about the changed terms and return
it to the Holder. Alternatively, if the Company so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that reflects the changed
terms.
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7.05
Trustee Protected.
The Trustee shall sign any amendment, supplemental indenture or waiver authorized pursuant to
this
Article VII
;
provided
,
however
, that the Trustee need not sign any amendment, supplement or
waiver authorized pursuant to this
Article VII
that adversely affects the Trustee’s rights, duties,
liabilities or immunities. The Trustee shall be provided with and may conclusively rely upon an
Opinion of Counsel as to legal matters and an Officers’ Certificate as to factual matters that any
supplemental indenture, amendment or waiver is permitted or authorized pursuant to this Indenture.
VIII.
CONVERSION
8.01
Conversion Privilege; Restrictive Legends.
(A) Subject to the provisions of
Article III
hereof, the Securities shall be convertible into
cash and, if applicable, shares of Common Stock in accordance with this
Article VIII
and as set
forth below if any of the following conditions are satisfied:
(i)
Conversion Based on Closing Sale Price of Common Stock
. Prior to the Maturity
Date or earlier Redemption, Purchase at Holder’s Option or Repurchase Upon Fundamental
Change, the Securities may be surrendered for conversion into cash and, if applicable,
shares of Common Stock during any calendar quarter after the calendar quarter ending June
30, 2010, if the Closing Sale Price for each of twenty (20) or more Trading Days in a
period of thirty (30) consecutive Trading Days ending on the last Trading Day of the
immediately preceding calendar quarter exceeds one hundred and twenty percent (120%) of
the Conversion Price in effect on the last Trading Day of the immediately preceding
calendar quarter, as determined by the Company. Solely for purposes of determining
whether the Securities shall have become convertible pursuant to this
Section 8.01(A)(i)
,
the Company’s Board shall make appropriate adjustments, in its good faith determination,
to the Closing Sale Prices and/or such Conversion Price used to determine whether the
Securities shall have become convertible pursuant to this
Section 8.01(A)(i)
to account
for any adjustments to the Conversion Rate which shall have become effective, or any
event requiring an adjustment to the Conversion Rate where the Ex Date of such event
occurs, during the period of thirty (30) consecutive Trading Days ending on the last
Trading Day of the immediately preceding calendar quarter.
(ii)
Conversion Upon Satisfaction of Trading Price Condition
. Prior to the Maturity
Date or earlier Redemption, Purchase at Holder’s Option or Repurchase Upon Fundamental
Change, the Securities may be surrendered for conversion into cash and, if applicable,
shares of Common Stock during the five (5) consecutive Business Days immediately after
any five (5) consecutive Trading Day period (such five (5) consecutive Trading Day
period, the “
Note Measurement Period
”) in which the average Trading Price per $1,000
principal amount of the Securities was equal to or less than ninety seven percent (97%)
of the average Conversion Value during the Note Measurement Period (such condition, the
“
Trading Price Condition
”). The Bid
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Solicitation Agent shall not have any obligation to determine the Trading Price
unless the Company has requested such determination, and the Company shall have no
obligation to make such request unless a Holder of at least one million dollars
($1,000,000) in aggregate principal amount of the Securities provides the Company with
reasonable evidence that the Trading Price per $1,000 principal amount of the Securities
would be equal to or less than ninety seven percent (97%) of the product of the Closing
Sale Price and the Conversion Rate. Upon receipt of such evidence, the Company shall
instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal
amount of the Securities for each of the five (5) successive Trading Days immediately
after the Company receives such evidence and on each Trading Day thereafter until the
first Trading Day on which the Trading Price Condition is no longer satisfied. For
purposes of this paragraph, the “
Conversion Value
” per $1,000 principal amount of
Securities, on a given Trading Day, means the product of the Closing Sale Price on such
Trading Day and the Conversion Rate in effect on such Trading Day.
(iii)
Conversion Based on Redemption
. A Security, or portion of a Security, which
has been called for Redemption pursuant to
paragraph 6
of the Securities may be
surrendered for conversion into cash and, if applicable, shares of Common Stock;
provided
,
however
, that such Security or portion thereof may be surrendered for
conversion pursuant to this paragraph only until the close of business on the Business
Day immediately preceding the Redemption Date.
(iv)
Conversion Upon Certain Distributions
. If the Company takes any action, or
becomes aware of any event, that would require an adjustment to the Conversion Rate
pursuant to
Sections 8.06(b)
,
8.06(c)
,
8.
06(d)
(other than by reason of the distribution
of Regular Quarterly Cash Dividends) or
8.
06(e)
hereof, the Securities may, prior to the
Maturity Date or earlier Redemption, Purchase at Holder’s Option or Repurchase Upon
Fundamental Change, be surrendered for conversion into cash and, if applicable, shares of
Common Stock beginning on the date the Company mails the notice to the Holders as
provided in
Section 8.11
hereof (or, if earlier, the date the Company is required to mail
such notice) and at any time thereafter until the close of business on the Business Day
immediately preceding the Ex Date (as defined in
Section 8.
06(g)
hereof) of the
applicable transaction or until the Company announces that such transaction will not take
place.
(v)
Conversion Upon Occurrence of Certain Corporate Transactions
. If either:
(a) a Fundamental Change or a Make-Whole Fundamental Change occurs; or
(b) the Company is a party to a consolidation, amalgamation, statutory
arrangement, merger or binding share exchange pursuant to which the Common Stock
would be converted into or exchanged for, or would constitute solely the right to
receive, cash, securities or other property,
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then, in each case, the Securities may, prior to the Maturity Date or earlier Redemption,
Purchase at Holder’s Option or Repurchase Upon Fundamental Change, be surrendered for
conversion into cash and, if applicable, shares of Common Stock at any time during the
period that begins on, and includes, the date that is thirty (30) calendar days prior to
the date originally announced by the Company as the anticipated effective date of such
transaction (which anticipated effective date the Company shall disclose, in good faith,
in the written notice and public announcement referred to in
Section 8.01(C)
hereof) and
ends on, and includes, the date that is thirty (30) calendar days after the actual
effective date of such transaction;
provided
,
however
, that if such transaction is a
Make-Whole Fundamental Change, then the Securities may also be surrendered for conversion
into cash and, if applicable, shares of Common Stock at any time during the Make-Whole
Conversion Period applicable to such Make-Whole Fundamental Change;
provided
,
further
,
that if such transaction is a Fundamental Change, then the Securities may also be
surrendered for conversion into cash and, if applicable, shares of Common Stock at any
time until, and including, the Fundamental Change Repurchase Date applicable to such
Fundamental Change.
(vi)
Conversion during specified periods
. The Securities may be surrendered for
conversion into cash and, if applicable, shares of Common Stock at any time from, and
including, November 1, 2014 to, and including, December 1, 2014 and at any time from, and
including, November 1, 2029 until the close of business of the business day immediately
preceding December 1, 2029 or earlier Redemption, Purchase at Holder’s Option or
Repurchase Upon Fundamental Change.
Notwithstanding anything herein to the contrary, no Security may be converted after the close of
business on the Business Day immediately preceding the Maturity Date.
(B) The initial Conversion Rate shall be 19.5064 shares of Common Stock per $1,000 principal
amount of Securities. The Conversion Rate shall be subject to adjustment in accordance with
Sections 8.06
through
8.15
hereof.
(C) Whenever any event described in
Section 8.01
hereof shall occur which shall cause the
Securities to become convertible as provided in this
Article VIII
, the Company shall promptly
deliver written notice of the convertibility of the Securities to the Trustee and each Holder and
shall, as soon practicable, but in no event later than the open of business on the first Business
Day the Securities shall become convertible as provided in this
Article VIII
as a result of such
event (or, in the case of a Fundamental Change or a Make-Whole Fundamental Change or a
consolidation, amalgamation, statutory arrangement, merger or binding share exchange to which the
Company is a party and pursuant to which the Common Stock would be converted into or exchanged for,
or would constitute solely the right to receive, cash, securities or other property, no later than
the thirtieth (30th) calendar day prior to the date originally announced by the Company as the
anticipated effective date of such transaction), publicly announce, through a reputable national
newswire service, and publish on the Company’s website, that the Securities have become
convertible. Such written notice and public announcement shall include:
(i) a description of such event;
-33-
(ii) a description of the periods during which the Securities shall be convertible
as provided in this
Article VIII
as a result of such event;
(iii) the anticipated effective date and the Ex Date of such event, if applicable;
and
(iv) the procedures Holders must follow to convert their notes in accordance with
this
Article VIII
, including the name and address of the Conversion Agent.
If the Company shall fail to make such public announcement on or before the open of business
on the first date the Securities shall become convertible as provided in this
Article VIII
as a
result of such event, then (1) the Securities shall remain convertible for an additional Business
Day for each Business Day, on or after such first date the Securities become convertible, that the
Company shall fail to make such public announcement (an “
Extension Period
”); and (2) if the event
causing the Securities to become convertible shall be a Make-Whole Fundamental Change, then the
increased Conversion Rate applicable, pursuant to
Section 8.15
hereof, to Securities surrendered
within the time periods specified in
Section 8.15
hereof shall continue to apply to Securities
surrendered for conversion during any such Extension Period.
(D) A Holder may convert a portion of the principal amount of a Security if such portion is
$1,000 principal amount or an integral multiple of $1,000 principal amount. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion of a portion of
such Security.
8.02
Conversion Procedure and Payment Upon Conversion.
(A) To convert a Security, a Holder must satisfy the requirements of
paragraph 10
of the
Securities, and the Securities must be convertible pursuant to
Section 8.01
hereof. Upon
conversion of a Holder’s Security, the Company shall deliver, through the Conversion Agent, the
following to such Holder:
(i) a principal amount (the “
Principal Return
”) in cash equal to the sum of the
Daily Principal Returns for each Trading Day in the Cash Settlement Averaging Period for
such conversion; and
(ii) if the sum of the Daily Net Shares for each Trading Day in the Cash Settlement
Averaging Period for such conversion is greater than or equal to one (1), a certificate
for a number of shares of Common Stock (the “
Net Shares
”) equal to such sum;
provided
,
however
, that the Company shall not issue fractional shares of Common Stock and shall
instead deliver cash (in addition to any other consideration payable upon such
conversion) in an amount equal to the value of such fraction computed on the basis of the
Volume-Weighted Average Price per share of Common Stock on the last Trading Day in the
applicable Cash Settlement Averaging Period.
The Company shall deliver such Principal Return and, if applicable, such Net Shares as soon as
practicable following the Business Day (the “
Conversion Date
”) on which
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such Holder satisfies all the requirements for such conversion specified in
paragraph 10
of the
Securities, but in no event more than three (3) Business Days after the last Trading Day in the
Cash Settlement Averaging Period applicable to such conversion;
provided
,
however
, that any
Make-Whole Consideration payable pursuant to
Section 8.15
hereof shall be delivered by the Company
within the time period specified in
Section 8.15
hereof.
(B) “
Cash Settlement Averaging Period
” shall mean, with respect to a Security that is tendered
for conversion in accordance with this
Article VIII
, the twenty (20) consecutive Trading-Day period
that begins on, and includes, the third (3rd) Trading Day after the Conversion Date for such
Security;
provided
,
however
, that if such Conversion Date is on or after the twenty third (23rd)
Scheduled Trading Day prior to the Maturity Date, then the Cash Settlement Averaging Period with
respect to such conversion shall be deemed to be the twenty (20) consecutive Trading-Day period
that begins on and includes the twentieth (20th) Scheduled Trading Day prior to the Maturity Date.
“
Daily Principal Return
” shall mean, with respect to a Trading Day, the lesser of fifty
dollars ($50.00) and the Daily Conversion Value for such Trading Day.
“
Daily Conversion Value
” shall mean, with respect to a Trading Day, one-twentieth (1/20th) of
the product of (i) the Conversion Rate in effect on such Trading Day and (ii) the Volume-Weighted
Average Price per share of Common Stock on such Trading Day.
“
Daily Net Shares
” shall mean, with respect to a Trading Day, an amount equal to the
following: (i) if the Daily Conversion Value for such Trading Day is equal to or lesser than fifty
dollars ($50.00), then the Daily Net Shares with respect to such Trading Day shall mean an amount
equal to zero (0); and (ii) if the Daily Conversion Value for such Trading Day exceeds fifty
dollars ($50.00), then the Daily Net Shares with respect to such Trading Day shall mean a fraction
(a) whose numerator is the excess of such Daily Conversion Value over fifty dollars ($50.00) and
(b) whose denominator is the Volume-Weighted Average Price per share of Common Stock on such
Trading Day.
“
Volume-Weighted Average Price
” per share of Common Stock on any Trading Day means the
volume-weighted average price per share of the Common Stock on the New York Stock Exchange or, if
the Common Stock is not listed on the New York Stock Exchange, on the principal exchange or
over-the-counter market on which the Common Stock is then listed or traded, from 9:30 a.m. to 4:00
p.m., New York City time, on such Trading Day, as displayed by Bloomberg (or any successor service)
or, if such price is not available, the market value per share of Common Stock on such Trading Day
as determined by an independent nationally recognized investment banking firm retained for this
purpose by the Company.
(C) With respect to a conversion of a Security pursuant hereto, at and after the close of
business on the last Trading Day (the “
Relevant Date
”) of the Cash Settlement Averaging Period
applicable to such conversion, the person in whose name any certificate representing any Net Shares
issuable upon such conversion is registered shall be treated as a stockholder of record of the
Company;
provided
,
however
, that if any such Net Shares constitute Make-Whole Consideration, then
the Relevant Date with respect to such Net Shares that constitute Make-Whole Consideration shall
instead be deemed to be the later of (1) the last Trading Day of the
-35-
Cash Settlement Averaging Period applicable to such conversion and (2) the Effective Date of
the applicable Make-Whole Fundamental Change. On and after the Conversion Date with respect to a
conversion of a Security pursuant hereto, all rights of the Holder of such Security shall
terminate, other than the right to receive the consideration deliverable upon conversion of such
Security as provided herein. A Holder of a Security is not entitled, as such, to any rights of a
holder of Common Stock until, if such Holder converts such Security and is entitled pursuant hereto
to receive Net Shares in respect of such conversion, the close of business on the Relevant Date or
respective Relevant Dates, as the case may be, with respect to such conversion.
(D) Except as provided in the Securities or in this
Article VIII
, no payment or adjustment
will be made for accrued interest on a converted Security or for dividends on any Common Stock
issued on or prior to conversion, and accrued interest will be deemed to be paid by the
consideration paid to the Holder upon conversion. Such accrued interest shall be deemed to be paid
in full rather than cancelled, extinguished or forfeited. If any Holder surrenders a Security for
conversion after the close of business on the record date for the payment of an installment of
interest and prior to the related interest payment date, then, notwithstanding such conversion, the
interest payable with respect to such Security on such interest payment date shall be paid on such
interest payment date to the Holder of record of such Security at the close of business on such
record date;
provided, however,
that such Security, when surrendered for conversion, must be
accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal
to the interest payable on such interest payment date on the portion so converted;
provided
further, however,
that such payment to the Conversion Agent described in the immediately preceding
proviso in respect of a Security surrendered for conversion shall not be required with respect to a
Security that (i) is surrendered for conversion after the record date immediately preceding the
Maturity Date, (ii) has been called for Redemption pursuant to
Section 3.04
hereof and
paragraphs 6
and
7
of the Securities or (iii) is surrendered for conversion after a record date for the payment
of an installment of interest and on or before the related interest payment date, where, pursuant
to
Section 3.09
hereof, the Company has specified, with respect to a Fundamental Change, a
Fundamental Change Repurchase Date that is after such record date and on or before such interest
payment date;
provided further
, that, if the Company shall have, prior to the Conversion Date with
respect to a Security, defaulted in a payment of interest on such Security, then in no event shall
the Holder of such Security who surrenders such Security for conversion be required to pay such
defaulted interest or the interest that shall have accrued on such defaulted interest pursuant to
Section 307
of the Base Indenture or otherwise (it being understood that nothing in this
Section
8.02(D)
shall affect the Company’s obligations under
Section 307
of the Base Indenture).
(E) If a Holder converts more than one Security at the same time, the number of full shares of
Common Stock issuable upon such conversion, if any, shall be based on the total principal amount of
all Securities converted.
(F) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for
the Holder a new Security equal in principal amount to the unconverted portion of the Security
surrendered.
-36-
(G) If the last day on which a Security may be converted is not a Business Day in a
place where a Conversion Agent is located, the Security may be surrendered to that Conversion Agent
on the next succeeding Business Day.
8.03
Fractional Shares.
The Company will not issue fractional shares of Common Stock upon conversion of Securities and
instead will deliver a check in an amount equal to the value of such fraction computed on the basis
of the Closing Sale Price on the Trading Day immediately before the Conversion Date.
8.04
Taxes on Conversion.
If a Holder converts its Security, the Company shall pay any documentary, stamp or similar
issue or transfer tax or duty due on the issue, if any, of shares of Common Stock upon the
conversion. However, such Holder shall pay any such tax or duty which is due because such shares
are issued in a name other than such Holder’s name. The Conversion Agent may refuse to deliver a
certificate representing the shares of Common Stock to be issued in a name other than such Holder’s
name until the Conversion Agent receives a sum sufficient to pay any tax or duty which will be due
because such shares are to be issued in a name other than such Holder’s name. Nothing herein shall
preclude any tax withholding required by law or regulation.
8.05
Company to Provide Stock.
The Company shall at all times reserve out of its authorized but unissued Common Stock or
Common Stock held in its treasury enough shares of Common Stock to permit the conversion, in
accordance herewith, of all of the Securities. The shares of Common Stock, if any, due upon
conversion of a Global Security shall be delivered by the Company in accordance with DTC’s
customary practices.
All shares of Common Stock which may be issued upon conversion of the Securities shall be
validly issued, fully paid and non-assessable and shall be free of preemptive or similar rights and
free of any lien or adverse claim.
The Company shall comply with all securities laws regulating the offer and delivery of shares
of Common Stock upon conversion of Securities and shall list such shares on each national
securities exchange or automated quotation system on which the Common Stock is listed.
8.06
Adjustment of Conversion Rate.
The Conversion Rate shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to
all holders of Common Stock, (2) make a distribution in shares of Common Stock to
all holders of Common Stock, (3) subdivide the outstanding shares of Common Stock
into a greater number of shares of Common Stock or (4) combine the outstanding
shares of Common Stock into a smaller number of shares of Common Stock, the
Conversion Rate shall be adjusted by multiplying the
-37-
Conversion Rate in effect immediately prior to close of business on the Ex Date
or effective date, as applicable, of such dividend, distribution, subdivision or
combination, by the number of shares of Common Stock that a person who owns only one
share of Common Stock immediately before such Ex Date or effective date, as
applicable, of such dividend, distribution, subdivision or combination and who is
entitled to participate in such dividend, distribution, subdivision or combination
would own immediately after giving effect to such dividend, distribution,
subdivision or combination (without giving effect to any arrangement pursuant to
such dividend, distribution, subdivision or combination not to issue fractional
shares of Common Stock). Any adjustment made pursuant to this
Section 8.06(a)
hereof shall become effective immediately after such Ex Date, in the case of a
dividend or distribution, and shall become effective immediately after such
effective date, in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all or substantially
all holders of Common Stock, entitling them, for a period expiring not more than
sixty (60) days immediately following the record date for the determination of
holders of Common Stock entitled to receive such rights or warrants, to subscribe
for or purchase shares of Common Stock (or securities convertible into or
exchangeable or exercisable for Common Stock), at a price per share (or having a
conversion, exchange or exercise price per share) that is less than the current
market price (as determined pursuant to
Section 8.
06(g)
hereof) per share of Common
Stock on the record date for the determination of holders of Common Stock entitled
to receive such rights or warrants, the Conversion Rate shall be increased by
multiplying the Conversion Rate in effect immediately prior to the Ex Date
corresponding to such record date by a fraction of which (A) the numerator shall be
the sum of (I) the number of shares of Common Stock outstanding immediately prior to
the open of business on such Ex Date and (II) the aggregate number of shares (the
“
Underlying Shares
”) of Common Stock underlying all such issued rights or warrants
(whether by exercise, conversion, exchange or otherwise), and (B) the denominator
shall be the sum of (I) number of shares of Common Stock outstanding immediately
prior to the open of business on such Ex Date and (II) the number of shares of
Common Stock which the aggregate exercise, conversion, exchange or other price at
which the Underlying Shares may be subscribed for or purchased pursuant to such
rights or warrants would purchase at such current market price per share of Common
Stock;
provided
,
however
, no adjustment shall be made pursuant to this
Section
8.
06(b)
solely by reason of a distribution of rights pursuant to a stockholders’
rights plan, provided the Company has complied with the provisions of
Section 8.14
hereof with respect to such stockholders’ rights plan and distribution. Such
increase shall become effective immediately prior to the open of business on such Ex
Date. In no event shall the Conversion Rate be decreased pursuant to this
Section
8.06(b)
.
(c) Except as set forth in the immediately following paragraph, in case the
Company shall dividend or distribute to all or substantially all holders of Common
Stock shares of Capital Stock of the Company or any existing or future Subsidiary
(other than Common Stock), evidences of Indebtedness or other assets
-38-
(other than dividends or distributions requiring an adjustment to the
Conversion Rate in accordance with
Sections 8.
06(d)
or 8.
06(e)
hereof), or shall
dividend or distribute to all or substantially all holders of Common Stock rights or
warrants to subscribe for or purchase securities (other than dividends or
distributions of rights or warrants requiring an adjustment to the Conversion Rate
in accordance with
Section 8.
06(b)
hereof), then in each such case the Conversion
Rate shall be increased by multiplying the Conversion Rate in effect immediately
prior to the open of business on the Ex Date corresponding to the record date for
the determination of stockholders entitled to such dividend or distribution by a
fraction of which (A) the numerator shall be the current market price per share of
Common Stock (as determined pursuant to
Section 8.
06(g)
hereof) on such record date
and (B) the denominator shall be an amount equal to (I) such current market price
per share of Common Stock less (II) the fair market value (as determined in good
faith by the Board, whose determination shall be conclusive and described in a Board
Resolution), on such Ex Date, of the portion of the shares of Capital Stock,
evidences of Indebtedness, assets, rights and warrants to be dividended or
distributed applicable to one share of Common Stock, such increase to become
effective immediately prior to the open of business on such Ex Date;
provided
however
, that if such denominator is equal to or less than zero, then, in lieu of
the foregoing adjustment to the Conversion Rate, adequate provision shall be made so
that each Holder shall have the right to receive upon conversion of its Securities,
in addition to any consideration otherwise payable as herein provided upon such
conversion, an amount of shares of Capital Stock, evidences of Indebtedness, assets,
rights and/or warrants that such Holder would have received had such Holder
converted all of its Securities on such record date. Notwithstanding the foregoing,
in the event that the Company shall distribute rights or warrants (other than
distributions of rights or warrants requiring an adjustment to the Conversion Rate
in accordance with
Section 8.
06(b)
hereof) (collectively, “
Rights
”)
pro rata
to
holders of Common Stock, the Company may, in lieu of making any adjustment pursuant
to this
Section 8.06(c)
, make proper provision so that each Holder of a Security who
converts such Security (or any portion thereof) on or after the record date for such
distribution and prior to the expiration or redemption of the Rights shall be
entitled to receive upon such conversion, in addition to the shares of Common Stock
issuable (and cash, if any, payable) upon such conversion (the “
Conversion Shares
”),
a number of Rights to be determined as follows: (i) if such conversion occurs on or
prior to the date for the distribution to the holders of Rights of separate
certificates evidencing such Rights (the “
Distribution Date
”), the same number of
Rights to which a holder of a number of shares of Common Stock equal to the number
of shares of Conversion Shares would be entitled at the time of such conversion in
accordance with the terms and provisions of and applicable to the Rights; and (ii)
if such conversion occurs after the Distribution Date, the same number of Rights to
which a holder of the number of shares of Common Stock into which the principal
amount of the Security so converted was convertible immediately prior to the
Distribution Date would have been entitled on the Distribution Date in accordance
with the terms and provisions of and applicable to the Rights. Any distribution of
rights or warrants pursuant to a
-39-
stockholders’ rights plan complying with the requirements set forth in the
preceding sentence of this paragraph and with
Section 8.14
hereof shall not
constitute a distribution of rights or warrants pursuant to this
Section 8.06(c)
.
In no event shall the Conversion Rate be decreased pursuant to this
Section 8.06(c)
.
Notwithstanding anything to the contrary in this
Section 8.06(c)
, if, in a
distribution requiring an adjustment to the Conversion Rate pursuant to the
immediately preceding paragraph, the property distributed by the Company to all
Holders of Common Stock consists solely of Capital Stock, or similar equity
interests in, a Subsidiary or other business unit of the Company, which Capital
Stock or interests are, or will be upon completion of such distribution, listed on a
national securities exchange or quoted on an automated quotation system and closing
sale prices for such Capital Stock or interests are readily available (a
“
Spin-Off
”), then in lieu of adjusting the Conversion Rate in accordance with the
immediately preceding paragraph, the Conversion Rate shall be increased (subject to
the other terms of this Indenture) by multiplying the Conversion Rate in effect
immediately prior to the opening of business on the thirteenth (13th) Trading Day
following the record date for such distribution by a fraction (I) whose numerator is
the sum of (A) the average of the Closing Sale Prices per share of Common Stock for
the ten (10) consecutive Trading Days commencing on, and including, the third (3rd)
Trading Day after the record date for such distribution and (B) the product of (i)
the average of the Closing Sale Prices per share or unit, as applicable, of such
Capital Stock or interests (determined as if such shares or units were shares of
Common Stock for purposes of the definition of “Closing Sale Price”) for the ten
(10) consecutive Trading Days commencing on, and including, the third (3rd) Trading
Day after the record date for such distribution and (ii) number of shares or units,
as applicable, of such Capital Stock or interests distributed per share of Common
Stock; and (II) whose denominator is the average of the Closing Sale Prices per
share of Common Stock for the ten (10) consecutive Trading Days commencing on, and
including, the third (3rd) Trading Day after the record date for such distribution.
The average Closing Sale Prices referred to in the immediately preceding sentence
shall be subject to appropriate adjustments, in the Company’s good faith
determination, to account for other distributions, stock splits and combinations,
stock dividends, reclassifications and similar events. Each adjustment to the
Conversion Rate made pursuant to this paragraph shall become effective immediately
after the open of business on the thirteenth (13th) Trading Day following the record
date for such distribution.
Rights or warrants distributed by the Company to all holders of Common Stock
entitling the holders thereof to subscribe for or purchase shares of the Company’s
Capital Stock (either initially or under certain circumstances), which rights,
options or warrants, until the occurrence of a specified event or events (“
Trigger
Event
”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are
not exercisable; and (iii) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this
Section
8.06
(and no adjustment to the Conversion Rate under this
Section 8.06
will be
required) until the occurrence of the earliest Trigger Event, whereupon
-40-
such rights, options and warrants shall be deemed to have been distributed and an
appropriate adjustment (if any is required) to the Conversion Rate shall be made
under this
Section 8.06(c)
. In no event shall the Conversion Rate be decreased
pursuant to this
Section 8.06(c)
.
(d) In case the Company shall, by dividend or otherwise, at any time make a
distribution of cash (excluding any cash that is distributed as part of a
distribution requiring a Conversion Rate adjustment pursuant to
Section 8.06(e)
hereof and excluding Regular Quarterly Cash Dividends, to the extent the aggregate
amount of such Regular Quarterly Cash Dividends in any quarterly period does not
exceed sixty-eight cents ($0.68) per share of Common Stock (the
“Reference Dividend
Amount”
)) to all or substantially all holders of Common Stock, the Conversion Rate
shall be increased based on the following formula:
CR1
= CR0 x MP0 / (MP0- C)
where
CR0 = the conversion rate in effect immediately prior to the ex-dividend
date for such distribution;
CR1 = the new conversion rate immediately on and after the ex-dividend date
for such distribution;
MP0 = the current market price per share of Common Stock (as determined
pursuant to
Section 8.
06(g)
hereof) on the record date for the distribution;
and
C = the amount in cash per share that the Company distributes to holders of
the Common Stock that exceeds the Reference Dividend Amount (“
Excess
Amount
”);
The Reference Dividend Amount shall be subject to adjustment in a manner that is
inversely proportional to adjustments to the Conversion Rate;
provided
,
however
,
that no adjustments shall be made to the Reference Dividend Amount for any
adjustment made to the Conversion Rate pursuant to this
Section 8.06(d)
.
Notwithstanding anything to the contrary in this
Section 8.06(d)
, if an adjustment
to the Conversion Rate is required to be made as a result of a distribution that is
not a Regular Quarterly Cash Dividend either in whole or in part, the Reference
Dividend Amount shall be deemed to be zero for purposes of determining the
adjustment to the Conversion Rate as a result of such distribution.
The Conversion Rate shall not be adjusted pursuant to this
Section 8.
06(d)
to the
extent, and only to the extent, such adjustment would cause the Conversion Price to
be less than the par value of the Common Stock;
provided further
that, if the
denominator of such fraction shall be equal to or less than zero, the Conversion
-41-
Rate shall be instead adjusted so that the Conversion Price is equal to the par
value of the Common Stock.
In no event shall the Conversion Rate be decreased pursuant to this
Section 8.06(d)
.
An adjustment to the Conversion Rate pursuant to this
Section 8.
06(d)
shall become
effective immediately prior to the open of business on the Ex Date for the
distribution. To the extent a Regular Quarterly Cash Dividend is paid in multiple
portions and the total of such portions exceeds $0.68, then the Conversion Rate in
respect of such Regular Quarterly Cash Dividend shall first be adjusted under this
Section 8.
06(d)
in respect of the first portion as a result of which such Regular
Quarterly Cash Dividend exceeds $0.68 (with the Excess Amount for purposes of such
adjustment being the amount by which such portion, when aggregated with all
previously paid portions in respect of such Regular Quarterly Cash Dividend, if any,
exceeds $0.68), and the Conversion Rate shall be further adjusted under this
Section
8.
06(d)
in respect of each subsequent payment, if any, constituting a portion of
such Regular Quarterly Cash Dividend (with the amount of each such subsequent
portion being treated as the Excess Amount for purposes of determining the
adjustment in respect of such portion). Each such adjustment shall become effective
immediately prior to the open of business on the Ex Date in respect of the payment
resulting in such adjustment.
(e) In case the Company or any Subsidiary shall distribute cash or other
consideration in respect of a tender offer or exchange offer made by the Company or
any Subsidiary for all or any portion of the Common Stock where the sum of the
aggregate amount of such cash distributed and the aggregate fair market value (as
determined in good faith by the Company), as of the Expiration Date (as defined
below), of such other consideration distributed (such sum, the “
Aggregate Amount
”)
expressed as an amount per share of Common Stock validly tendered or exchanged, and
not withdrawn, pursuant to such tender offer or exchange offer as of the Expiration
Time (as defined below) (such tendered or exchanged shares of Common Stock, the
“
Purchased Shares
”) exceeds the Closing Sale Price per share of Common Stock on the
first Trading Day after the last date (such last date, the “
Expiration Date
”) on
which tenders or exchanges could have been made pursuant to such tender offer or
exchange offer (as the same may be amended through the Expiration Date), then the
Conversion Rate shall be increased by multiplying the Conversion Rate in effect
immediately prior to the close of business on first Trading Day after the Expiration
Date by a fraction (A) whose numerator is equal to the sum of (I) the Aggregate
Amount and (II) the product of (a) such Closing Sale Price per share of Common Stock
and (b) an amount equal to (i) the number of shares of Common Stock outstanding as
of the last time (the “
Expiration Time
”) at which tenders or exchanges could have
been made pursuant to such tender offer or exchange offer (including all Purchased
Shares) less (ii) the Purchased Shares and (B) whose denominator is equal to the
product of (I) the number of shares of Common Stock outstanding as of the Expiration
Time (including all Purchased Shares) and (II) such Closing Sale Price per share of
Common Stock.
-42-
An increase, if any, to the Conversion Rate pursuant to this
Section 8.06(e)
shall become effective immediately prior to the opening of business on the Business
Day following the first Trading Day after the Expiration Date. In the event that
the Company or a Subsidiary is obligated to purchase shares of Common Stock pursuant
to any such tender offer or exchange offer, but the Company or such Subsidiary is
permanently prevented by applicable law from effecting any such purchases, or all
such purchases are rescinded, then the Conversion Rate shall again be adjusted to be
the Conversion Rate which would then be in effect if such tender offer or exchange
offer had not been made. If the application of this
Section 8.
06(e)
to any tender
offer or exchange offer would result in a decrease in the Conversion Rate, no
adjustment shall be made for such tender offer or exchange offer under this
Section
8.06(e)
.
(f) In addition to the foregoing adjustments in
subsections (a)
,
(b)
,
(c)
,
(d)
and
(e)
above, the Company, from time to time and to the extent permitted by law and
the continued listing requirements of the New York Stock Exchange, may increase the
Conversion Rate by any amount for a period of at least twenty (20) days or such
longer period as may be permitted or required by law, if the Board has made a
determination, which determination shall be conclusive, that such increase would be
in the best interests of the Company. Such Conversion Rate increase shall be
irrevocable during such period. The Company shall give written notice to the
Trustee and cause notice of such increase to be mailed to each Holder of Securities
at such Holder’s address as the same appears on the registry books of the Registrar,
at least fifteen (15) days prior to the date on which such increase commences.
(g) For the purpose of any computation under
subsections (a)
,
(b)
,
(c) or (d)
above of this
Section 8.06
, the “
current market price”
per share of Common Stock on
any date shall be deemed to be the average of the Closing Sale Prices for the ten
(10) consecutive Trading Days ending on, but excluding, the earlier of such date and
the Ex Date with respect to the issuance or distribution requiring such computation;
provided
,
however
, that such current market price per share of Common Stock shall be
appropriately adjusted by the Company, in its good faith determination, to account
for any adjustment, pursuant hereto, to the Conversion Rate that shall become
effective, or any event requiring, pursuant hereto, an adjustment to the Conversion
Rate where the Ex Date of such event occurs, at any time during the period that
begins on, and includes, the first day of such ten (10) consecutive Trading Days and
ends on, and includes, the date when the adjustment to the Conversion Rate on
account of the event requiring the computation of such current market price becomes
effective.
The term “
Ex Date
,” (i) when used with respect to any issuance or distribution,
means the first date on which the Common Stock trades the regular way on the
relevant exchange or in the relevant market from which the Closing Sale Price was
obtained without the right to receive such issuance or distribution, (ii) when used
with respect to any subdivision or combination of shares of Common Stock, means the
first date on which the Common Stock trades the
-43-
regular way on such exchange or in such market after the time at which such
subdivision or combination becomes effective, and (iii) when used with respect to
any tender offer or exchange offer means the first date on which the Common Stock
trades the regular way on such exchange or in such market after the expiration time
of such tender offer or exchange offer (as it may be amended or extended). For
purposes of determining the Ex Date with respect to an issuance or distribution
under this Indenture, the Company may conclusively assume (and such assumption shall
be binding upon the Holders) that purchases and sales of the relevant security with
respect to which such issuance or distribution is being made will settle based on
the customary settlement cycle for purchases or sales of such security.
Unless the context requires otherwise, the term “
record date
” means, with
respect to any dividend, distribution or other transaction or event in which the
holders of shares of Common Stock have the right to receive any cash, securities or
other property or in which the shares of Common Stock (or other applicable security)
is exchanged for or converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders entitled to receive such
cash, securities or other property (whether such date is fixed by the Board or by
statute, contract or otherwise).
8.07
No Adjustment.
Notwithstanding anything herein or in the Securities to the contrary, in no event shall the
Conversion Rate be adjusted pursuant to this Indenture or the Securities to the extent such
adjustment shall reduce the Conversion Price to an amount that is less than the par value per share
of Common Stock.
No adjustment in the Conversion Rate pursuant to
Section 8.06
hereof shall be required until
cumulative adjustments amount to one percent (1%) or more of the Conversion Rate as last adjusted
(or, if never adjusted, the initial Conversion Rate);
provided, however,
that any adjustments to
the Conversion Rate which by reason of this
Section 8.07
are not required to be made shall be
carried forward and taken into account in any subsequent adjustment to the Conversion Rate;
provided further
, that at the end of each fiscal year of the Company, beginning with the fiscal
year ending on December 31, 2010, any adjustments to the Conversion Rate that have been, and at
such time remain, deferred pursuant to this
Section 8.07
shall be given effect, and such
adjustments, if any, shall no longer be carried forward and taken into account in any subsequent
adjustment to the Conversion Rate;
provided further
, that if the Company shall mail a notice of
Redemption pursuant to
Section 3.04
hereof, or if a Fundamental Change or Make-Whole Fundamental
Change occurs, or if the Securities shall become convertible pursuant to
Section 8.01(A)(iv)
hereof
or
Section 8.01(A)(v)
hereof, then, in each case, any adjustments to the Conversion Rate that have
been, and at such time remain, deferred pursuant to this
Section 8.07
shall be given effect, and
such adjustments, if any, shall no longer be carried forward and taken into account in any
subsequent adjustment to the Conversion Rate. All calculations under this
Article VIII
shall be
made to the nearest cent or to the nearest one-millionth of a share, as the case may be.
-44-
Upon the expiration, termination or redemption of any rights, options or warrants issued by
the Company, and requiring an adjustment to the Conversion Rate in accordance with
Section 8.06
hereof, without the exercise of such rights, options or warrants, the Conversion Rate then in
effect shall be adjusted immediately to the Conversion Rate which would have been in effect at the
time of such expiration, termination or redemption had such rights, options or warrants, to the
extent outstanding immediately prior to such expiration, termination or redemption, never been
issued. Notwithstanding anything herein or in the Securities to the contrary, if any rights,
options or warrants issued by the Company, and requiring an adjustment to the Conversion Rate in
accordance with
Section 8.06
hereof, are only exercisable upon the occurrence of certain triggering
events, then the Conversion Rate will not be adjusted as provided in
Section 8.06
until the
earliest of such triggering event occurs.
If any dividend or distribution is declared and the Conversion Rate is adjusted pursuant to
Section 8.06
hereof on account of such dividend or distribution, but such dividend or distribution
is thereafter not paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate
which would then be in effect had such dividend or distribution not been declared.
No adjustment to the Conversion Rate need be made pursuant to
Section 8.06
hereof for a
transaction if each Holder is to participate in the transaction, at substantially the same time
that holders of Common Stock participate in such transaction, without conversion as if such Holder
held a number of shares of Common Stock equal to a fraction whose numerator is the product of the
Conversion Rate in effect at the Ex Date or effective date, as applicable, of the transaction
(without giving effect to any adjustment pursuant to
Section 8.06
hereof on account of such
transaction) and the aggregate principal amount of Securities held by such Holder and whose
denominator is one thousand (1,000).
8.08
Other Adjustments.
In the event that, as a result of an adjustment made pursuant to
Section 8.06
hereof, the
Holder of any Security thereafter surrendered for conversion shall become entitled to receive any
shares of Capital Stock other than shares of Common Stock, thereafter the Conversion Rate of such
other shares so receivable upon conversion of any Security shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect
to Common Stock contained in this
Article VIII
.
8.09
Adjustments for Tax Purposes.
Except as prohibited by law the Company may (but is not obligated to) make such increases in
the Conversion Rate, in addition to those required by
Section 8.06
hereof, as it determines to be
advisable in order that any stock dividend, subdivision of shares, distribution of rights to
purchase stock or securities or distribution of securities convertible into or exchangeable for
stock made by the Company or to its stockholders will not be taxable to the recipients thereof or
in order to diminish any such taxation.
8.10
Notice of Adjustment.
Whenever the Conversion Rate is adjusted, the Company shall promptly mail to Holders at the
addresses appearing on the Registrar’s books a notice of the adjustment and file with the
-45-
Trustee an Officers’ Certificate briefly stating the facts requiring the adjustment and the
manner of computing it. The certificate shall be conclusive evidence of the correctness of such
adjustment.
8.11
Notice of Certain Transactions.
In the event that:
(1) the Company takes any action, or becomes aware of any event, which
would require an adjustment in the Conversion Rate,
(2) the Company takes any action that would require a supplemental
indenture pursuant to
Section 8.12
hereof, or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders at the addresses appearing on the Registrar’s books and the
Trustee a written notice stating the proposed record, effective or expiration date, as the case may
be, of any transaction referred to in
clause (1)
,
(2)
or
(3)
of this
Section 8.11
. The Company
shall mail such notice at least twenty (20) calendar days before such date; however, failure to
mail such notice or any defect therein shall not affect the validity of any transaction referred to
in
clause (1)
,
(2)
or
(3)
of this
Section 8.11
.
8.12
Effect of Reclassifications, Consolidations, Amalgamations, Statutory
Arrangements, Mergers, Binding Share Exchanges or Asset Sales on Conversion Privilege.
If any of the following shall occur, namely: (i) any reclassification or change in the Common
Stock issuable upon conversion of Securities (other than a change only in par value, or from par
value to no par value, or from no par value to par value, or as a result of a subdivision or
combination of Common Stock), (ii) any consolidation, amalgamation, statutory arrangement, merger
or binding share exchange to which the Company is a party other than a merger in which the Company
is the continuing Person and which does not result in any reclassification of, or change (other
than a change in name, or par value, or from par value to no par value, or from no par value to par
value or as a result of a subdivision or combination) in, the Common Stock or (iii) any sale,
transfer, lease, conveyance or other disposition of all or substantially all of the property or
assets of the Company, in each case pursuant to which the Common Stock would be converted into or
exchanged for, or would constitute solely the right to receive, cash, securities or other property,
then the Company or such successor or purchasing Person, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture in form reasonably satisfactory to the Trustee
providing that, at and after the effective time of such reclassification, change, consolidation,
amalgamation, statutory arrangement, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition, the Holder of each Security then outstanding shall have the right to
convert such Security (if otherwise convertible pursuant to this
Article VIII
) into the kind and
amount of cash, securities or other property (collectively, “
Reference Property
”) receivable upon
such reclassification, change, consolidation, amalgamation, statutory arrangement, merger, binding
share exchange, sale, transfer, lease, conveyance or disposition by a holder of a number of shares
of Common Stock equal to a fraction whose denominator is one
-46-
thousand (1,000) and whose numerator is the product of the principal amount of such Security
and the Conversion Rate in effect immediately prior to such reclassification, change,
consolidation, amalgamation, statutory arrangement, merger, binding share exchange, sale, transfer,
lease, conveyance or disposition (assuming, if holders of Common Stock shall have the opportunity
to elect the form of consideration to receive pursuant to such reclassification, change,
consolidation, amalgamation, statutory arrangement, merger, binding share exchange, sale, transfer,
lease, conveyance or disposition, that the Collective Election shall have been made with respect to
such election);
provided
,
however
, that at and after the effective time of such reclassification,
change, consolidation, amalgamation, statutory arrangement, merger, binding share exchange, sale,
transfer, lease, conveyance or disposition, the Principal Return payable hereunder upon conversion
of such Security shall continue to be payable in cash and the Daily Conversion Value and Daily Net
Shares shall be calculated based on the value of the Reference Property instead of the
Volume-Weighted Average Price per share of Common Stock;
provided further
, that if any portion of
such Reference Property consists of common stock listed on a national securities exchange or quoted
on an automated quotation system, then the “value” of such portion of such Reference Property shall
be determined on the basis of the Volume Weighted Average Price of such common stock (determined as
if such common stock were Common Stock for purposes of the definition of “Volume Weighted Average
Price” and as if the issuer of such common stock were the Company for purposes of the definition of
“Trading Day”).
If holders of Common Stock shall have the opportunity to elect the form of consideration to
receive pursuant to such reclassification, change, consolidation, amalgamation, statutory
arrangement, merger, binding share exchange, sale, transfer, lease, conveyance or disposition, then
the Company shall make adequate provision to give Holders, treated as a single class, a reasonable
opportunity to elect (the “
Collective Election
”) the form of such consideration for purposes of
determining the composition of the Reference Property referred to in the immediately preceding
sentence, and once such election is made, such election shall apply to all Holders after the
effective time of such reclassification, change, consolidation, amalgamation, statutory
arrangement, merger, binding share exchange, sale, transfer, lease, conveyance or disposition.
Such Collective Election shall be determined based on the weighted average of the elections made by
Holders of the Securities who participate in such determination, shall be subject to any
limitations to which all of the holders of Common Stock are subject, such as pro-rata reductions
applicable to any portion of the consideration payable in such reclassification, change,
consolidation, amalgamation, statutory arrangement, merger, binding share exchange, sale, transfer,
lease, conveyance or disposition, and shall be conducted in such a manner as to be completed by the
close of business on the actual effective date of such reclassification, change, consolidation,
amalgamation, statutory arrangement, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition. The Company shall provide notice of the opportunity to determine the
form of such consideration, as well as notice of the determination made by Holders, by issuing a
press release and providing a copy of such notice to the Trustee. The Company shall not become a
party to any reclassification, change, consolidation, amalgamation, statutory arrangement, merger,
binding share exchange, sale, transfer, lease, conveyance or disposition, the terms of which are
inconsistent with this paragraph and the immediately preceding paragraph.
-47-
The supplemental indenture referred to in the first sentence of this
Section 8.12
shall
provide for adjustments of the Conversion Rate which shall be as nearly equivalent as may be
practicable to the adjustments of the Conversion Rate provided for in this
Article VIII
. The
foregoing, however, shall not in any way affect the right a Holder of a Security may otherwise
have, pursuant to
Section 8.
06(b)
hereof or
Section 8.14
hereof, to receive rights or warrants upon
conversion of a Security. If, in the case of any such consolidation, amalgamation, statutory
arrangement, merger, binding share exchange, sale, transfer, lease, conveyance or disposition, the
stock or other securities and property (including cash) receivable thereupon by a holder of Common
Stock includes shares of stock or other securities and property of a Person other than the
successor or purchasing Person, as the case may be, in such consolidation, amalgamation, statutory
arrangement, merger, binding share exchange, sale, transfer, lease, conveyance or disposition, then
such supplemental indenture shall also be executed by such other Person and shall contain such
additional provisions to protect the interests of the Holders of the Securities as the Board in
good faith shall reasonably determine necessary by reason of the foregoing (which determination
shall be described in a Board Resolution). The provisions of this
Section 8.12
shall similarly
apply to successive consolidations, amalgamations, statutory arrangements, mergers, binding share
exchanges, sales, transfers, leases, conveyances or dispositions.
In the event the Company shall execute a supplemental indenture pursuant to this
Section 8.12
,
the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the
reasons therefor, the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders of the Securities upon the conversion of their Securities after any such
reclassification, change, consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition and any adjustment to be made with
respect thereto.
8.13
Trustee’s Disclaimer.
The Trustee has no duty to determine when an adjustment under this
Article VIII
should be
made, how it should be made or what such adjustment should be, but may accept as conclusive
evidence of the correctness of any such adjustment, and shall be protected in relying upon, the
Officers’ Certificate with respect thereto which the Company is obligated to file with the Trustee
pursuant to
Section 8.10
hereof. The Trustee makes no representation as to the validity or value
of any securities or assets issued upon conversion of Securities, and the Trustee shall not be
responsible for the failure by the Company to comply with any provisions of this
Article VIII
.
The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to
Section 8.12
hereof, but
may accept as conclusive evidence of the correctness thereof, and shall be protected in relying
upon, the Officers’ Certificate with respect thereto which the Company is obligated to file with
the Trustee pursuant to
Section 8.12
hereof.
8.14
Rights Distributions Pursuant to Stockholders’ Rights Plans.
Upon conversion of any Security or a portion thereof, the Company shall make provision such
that the Holder thereof shall, to the extent such Holder is to receive shares of Common
-48-
Stock upon such conversion, receive, in addition to, and concurrently with the delivery of,
the consideration otherwise payable hereunder upon such conversion, the rights described in any
stockholders’ rights plan(s) of the Company then in effect;
provided
,
however
, that no such
provision need be made if the rights have been separated from the Common Stock prior to the time of
such conversion, but the provisions of
Section 8.06(c)
hereof shall apply.
8.15
Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection
With Make-Whole Fundamental Changes.
(A) Notwithstanding anything herein to the contrary, the Conversion Rate applicable to each
Security that is surrendered for conversion, in accordance with this
Article VIII
, at any time
during the period (the “
Make-Whole Conversion Period
”) that begins on, and includes, the effective
date of a Make-Whole Fundamental Change and ends on, and includes, the date that is forty (40)
Business Days after the actual effective date of such Make-Whole Fundamental Change (or, if such
Make-Whole Fundamental Change also constitutes a Fundamental Change, the Fundamental Change
Repurchase Date applicable to such Fundamental Change) shall be increased to an amount equal to the
Conversion Rate that would, but for this
Section 8.15
, otherwise apply to such Security pursuant to
this
Article VIII
, plus an amount equal to the Make-Whole Applicable Increase;
provided
,
however
,
that such increase to the Conversion Rate shall not apply if such Make-Whole Fundamental Change is
announced by the Company but shall not be consummated.
The additional consideration payable hereunder on account of any Make-Whole Applicable
Increase with respect to a Security surrendered for conversion is herein referred to as the
“
Make-Whole Consideration
.” For avoidance of doubt, the amount of the Make-Whole Consideration due
upon the conversion of a Security shall be based on the Cash Settlement Averaging Period and
Volume-Weighted Average Prices applicable to such conversion pursuant to
Section 8.02
hereof.
The Make-Whole Consideration due upon a conversion of a Security by a Holder shall be paid as
soon as practicable, but in no event later than third Business Day after the later of (1) the date
such Holder surrenders such Security for such conversion; (2) the last Trading Day in the Cash
Settlement Averaging Period applicable to such conversion; and (3) the Effective Date of the
applicable Make-Whole Fundamental Change.
(B) As used herein, “
Make-Whole Applicable Increase
” shall mean, with respect to a Make-Whole
Fundamental Change, the amount, set forth in the following table, which corresponds to the
effective date of such Make-Whole Fundamental Change (the “
Effective Date
”) and the Applicable
Price of such Make-Whole Fundamental Change:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of additional shares (per $1,000 principal amount of notes)
|
|
|
|
|
Effective Date
|
|
|
|
|
March 15,
|
|
|
December 1,
|
|
|
December 1,
|
|
|
December
|
|
|
December
|
|
|
December 1,
|
|
|
Applicable Price
|
|
2010
|
|
|
2010
|
|
|
2011
|
|
|
1, 2012
|
|
|
1, 2013
|
|
|
2014
|
|
|
$43.63
|
|
|
3.4136
|
|
|
|
3.4136
|
|
|
|
3.4136
|
|
|
|
3.4136
|
|
|
|
3.4136
|
|
|
|
3.4136
|
|
|
$45.00
|
|
|
3.4136
|
|
|
|
3.4020
|
|
|
|
3.2095
|
|
|
|
3.0997
|
|
|
|
2.9517
|
|
|
|
2.7158
|
|
|
$50.00
|
|
|
2.3196
|
|
|
|
2.1759
|
|
|
|
1.9871
|
|
|
|
1.8338
|
|
|
|
1.5819
|
|
|
|
0.4936
|
|
|
$55.00
|
|
|
1.4613
|
|
|
|
1.3443
|
|
|
|
1.1766
|
|
|
|
1.0208
|
|
|
|
0.7619
|
|
|
|
0.0000
|
|
-49-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of additional shares (per $1,000 principal amount of notes)
|
|
|
|
|
Effective Date
|
|
|
|
|
March 15,
|
|
|
December 1,
|
|
|
December 1,
|
|
|
December
|
|
|
December
|
|
|
December 1,
|
|
|
Applicable Price
|
|
2010
|
|
|
2010
|
|
|
2011
|
|
|
1, 2012
|
|
|
1, 2013
|
|
|
2014
|
|
|
$60.00
|
|
|
0.8781
|
|
|
|
0.7886
|
|
|
|
0.6517
|
|
|
|
0.5193
|
|
|
|
0.3158
|
|
|
|
0.0000
|
|
|
$65.00
|
|
|
0.4908
|
|
|
|
0.4276
|
|
|
|
0.3263
|
|
|
|
0.2313
|
|
|
|
0.1063
|
|
|
|
0.0000
|
|
|
$70.00
|
|
|
0.2450
|
|
|
|
0.2064
|
|
|
|
0.1410
|
|
|
|
0.0854
|
|
|
|
0.0261
|
|
|
|
0.0000
|
|
|
$75.00
|
|
|
0.1036
|
|
|
|
0.0844
|
|
|
|
0.0494
|
|
|
|
0.0236
|
|
|
|
0.0030
|
|
|
|
0.0000
|
|
|
$80.00
|
|
|
0.0338
|
|
|
|
0.0269
|
|
|
|
0.0121
|
|
|
|
0.0032
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
$85.00
|
|
|
0.0068
|
|
|
|
0.0052
|
|
|
|
0.0008
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
$90.00
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
$95.00
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
$100.00
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
$105.00
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
$110.00
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
$115.00
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
$120.00
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
provided
,
however
, that:
(i) if the actual Applicable Price of such Make-Whole Fundamental Change is between
two (2) prices listed in the table above in the column titled “Applicable Price,” or if
the actual Effective Date of such Make-Whole Fundamental Change is between two dates
listed in the table above in the row immediately below the title “Effective Date,” then
the Make-Whole Applicable Increase for such Make-Whole Fundamental Change shall be
determined by linear interpolation between the Make-Whole Applicable Increases set forth
for such two prices, or for such two dates based on a three hundred and sixty five (365)
day year, as applicable;
(ii) if the actual Applicable Price of such Make-Whole Fundamental Change is greater
than $120.00 per share (subject to adjustment as provided in
Section 8.15(B)(iii)
), or if
the actual Applicable Price of such Make-Whole Fundamental Change is less than $43.63 per
share (subject to adjustment as provided in
Section 8.15(B)(iii)
), then the Make-Whole
Applicable Increase shall be equal to zero (0);
(iii) if an event occurs that requires, pursuant to this
Article VIII
(other than
solely pursuant to this
Section 8.15
), an adjustment to the Conversion Rate, then, on the
date and at the time such adjustment is so required to be made, each price set forth in
the table above under the column titled “Applicable Price” shall be deemed to be adjusted
so that such price, at and after such time, shall be equal to the product of (1) such
price as in effect immediately before such adjustment to such price and (2) a fraction
whose numerator is the Conversion Rate in effect immediately before such adjustment to
the Conversion Rate and whose denominator is the Conversion Rate to be in effect, in
accordance with this
Article VIII
, immediately after such adjustment to the Conversion
Rate;
(iv) each Make-Whole Applicable Increase amount set forth in the table above shall
be adjusted in the same manner in which, and for the same events for which, the
Conversion Rate is to be adjusted pursuant to
Section 8.06
through
Section 8.14
hereof;
and
-50-
(v) in no event shall the Conversion Rate applicable to any Security be increased
pursuant to this
Section 8.15
to the extent, but only to the extent, such increase shall
cause the Conversion Rate applicable to such Security to exceed 22.9200 shares per $1,000
principal amount (the “
BCF Make-Whole Cap
”);
provided
,
however
, that the BCF Make-Whole
Cap shall be adjusted in the same manner in which, and for the same events for which, the
Conversion Rate is to be adjusted pursuant to this
Article VIII
.
(C) As used herein, “
Applicable Price
” shall have the following meaning with respect to a
Make-Whole Fundamental Change: (a) if the consideration (excluding cash payments for fractional
shares or pursuant to statutory appraisal rights) for the Common Stock in such Make-Whole
Fundamental Change consists solely of cash, then the “Applicable Price” with respect to such
Make-Whole Fundamental Change shall be equal to the cash amount paid per share of Common Stock in
such Make-Whole Fundamental Change; and (b) in all other circumstances, the “Applicable Price” with
respect to such Make-Whole Fundamental Change shall be equal to the average of the Closing Sale
Prices per share of Common Stock for the five (5) consecutive Trading Days immediately preceding
the Effective Date of such Make-Whole Fundamental Change, which average shall be appropriately
adjusted by the Company’s Board, in its good faith determination, to account for any adjustment,
pursuant hereto, to the Conversion Rate that shall become effective, or any event requiring,
pursuant hereto, an adjustment to the Conversion Rate where the Ex Date of such event occurs, at
any time during such five (5) consecutive Trading Days.
(D) At least thirty (30) calendar days before the first anticipated effective date of each
proposed Make-Whole Fundamental Change, the Company shall mail to each Holder written notice of,
and shall publicly announce, through a reputable national newswire service, and publish on the
Company’s website, the anticipated effective date of such proposed Make-Whole Fundamental Change.
Each such notice, announcement and publication shall also state that, in connection with such
Make-Whole Fundamental Change, the Company shall increase, in accordance herewith, the Conversion
Rate applicable to Securities entitled as provided herein to such increase (along with a
description of how such increase shall be calculated and the time periods during which Securities
must be surrendered in order to be entitled to such increase). No later than the third Business
Day after the Effective Date of each Make-Whole Fundamental Change, the Company shall mail written
notice of, and shall publicly announce, through a reputable national newswire service, such
Effective Date and the Make-Whole Applicable Increase applicable to such Make-Whole Fundamental
Change.
(E) For avoidance of doubt, the provisions of this
Section 8.15
shall not affect or diminish
the Company’s obligations, if any, pursuant to
Article Ten
of the Base Indenture and
Article IV
hereof with respect to a Make-Whole Fundamental Change.
(F) Nothing in this
Section 8.15
shall prevent an adjustment to the Conversion Rate pursuant
to
Section 8.06
hereof in respect of a Make-Whole Fundamental Change.
-51-
8.16
Ownership Limit.
Notwithstanding any other provision of this Indenture or the Securities, no Holder shall be
entitled to convert such Securities for shares of Common Stock to the extent that receipt of such
shares would cause such Holder (together with such Holder’s Affiliates) to exceed the applicable
ownership limit contained in the Company’s by-laws (with respect to the Common Stock and the
Company’s preferred stock) and the Company’s certificates of designation (with respect to the
Company’s preferred stock).
IX.
NO DEFEASANCE OR COVENANT DEFEASANCE
The defeasance and covenant defeasance provisions of
Article Thirteen
of the Base Indenture shall
not apply to the Securities.
X.
MISCELLANEOUS
10.01
Governing Law.
The laws of the State of New York, without regard to principles of conflicts of law, shall
govern this Indenture and the Securities.
10.02
No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
10.03
Successors.
All agreements of the Company in this Indenture and the Securities shall bind its successors.
All agreements of the Trustee in this Indenture shall bind its successors.
10.04
Calculations in Respect of the Securities.
The Company and its agents (including, without limitation, the Bid Solicitation Agent) shall
make all calculations under this Indenture and the Securities in good faith. In the absence of
manifest error, such calculations shall be final and binding on all Holders. The Company shall
provide a copy of such calculations to the Trustee as required hereunder, and, absent such manifest
error, the Trustee shall be entitled to conclusively rely on the accuracy of any such calculation
without independent verification.
10.05
Trustee’s Disclaimer .
The Trustee makes no representations as to the validity or sufficiency of the Supplemental
Indenture except as to the due authorization, execution and delivery of the Supplemental Indenture
by the Trustee. The recitals and statements herein are deemed to be those of the Company and not
of the Trustee.
-52-
[
The Remainder of This Page Intentionally Left Blank; Signature Page Follows
]
-53-
IN WITNESS WHEREOF
, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.
|
|
|
|
|
|
|
|
HEALTH CARE REIT, INC.
|
|
|
|
By:
|
/s/ Michael A. Crabtree
|
|
|
|
|
Name:
|
Michael A. Crabtree
|
|
|
|
|
|
|
Title:
|
Senior Vice President and Treasurer
|
|
|
|
|
|
|
|
|
|
|
|
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Trustee
|
|
|
|
By:
|
/s/ Christian J. Pastura
|
|
|
|
|
Name:
|
Christian J. Pastura
|
|
|
|
|
|
|
Title:
|
Senior Associate
|
|
|
|
-2-
EXHIBIT A
[Face of Security]
HEALTH CARE REIT, INC.
Certificate No.
[INSERT GLOBAL SECURITY LEGEND AS REQUIRED]
3.00% Convertible Senior Note due 2029
CUSIP No. 42217K AR7
Health Care REIT, Inc., a Delaware corporation (the “
Company
”), for value received, hereby
promises to pay to Cede & Co., or its registered assigns, the principal sum of three hundred forty
two million, three hundred ninety four thousand dollars ($342,394,000) on December 1, 2029 and to
pay interest thereon, as provided on the reverse hereof, until the principal and any unpaid and
accrued interest are paid or duly provided for.
Interest Payment Dates: June 1 and December 1, with the first payment to be made on June 1,
2010.
Record Dates: May 15 and November 15.
The provisions on the back of this certificate are incorporated as if set forth on the face
hereof.
IN WITNESS WHEREOF
, Health Care REIT, Inc. has caused this instrument to be duly signed.
|
|
|
|
|
|
|
|
Health Care REIT, Inc.
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
|
|
Dated: March 15, 2010
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture.
The Bank of New York Trust Mellon Company, N.A.
, as Trustee
Dated:
A-2
[REVERSE OF SECURITY]
HEALTH CARE REIT, INC.
3.00% Convertible Senior Note due 2029
1.
Interest
. Health Care REIT, Inc., a Delaware corporation (the “
Company
”), promises to pay
interest on the principal amount of this Security at the rate
per annum
shown above. The Company
will pay interest, payable semi-annually in arrears, on June 1 and December 1 of each year, with
the first payment to be made on June 1, 2010. Interest on the Securities will accrue on the
principal amount from, and including, the most recent date to which interest has been paid or
provided for or, if no interest has been paid, from, and including, March 15, 2010, in each case
to, but excluding, the next interest payment date or Maturity Date, as the case may be. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
2.
Maturity
. The Securities will mature on December 1, 2029.
3.
Method of Payment
. Except as provided in the Indenture (as defined below), the Company
will pay interest on the Securities to the persons who are Holders of record of Securities at the
close of business on the record date set forth on the face of this Security next preceding the
applicable interest payment date. Holders must surrender Securities to a Paying Agent to collect
the principal amount, Redemption Price, Option Purchase Price or Fundamental Change Repurchase
Price of the Securities, plus, if applicable, accrued and unpaid interest, if any, payable as
herein provided on the Maturity Date or upon Redemption, Purchase at Holder’s Option or Repurchase
Upon Fundamental Change, as the case may be. The Company will pay, in money of the United States
that at the time of payment is legal tender for payment of public and private debts, all amounts
due in cash with respect to the Securities, which amounts shall be paid (A) in the case this
Security is in global form, by wire transfer of immediately available funds to the account
designated by DTC or its nominee; (B) in the case this Security is held, other than global form, by
a Holder of more than five million dollars ($5,000,000) in aggregate principal amount of
Securities, by wire transfer of immediately available funds to the account specified by such Holder
or, if such Holder does not specify an account, by mailing a check to the address of such Holder
set forth in the register of the Registrar; and (C) in the case this Security is held, other than
global form, by a Holder of five million dollars ($5,000,000) or less in aggregate principal amount
of Securities, by mailing a check to the address of such Holder set forth in the register of the
Registrar.
4.
Paying Agent, Registrar, Bid Solicitation Agent and Conversion Agent
. Initially, The Bank
of New York Mellon Trust Company, N.A. (the “
Trustee
”) will act as Paying Agent, Registrar, Bid
Solicitation Agent and Conversion Agent. The Company may change any Paying Agent, Registrar, Bid
Solicitation Agent or Conversion Agent without prior notice.
5.
Indenture
. The Company issued the Securities under a base indenture, dated as of March 15,
2010 (the
“Base Indenture”
) as amended, supplemented or otherwise modified by Supplemental
Indenture No. 1, dated as of March 15, 2010 (the “
Supplemental Indenture
” and, together with the
Base Indenture, the
“Indenture”
) between the Company and the Trustee. The
A-3
terms of the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) (the
“Trust Indenture Act”) as amended and in effect from time to time. The Securities are subject to
all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a
statement of such terms. The Securities are general unsecured senior obligations of the Company
limited to $342,394,000 aggregate principal amount, except as otherwise provided in the Indenture
(except for reopening of the Securities pursuant to the Indenture or Securities issued in
substitution for destroyed, mutilated, lost or stolen Securities). Terms used herein without
definition and which are defined in the Indenture have the meanings assigned to them in the
Indenture.
6.
Optional Redemption
.
The Company shall not have the right to redeem any Securities prior to December 1, 2014,
except to preserve the Company’s status as a real estate investment trust. If, at any time, the
Company determines that it is necessary to redeem the Securities in order to preserve the Company’s
status as a real estate investment trust, the Company may redeem all or any part of the Securities
at a price payable in cash equal to the Redemption Price plus accrued and unpaid interest, if any,
to, but excluding, the Redemption Date.
The Company shall have the right, at the Company’s option, at any time, and from time to time,
on a Redemption Date on or after December 1, 2014, to redeem all or any part of the Securities at a
price payable in cash equal to one hundred percent (100%) of the principal amount of the Securities
to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
Upon surrender to the Paying Agent of a Security subject to Redemption, such Security shall be
paid, to the Holder surrendering such Security, at the Redemption Price plus accrued and unpaid
interest to, but excluding, the Redemption Date, unless the Redemption Date is after a Regular
Record Date for the payment of an installment of interest and on or before the related Interest
Payment Date, in which case accrued and unpaid interest to, but excluding, such Interest Payment
Date will be paid, on such Interest Payment Date, to the Holder of record of such Security at the
close of business on such Regular Record Date, and the Holder surrendering such Security shall not
be entitled to any such interest unless such Holder was also the Holder of record of such Security
at the close of business on such Regular Record Date.
7.
Notice of Redemption
. Notice of Redemption will be mailed at least thirty (30) days but
not more than sixty (60) days before the Redemption Date to each Holder of Securities to be
redeemed at its address appearing in the security register. Securities in denominations larger
than $1,000 principal amount may be redeemed in part but only in integral multiples of $1,000
principal amount.
8.
Purchase by the Company at the Option of the Holder
. Subject to the terms and conditions
of the Indenture, the Company shall become obligated to purchase, at the option of each Holder, the
Securities held by such Holder on December 1, 2014, December 1, 2019 and December 1, 2024 (each, an
“
Option Purchase Date
”) at an Option Purchase Price, payable in cash, equal to one hundred percent
(100%) of the principal amount of the Securities to be
A-4
purchased, plus accrued and unpaid interest, if any, to, but excluding, the applicable Option
Purchase Date, upon delivery of a Purchase Notice containing the information set forth in the
Indenture, at any time from the opening of business on the date that is twenty (20) Business Days
prior to the applicable Option Purchase Date until the close of business on the Business Day
immediately preceding the applicable Option Purchase Date and upon delivery of the Securities to
the Paying Agent by the Holder as set forth in the Indenture;
provided
,
however
, that such accrued
and unpaid interest shall be paid to the Holder of record of such Securities at the close of
business on the Regular Record Date immediately preceding such Option Purchase Date.
9.
Repurchase at Option of Holder Upon a Fundamental Change
. Subject to the terms and
conditions of the Indenture, in the event of a Fundamental Change, each Holder of the Securities
shall have the right, at the Holder’s option, to require the Company to repurchase such Holder’s
Securities including any portion thereof which is $1,000 in principal amount or any integral
multiple thereof on a date selected by the Company (the “
Fundamental Change Repurchase Date
”),
which date is no later than thirty five (35) days, nor earlier than twenty (20) days, after the
date on which notice of such Fundamental Change is mailed in accordance with the Indenture, at a
price payable in cash equal to one hundred percent (100%) of the principal amount of such Security,
plus accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase Date;
provided
,
however
, that if such Fundamental Change Repurchase Date is after a Regular Record Date
for the payment of an installment of interest and on or before the related Interest Payment Date,
then the accrued and unpaid interest, if any, to, but excluding, such Interest Payment Date will be
paid on such Interest Payment Date to the Holder of record of such Securities at the close of
business on such Regular Record Date, and the Holder surrendering such Securities for repurchase
will not be entitled to any such accrued and unpaid interest unless such Holder was also the Holder
of record of such Securities at the close of business on such Regular Record Date.
10.
Conversion
.
The Securities shall be convertible into cash, and if applicable, shares of Common Stock if
and to the extent the conditions therefor specified in the Indenture are satisfied.
To convert a Security, a Holder must (1) complete and sign the Conversion Notice, with
appropriate signature guarantee, on the back of the Security, (2) surrender the Security to a
Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the
Registrar or Conversion Agent, (4) pay the amount of interest, if any, the Holder must pay in
accordance with the Indenture and (5) pay any tax or duty if required pursuant to the Indenture. A
Holder may convert a portion of a Security if the portion is $1,000 principal amount or an integral
multiple of $1,000 principal amount.
Notwithstanding anything herein to the contrary, no Security may be converted after the close
of business on the Business Day immediately preceding the Maturity Date.
Upon conversion of a Security, the Holder thereof shall be entitled to receive the cash and,
if applicable, shares of Common Stock payable upon conversion in accordance with
Article VIII
of
the Supplemental Indenture.
A-5
The initial Conversion Rate is 19.5064 shares of Common Stock per $1,000 principal amount of
Securities (which results in an effective initial Conversion Price of approximately $51.27 per
share) subject to adjustment in the event of certain circumstances as specified in the Indenture.
The Company will deliver cash in lieu of any fractional shares. On conversion, no payment or
adjustment for any unpaid and accrued interest or additional interest on the Securities will be
made. If a Holder surrenders a Security for conversion after the close of business on the Regular
Record Date for the payment of an installment of interest and prior to the related Interest Payment
Date, such Security, when surrendered for conversion, must be accompanied by payment of an amount
equal to the interest thereon which the registered Holder at the close of business on such Regular
Record Date is to receive;
provided, however,
that such payment of an amount equal to the interest
described in the immediately preceding sentence in respect of a Security surrendered for conversion
shall not be required with respect to a Security that (i) is surrendered for conversion after the
Regular Record Date immediately preceding the Maturity Date, (ii) has been called for Redemption
pursuant to
Section 3.04
of the Supplemental Indenture and
paragraphs 6 and 7
herein or (iii) is
surrendered for conversion after a Regular Record Date for the payment of an installment of
interest and on or before the related Interest Payment Date, where, pursuant to
Section 3.09
of the
Supplemental Indenture, the Company has specified, with respect to a Fundamental Change, a
Fundamental Change Repurchase Date that is after such Regular Record Date and on or before such
Interest Payment Date;
provided further
, that, if the Company shall have, prior to the Conversion
Date with respect to a Security, defaulted in a payment of interest on such Security, then in no
event shall the Holder of such Security who surrenders such Security for conversion be required to
pay such defaulted interest or the interest that shall have accrued on such defaulted interest
pursuant to
Section 307
of the Base Indenture or otherwise.
The Conversion Rate applicable to each Security that is surrendered for conversion, in
accordance with the Securities and
Article VIII
of the Supplemental Indenture, at any time during
the Make-Whole Conversion Period with respect to a Make-Whole Fundamental Change shall be increased
to an amount equal to the Conversion Rate that would, but for
Section 8.15
of the Supplemental
Indenture, otherwise apply to such Security pursuant to
Article VIII
of the Supplemental Indenture,
plus an amount equal to the Make-Whole Applicable Increase;
provided
,
however
, that such increase
to the Conversion Rate shall not apply if such Make-Whole Fundamental Change is announced by the
Company but shall not be consummated.
11.
Denominations, Transfer, Exchange
. The Securities are in registered form, without
coupons, in denominations of $1,000 principal amount and integral multiples of $1,000 principal
amount. The transfer of Securities may be registered and Securities may be exchanged as provided
in the Indenture, subject to conditions on the registration of transfer while the Securities are
registered as global securities as provided in the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents. No service charge
shall be made for any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or similar governmental charge that may be imposed in
connection with certain transfers or exchanges. The Company or the Trustee, as the case may be,
shall not be required to register the transfer of or exchange any Security (i) during a period
beginning at the opening of business fifteen (15) days before the mailing of a notice of redemption
of the Securities selected for Redemption under
Section 3.04
of the Supplemental Indenture and
ending at the close of business on the day
A-6
of such mailing or (ii) for a period of fifteen (15) days before selecting, pursuant to
Section 3.03
of the Supplemental Indenture, Securities to be redeemed or (iii) that has been
selected for Redemption or for which a Purchase Notice has been delivered, and not withdrawn, in
accordance with the Indenture, except the unredeemed or unrepurchased portion of Securities being
redeemed or repurchased in part.
12.
Persons Deemed Owners
. The registered Holder of a Security may be treated as the owner of
such Security for all purposes.
13.
Consolidation, Merger, Conveyance, Transfer or Lease
. The Company shall not consolidate
with or merge with or into any other Person, or sell, transfer, lease, convey, or otherwise dispose
of all or substantially all of its properties and assets to any Person (including pursuant to a
statutory arrangement), whether in a single transaction or series of related transactions unless
(i) such Person assumes by supplemental indenture all the obligations of the Company under the
Securities and the Indenture; (ii) immediately after giving effect to such transaction or series of
transactions, no Default or Event of Default shall exist; and (iii) the Person formed by such
consolidation, the Person with or into which the Company is merged or the Person which leases or
acquires, by sale, transfer, conveyance or otherwise, all or substantially all of the property or
assets of the Company, is a corporation, partnership, limited liability company or trust organized
and existing under the laws of the United States, any state of the United States or the District of
Columbia. The Company shall deliver to the Trustee prior to the consummation of the proposed
transaction an Officers’ Certificate and an Opinion of Counsel, each stating that such proposed
transaction and, if a supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with
Article Eight
of the Base Indenture and that all conditions
precedent provided for in the Indenture relating to such transaction have been complied with.
14.
Amendments, Supplements and Waivers
. Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities, and certain existing Defaults or Events
of Default may be waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. The Company, with the consent of the Trustee, may amend
or supplement this Indenture or the Securities without notice to or the consent of any
Securityholder in accordance with
Section 901
of the Base Indenture and
Section 7.01
of the
Supplemental Indenture.
15.
Defaults and Remedies
.
If an Event of Default (excluding an Event of Default specified in
Section 5.01(viii)
or
(ix)
of the Supplemental Indenture with respect to the Company (but including an Event of Default
specified in
Section 5.01(viii)
or
(ix)
of the Supplemental Indenture solely with respect to a
Significant Subsidiary of the Company)) occurs and is continuing, the Trustee by written notice to
the Company or the Holders of at least twenty five percent (25%) in principal amount of the
Securities then outstanding by written notice to the Company and the Trustee may declare the
Securities to be due and payable. Upon such declaration, the principal of, and any premium and
accrued and unpaid interest on, all Securities shall be due and payable immediately. If an Event
of Default specified in
Section 5.01(viii)
or
(ix)
of the Supplemental
A-7
Indenture with respect to the Company (excluding, for purposes of this sentence, an Event of
Default specified in
Section 5.01(viii)
or
(ix)
of the Supplemental Indenture solely with respect
to a Significant Subsidiary of the Company) occurs, the principal of, and premium and accrued and
unpaid interest on, all the Securities shall
ipso facto
become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder. The Holders of a
majority in aggregate principal amount of the Securities then outstanding by written notice to the
Trustee may rescind or annul an acceleration and its consequences if (A) the rescission would not
conflict with any order or decree, (B) all existing Events of Default, except the nonpayment of
principal, premium or interest that has become due solely because of the acceleration, have been
cured or waived and (C) all amounts due to the Trustee under
Section 607
of the Base Indenture have
been paid.
Holders may not enforce the Indenture or the Securities except as provided in the Indenture.
The Holders of a majority in aggregate principal amount of the Securities then outstanding may
direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or the Indenture, is unduly prejudicial to the rights
of other Holders or would involve the Trustee in personal liability unless the Trustee is offered
indemnity reasonably satisfactory to it;
provided
, that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.
If a Default or Event of Default occurs and is continuing as to which the Trustee has received
written notice pursuant to the provisions of the Indenture, or as to which a Responsible Officer of
the Trustee shall have actual knowledge, the Trustee shall mail to each Holder a notice of the
Default or Event of Default within thirty (30) days after receipt of such notice or after acquiring
such knowledge, as applicable, unless such Default or Event of Default has been cured or waived.
Except in the case of a Default or Event of Default in payment of any amounts due with respect to
any Security, the Trustee may withhold the notice if, and so long as it in good faith determines
that, withholding the notice is in the best interests of Holders. The Company must deliver to the
Trustee an annual compliance certificate.
16.
Trustee Dealings with the Company
. The Trustee under the Indenture, or any banking
institution serving as successor Trustee thereunder, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for, the Company or its Affiliates, and
may otherwise deal with the Company or its Affiliates, as if it were not Trustee.
17.
Authentication
. This Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent in accordance with the Indenture.
18.
Abbreviations
. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE
INDENTURE. REQUESTS MAY BE MADE TO:
A-8
Health Care REIT, Inc.
One SeaGate, Suite 1500
Toledo, Ohio, 43604
Attn: General Counsel
A-9
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER
(please print or type name and address)
the within Security and all rights thereunder, and hereby irrevocably constitute and appoint
Attorney to transfer the Security on the books of the Company with full power of substitution in
the premises.
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Dated:
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NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Security in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed by
a guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Registrar.
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A-10
CONVERSION NOTICE
To convert this Security in accordance with the Indenture, check the box:
o
To convert only part of this Security, state the principal amount to be
converted (must be in multiples of $1,000):
$
If you want the stock certificate representing the shares of Common Stock, if
any, issuable upon conversion made out in another person’s name, fill in the
form below:
(Insert other person’s soc. sec. or tax I.D. no.)
(Print or type other person’s name, address and zip code)
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Date:
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Signature(s):
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(Sign exactly as your name(s) appear(s) on the other side of this Security)
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Signature(s) guaranteed by:
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(All signatures must be guaranteed by a guarantor institution
participating in the Securities Transfer Agents Medallion Program or
in such other guarantee program acceptable to the Trustee.)
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A-11
PURCHASE NOTICE
Certificate No. of Security:
If you want to elect to have this Security purchased by the Company pursuant to
Section 3.08
of the Supplemental Indenture, check the box:
o
If you want to elect to have this Security purchased by the Company pursuant to
Section 3.09
of the Supplemental Indenture, check the box:
o
If you want to elect to have only part of this Security purchased by the Company pursuant to
Sections 3.08 or 3.09
of the Supplemental Indenture, as applicable, state the principal amount to
be so purchased by the Company:
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$
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(in an integral multiple of $1,000)
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Date:
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Signature(s):
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(Sign exactly as your name(s) appear(s) on the other side of this Security)
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Signature(s) guaranteed by:
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(All signatures must be guaranteed by a
guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Trustee.)
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A-12
SCHEDULE A
SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
1
The following exchanges of a part of this Global Security for an interest in another Global
Security or for Securities in certificated form, have been made:
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Principal amount of
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Signature or
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Amount of decrease
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Amount of Increase
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this Global
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authorized
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in Principal amount
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in Principal amount
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Security following
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signatory of
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of this Global
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of this Global
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such decrease
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Trustee or Note
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Date of Exchange
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Security
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Security
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or increase
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Custodian
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1
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This is included in Global Securities only.
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A-13
EXHIBIT B
FORM OF LEGEND FOR GLOBAL SECURITY
Any Global Security authenticated and delivered hereunder shall bear a legend (which would be
in addition to any other legends required) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.05 OF THE
SUPPLEMENTAL INDENTURE.
